Anderson v. Way West CA4/1

Filed 3/14/22 Anderson v. Way West CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THOMAS ANDERSON et al., D077648

Plaintiffs and Appellants,

v. (Super. Ct. No. 37-2015-
00027717-CU-CO-CTL)
WAY WEST, INC., et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court of San Diego County,
John S. Meyer, Judge. Affirmed in part; reversed in part; remanded with
directions.
Robert Lucas Law, Robert W. Lucas; Derek T. Anderson and Derek T.
Anderson for Plaintiffs and Appellants.
No appearance for Defendants and Respondents.

I.
INTRODUCTION
Plaintiffs Thomas and Donna Anderson (the Andersons) appeal an
order partially denying their motion to tax certain costs listed in defendants
Way West, Inc. (Way West) and Russell Strom’s memorandum of costs. The
Andersons claim that the trial court erred in taxing only $2,581.15 of
$5,523.11 in costs related to taking the deposition of a deponent named Mark
Smith.1 The Andersons maintain that the Smith deposition is not a legally
recoverable cost in this case because the deposition was taken in another
case.2 The Andersons maintain that this is so even though the parties
stipulated that the Smith deposition could be used in this case. The
Andersons also contend that the trial court abused its discretion in failing to
tax $2,032.78 in service of process costs related to defendants’ attempt to take
Smith’s deposition in this case because, according to the Andersons, those
costs were “unreasonable and unnecessary.” Finally, the Andersons maintain
that the trial court erred in failing to tax $28.08 in costs for a trial transcript
because the trial court did not order the transcript, which is required in order
for the cost to be recoverable.
We conclude that the Smith deposition costs were not legally
recoverable because they were incurred in a different case. (In re Bauer’s
Estate (1943) 59 Cal.App.2d 161, 163 (In re Bauer’s Estate) [concluding that
costs related to a deposition taken in a related case were not recoverable
notwithstanding parties’ stipulation that the deposition could be used in the

1 As explained in part II.A, post, Smith was a former defendant in this
case who entered into a settlement with the Andersons. Smith is not a party
to this appeal.

2 In the trial court, the Andersons sought to tax a total of $5,523.11 in
costs related to the Smith deposition. The trial court taxed $2,581.15 in costs
related to the deposition. (See pt. II.C, F, I, post.) On appeal, the Andersons
request that we direct the trial court to tax the remaining $2,941.96 in
deposition costs on the ground that none of the costs pertaining to the
deposition were legally recoverable.
2
proceeding in which costs were sought].)3 We further conclude that the
Andersons forfeited their appellate claims pertaining to the service of process
and trial transcript costs because they failed to raise either claim in the trial
court.
Accordingly, we reverse the trial court’s order insofar as it failed to tax
all of the costs related to the Smith deposition and we remand the matter to
the trial court with directions to tax an additional $2,941.96 in costs related
to that deposition. In all other respects, we affirm. 4
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The action
In May 2016, the Andersons filed a first amended complaint against
Way West, Strom, and Smith. The complaint alleged that the Andersons
entered into a contract with Way West, Strom, and Smith related to
remodeling the Andersons’ home and that Way West, Strom, and Smith
breached the contract and committed fraud.
Prior to trial in the matter, the Andersons settled their claims against
Smith for $25,000.

3 The Andersons contend that even if the Smith deposition costs could
legally be recovered in this case notwithstanding that they were incurred in a
different case, the trial court abused its discretion in taxing only $2,581.15 of
the costs. In light of our conclusion that none of the $5,523.11 in costs related
to the deposition were recoverable, we need not consider this argument.

4 Defendants did not file a brief in this court and the Andersons have
waived oral argument. Accordingly, we decide the appeal on the record and
the Andersons’ opening brief. (See Cal. Rules of Court, rule 8.220(a)(2).)
3
 The trial court held a bench trial on the Andersons’ claims against Way
West and Strom in 2018. In September 2019, the trial court entered a
judgment that stated in relevant part:
“1. Judgment pursuant to [Code of Civil Procedure, section]
631.8[5] is granted on [the Andersons’] cause of action
against [d]efendant Strom for fraud and punitive damages.

“2. [The Andersons] are awarded $19,841 in economic
damages against defendants Way West . . . and . . . Strom,
on the breach of contract cause of action. This award is
offset by the $25,000 settlement between plaintiffs and
[d]efendant Mark Smith.

