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City of Santa Rosa et al v. Raman D. Patel et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR


December 21, 2010

CITY OF SANTA ROSA ET AL., PLAINTIFFS AND RESPONDENTS,
v.
RAMAN D. PATEL ET AL., DEFENDANTS AND APPELLANTS.

(Sonoma County Super. Ct. No. SCV-237667)

The opinion of the court was delivered by: Rivera, J.

City of Santa Rosa v. Patel

CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In a prior appeal in this red light abatement law action (Pen. Code, § 11225 et seq.), we modified the trial court's judgment awarding damages. (City of Santa Rosa v. Patel (May 25, 2010, A122151) [nonpub. opn.].) In this appeal, the Patels*fn1 challenge the court's order awarding costs. We conclude that they have waived their right to challenge the cost award on appeal because they failed to file a motion to tax costs in the trial court.

On July 1, 2008, following the court's entry of judgment, the City of Santa Rosa and the People of the State of California (collectively, the City) filed a memorandum of costs. The City sought the usual costs of litigation as well as attorney fees of $271,249.75 and costs of $77,710.22 attributed to the cost of demolishing the Llano Motel.*fn2 The Patels did not file a motion to tax the City's costs. The trial court awarded costs to the City, finding that, as the prevailing party, it was entitled to costs pursuant to Civil Code section 3496, Code of Civil Procedure section 1033.5, and the stipulation between the parties entitling the City to recover the costs incurred in demolishing the Llano Motel. The court further found that the Patels' failure to file a motion to tax costs constituted a waiver of any objections to the award. The court deferred entry of an award of attorney fees pending the filing of a motion by the City. This appeal followed.

The Patels challenge the court's costs order contending that it erred in awarding demolition costs. The Patels, however, failed to file a motion to tax costs in the trial court. Their failure to file a motion to tax costs constitutes a waiver of the right to object to the cost award on appeal. (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289-290; Santos v. Civil Service Bd. (1987) 193 Cal.App.3d 1442, 1447.)

The Patels cite Civil Code section 3496, providing for an award of costs and fees to the prevailing party in a public nuisance abatement action, as precluding the court's award here as the City did not file a motion for costs pursuant to that provision. The Patels failed to raise this issue below and are precluded from arguing it for the first time on appeal. (Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1249.) In any event, by stipulation they agreed that the City could recover the costs incurred to demolish the Llano Motel. The court did not err in awarding the demolition costs.

DISPOSITION

The order is affirmed.*fn3

We concur: RUVOLO, P.J. REARDON, J.


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