Filed 2/27/13 Turner v. Cal. Parole Advocacy Program CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


STEPHEN B. TURNER,
         Plaintiff and Appellant,
                                                                     A135929
v.
CALIFORNIA PAROLE ADVOCACY                                           (Alameda County
PROGRAM et al.,                                                      Super. Ct. No. RG 11591586)
         Defendants and Respondents.


                                              I. INTRODUCTION
         Appellant, appearing in pro per, appeals from a cost award in the amount of
$1,270 entered by the Alameda County Superior Court after appellant had voluntarily
dismissed a 12-count action he had filed against respondents, the California Parole
Advocacy Program (hereafter CPAP) and its Northern California Director, Andrew
Walker. The action alleged that those respondents had inadequately represented him in a
parole revocation hearing which was determined adversely to him. We find this appeal to
be without merit and, indeed, bordering on the frivolous. We thus affirm the cost award
order of the superior court.
                     II. FACTUAL AND PROCEDURAL BACKGROUND
         In April 2011, appellant, at the time on parole for prior, albeit unstated, offenses,
was staying in a motel in Hayward, California. Three agents of the agents from the
California Department of Adult Parole Operations arrived at his room to, allegedly,
perform a “parole sweep.” The agents allegedly found pornographic material on a


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computer in his room, although appellant maintained that he had no knowledge of how
that material got onto his computer. Nonetheless, he was detained on a parole revocation
charge.
       Appellant retained CPAP to assist him in his forthcoming parole revocation
hearing. CPAP is, according to appellant’s since-dismissed complaint, an organization
“affiliated with the University of Pacific, McGeorge School of Law and has a contract
with the State of California to provide legal representation to parolees charged with
parole-revocation charges. [Respondent] Andrew S. Walker . . . is believed by the
plaintiff to be the director of [CPAP] for Northern California.”
       On May 13, 2011, appellant had a pre-revocation hearing before a Deputy
Commissioner in Dublin, California. Appellant was represented by an attorney
apparently retained by CPAP. At the hearing, appellant allegedly requested that (1) he be
given a polygraph examination to prove his innocence and (2) his computer be
“forensically tested.” The Commissioner allegedly told appellant that neither alternative
could be performed by the State, and his attorney allegedly advised him that CPAP “did
not have the money to test his computer” and that even if they did the “results of the
testing could possibly take up to” three months. Again, according to his complaint
against CPAP, he “therefore accepted a parole-revocation offer” from the Commissioner
for six-months eligible for half-time credit, but allegedly did so “under duress.”
       On August 31, 2011, appellant filed and served CPAP and Walker (and other
named defendants who are not respondents in this appeal) with a complaint alleging 12
causes of action. These included violation of due process under both the federal and
California Constitutions, breach of fiduciary duty, gross negligence, negligence,
ineffective assistance of counsel, negligent infliction of emotional distress, intentional
infliction of emotional distress, reckless misconduct, malice, violation of the exclusionary
rule, breach of the standard duty of care, and negligence per se.




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       Respondents apparently filed a demurrer and motion to strike this complaint on
October 3, 2011.1 Appellant apparently filed an amended complaint against the same
parties on November 7, 2011. On December 5, 2011, appellant filed a request for
voluntary dismissal of his action without prejudice, a dismissal which was “entered as
requested” on that date. Apparently, he subsequently refiled essentially the same action
in federal court.2
       On, apparently, December 13, 2011, respondents filed a memorandum of costs,
seeking (again, apparently) the $1,270 award later authorized by the trial court. On
February 14, 2012, after the deadline for filing such a motion had passed (see Cal. Rules
of Court, rule 3.1700(b)(1)), appellant filed a motion to strike respondents’ memorandum
of costs. On March 28, 2012, the trial court denied appellant’s motion and entered a
judgment for those costs against him. Thereafter, appellant apparently filed, and
respondents apparently opposed, a motion to set aside that judgment.3 That motion was
denied by the trial court on July 3, 2012.
       Appellant filed a timely notice of appeal on July 10, 2012.
                                     III. DISCUSSION
       For several separate and distinct reasons, appellant’s appeal fails. First of all, as
one of our sister courts has stated: “A costs award is reviewed on appeal for abuse of
discretion. [Citations.] This means we must determine ‘whether the trial court exceeded


       1
         We say “apparently” here—and also hereafter regarding other pleadings
respondents state were filed—because neither party has provided us a copy of the
referenced pleading in either the clerk’s transcript or any appendix. Indeed, in their brief
to us, and contrary to California Rules of Court, rule 8.204(a)(1)(C), respondents provide
us with no citations whatsoever to the clerk’s transcript nor, as noted, did they file any
appendix with this court.
       2
        Per respondents’ brief to us, federal District Judge Hamilton dismissed this
action with prejudice without any appearance by the named defendants. Appellant does
not dispute this fact in his reply brief.
       3
       Neither document has been supplied to us by either party. However, and rather
remarkably, the clerk’s transcript does include a copy of appellant’s brief responding to
respondents’ opposition to his motion to set aside the judgment.