“3. Judgment is entered in the amount of zero ($0.00)
dollars.

“4. Defendants Way West . . . and . . . Strom are defendants
as against whom [the Andersons] did not recover any relief.
[(§1032.)] Defendants Way West . . . and . . . Strom are the
prevailing parties, and shall recover their costs in the
amount of . . . .”6

5 Code of Civil Procedure section 631.8 provides in relevant part:
“(a) After a party has completed his presentation of
evidence in a trial by the court, the other party, without
waiving his right to offer evidence in support of his defense
or in rebuttal in the event the motion is not granted, may
move for a judgment.”
Unless otherwise specified, all subsequent statutory references are to
the Code of Civil Procedure.

6 As noted in part II.H, post, in February 2020, the trial court modified
the judgment by awarding defendants costs in the amount of $17,464.34.
4
B. Defendants’ memorandum of costs
In October 2019, defendants filed a memorandum of costs, listing a
total of $30,038.53 in costs. The memorandum listed $8,913.39 for deposition
costs, $2,607.78 for service of process costs, and $6,424.73 for court-ordered
transcripts, among other costs. An accompanying exhibit provided details of
the costs incurred. As relevant to this appeal, the exhibit listed $5,523.11 in
costs related to the taking of Smith’s deposition, $2,032.78 in service of
process costs related to multiple attempts to serve Smith for a deposition, 7
and $28.08 for the partial trial transcript of the trial court’s intended
statement of decision.
C. The Andersons’ motion to tax costs
It appears that the Andersons filed a motion to strike or tax costs in
October 2019.8 The Andersons argued the following with respect to costs
related to Smith’s deposition:
“Defendants’ memorandum of costs . . . seeks $5,523.11 for
the deposition of Mark Smith taken in another case and an

7 The exhibit did not specify the case in which costs related to the Smith
deposition or the Smith deposition service of process costs were incurred.

8 Although the Andersons’ memorandum of points and authorities in
support of the motion is in the record, the motion itself is not contained in the
record. The Andersons’ memorandum argued that the trial court should
strike the defendants’ memorandum on timeliness grounds. In the
alternative, the Andersons argued that the court should tax various costs.
The trial court concluded that the memorandum of costs was timely and
declined to strike the memorandum. In their brief on appeal, the Andersons
abandon their argument that the trial court should have stricken the
defendants’ motion. Accordingly, we refer to the Andersons’ motion as a
motion to tax costs.

5
 additional $2,107.78[9] in costs related to mostly failed
attempts to serve Mark Smith related to that deposition.
[Citation.]

“When a statute provides generally for an award of costs to
a party, those costs are limited by [section] 1033.5,
[subdivision] (b) unless the statute specifically provides
otherwise. [Citation.] In this case, since the statute does
not provide for the recovery of costs related to depositions
taken in a different matter than the case for which recovery
of costs is sought and the collective $7,630.89 referenced
above sought by [d]efendants pertains to a deposition taken
in another case, [d]efendants should not be allowed to
recover those costs.” (Boldface & italics omitted.)

The Andersons also contended that, while the defendants were seeking
to recover $6,424.73 for court-ordered transcripts, “only $28.08 of the
[$6,424.73] is recoverable because that represents the only portion of the
transcripts of court proceedings that were ordered by the Court.”
D. Defendants’ opposition
Defendants filed an opposition in which they argued that, prior to the
Smith deposition, the Andersons’ counsel stipulated that the deposition could
be used in this case. Defendants quoted e-mails setting forth the stipulation,
and argued, “In addition to the exchange of emails confirming the Smith
deposition taken ‘in another case’ could be used in the ‘Anderson trial,’ the
parties further put their stipulation on record during the deposition – as
Plaintiffs’ counsel appeared at all three days of the Smith deposition.”
One excerpt from the deposition states in relevant part:

9 Of the $2,107.78 in service of process costs related to Smith listed in
the memorandum of costs, $75.00 pertained to a trial subpoena. The
Andersons’ challenge on appeal pertains only to the $2,032.78 in service costs
related to attempts to serve Smith for a deposition.
6
 “[Defendants’ counsel]: Just some housekeeping details. I
just want to clarify between [the Andersons’ counsel] and
me that we’re using this deposition in the Anderson versus
Way West case. Right?

