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Don H. Lee v. County of El Dorado

October 30, 2012

DON H. LEE, PLAINTIFF AND APPELLANT,
v.
COUNTY OF EL DORADO, DEFENDANT AND RESPONDENT.



(Super. Ct. No. PC20070061)

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

Lee v. County of El dorado CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Don H. Lee appeals pro se from a post-judgment order denying his motion to tax costs. Lee contends the trial court erred in awarding defendant County of El Dorado (the County) $456 in "estimated" costs for preparing a clerk's transcript in connection with Lee's underlying unsuccessful appeal. We agree that, under the circumstances, the trial court should have granted Lee's motion to tax the cost of preparing a clerk's transcript.

FACTS AND PROCEEDINGS

Lee sued the County in the underlying action for negligence, intentional infliction of emotional distress, and declaratory relief, after his two pit bulls were temporarily seized. The trial court sustained the County's demurrer and granted its motion to dismiss, and Lee appealed. (Lee v. County of El Dorado (Nov. 16, 2010, C061500 [nonpub. opn.].) In an unpublished opinion, this court affirmed the trial court's order of dismissal, rejecting Lee's claims on appeal and awarding costs to the County. (Lee v. County of El Dorado, supra, C061500.)

The County filed a "memorandum of costs on appeal" in the trial court seeking $1,297.36 in costs, including $456 for the preparation of a clerk's transcript.

Lee then brought the instant motion to tax costs, challenging the clerk's transcript fee as "unsupported and entire[ly] speculative." In the declaration submitted in support of his motion, Lee averred that, as appellant in the underlying appeal, he proceeded on a fee waiver, which covered the cost of preparing the clerk's transcript.

Opposing the motion to tax costs, the County argued that Government Code section 6103.5 authorizes public entities to recover as costs the expense of preparation of a clerk's transcript if the court so orders. It also asserted that because Lee had provided only a partial clerk's transcript, it had ordered the entire clerk's transcript "to give the court of appeal a full and complete record." The County also submitted the declaration of legal assistant Natalie B., who averred that she prepared the memorandum of costs and "[t]o estimate the anticipated costs for the preparation of the Clerk's Transcript, I spoke with Clerk [L.C.] by telephone on or about December 16, 2010, who advised me that the estimated cost of transcript preparation was $456 for the transcript applicable to this case."

Lee objected to Natalie B.'s declaration as inadmissible hearsay as to the cost of preparing a clerk's transcript, and also replied that the County's opposition (1) erroneously states he only ordered 17 pages of clerk's transcript; and (2) unfairly suggests that the court should order the preparation and certification of a clerk's transcript after the fact merely to "create a cost after the cost bill has been submitted and contested."

Government Code section 6103.5 provides in pertinent part "(a) Whenever a judgment is recovered by a public agency named in Section 6103, either as plaintiff or petitioner or as defendant or respondent, in any action or proceeding to begin, or to defend, which under the provisions of Section 6103 no fee for any official service rendered by the clerk of the court, including, but not limited to, the services of filing, certifying, and preparing transcripts, nor fee for service of process or notices by a sheriff or marshal has been paid, other than in a condemnation proceeding, quiet title action, action for the forfeiture of a fish net or nets or action for the forfeiture of an automobile or automobiles, the clerk entering the judgment shall include as a part of the judgment the amount of the filing fee, and the amount of the fee for the service of process or notices which would have been paid but for Section 6103, designating it as such. The clerk entering the judgment shall include as part of the judgment the amount of the fees for certifying and preparing transcripts if the court has, in its discretion, ordered those fees to be paid."

At a hearing at which both parties appeared and argued, counsel for the County reported he had received no declaration from the superior court clerk regarding the cost of preparing a clerk's transcript.

The trial court issued a statement of decision granting in part and denying in part Lee's motion to tax costs, and (as relevant to this appeal) "uph[eld] the award of $456.00 for ...


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