Engel & Engel v. Shuck CA2/2

Filed 11/4/21 Engel & Engel v. Shuck CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

ENGEL & ENGEL, LLP, B297421, consolidated with
B300755
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No.
BC620667)
THOMAS E. SHUCK et al.,

Defendants and
Respondents.

APPEAL from judgment and postjudgment orders of the
Superior Court of Los Angeles County, Stephanie M. Bowick,
Judge. Judgment affirmed; postjudgment orders affirmed as
modified.
 Law Offices of Richard Pech, Richard Pech; Tisdale &
Nicholson and Michael D. Stein for Plaintiff and Appellant.

Randall S. Waier for Defendants and Respondents Thomas
E. Shuck and Parker Milliken Clark O’Hara & Samuelian APC.

Sheppard, Mullin, Richter & Hampton, Aaron J. Malo, and
Karin Dougan Vogel for Defendant and Respondent Wells Fargo
Equipment Finance, Inc.

******
A forensic accounting firm sued its client for $92,055.54 in
unpaid fees, went to arbitration, and obtained $27,100.13 for the
reasonable value of its services. The firm then sued a second
entity, the entity’s former lawyer, and the lawyer’s law firm
(collectively, the defendants) for some of the same fees it had
previously told the arbitrator were the sole obligation of the first
client. The defendants raised the affirmative defense of judicial
estoppel (aka the defense of inconsistent positions), and the trial
court bifurcated that issue and held a three-day bench trial. The
court ruled that the firm had intentionally taken factually
inconsistent positions in its sequential lawsuits, dismissed the
second lawsuit, and awarded costs. The firm appeals, arguing
that the trial court’s evidentiary and procedural rulings denied it
due process, that the court erred in applying judicial estoppel,
and that the cost awards are too high. We conclude there was no
error in the judgment for the defendants, but that the trial court
erred in awarding one of the defendants $5,056.61 in unallowable
costs. We accordingly affirm the judgment, and affirm the costs
awards with the modifications discussed in this opinion.

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 FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The precursor lawsuit where plaintiff is hired
Two persons solicited investments in a surgical building in
Newport Beach from John and Judith DeLong (the DeLongs),
from Leona Horowitz (Horowitz), and from Wells Fargo
Equipment Finance, Inc. (Wells Fargo). When the solicitors did
not deliver what was promised, the DeLongs, Horowitz, and
Wells Fargo sued the solicitors in separate lawsuits for the
misuse of their funds.
In the spring of 2014, Engel & Engel, LLP (plaintiff) was
retained to do forensic accounting in support of one or more of
these pending lawsuits. One of its partners is Jason Engel
(Engel). Initially, the DeLongs, Horowitz, and Wells Fargo
discussed a pooling arrangement under which the three would
split the cost of plaintiff’s services. Ultimately, however, only the
DeLongs and Horowitz signed retainer agreements with plaintiff.
Plaintiff worked on the pending lawsuits in May, June, and
July of 2014, and billed over $110,000 in fees for those months.
Pursuant to what it believed to be the pooling agreement,
plaintiff allocated some of its fees each month to the DeLongs,
Horowitz, and Wells Fargo.
Horowitz paid plaintiff the amount plaintiff had allocated
to her.
B. Plaintiff’s lawsuit against the DeLongs
In 2014, plaintiff sued the DeLongs for breach of contract,
quantum meruit, and fraud. Plaintiff then moved to compel
arbitration.
The arbitration took place over four days in 2015 and 2016.

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 During the arbitration, plaintiff offered two internally
inconsistent theories about the amount the DeLongs owed. At
some points, plaintiff argued that the DeLongs owed it
$92,055.43—which was the amount Engel had allocated to the
DeLongs for May, June, and July 2014—plus interest. At other
points, Engel testified that “I am not working for [Wells Fargo].
I’m not working for [Horowitz]. I am only working on [the
DeLong] case, and the billing for [the DeLong] case . . . was going
to be divided up somehow” but that was just “what you [three] . . .
had agreed to,” and plaintiff argued in closing, “Why would Wells
Fargo and Horowitz agree to pay 2/3 of [plaintiff’s] fees limited in
scope to tracing [the] DeLong’s . . . investment?”; this testimony
and argument suggests that the DeLongs owed plaintiff the
entire unpaid amount of $105,339.92 plus interest. Under
plaintiff’s first theory, plaintiff suggested Wells Fargo might owe
$13,284.49 plus interest (which came to $16,909.49); under its
second, Wells Fargo owed nothing.
The arbitrator ruled that the DeLongs were responsible for
paying plaintiff for the reasonable value of its services under a
quantum meruit theory, and awarded $27,100.13 as the value of
services; with attorney fees and costs, the total arbitration award
came to $75,949.02. At plaintiff’s request, the Superior Court
confirmed the award.
II. Procedural Background
In May 2016, plaintiff sued Wells Fargo; Thomas E. Shuck
(Shuck), the lawyer that represented Wells Fargo in its lawsuit
against the solicitors in 2014; and Parker Milliken Clark O’Hara
& Samuelian, APC (the law firm), the firm where Shuck worked
at the time (collectively, defendants). On the basis of an alleged
oral agreement between Engel and Shuck, plaintiff asserted