“[Andersons’ counsel]: Yes.

“[Defendants’ counsel]: To the extent that either party
wants to -- neither party will suggest that they didn’t have
an opportunity to cross-examine. We’ll treat it as a
deposition --

“[Andersons’ counsel]: Right. We basically came to an e-
mail agreement. I said, hey, look, I don’t care if you use the
deposition transcript, you know, as long as it’s understood
that both parties will have the right to call [Smith] as a
witness. [¶] And the other part of it is that I would have the
right to be here and ask questions, and I think that was our
agreement.

“[Defendants’ counsel]: Right.” (Italics added.)

A second excerpt from the deposition states in relevant part:
“[Andersons’ counsel]: [I have] [n]othing [to add] in terms of
the ground rules and proceeding. And obviously I intend to
ask a few questions that relate to the Anderson litigation.

“[Defendants’ counsel]: And the parties have previously
stipulated -- This is Volume II, but just for the clarity of the
record, with the new reporter, the parties in the Anderson
litigation, which are the Andersons, Way West, and Russell
Strom, we’ve agreed that although this deposition is
actually taking place in the Smith case, Smith vs. Way West
and Strom, the Anderson parties and the defendants in
that case have agreed that this deposition can be used in
that case because the parties are here to cross-examine and
elicit evidence and it can be used at trial by either side if
for some reason Mr. Smith is unavailable or otherwise.”
(Italics added.)

7
 Defendants further argued that the Andersons entered into the
stipulation concerning the use of the Smith deposition because “Mr. Smith
had successfully evaded service of process in the present case, as [the
Andersons] knew based on an ex parte application brought due to Smith’s
evasion of service of process.”
Defendants concluded their argument by stating that they were
entitled to recover the costs related to the Smith deposition in light of the
parties’ stipulation and the fact that the Andersons’ counsel “used the
deposition for discovery in the case.”10
With respect to the service of process costs, defendants argued in
relevant part:
“[T]he costs of service about which [the Andersons]
complain are costs of service incurred in this case – the
Anderson case. Defendants were able to obtain Mr. Smith’s
appearance at a deposition by issuing a Notice of
Deposition in the “other” case, styled Smith v Way West –
and, as [the Andersons] know, deposition notices do not
need to be served on a party deponent. Thus, all costs of
service were incurred in this case [and] were properly
incurred . . . .” (First italics added.)

E. The Andersons’ reply
In their reply, the Andersons argued that the transcript of the
statement of intended decision demonstrated “that the Court did not rely at
all on the deposition testimony of Smith, the transcript of which consists of

10 Together with its opposition, defendants lodged the e-mails containing
the parties’ stipulation pertaining to the use of the Smith deposition, the
ex parte application pertaining to the service of process issue, and excerpts of
Smith’s deposition quoted in the text above.
Defendants also lodged the judgment in this case, which states,
“Testimony from witness Mark Smith was received by stipulation via
deposition transcript.”
8
three volumes and 517 pages.” The Andersons also argued as follows with
respect to the Smith deposition:
“Regarding the Smith deposition, taken in another matter,
there was no agreement that the costs associated with that
deposition would be recoverable in this matter. [Citation.]
Instead, [the Andersons’] counsel agreed that the portions
of the Smith deposition relevant to this matter could be
used only after [d]efendants, in spite of over [three] years of
litigation, failed to complete Smith’s deposition in this case
prior to the discovery cutoff and were going to use that
failure to request a fifth trial continuance.”

The reply repeated the Andersons’ argument that the service of process
costs related to Smith could not be recovered because the costs pertained to a
deposition taken in another case. The Andersons’ reply also confirmed that
the Andersons were not seeking to tax the $28.08 in costs related to the
transcript of the statement of intended decisions. 11
F. The trial court’s tentative ruling
The trial court issued a tentative ruling denying the Andersons’ motion
to tax costs in part and granting the motion in part. With respect to costs
related to Smith’s deposition, the court ruled:
“The evidence demonstrates that the deposition of Mike
Smith was taken in . . . Smith v. Way West but the parties
agreed that it would be used in this litigation as well. The
cost for that deposition should be shared equally between
the two litigations. The actual cost for the deposition

11 The reply repeated the Andersons’ contention that “only $28.08 of the
[$6,424.73 in costs related to court ordered transcripts] is recoverable because
that represents the only portion of the transcripts of court proceedings that
were ordered by the Court.”

