Appeal Sanctions, Costs: Prevailing Party Was Entitled To An Amended Judgment With Costs Requests Included Because The Other Side Did Not File Any Motion To Strike/Tax Costs

However, Appeal Sanctions Were Denied Because They Were Improperly Sought In Respondent’s Brief, Rather Than Through A Separate Motion.

            The next case, Black v. Fireman’s Fund Ins. Co., Case No. A165731 (1^st Dist., Div. 1 May 11, 2023) (unpublished), has two lessons, where a prevailing party did obtain an amended judgment to add unopposed routine costs requests and where the party successfully winning an appeal only asked for frivolous appeal sanctions in its respondent’s brief.

            The lessons, two in number.  First, the failure to file a motion to strike or tax costs means any challenges are forfeited on appeal, with the clerk needing to immediately enter the costs on the judgment.  (CRC 3.1700(b)(4); Oak Grove School Dist. v. City Title Ins. Co., 217 Cal.App.2d 678, 698 (1963).)  [NOTE:  Based on the pandemic disruption, it is best to move the court to add these costs to the judgment, given that clerks are inundated so that they fail to do this in due course.  But this is also best post-pandemic procedure by a party entitled to costs.]   Here, the failure to file such motions, forfeited any appellate challenge to the amended judgment including costs.  Second, appellate sanctions cannot be requested in a respondent’s brief, but must be done so through a separate motion.  (Cowan v. Krayzman, 196 Cal.App.4^th 907, 919 (2011).)  In this case, respondent’s failure to do so prevented the award of any frivolous appeal sanctions.