4
claims against defendants for (1) intentional misrepresentation,
(2) false promise, (3) negligent misrepresentation, (4) quantum
meruit, and (5) promissory estoppel. Plaintiff alleged that
defendants were liable for $37,571.32 of plaintiff’s services in
May, June, and July 2014, for an additional amount greater than
$100,000 for other unspecific general damages, and for punitive
damages.
In their answers, defendants asserted the affirmative
defense of judicial estoppel—namely, that plaintiff was seeking to
recover fees that it had previously taken the position were owed
by the DeLongs.1
Defendants then moved for summary adjudication. The
trial court granted summary adjudication of plaintiff’s quantum
meruit claim after finding that none of plaintiff’s services from
May, June, or July 2014 were for Wells Fargo’s benefit because
Engel had testified at the arbitration that “[plaintiff’s] services
for May and June 2014 were out of an obligation to Horowitz”
and its services “in July w[ere] only for the DeLongs.” The court
denied summary adjudication of plaintiff’s remaining claims.
Because it would be “cleaner” and “best in terms of
efficiency,” the trial court bifurcated the further proceedings: the
court would first conduct a bench trial on the affirmative defense
of judicial estoppel, and, if necessary, a jury trial on plaintiff’s

1 Defendants also raised the affirmative defense of waiver,
but the trial court ultimately rejected that defense and
defendants do not cross-appeal that ruling.

5
remaining claims for intentional misrepresentation, fraud, and
negligent misrepresentation.2
At the conclusion of a three-day court trial, the court issued
a statement of decision concluding that “judicial estoppel applies”
because plaintiff, in the prior arbitration, “intentionally” took the
position that the DeLongs “are responsible for all of the fees
incurred between May and July 2014” and was now taking the
inconsistent position that defendants “are responsible for those
same fees.” Because it would be “‘patently wrong’” to allow
plaintiff to change its position on the factual issue at the very
heart of the pending lawsuit (namely, who owed plaintiff its fees),
the court dismissed plaintiff’s remaining claims.
Shuck and the law firm filed a memorandum of costs, and
Wells Fargo filed a separate memorandum. Plaintiff filed
motions to tax as to each. Following a full round of briefing, the
trial court partially granted and partially denied one of plaintiff’s
motions to tax, awarding $12,375.90 in costs to Shuck and the
law firm, and denied the other outright, awarding $18,496.61 in
costs to Wells Fargo.
Plaintiff filed timely notices of appeal from the judgment as
well as the cost orders.
DISCUSSION
I. Judicial Estoppel, Defined
The doctrine of judicial estoppel, which is sometimes
referred to as the “‘doctrine of “‘“preclusion of inconsistent
positions,”’”’” is designed to prevent litigants from “‘“‘gaining an
advantage by taking one position [in litigation], and then seeking
a second advantage by taking an incompatible position.’”’” (MW

2 By this time, plaintiff had voluntarily dismissed its
promissory estoppel claim.

6
Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co.,
Inc. (2005) 36 Cal.4th 412, 422 (MW Erectors); Minish v.
Hanuman Fellowship (2013) 214 Cal.App.4th 437, 448 (Minish)).
Preventing litigants from “playing ‘fast and loose with the
courts’” in this fashion, in turn, serves “‘to protect parties from
opponents’ unfair strategies’” and, more importantly, to
‘“maintain the integrity of the judicial system.”’ (Aguilar v.
Lerner (2004) 32 Cal.4th 974, 986 (Aguilar); Minish, at p. 449).
Before the doctrine can be invoked, a court must find five
“necessary elements”—namely, that “‘(1) the same party [or its
attorney] has taken two positions; (2) the positions were taken in
judicial or quasi-judicial administrative proceedings; (3) the party
was successful in asserting the first position (i.e., the tribunal
adopted the position or accepted it as true); (4) the two positions
are totally inconsistent; and (5) the first position was not taken
as a result of ignorance, fraud, or mistake.’” (MW Erectors,
supra, 36 Cal.4th at p. 422, quoting Aguilar, supra, 32 Cal.4th at
pp. 986-987; Blix Street Records, Inc. v. Cassidy (2010) 191
Cal.App.4th 39, 48 (Blix) [“Judicial estoppel may be based on a
position taken by a party or party’s legal counsel”]; accord, Kelsey
v. Waste Management of Alameda County (1999) 76 Cal.App.4th
590, 599 [positions must be “intentional”] (Kelsey).) Because it “is
an equitable doctrine,” however, whether judicial estoppel will be
invoked “is discretionary.” (MW Erectors, at p. 422, italics
omitted; People ex rel. Sneddon v. Torch Energy Services, Inc.
(2002) 102 Cal.App.4th 181, 189 (Torch Energy).) Because
invocation of the doctrine can “produce harsh consequences,” it is
to be “applied with caution and limited to egregious
circumstances.” (Minish, supra, 214 Cal.App.4th at p. 449;
Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 132 (Gottlieb).)