9
 transcript was $5,162.31.[12] Accordingly, the costs are
taxed by one-half, i.e., $2,581.15.”

The trial court’s ruling did not specifically address the service of
process costs challenged by the Andersons.13
G. The hearing
The trial court held a hearing on the Andersons’ motion. The
Andersons’ counsel argued the following with respect to the Smith deposition
and service of process costs:
“[T]he entire [memorandum] of costs, there are a number of
costs that are not recoverable by statute and/or were not
reasonably necessary to the conduct of the litigation that
defendants are being awarded, including, and this wasn’t
mentioned in the tentative, $2,107.78 for service of the
Mark Smith deposition [sic]. If the court remembers, that
was a deposition that was taken in another matter. I
agreed to allow portions of that transcript to be used in the
trial in this case to avoid a fifth trial continuance, but I
never agreed to assume those costs.”

Defendants’ counsel responded in part by arguing, “Mark Smith was
originally a defendant in the case.” Defendants’ counsel argued further:
“[Smith] [s]ettled. He is out. He is not a party. I can’t do a
notice of [deposition] against a nonparty. We had to

12 Although the Andersons sought to tax a total of $5,523.11 in costs
related to the Smith deposition, the trial court appeared to decline to tax,
without explanation, $360.80 in costs related to an item titled “Smith – non[-
]appearance transcript,” that defendants sought to collect in their
memorandum of costs.

13 The trial court’s ruling also did not discuss the $28.08 in costs related
to the intended statement of decision transcript. As noted in parts II.C and
II.E, ante, the Andersons acknowledged that the defendants were entitled to
recover this cost in their memorandum in support of the motion to tax and in
their reply memorandum in support of their motion.
10
 subpoena him. He didn’t want to be served. We chased
him over San Diego, several addresses, and filed ex parte
applications to the court and register of actions indicating
how many times we tried to serve and we documented all of
our expenses. This was addressed in the briefing. All the
service charges occurred in this case against a nonparty,
Mr. Smith. There is no notice of deposition of a nonparty.
[A]ll those costs are recoverable. It is not our fault. It is
Smith who settled with them, couldn’t be found. We did
our job and we served them [sic]. Unfortunately, it cost a
lot of money. That is not our fault we had to get the guy in
to get him for testimony, and they ultimately agreed that
he could.”

The following colloquy then ensued:
“[Anderson’s counsel]: Your Honor, Mr. Smith appeared
voluntarily at his deposition, so the $2,107 and change --

“The Court: I will take a look at it.

“[Andersons’ counsel]: Thank you, Your Honor. Now, with
respect to the Smith deposition itself, we appreciate the
fact that the court taxed half those costs, but defendants
have not shown that deposition was reasonably necessary
to this litigation at all. As we put in our moving papers,
that was a three-day deposition --

“The Court: Okay. But he was -- he was related and he
ended up settling. He was a key player.

“[Andersons’ counsel]: There is no dispute he was
previously a defendant in the case and that he was
previously a key player in this case, Your Honor.

“The Court: Right.

“[Andersons’ counsel]: With respect to the legal lens that
we have to look at with respect to the memo of costs, to the
extent this was a deposition taken outside of this case --

11
 “The court: It really wasn’t outside of the case. He was
involved in the case. There was a separate lawsuit.

“[Andersons’ counsel]: It was a deposition taken in a
separate lawsuit. A very small portion of that deposition
related to this case.

“The court: It related to this case.

“[Andersons’ counsel]: A very small portion of it did.

“The court: I don’t know if I agree with that.

“[Andersons’ counsel]: So in that regard, to the extent the
court taxed half those costs, the plaintiffs are requesting
more be taxed to the extent that only a very small portion,
if any, of that deposition would be used. And it would be
inappropriate to give them costs for half of that deposition.”

The Andersons’ counsel continued with argument pertaining to other
costs not at issue on appeal. Later, while discussing trial transcript costs, the
Andersons’ counsel reiterated that the Andersons were not challenging the
$28.08 in costs related to the transcript of the court’s intended decision.
Finally, near the end of the hearing, the following colloquy occurred:
“The court: I will take another look at the service of the
Smith deposition and the trial transcripts.

