Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County., Super. Ct. No. BC374938, Luis A. Lavin, Judge.
Charles G. Kinney for Plaintiff and Appellant.
Gaglione, Dolan & Kaplan, Robert T. Dolan, Kaiulani S. Lie for Defendants and Respondents.
BOREN, P.J.
The trial court awarded costs to respondent real estate brokers, as the prevailing parties in this lawsuit. (Code Civ. Proc., § 1032.) In making its award, the court partially granted appellant Kimberly Kempton’s motion to tax costs and reduced the bill by $3,000. On appeal, Kempton claims that no memorandum of costs was ever filed. The argument is absurd, because the trial court obviously examined the cost memorandum before it ruled. We affirm the costs award and impose sanctions on appellant and her counsel for filing a frivolous appeal.
FACTS
Respondents Prudential California Realty and Lauren Walker filed a successful motion for summary judgment in this case. As prevailing parties, respondents sought $11,510.53 in litigation costs. Kempton countered with a motion to tax costs, which respondents opposed. Kempton filed a reply to respondents’ opposition papers.
The trial court’s judgment was affirmed in Kempton v. Prudential California Realty—John Aaroe Division (Nov. 3, 2011, B227418 (nonpub. opn.). We take judicial notice of our opinion in B227418, because it is a related proceeding leading directly to the present appeal. (Evid. Code, §§ 452, subd. (d), 459, subd. (a); Taliaferro v. Davis (1963) 216 Cal.App.2d 398, 401.)
A hearing was conducted on January 4, 2011. The court’s minute order indicates that it made oral findings on the record, “as fully reflected in the official notes of the court reporter.” Kempton did not provide us with a reporter’s transcript giving the trial court’s factual findings. At the conclusion of the hearing, the court partially granted Kempton’s motion to tax costs, reducing respondents’ recovery to $8,517.40.
Kempton’s notice designating the record on appeal states, “Kempton does not request the preparation of a reporter’s transcript.”
DISCUSSION
Kempton ostensibly appeals from the order awarding respondents $8,517.40 in costs—at least, that is what is written in her notice of appeal. The appeal is a subterfuge: Kempton’s brief is nothing but an attempt to reargue the merits of the trial court’s ruling on respondents’ motion for summary judgment. The merits of the summary judgment ruling are not reviewable in this appeal.
As an afterthought in her opening brief, Kempton throws in six lines of argument regarding the memorandum of costs. Kempton does not challenge any item in respondents’ costs memorandum, or any aspect of the trial court’s ruling on her motion to tax costs. Her entire argument—all 50 words of it—is that the memorandum of costs was never filed in the trial court. This is nonsense. The trial court made a very specific ruling, disapproving discrete entries from respondents’ itemization of costs. We would quote the trial court’s ruling, had Kempton provided us with the reporter’s transcript. The trial court could not have made its ruling unless it had the costs memorandum in front of it.
Excluding citations, Kempton’s entire argument on the costs memorandum consists of 50 words on page 12.
If Kempton wanted to convince the trial court that respondents’ memorandum of costs was untimely—or was never filed at all—she had to place her objections on the record. There are no written objections raised in Kempton’s October 25, 2010 motion to tax costs, or in Kempton’s December 27, 2010 reply to respondents’ opposition. Kempton did not see fit to provide us with a transcript of the hearing on January 4, 2011, so there is no proof that an oral objection was raised during the proceeding.
Absent proof that she preserved her claim in the trial court with a proper objection, Kempton forfeited her right to complain on appeal about the existence or timeliness of the costs memorandum. (See Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 [an appellate court will not consider procedural defects “‘where an objection could have been but was not presented to the [trial] court by some appropriate method...’”].) We cannot overturn the trial court’s judgment for a purported error that Kempton never brought to the lower court’s attention. (Farmers Bros. Co. v. Franchise Tax Bd. (2003) 108 Cal.App.4th 976, 993 [a party on appeal cannot complain that the trial court failed to do something it was not asked to do].)
SANCTIONS
On its own motion, the Court determined that this may be an appropriate case for the imposition of sanctions. We gave written notice to both appellant Kempton and her attorney Charles Kinney. Kempton and Kinney were afforded an opportunity to file written opposition to sanctions, and to appear during our oral argument calendar in October 2011. (Cal. Rules of Court, rule 8.276; Pierotti v. Torian (2000) 81 Cal.App.4th 17, 28; Say & Say v. Castellano (1994) 22 Cal.App.4th 88, 91.)
Sanctions may be imposed when an appeal is frivolous or taken solely to cause delay. (Cal. Rules of Court, rule 8.276(a); Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 16.) An appeal is frivolous “when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is toally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Sanctions serve a dual purpose: they compensate respondent for incurring attorney’s fees to fend off an unmeritorious appeal, and they discourage further frivolous appeals. (Harris v. Sandro (2002) 96 Cal.App.4th 1310, 1316; Pierotti v. Torian, supra, 81 Cal.App.4th at p. 33.)