7
II. Challenges to Judicial Estoppel Ruling
A. Evidentiary and procedural challenges
Plaintiff argues that the trial court violated due process by
(1) excluding all evidence aimed at “correcting” or “explaining”
the position it took in the prior arbitration, and (2) requiring it to
designate for the court during the evidentiary portion of the
bifurcated trial any portions of the transcripts from the four-day
arbitration that it wished to rely on. Although we review
constitutional questions de novo (Conservatorship of Christopher
A. (2006) 139 Cal.App.4th 604, 609-610), we review a trial court’s
evidentiary rulings and the exercise of its statutory or inherent
authority to regulate trial procedure for an abuse of discretion
(People v. Flores (2020) 9 Cal.5th 371, 409 [evidentiary rulings];
Schimmel v. Levin (2011) 195 Cal.App.4th 81, 87 (Schimmel)
[regulation of proceedings]).
1. Scope of relevant evidence
Plaintiff contends that the trial court violated its due
process rights by (1) precluding plaintiff from allowing two of its
witnesses—namely, Engel and the lawyer who represented
plaintiff during the DeLong arbitration—to offer testimony to
“correct” or “explain” the testimony and argument plaintiff made
during the arbitration,3 and (2) excluding from evidence several
exhibits from the arbitration.

3 In its briefs on appeal, plaintiff also argues that the trial
court (1) entirely precluded testimony from three witnesses—
namely, (a) Engel, (b) plaintiff’s lawyer in the prior arbitration,
and (c) the lawyer who represented the DeLongs in the
arbitration; and (2) “effectively” granted two of defendants’
motions in limine—namely, (a) a motion to preclude any evidence
inconsistent with the trial court’s summary adjudication ruling,
and (b) a motion to preclude the DeLongs’ lawyer from testifying.

8
 Throughout the bifurcated proceeding on the judicial
estoppel affirmative defense, the trial court ruled that plaintiff
could not offer new evidence to contradict or explain the position
it had taken in the prior arbitration, reasoning that “the positions
taken are the positions taken” and that evidence aimed at
explaining or contradicting those positions was “improper in light
of the issues we’re dealing with.” The court was nevertheless
careful to emphasize that plaintiff could introduce evidence from
the prior arbitration proceeding that would put any evidence
offered by the defendants from that proceeding in its proper
context.
This was a ruling based on relevance, and the trial court
did not abuse its discretion in so ruling. The court’s evidentiary
ruling occurred during the first portion of the bifurcated trial
where the chief issue was the affirmative defense of judicial
estoppel. Bifurcating the trial to adjudicate this issue first was
legally appropriate (Shade Foods, Inc. v. Innovative Products
Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 911 [whether
to bifurcate matter is within the trial court’s discretion]; see
generally, Code Civ Proc., §§ 597, 598), and plaintiff does not
assert otherwise on appeal. Critically, this bifurcation narrowed
the scope of issues—and concomitantly narrowed the definition of
relevant evidence to evidence bearing on those issues. (E.g.,

These additional arguments collapse back into plaintiff’s general
challenge to the scope of evidence. That is because plaintiff was
permitted to call two of the three witnesses (namely, Engel and
plaintiff’s lawyer from the arbitration), and the third (the
DeLongs’ lawyer) did not testify because the trial court held
plaintiff to its midtrial representation that it would not be calling
him as a witness. That is also because the trial court never ruled
on the motions in limine.

9
People v. Mills (2012) 55 Cal.4th 663, 672 [when sanity is
bifurcated from guilt, “sanity is irrelevant at the guilt phase and
evidence tending to prove insanity . . . is inadmissible,” italics
omitted]; Estate of Ivey (1994) 22 Cal.App.4th 873, 880 [same, as
to certain evidence in the damages and liability phases of
bifurcated civil trial].) Indeed, this is one of the “major
objective[s]” of bifurcation. (Foreman & Clark Corp. v. Fallon
(1971) 3 Cal.3d 875, 888 [“The major objective of bifurcated trials
is to expedite and simplify the presentation of evidence”].)
Because the propriety of applying judicial estoppel was the sole
issue of the bifurcated trial, the only evidence that was relevant
was evidence bearing on the factual elements of that doctrine—
namely, what plaintiff’s position was during the arbitration (and
whether that position was taken “intentionally”) and what
plaintiff’s position is in this case. (MW Erectors, supra, 36
Cal.4th at p. 422.) The former element turns on what plaintiff—
through Engel and plaintiff’s lawyer—said in the prior
arbitration proceeding. Any evidence offered by plaintiff to
“correct” or “explain” its prior position was irrelevant because the
doctrine of judicial estoppel would cease to exist if parties could
later “correct” what they said and because “why” they said what
they said is irrelevant. Because the evidence plaintiff sought to
introduce was not admissible under the general rules governing
relevance (Evid. Code, §§ 350, 210), the trial court’s exclusion of
this evidence did not violate due process. (People v. Anderson
(2012) 208 Cal.App.4th 851, 880 [“Application of ordinary rules of
evidence “‘. . . does not impair a[ litigant]’s due process right to
present a defense’””]; accord, In re Marriage of Carlsson (2008)
163 Cal.App.4th 281, 291 [“Unquestionably, the trial court has