“[Defendants’ counsel]: I appreciate it. Really, we would
ask for the entire Smith deposition. We would ask the
court to add those costs back in . . . . We don’t want to bite
the hand that fed us here, but we think you ought to add
that back in, because the court got it right. He is a key
player.”

12
H. The court’s February 7 order and modification of the September 2019
judgment

On February 7, 2020, the trial court entered a final order that modified
its tentative ruling by taxing certain costs not at issue on appeal. The court’s
February 7 order stated further, “Defendants . . . claimed costs in the amount
of $30,038.53 are taxed in the amount of $12,574.19, reducing defendants’
allowable costs to $17,464.34.”14
The trial court modified the September 2019 judgment by awarding
defendants costs in the amount of $17,464.34.15
I. The appeal
The Andersons timely appeal from the trial court’s February 7
postjudgment order.
III.
DISCUSSION
A. The costs of the Smith deposition were not legally recoverable because they
were incurred in a different case

The Andersons claim that the costs of the Smith deposition are not
legally recoverable under the statutes governing costs because they were
incurred in a different case.
The Andersons’ claim raises a question of law that we review de novo.
(See Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 485
[“A de novo standard of review applies to the question of whether statutory
language authorizes an award of . . . costs”].)

14 As noted in footnote 8, ante, the trial court denied the Andersons’
motion in so far as it sought to strike the memorandum of costs as untimely.

15 Although the modified judgment states that it was modified on “2/7/19,"
it is clear from the record that the judgment was modified in February 2020.
13
 1. Governing law
“ ‘Section 1032 is the fundamental [statutory] authority for awarding
costs in civil actions.’ [Citation.] ‘Section 1033.5 of the Code of Civil
Procedure [section 1033.5] . . . specifies the “items . . . allowable as costs
under Section 1032.” ’ ” (Leiper v. Gallegos (2021) 69 Cal.App.5th 284, 297.)
Section 1032, subdivision (b) provides:

“Except as otherwise expressly provided by statute, a
prevailing party is entitled as a matter of right to recover
costs in any action or proceeding.”

Section 1033.5, subdivision (a) provides in relevant part:

“The following items are allowable as costs under Section
1032:

“[¶] . . . [¶]

“(3)(A) Taking, video recording, and transcribing necessary
depositions, including an original and one copy of those
taken by the claimant and one copy of depositions taken by
the party against whom costs are allowed.”

In In re Bauer’s Estate, appellant brought a petition for declaratory
relief to obtain the construction of a will. (In re Bauer’s Estate, supra,
59 Cal.App.2d at p. 162.) In preparation for the hearing on the matter,
appellant deposed various witnesses. (Ibid.) Respondent contended that a
petition for declaratory relief was not proper in a probate proceeding. (Ibid.)
The trial court sustained respondent’s objection and dismissed the
declaratory relief matter. (Ibid.)
Appellant then instituted an heirship proceeding. (In re Bauer’s Estate,
supra, 59 Cal.App.2d at p. 162.) As part of the heirship proceeding, the
parties “entered into a written stipulation which provided among other

14
things that, for the purpose of avoiding unnecessary expense, the depositions
taken for the former proceeding could be used in the present proceeding.”
(Ibid.) After the heirship proceeding concluded, the trial court awarded
appellant costs. (Ibid.) Appellant filed a cost bill, which included certain
costs related to the depositions from the prior action. 16 (Ibid.)
Respondent moved to strike items from the appellant’s cost bill related
to the depositions on the ground that “costs incurred for depositions in a
former action may not be [recovered] in a subsequent action between the
parties even though the depositions were used in the subsequent action.” (In
re Bauer’s Estate, supra, 59 Cal.App.2d at p. 162.) The trial court disallowed
the costs associated with the depositions. (Id. at p. 163.)
On appeal, appellant contended that “the costs in connection with
taking the depositions should not have been disallowed, for the reason that
the parties stipulated . . . that the depositions might be used in the present
proceeding.” (In re Bauer’s Estate, supra, 59 Cal.App.2d at p. 163.) The In re
Bauer’s Estate court rejected this argument, reasoning:
“Costs are allowable only in the action in which the costs
are incurred. In the case of Carlson v. Lantz (1929)
208 Cal. 134, 142, which included an appeal from an order
taxing costs, it was stated: ‘Item 31 in the sum of $28 was
not incurred in this action, but was incurred for
photographs in the former case [citation], in which case it
was properly taxable. The fact that it was not itemized in
the former case did not, we think, justify its inclusion in the
present case even if the photographs were used herein.’
The stipulation relative to the use of the depositions in the
present proceeding was limited, as stated in the affidavit on
behalf of respondent, to a stipulation that the depositions