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the bounds of reason.’ [Citation.]” (El Dorado Meat Co. v. Yosemite Meat & Locker
Service, Inc. (2007) 150 Cal.App.4th 612, 617.) As other courts have framed it, “[T]he
term judicial discretion implies absence of arbitrary determination, capricious disposition,
or whimsical thinking. It imports the exercise of discriminating judgment within the
bounds of reason. To exercise the power of judicial discretion, all the material facts must
be known and considered, together also with the legal principles essential to an informed,
intelligent and just decision. [Citation.]” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771,
796; see also Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 990.) Among many other
things not contained in the record provided us is the cost bill itself, a bill amounting, as
noted above, to $1,270. Without such, it borders on the impossible for this court to
determine that there was an abuse of discretion for the trial court to deny appellant’s
motion to strike the cost bill filed by respondents.
       Second, even per his brief to us and the sparse clerk’s transcript provided us,
appellant’s motion to strike respondents’ cost bill was untimely. As noted above,
California Rules of Court, rule 3.1700(b)(1), provides that “[a]ny notice of motion to
strike or to tax costs must be served and filed 15 days after service of the cost
memorandum. If the cost memorandum was served by mail, the period is extended as
provided in Code of Civil Procedure section 1013.” The case law is clear that this
provision means what it says and that a failure to file a timely challenge to a cost bill
waives the right to contest it later on appeal. (See, e.g., Douglas v. Willis (1994) 27
Cal.App.4th 287, 289-290; Santos v. Civil Service Bd. (1987) 193 Cal.App.3d 1442,
1447; 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 145, p. 679.)
       In his briefs to us, appellant states that, the day before the cost bill was filed by
respondents, i.e., on December 12, 2011, he was arrested for another “alleged parole
violation” and, on December 15, 2011, “transferred to Santa Rita County Jail in Dublin,
California,” where he “was incarcerated for approx. 7 weeks” and “housed in an isolation
cell with limited outside communication” and hence “never received notice from
defendant’s [sic] counsel regarding their cost memorandum.” Thus, he continues, he had
“no notice or knowledge whatsoever of defendants’ cost memorandum,” and learned


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about it after his release from his ex-wife. Appellant argues that this state of affairs
triggers the doctrine of “equitable tolling” under which the time limits of the applicable
court rule should not have been applied.
       However, even assuming that this claimed state of affairs would excuse appellant
from filing a motion to tax costs within the required time period, appellant has provided
us with no record whatsoever verifying his claims of incarceration and inability to receive
or learn of the filing and service of respondents’ memorandum of costs. In the trial court,
appellant did submit a declaration claiming that he had been incarcerated from December
12, 2011, until January 22, 2012, and thus he “never received the defendants’ cost
memorandum . . . nor did I have any knowledge of its existence at any time while in
custody.” However, appellant only provided the trial court with his own declaration on
this subject, with absolutely no supporting evidence of either his incarceration or other
legally-cognizable unavailability. Nor does he provide any evidence supporting his
assertion that his confinement in jail made it impossible for him to learn about the filing
of respondents’ cost bill, i.e., the address to which that cost bill was sent by appellants,
the unavailability of any forwarding process, etc. As another appellate court has held,
“the losing party has the burden to present evidence and prove that the claimed costs are
not recoverable.” (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557,
emphasis supplied.) Appellant failed to do so here, and thus his argument regarding the
timeliness of his motion fails.
       Third, under Code of Civil Procedure section 1032, subdivision (a)(4),
respondents were clearly the prevailing parties. Contrary to appellant’s lengthy
arguments in his briefs,4 neither the federal Constitution nor the “preemption doctrine”
dictates, or even supports, the concept that California law is not controlling here. And
that law states very clearly that a “prevailing party” includes one in whose favor a

       4
         In those briefs, appellant (clearly not an attorney) submits scores of single-
spaced summaries of and quotations from federal cases in support of his contention that
provisions of the federal Constitution and the doctrine of preemption preclude the award
of costs in this case. We simply will not dignify this argument here with any response.


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voluntary dismissal has been entered. (See, e.g., Carver v. Chevron USA, Inc. (2002) 97
Cal.App.4th 132, 150; Catello v. I.T.T. General Controls (1984) 152 Cal.App.3d 1009,
1012-1014; International Industries, Inc. v. Olen (1978) 21 Cal.3d 218, 221.)
                                  IV. DISPOSITION
      The trial court’s judgment awarding respondents their costs is affirmed.




                                                _________________________
                                                Haerle, Acting P.J.


We concur:


_________________________
Lambden, J.


_________________________
Richman, J.




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