10
the power to . . . exclude proffered evidence that is deemed to be
irrelevant”].)
Plaintiff resists this conclusion with two categories of
arguments.
First, plaintiff asserts that a person defending against a
claim of judicial estoppel has a right, under existing case law, to
introduce evidence aimed at (1) changing its prior position, and
(2) “clarifying” its prior position. As support for the first
proposition, plaintiff cites Milton v. Montegomery Ward & Co.,
Inc. (1973) 33 Cal.App.3d 133 (Milton), Ahn v. Kumho Tire
U.S.A., Inc. (2014) 223 Cal.App.4th 133 (Ahn), and Wolf v.
Superior Court (2004) 114 Cal.App.4th 1343 (Wolf). As support
for the second, plaintiff cites Levin v. Ligon (2006) 140
Cal.App.4th 1456 (Levin), California Amplifier, Inc. v. RLI Ins.
Co. (2001) 94 Cal.App.4th 102 (California Amplifier), and Koo v.
Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4th 719 (Koo).
We reject this assertion for two reasons. To begin, the
cases plaintiff cites do not support its assertion. Milton, Ahn, and
Wolf dealt with a litigant’s right to introduce evidence at trial to
contradict its prior discovery responses (in Milton and Ahn) or to
contradict its understanding of the terms of a contract (in Wolf);
in all three cases, the issue at trial was whether to believe the
truth of what was said prior to trial or what was said (or, in Wolf,
offered as the written contract) at trial. (Milton, supra, 33
Cal.App.3d at pp. 137-138; Ahn, supra, 223 Cal.App.4th at pp.
135-136, 144, 147; Wolf, supra, 114 Cal.App.4th at pp. 1350-
1351.) Judicial estoppel, by contrast, is not concerned with which
of the litigant’s positions—its prior position or its current
position—is true; what matters to judicial estoppel is that the
litigant took the prior position (and prevailed on it). Levin and

11
California Amplifier are inapt because they give a litigant
defending against a judicial estoppel defense the right to
introduce evidence of the “legal context” of their prior position;
indeed, those cases go on to specify that the litigant may not
introduce “factual statement[s]” to contradict that position.
(Levin, supra, 140 Cal.App.4th at p. 1473; California Amplifier,
supra, 94 Cal.App.4th at pp. 117-118.) Koo allowed a party to
introduce evidence to “clarify[]” its prior position when that
position was murky (Koo, supra, 109 Cal.App.4th at pp. 735-736);
the limited leeway Koo confers is not at issue here because
plaintiff’s position at the DeLong arbitration regarding who owed
it money was as clear as crystal. More to the point, allowing a
party to introduce evidence to change, explain, or clarify its prior
position would be inimical to the very purpose of—and, indeed,
would strike the death blow to—the doctrine of judicial estoppel:
As noted above, the purpose of the doctrine is to prevent a
litigant who succeeded in Lawsuit No. 1 by asserting Fact “X”
from succeeding in Lawsuit No. 2 by asserting Fact “Not X.” If,
as plaintiff suggests, the litigant in Lawsuit No. 2 can offer
evidence that “In Lawsuit No. 1, I really meant Fact “Not X”,”
then that litigant would be able to do precisely what the doctrine
of judicial estoppel is meant to foreclose—that is, to secure two
legal victories on the basis of inconsistent positions. That might
work for Schrodinger’s cat, but that is not how it works in a court
of law.
Second, plaintiff contends that the trial court erred in (1)
treating Engel’s testimony and plaintiff’s closing arguments from
the arbitration—and plaintiff’s discovery responses in this case
admitting to their authenticity—as “judicial admissions” that
precluded any contradictory evidence, and (2) admitting Engel’s

12
prior testimony from the arbitration without satisfying the
“former testimony” exception to the hearsay rule. We reject these
contentions. We need not decide whether the parties’ and the
trial court’s characterization of statements from the prior
arbitration as being “judicial admissions” is correct or incorrect.
Either way, evidence to contradict those prior statements is not
relevant for the reasons explained above. The former testimony
exception is likewise irrelevant. It is an exception to the hearsay
rule and thus applies only when the former testimony is being
admitted for its truth (Evid. Code, §§ 1290-1292); as noted above,
however, plaintiff’s statements during the arbitration were
admitted solely to prove what its position was during that
arbitration—and for this purpose, it does not matter whether
those statements were true. (People v. Contreras (1962) 201
Cal.App.2d 854, 857 [statements admitted “to prove what was
said rather than the truth of what was said” are not “hearsay”];
see generally, Evid. Code, § 1200.) Because they were not
admitted for their truth, they were not hearsay and there is no
need to satisfy any exception to the hearsay rule.
2. Procedures for designating pertinent excerpts
Plaintiff asserts that the trial court violated its due process
rights by (1) requiring the parties to designate the pertinent
passages from the four-day arbitration transcripts as part of their
evidentiary presentation, and (2) ambushing plaintiff with this
procedure after it had rested its evidentiary presentation.
We start with the second argument, and reject it because it
is flatly contradicted by the record. The trial court explicitly told
the parties during opening statements to specify “what portions of
the transcript [they would] like the court to consider” “during the
evidentiary portion” of the case and “before . . . closing