16 According to the In re Bauer’s Estate court, “The items of costs, which
were shown by the cost bill to be in connection with the depositions, were the
ones for witness fees and stenographic services in the sums of $23.10 and
$116.40, respectively.” (In re Bauer’s Estate, supra, 59 Cal.App.2d at p. 163.)
15
 might be offered in evidence, and did not include a
stipulation relative to costs incurred in taking them.”
(Ibid.)

2. The costs of the Smith deposition were not legally recoverable
because they were incurred in another case

As noted in part II.B, ante, defendants sought to recover $5,523.11 in
costs related to the taking of Smith’s deposition in a different lawsuit. “Costs
are allowable only in the action in which the costs are incurred.” (In re
Bauer’s Estate, supra, 59 Cal.App.2d at p. 163.) While, the parties stipulated
that the Smith deposition could be used in the present case, they did not
enter any stipulation relative to the costs associated with that deposition.
Under these circumstances, In re Bauer’s Estate controls and the costs of the
Smith deposition are not recoverable in this case. (See id., supra, at pp. 162–
163.)17
In his concurring and dissenting opinion, Justice Dato states that he
agrees that “the Smith deposition costs are not recoverable unless they were
incurred in this case.” (Conc. & dis. opn. of Dato, J., italics added.) In our
view, the Smith deposition costs were not incurred in this case for the
following reasons.
First, it is undisputed that, as the defendants stated in their opposition
to the motion to tax costs, the Smith deposition was “taken ‘in another case.’ ”
(Italics added.) The trial court also noted in its order taxing costs that the
evidence demonstrated that the Smith deposition had been taken in another
case, stating, “The evidence demonstrates that the deposition of Mike Smith

17 Neither party cited In re Bauer’s Estate in the trial court. In addition,
the Andersons failed to cite In re Bauer’s Estate in their brief in this court.
As noted in footnote 4, ante, defendants did not file a brief in this court.
16
was taken in . . . Smith v. Way West but the parties agreed that it would be
used in this litigation as well.”
Under these circumstances, we conclude that the rule that In re Bauer’s
Estate draws applies: because the Smith deposition was taken in another
case, the costs of that deposition were not incurred in this case. A bright line
rule is preferable in this context because it permits the court and the parties
to easily determine the case in which deposition costs were incurred merely
by ascertaining the case in which the deposition was taken. Such fact will be
evidenced, as it is in the record in this case, by the caption on the deposition
transcript.18 We conclude that adopting a bright line rule is preferable to
permitting a party to, ex post, seek costs for a deposition undisputedly taken
in another case based on a stipulation that did not provide that the deposition
was being taken in this case nor make any reference to how the costs of such
deposition would be allocated.19 Thus, while Justice Dato states that this
proposed rule does not replace a clear rule with case by case evaluation, we
believe that our application of the long standing rule set forth in In re Bauer’s

18 The exhibit containing the excerpts of the Smith deposition in the
record in this case bears the Smith v. Way West caption.

19 As noted in the text, the parties in this case did not enter into any
stipulation pertaining to the costs of the deposition taken in the Smith v. Way
West case. Thus, as In re Bauer’s Estate, the parties agreed that the
deposition from the other proceeding “might be used in the present
proceeding . . .” but “. . . there was no stipulation that the cost of taking the
deposition[ ] might be charged in the present proceeding.” (In re Bauer’s
Estate, supra, 59 Cal.App.2d at p. 162.) We emphasize that nothing in our
opinion precludes the parties from entering into a stipulation relative to the
costs of a deposition.