There is only one word to describe Kempton’s appeal: Insulting. Any reasonable attorney would agree that the appeal is devoid of merit, and lacks any legal or factual support. At Kempton’s request, the trial court deleted multiple items of cost and reduced the $11,510.53 originally requested by respondents to $8,517.40. Despite her success in achieving a $3,000 reduction in costs, Kempton dares to come to this Court and claim that the trial court never even received the cost memorandum. This is a patent falsehood. The trial court obviously had the memorandum, and Kempton convinced the court to eliminate certain costs during the hearing.
Kempton’s brief is rife with false and erroneous statements. On pages 10 and 11 of her opening brief, Kempton states, “This appeal involves the broker’s duty to investigate and disclose all known adverse material facts as soon as possible, but before a contract is signed; and it involves interpretation of contract...” and “This appeal also involves interpretation of statutes regarding mandatory disclosures by broker....” This is a gross misstatement of the issue on appeal, which does not involve a broker’s duty to investigate or an interpretation of the disclosure statutes. The only issue being appealed is respondents’ recovery of litigation costs after prevailing on summary judgment.
On pages 2 through 8 of her brief, Kempton reargues the facts relating to her motion for summary judgment. At page 9, she deigns to discuss the facts related to this appeal. At page 10, she incorrectly states that the standard of review is de novo, which is the standard for reviewing summary judgment. A prevailing party “is entitled as a matter of right” to recover its costs. (Code Civ. Proc., § 1032, subd. (b).) Respondents are indisputably the prevailing parties, having secured a judgment against Kempton. The trial court’s award of costs is reviewed for an abuse of discretion, not de novo. (Heller v. Pillsbury, Madison & Sutro (1996) 50 Cal.App.4th 1367, 1395.) At page 12, Kempton devotes all of six lines—and 50 words—to the crux of this appeal. The remainder of her brief reargues the merits of the summary judgment motion.
In short, this appeal is an outrageous waste of time for this Court and for respondents. Exacerbating matters is that appellant Kempton, far from being a clueless lay person given bad advice by her attorney, is herself a lawyer. According to State Bar records, Kempton is a graduate of UC Berkeley School of Law (Boalt Hall) and is employed at the Chevron Corporation. Despite her professional pedigree, Kempton allowed Kinney, a vexatious litigant since 2008, to pursue this—and many other—unmeritorious appeals on her behalf. We find both lawyers—Kimberly Kempton and Charles Kinney—equally culpable and jointly and severally liable for sanctions.
This Court’s October 2011 calendar included four meritless appeals by Kempton, as well as an OSC re vexatious litigant status.
We turn to the amount of sanctions. This is not a complicated appeal. Nevertheless, respondents were obliged to hire attorneys to defend against it. We shall remand the case to the trial court to determine the fees and expenses incurred by respondents to resist the appeal. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303.) The amount of sanctions payable to respondents shall consist of such fees and expenses. If the amount of judicial sanctions exceeds $1,000, we direct the trial court to notify the State Bar to investigate both Kimberly Kempton (State Bar No. 221514) and Charles Kinney (State Bar No. 66428), pursuant to Business and Professions Code section 6086.7.
Respondents are not the only persons aggrieved by a frivolous appeal. Litigants with bona fide disputes are waiting in line and are prejudiced by the useless diversion of resources while we process this meritless appeal. (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1451; Finnie v. Town of Tiburon, supra, 199 Cal.App.3d at p. 17.) “‘[T]he appellate system and the taxpayers of this state are damaged by what amounts to a waste of this court’s time and resources.’” (Pierotti v. Torian, supra, 81 Cal.App.4th at p. 35; California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 340.) The cost of processing, reviewing and deciding a frivolous appeal requires the work of clerks, judicial attorneys, secretaries and justices. Three years ago, the cost of processing an appeal was calculated at $8,500. (Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1162-1163; In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 520.)
We order attorney Kimberly Kempton to personally pay sanctions of $2,000 as compensation to the court system, payable in full to the Court of Appeal, upon issuance of the remittitur. We order attorney Charles Kinney to personally pay sanctions of $2,000 as compensation to the court system, payable in full to the Court of Appeal upon issuance of the remittitur. Finally, we direct Kempton’s and Kinney’s attention to Business and Professions Code section 6068, subdivision (o)(3), which requires them to report judicial sanctions in excess of $1,000 to the State Bar.
DISPOSITION
The judgment (order awarding litigation costs) is affirmed. The Court imposes sanctions against appellant Kempton and her attorney Charles Kinney. The matter is remanded to the trial court with directions to determine the reasonable value of the fees and expenses incurred by respondents in resisting this appeal and to impose these costs as sanctions payable to respondents. Kempton and Kinney are ordered to pay sanctions directly to the Court of Appeal. Upon issuance of the remittitur, the clerk is directed to send a copy of this opinion to the State Bar of California.
We concur: DOI TODD, J.CHAVEZ, J.