13
[arguments].” The court later explained its twin rationales for
the designation procedure—namely, that it (1) ensured that each
party could designate additional portions in response to its
opponent’s designations while the evidentiary portion of the trial
was still ongoing (whereas it would be too late to cross-designate
if designations occurred for the first time during closing
arguments), and (2) saved the court the time of hunting through
the haystack of the voluminous transcripts looking for needles
the parties neglected to point out. What is more, the court
reminded the parties of its designation procedure no fewer than
six more times during the trial.
We also reject plaintiff’s first argument that the trial court
lacked the authority to implement its designation procedure, and
do so for two reasons. To begin, plaintiff has forfeited its right to
object to the procedure by initially acceding to the procedure
during trial; by subsequently labeling the procedure
“nonsensical,” declaring an intent not to comply, and refusing to
designate any portions during the evidentiary portion of the trial;
and, after the close of evidence, by announcing a belated
intention to comply by seeking to designate portions of the
transcripts during its closing arguments and by asking the court
to reopen the evidentiary portion of the trial (which the court
declined to do). (E.g., Cummings v. Future Nissan (2005) 128
Cal.App.4th 321, 328 [“The forfeiture rule exists . . . to thwart
game-playing litigants”].) Even if we overlook any forfeiture,
trial courts have the discretion to “regulate the order of proof”
(Evid. Code, § 320) as well as the power to “provide for the
orderly conduct of proceedings before it” (Code Civ. Proc., § 128,
subd. (a)(3)). Trial courts also have “‘the inherent power, in
furtherance of justice, to regulate the proceedings of a trial before

14
it; to effect an orderly disposition of the issues presented; and to
control the conduct of all persons in any manner connected
therewith.’” (Schimmel, supra, 195 Cal.App.4th at p. 87.)
Together, this statutory and inherent authority empowers trial
courts to delineate procedures that facilitate the parties’
presentation of evidence. (Cottle v. Superior Court (1992) 3
Cal.App.4th 1367, 1376-1379; Rosenfeld, Meyer & Susman v.
Cohen (1987) 191 Cal.App.3d 1035, 1052 & fn. 7.) The trial
court’s designation procedure in this case falls comfortably within
this broad authority. Plaintiff’s chief response is that one of the
standard civil jury instructions (CACI No. 5000) tells jurors that
“[they] must consider all the evidence”; that the trial court had
admitted into evidence the full transcripts from the arbitration;
and that the trial court was accordingly obligated to consider
plaintiff’s designations no matter when they were made (and,
indeed, was obligated to sift through the four days’ worth of
transcripts looking for passages that might support plaintiff’s
case). We reject this response, as we do not agree that a general
instruction directing jurors to consider all evidence somehow
divests trial courts of their statutory and inherent authority to
reasonably regulate trial proceedings. (Cf. Rutherford v. Owens-
Illinois, Inc. (1997) 16 Cal.4th 953, 967 [“‘trial judges have no
authority to issue courtroom local rules which conflict with any
statute’ or are ‘inconsistent with law’”].)
B. Challenge to the merits of judicial estoppel
ruling
Plaintiff argues that the trial court erred in dismissing its
claims under the doctrine of judicial estoppel. We independently
review whether the “necessary elements” of judicial estoppel
exist, but review a trial court’s subsidiary factual findings

15
regarding those elements for substantial evidence. (Blix, supra,
191 Cal.App.4th at p. 46.) We review a trial court’s subsequent
exercise of equitable discretion to apply the doctrine for an abuse
of discretion. (Id. at pp. 46-47.) Substantial evidence review is
limited to whether the record, when viewed in the light most
favorable to the ruling below, contains evidence of “‘ponderable
legal significance, reasonable in nature, credible, and of solid
value’” sufficient to permit a reasonable trier of fact to come to
the same ruling. (Id. at p. 47; Flores v. Liu (2021) 60 Cal.App.5th
278, 296.)
We independently conclude that the trial court’s factual
findings are supported by substantial evidence, and that
defendants carried their burden of proving the necessary
elements of judicial estoppel. Substantial evidence supports the
trial court’s finding that plaintiff took two “totally inconsistent”
positions in the DeLong arbitration and in this case (and thus
satisfied the first and fourth elements). In the DeLong
arbitration, plaintiff offered evidence and argument in support of
its position that the DeLongs were either solely liable for all of
plaintiff’s services in May, June, and July of 2014, or for
$92,055.43 of those services; reciprocally, this meant that Wells
Fargo (and, by extension, the other defendants) was liable either
for none of plaintiff’s services in May, June, and July of 2014, or
for at most $13,284.29 plus interest. Now, in this case, plaintiff
is taking the position that Wells Fargo (and, by extension, the
other defendants) is solely liable for at least $37,571.32 (and,
depending on what plaintiff means by the request for $100,000 of
“general damages,” potentially all) of plaintiff’s services for the
same three months in 2014. Plaintiff’s prior position that the
DeLongs were solely liable for all of plaintiff’s services or liable