17
Estate20 decreases the likelihood of parties being drawn into unnecessary
litigation pertaining to costs, as has occurred in the present case.
Accordingly, we conclude that the trial court erred in failing to tax all of
the $5,523.11 in costs related to the taking of Smith’s deposition.21
B. The Andersons forfeited their appellate claims that the service of process
costs were unreasonably incurred and that the trial court erred in failing
to tax the costs of the trial transcript pertaining to the intended statement
of decision

The Andersons claim that the trial court erred in failing to tax the
service of process costs related to attempts to serve Smith for a deposition in
this case and in failing to tax the costs of the trial transcript of its intended
decision. Neither claim was raised in the trial court; therefore the claims are
forfeited.
1. Governing law
It is well established that reviewing courts do not generally consider
arguments raised for the first time on appeal. As the court in Quiles v.
Parent (2018) 28 Cal.App.5th 1000 noted:
“ ‘Failure to raise specific challenges in the trial court
forfeits the claim on appeal. “ ‘ “[I]t is fundamental that a
reviewing court will ordinarily not consider claims made for
the first time on appeal which could have been but were not
presented to the trial court.” Thus, “we ignore arguments,
authority, and facts not presented and litigated in the trial

20 We are not persuaded that “realities of modern litigation,” (conc. & dis.
opn. of Dato, J.) support a different rule. While In re Bauer’s Estate was
decided in 1943, we are not aware of any authority that has found it to be
outdated.

21 As noted in footnote 3, ante, the trial court did tax costs related to the
Smith deposition in the amount of $2,581.15. Thus, we direct the trial court
to tax the remaining $2,941.96 in deposition costs on the ground that none of
the $5,523.11 in costs pertaining to the deposition were legally recoverable.
18
 court. Generally, issues raised for the first time on appeal
which were not litigated in the trial court are waived.
[Citations.]” ’ [Citation.] ‘Appellate courts are loath to
reverse a judgment on grounds that the opposing party did
not have an opportunity to argue and the trial court did not
have an opportunity to consider. [Citation.] In our
adversarial system, each party has the obligation to raise
any issue or infirmity that might subject the ensuing
judgment to attack. . . .’ ” ’ ” (Id. at p. 1013.)

The Court of Appeal has specifically applied this principle in refusing to
consider arguments made for the first time on appeal with respect to the
taxing of costs. (See Litt v. Eisenhower Medical Center (2015)
237 Cal.App.4th 1217, 1224 (Litt) [concluding that party forfeited argument
on appeal by failing to raise the argument in motion to strike and/or tax costs
in the trial court].)
2. The Andersons forfeited their claim that the service of process costs
related to Smith’s deposition in this case were unreasonably
incurred

The Andersons claim that the trial court abused its discretion in failing
to tax the service of process costs for Smith’s deposition subpoena in this
case.22 The Andersons reason, “A comparison of the dates for attempted
service of the deposition subpoena on Smith with his deposition establishes
that the service costs incurred were unreasonable and unnecessary.”
The Andersons did not raise this argument in any manner in their
memorandum or reply in support of their motion to strike and/or tax costs in

22 The Andersons’ brief is clear that they are discussing service of process
costs incurred in this case in that it states, “Way West and Strom assert they
needed to serve a deposition subpoena on Smith in this lawsuit because he
was no longer a party to this lawsuit (because he had settled).” (Italics
added.)

19
the trial court.23 (See pt. II.C, E, ante.) The Andersons provided no
comparison of dates of attempted service with the date of Smith’s deposition
or any other argument as to the alleged unreasonableness of the service costs.
As a result, defendants had no opportunity to respond to this argument in the
trial court and the trial court had no ability to consider the argument. Under
these circumstances, we conclude that the Andersons may not raise this
argument for the first time on appeal.
Accordingly, we conclude that the argument is forfeited. (See Litt,
supra, 237 Cal.App.4th at p. 1224.)
3. The Andersons forfeited their claim that the trial court should have
taxed $28.08 in costs pertaining to the intended statement of
decision

The Andersons claim that the trial court erred in allowing defendants
to recover $28.08 in costs for the transcript of the trial court’s intended
statement of decision. The Andersons contend that the trial court did not
order this transcript, and thus, the $28.08 is not a recoverable cost pursuant
to section 1033.5, subdivision (b).
The Andersons never sought to tax this cost in the trial court. On the
contrary, the Andersons stated that the $28.08 in costs for the transcript of
the trial court’s statement of intended statement of decision was recoverable,

23 The only argument that the Andersons raised as to the service of
process costs was that such costs could not be recovered because they
pertained to the Smith deposition in another case. (See pt. II.C, E, ante.) The
defendants responded by arguing that, “[T]he costs of service about which
Plaintiffs complain are costs of service incurred in this case – the Anderson
case.” (Italics added; see pt. II.D, ante.) On appeal, the Andersons do not
raise this argument; instead they argue only that the costs of service of
process related to the Smith deposition in this case were unreasonably
incurred.
20
in both their memorandum in support of the motion to tax and in their reply.
(See pt. II.C, E, ante.)
Accordingly, we conclude that the Andersons’ argument that the trial
court erred in allowing defendants to recover $28.08 in costs for the
transcript of the trial court’s statement of intended statement of decision is
forfeited. (See Litt, supra, 237 Cal.App.4th at p. 1224.)
IV.
DISPOSITION
The trial court’s February 7, 2020 order is reversed insofar as the court
failed to tax all of the $5,523.11 costs related to the Smith deposition. The
matter is remanded to the trial court with directions to tax an additional
$2,941.96 in costs related to that deposition, and to modify the judgment
accordingly. In all other respects, the February 7, 2020 order is affirmed.
The parties are to bear their own costs on appeal.

AARON, J.

I CONCUR:

O'ROURKE, Acting P. J.

21
Dato, J., Concurring and Dissenting.

I concur in the majority opinion except for that portion that reverses
the order on plaintiffs’ motion to tax costs.
I agree that the Smith deposition costs are not recoverable unless they
were incurred in this case—that is, the Anderson v. Way West litigation. But
before the deposition commenced, the parties here stipulated that Smith’s
already scheduled deposition in Smith v. Way West would also serve as his
deposition in this case. To this extent, the parties agreed to coordinate
discovery in the two cases to avoid duplication of effort and a waste of
resources. When the deposition began, everyone understood it was serving a
dual function and could potentially be used as evidence in both pending cases.
The opinion on which the majority exclusively rely, Estate of Bauer
(1943) 59 Cal.App.2d 161 (Bauer), involves a very different situation. In that
case, the plaintiff took some depositions in Case 1, but the case was later
dismissed. Plaintiff then filed a second action (Case 2) against the same
defendant, and the parties agreed that the depositions already taken in Case
1 could be used in Case 2. After plaintiff prevailed in Case 2, it
unsuccessfully sought to recover the cost of the depositions taken in Case 1.
The appellate court affirmed. Significantly, at the time the depositions were
taken only Case 1 had been filed. Case 2 did not exist. Clearly, then, the
costs could only have been incurred in Case 1. The parties’ later agreement
to use already existing depositions in Case 2 did not change that
reality. Because the parties reached no separate agreement as to the
recovery of costs (id. at p. 163), those costs could not be recovered in Case 2.
No new costs were “incurred” in Case 2 for “witness fees and stenographic
services” as would be required to support a cost award. (Ibid.; see Code Civ.
Proc., § 1033.5, subds. (a)(3) & (c)(1).)
 The timing of the parties’ agreement here materially distinguishes this
case from Bauer. When parties agree after a case concludes that a previously
taken deposition can be used in another proceeding, that agreement does not
change the fact that the costs of the deposition were incurred in the first
action alone. But where, as here, parties agree before taking a deposition
that it will serve as discovery in two or more pending cases, the costs of that

deposition are incurred in each of those actions.24
This does not replace a clear rule with standardless and unpredictable
case-by-case evaluation. Rather, it creates two clear rules, each of which
applies to a distinct situation. Most importantly, perhaps, these are
reasonable rules that thoughtfully reflect the realities of modern litigation
while encouraging cooperation and efficiencies in the practice of law.
In my view, by virtue of the parties’ agreement in advance, the costs of
Mark Smith’s deposition were incurred in both the Smith v. Way West action
and in this case, Anderson v. Way West. Accordingly, I would affirm the trial
court’s order in its entirety.

DATO, J.

24 This does not mean that deposition costs should always be divided
equally between the pending cases. It should be for the trial court to
determine—as it did in this case—how the costs should be equitably allocated
between or among the cases.
2