16
for all but $13,284.29 of its services is impossible to reconcile
with its current position that Wells Fargo is solely liable for
$37,571.32 (or potentially all) of the same services. Because
plaintiff’s former position “‘necessarily excludes’” its current
position, plaintiff’s two positions are “mutually exclusive” and
hence “inconsistent” for purposes of judicial estoppel. (Jackson v.
County of Los Angeles (1997) 60 Cal.App.4th 171, 182 (Jackson);
Bell v. Wells Fargo Bank, N.A. (1998) 62 Cal.App.4th 1382, 1388.)
Substantial evidence supports the trial court’s finding that
plaintiff intentionally (rather than mistakenly) took its position
in the DeLong arbitration (and thus satisfied the fifth element)
because that position was the necessary premise to succeed on its
claims in arbitration; contrary to what plaintiff suggests, a
further showing of “bad faith” or “evil motive” is not required.
(Haley v. Dow Lewis Motors, Inc. (1999) 72 Cal.App.4th 497, 509-
510 [“intentional self-contradiction” is required]; International
Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345,
354 [“evil motive” not required]; cf. Kelsey, supra, 76 Cal.App.4th
at pp. 598-599 [a party’s position is less likely to be intentional
when it is established by omission rather than affirmative
statements].) The two positions were taken in judicial or quasi-
judicial proceedings (thus satisfying the second element) because
both the DeLong arbitration and this litigation so qualify. (Bucur
v. Ahmad (2016) 244 Cal.App.4th 175, 187-189; cf. Torch Energy,
supra, 102 Cal.App.4th at p. 189 [prior inconsistent position need
not be made to a court of law].) And plaintiff succeeded in
asserting its position in the DeLong arbitration because the
arbitrator found the DeLongs liable for the services plaintiff
provided even if the arbitrator fixed a value for those services at
less than plaintiff requested. (See Levin, supra, 140 Cal.App.4th

17
at pp. 1477-1478 [party “succeeds” in litigation even if it settles
for less than the amount initially sought].)
The trial court also did not abuse its discretion in
exercising its equitable discretion to apply the doctrine and
dismiss plaintiff’s claims. Plaintiff’s conduct in suing the
DeLongs on the premise that they were solely responsible for its
fees and, after obtaining a judgment less than it wanted, suing
defendants on the premise that they were solely responsible for
all or part of the same fees lies deep in the heartland of the type
of conduct the judicial estoppel doctrine was meant to preclude.
(Accord, Jackson, supra, 60 Cal.App.4th at p. 181 [“judicial
estoppel is especially appropriate where a party has taken
inconsistent positions in separate proceedings”].) The trial court
did not abuse its discretion in so recognizing.
Plaintiff responds with a variety of arguments that we can
drop into three buckets.4
First, plaintiff argues that the “inconsistency” element of
judicial estoppel is lacking, and proffers three reasons why its
position in the DeLong arbitration was not inconsistent with its
position in this case. To begin, plaintiff asserts that it never
argued that the DeLongs were exclusively liable for the fees

4 Plaintiff also asserts that defendants cannot assert judicial
estoppel because they were not parties to the DeLong litigation,
but this assertion is frivolous. Although the doctrines of judicial
estoppel and collateral estoppel both have the word “estoppel” in
their names, they are different doctrines with different
requirements, and it is well settled that privity of parties is
required for collateral estoppel but not for judicial estoppel.
(Jackson, supra, 60 Cal.App.4th at pp. 182-182 [“The gravamen
of judicial estoppel is not privity”]; Gottlieb, supra, 141
Cal.App.4th at pp. 131-132.)

18
incurred in May, June, and July 2014; instead, plaintiff
continues, it was suing the DeLongs because they, along with
Horowitz and Wells Fargo, were jointly and severally liable for
those fees. This assertion mischaracterizes plaintiff’s position
during the DeLong arbitration, where plaintiff never uttered the
words “joint and several liability” and where plaintiff instead
divided the outstanding fees between the DeLongs and Wells
Fargo—a division that makes no sense if plaintiff’s position were
that they were jointly and severally liable for the entire amount.
Next, plaintiff marshals the evidence from the DeLong
arbitration and asserts that, based on that evidence, the
arbitrator could have found Wells Fargo to be jointly and
severally liable. This is irrelevant to the doctrine of judicial
estoppel, which turns on the position plaintiff took rather than
what might have happened if the tribunal rejected that position.
Lastly, plaintiff asserts that there can be no inconsistency
because plaintiff took no prior position on whether Wells Fargo
engaged in any fraud or made any misrepresentations. This
ignores that plaintiff’s central theory in the DeLong arbitration
was that Engel performed all or most of his services—and the
DeLongs incurred fees due to plaintiff—for the DeLongs, and that
plaintiff’s central theory now is that Engel performed those same
services for Wells Fargo; it is that inconsistency that satisfies this
necessary element of judicial estoppel.
Second, plaintiff argues that the trial court abused its
equitable discretion in electing to apply judicial estoppel in this
case because (1) the circumstances in this case are not
‘“egregious”’ (Minish, supra, 214 Cal.App.4th at p. 449), and (2)
defendants had “unclean hands” (and are thus barred from
invoking an equity-based affirmative defense) because Shuck was

19
not clear in his arrangement with Engel and because the
DeLongs’ lawyer engaged in “nefarious” conduct by agreeing to
represent Shuck and the law firm in this case. As explained
above, plaintiff’s conduct in this case lies near the heartland of
the type of conduct the doctrine of judicial estoppel was designed
to preclude; a trial court could reasonably conclude that plaintiff’s
seriatim lawsuits based on inconsistent factual premises was
“egregious.” Plaintiff has waived any right to invoke the “unclean
hands” defense by waiting until its reply brief on appeal to raise
it. (Tyler v. Children’s Home Society (1994) 29 Cal.App.4th 511,
526, fn. 8 (Tyler) [“it is unfair to raise new arguments for the first
time in a reply brief”].) At oral argument, plaintiff suggested
that this defense is not waived because, in its opening brief on
appeal, it cited portions of the record that supported the unclean
hands argument it chose not to articulate in that brief; this is
insufficient to preserve the issue. Further, we question its
relevance here, where the allegedly inequitable behavior occurred
between plaintiff and defendants, while the doctrine of judicial
estoppel concerns the behavior between plaintiff and the judicial
system.
Third, plaintiff argues that the trial court’s invocation of
judicial estoppel cannot be reconciled with its denial of summary
judgment on plaintiff’s fraud-related claims. Plaintiff has waived
this argument by waiting until its reply brief to raise it. (Tyler,
supra, 29 Cal.App.4th at p. 526, fn. 8.) The court’s rulings are
internally consistent in any event. The court denied summary
adjudication on plaintiff’s fraud-related claims because there
were “triable issue[s] of fact as to whether [p]laintiff relied upon
the representations made by Shuck to its detriment.” The
elements of judicial estoppel are entirely divorced from the

20
elements of plaintiff’s underlying fraud-related claims, which is
why the trial court bifurcated the proceedings in the first place.
Thus, the trial court’s summary adjudication ruling for plaintiff
regarding the latter does not preclude a ruling for defendants on
the former.
III. Challenges to Cost Awards
Plaintiff challenges the trial court’s orders regarding the
award of costs. Specifically, plaintiff argues that the court erred
in awarding defendants (1) certain costs for transcripts not
ordered by the court, and (2) certain costs for trial support
services. We review a trial court’s award of costs for abuse of
discretion. (Hooked Media Group, Inc. v. Apple, Inc. (2020) 55
Cal.App.5th 323, 338 (Hooked Media); LAOSD Asbestos Cases
(2018) 25 Cal.App.5th 1116, 1123.) We review any subsidiary
legal questions (such as whether a cost item is statutorily
authorized) de novo (People ex rel. Lockyer v. Shamrock Foods Co.
(2000) 24 Cal.4th 415, 432; Naser v. Lakeridge Athletic Club
(2014) 227 Cal.App.4th 571, 576; Baker-Hoey v. Lockheed Martin
Corp. (2003) 111 Cal.App.4th 592, 597 (Baker Hoey)), and any
subsidiary factual findings (such as whether a cost is reasonably
necessary and reasonable in amount) for substantial evidence
(Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 52
(Chaaban)).
A. Pertinent law
A prevailing party is entitled to recover certain costs “as a
matter of right.” (Code Civ. Proc., § 1032.) The statutes
governing the award of costs create three categories of costs: (1)
those specifically enumerated as “allowable” (id., § 1033.5, subd.
(a)); (2) those specifically enumerated as “not allowable . . . except
when expressly authorized by law” (id., subd. (b)); and (3) those

21
“not mentioned” in the statutes, which are recoverable “in the
court’s discretion” (id., subd. (c)(4)). (Gorman v. Tassajara
Development Corp. (2009) 178 Cal.App.4th 44, 71.) Any costs
awarded must be “reasonably necessary to the conduct of the
litigation” and “reasonable in amount.” (Code Civ. Proc., §
1033.5, subds. (c)(2) & (3).)
Courts employ a burden-shifting analysis. The prevailing
party bears the initial burden of establishing prima facie
entitlement to recovery of costs, which it meets if its verified cost
bill ‘“appears proper on its face.”’ (Benach v. County of Los
Angeles (2007) 149 Cal.App.4th 836, 855 (Benach); Ladas v.
California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774
(Ladas).) The nonprevailing party then bears the burden of
making a “proper[] object[ion]” to specific costs in a motion to tax.
(Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265 (Jones)).
If the nonprevailing party makes a proper objection, the burden
shifts back to the prevailing party to submit documentation in
support of those costs. (Ibid.)
B. Analysis
1. Challenges to costs sought by Wells Fargo
a. Transcript costs
Plaintiff argues that the trial court erred in awarding Wells
Fargo $5,056.61 in transcript costs (which it listed as part of the
$6,431.60 it sought as “court reporter fees”) that are not
recoverable. Plaintiff is correct. The documentation Wells Fargo
provided in support of four cost items—in the amounts of $540,
$667, $748, and $3,101.10—were for “transcripts of proceedings,”
including charges for “key word indexing” and “processing”
associated with the transcripts. Because “[t]ranscripts of court
proceedings” are not recoverable unless “ordered by the court”

22
(Code Civ. Proc., § 1033.5, subd. (a)(9); cf. id. subd. (b)(5)
[prohibiting recovery for those “not ordered by the court”]), and
because it is undisputed that the court did not order these
transcripts, the court erred in awarding the cost to prepare them
as costs.
Wells Fargo resists this outcome with two arguments.
First, it argues that plaintiff did not make a “proper objection,”
such that Wells Fargo never had the burden to justify those
transcript costs. We reject this argument because Wells Fargo
did respond with the pertinent documentation, and that
documentation establishes that it is not entitled to those costs.
Second, Wells Fargo argues that the transcripts not ordered by
the trial court in this case are nevertheless recoverable as “court
reporter fees” specifically allowable under the cost statutes; for
support, it cites Government Code section 68086, subdivision (d).
We reject this argument as well. We cannot treat transcript costs
as court reporter fees because the cost statutes treat them as
distinct costs. (Compare Code Civ. Proc., § 1033.5, subd. (a)(11)
[“court reporter fees” are allowable] with id., subds. (a)(9) & (b)(5)
[“transcripts” are allowable only if ordered by the court]; see Yao
v. Superior Court (2002) 104 Cal.App.4th 327, 333 [“Where the
Legislature makes express statutory distinctions, we must
presume it did so deliberately, giving effect to the distinctions”].)
b. Models, enlargements, and photocopies
Plaintiff contends that the trial court erred in awarding
Wells Fargo five days’ worth of costs for copying and for the
electronic presentation of exhibits. Costs for “[m]odels” and
“enlargements,” “photocopies,” and “electronic presentation” of
exhibits, including the cost of “rental equipment and electronic
formatting,” are specifically allowable “if they were reasonably

23
helpful to aid the trier of fact.” (Code Civ. Proc., § 1033.5, subd.
(a)(13).) Because the trial court explicitly found the “electronic
presentation . . . extremely and reasonably helpful to the [c]ourt
at trial,” the trial court properly awarded these costs.
Plaintiff offers three arguments against this conclusion.
First, plaintiff urges that the court erred in awarding five days’
worth of costs for a trial that lasted only three days. This
argument overlooks that Wells Fargo showed up on two prior
dates when trial was set to begin, but the trial had to be
continued twice due to what the court characterized as plaintiff’s
“shenanigans” (namely, making voluminous filings raising new
issues on the eve of those trial dates). When this context is
considered, the court did not err in concluding that Wells Fargo
was entitled to its electronic presentation costs for all five days—
that is, the two prior abortive start days and the three days of
trial. Second, plaintiff reports that the trial court had a printed-
out exhibit binder, such that Wells Fargo’s electronic
presentation was not really necessary or helpful. The trial court
expressly found that it was, and we decline plaintiff’s invitation
to second guess the trial court’s opinion of whether it found the
electronic presentation helpful. Lastly, plaintiff argues that the
trial court’s failure to specifically address its objection to this cost
in its cost order somehow invalidates the award of this cost. It
does not. (See, e.g., Rojas v. Mitchell (1996) 50 Cal.App.4th 1445,
1450 [failure to make a finding on an issue that is supported by
substantial evidence is harmless when it may reasonably be
inferred from other findings].)

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 2. Challenges to costs sought by Shuck and the
law firm
a. Transcript costs
Plaintiff argues that a charge of $1,972 for transcripts from
the DeLong arbitration was improper as a nonallowable
“transcript[] of court proceedings.” Because the transcripts from
the DeLong arbitration were not “transcripts of court
proceedings,” they do not fall under the rule rendering them
recoverable as costs only if “ordered by the court.” Instead, such
costs are “not mentioned” in the cost statutes, and hence within
the court’s discretion (Code Civ. Proc., § 1033.5, subd. (c)(4)).
Given the centrality of the DeLong arbitration transcript to the
bifurcation portion of the trial dedicated to the question of
judicial estoppel, the trial court acted well within its discretion in
awarding this cost. Plaintiff urges that it should prevail because
the court did not specifically address its objection on this ground;
as noted above, this does not provide a basis for overturning what
is otherwise a proper cost award.
b. Models, enlargements, and photocopies
Plaintiff argues that the trial court erred in awarding
Shuck and the law firm a $2,500 “consulting fee” charged by their
trial support vendor. Because Shuck and the law firm submitted
documentation showing that this cost was incurred, because the
trial support vendor’s services were part of the “electronic
presentation” of exhibits, and because the court found that
presentation to be “extremely and reasonably helpful,” this cost
was properly awarded. (Code Civ. Proc., § 1033.5, subd. (a)(13).)
Plaintiff makes two arguments in response. First, it argues that
Shuck and the law firm never proved that they paid this invoice.
This is irrelevant because “[c]osts are allowable if incurred,

25
whether or not paid.” (Code Civ. Proc., § 1033.5, subd. (c)(1); Doe
v. Los Angeles County Dept. of Children & Family Services (2019)
37 Cal.App.5th 675, 694-695.) Second, plaintiff points to evidence
indicating that Shuck and the law firm split the electronic
presentation costs evenly, and that Wells Fargo’s cost memo did
not seek any amount corresponding with Shuck’s and the law
firm’s request for this $2,500. Although this could be viewed as
Shuck and the law firm seeking costs that were not legitimately
incurred, it could also be the case that Wells Fargo simply opted
not to seek reimbursement of its portion of that cost. Where, as
here, the evidence can reasonably be viewed in one of two ways,
we must accept the view that supports the trial court’s finding.
(Kao v. Holiday (2020) 58 Cal.App.5th 199, 206; Orange Catholic
Foundation v. Arvizu (2018) 28 Cal.App.5th 283, 292 [‘“our
review begins and ends with a determination as to whether there
is any substantial evidence, contradicted or uncontradicted, to
support the findings below’”].)

26
 DISPOSITION
The judgment is affirmed. The cost award to Shuck and
the law firm is affirmed, and the cost award to Wells Fargo is
affirmed as modified in conformity with this opinion to strike
$5,065.61. Shuck and the law firm are entitled to their costs on
appeal; plaintiff and Wells Fargo are to bear their own costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.
HOFFSTADT

We concur:

_________________________, P. J.
LUI

_________________________, J.
ASHMANN-GERST

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