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Stevens v. 396 Investment Co.5/17/2005
. Moreover, the request for indemnification "to the extent that plaintiffs prevail" implied that 396 expected only to be compensated once the litigation was fully resolved. It did not imply a demand that Anaheim provide legal representation for 396.
As stated in Uniroyal Chemical Co. v. American Vanguard Corp. (1988) 203 Cal.App.3d 285, 289, before a court can make an award under Code of Civil Procedure section 1021.6, it must find that the proposed indemnitor was notified of the demand to provide a defense and failed to provide such defense. There is a difference between a demand for indemnity, contribution and apportionment and a demand for a defense. 396 has not cited any portion of the record showing that it made a demand that Anaheim provide it with a defense. Thus, the record does not support the implied finding that 396 tendered the defense of the litigation to Anaheim and the court erred in awarding 396 attorney fees under section 1021.6. The award of attorney fees to 396 is reversed.
O. COSTS:
(1) Introduction
Anaheim asserts that the court erred in awarding certain costs as well. In particular, it claims that the court erred in awarding: (1) costs to 396 for services performed by Decision Quest ($78,954) and for mediations ($67,680); and (2) costs to Vista Royale, purportedly with respect to Vista Royale's defense ($366,212). We will address these items in turn.
(2) 396's Award
Anaheim omits to cite any portion of the record containing 396's memorandum of costs. We therefore do not know how 396 described the Decision Quest and mediation items, what documentation 396 provided in support of its memorandum, or even the total amounts of the requested Decision Quest and mediation costs. The order on costs states, "the court finds that Anaheim's motion to tax . . . costs is granted, in part: [ ] (a) 396 . . . is entitled to $78,954 of the Decision Quest costs; and [ ] (b) 396 . . . is entitled to $67,680 of the JAMS fees." This implies that the court disallowed some portion of the requested costs.
In support of its position that the court should have disallowed all of the costs, Anaheim cites its own briefs describing its own viewpoint of the matter. Without a review of 396's memorandum of costs and supporting documentation, however, we are not in a position to pass upon the propriety of the court's order on costs. We deem Anaheim's argument waived for failure to cite the record. (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768.) The costs award in favor of 396 is affirmed.
(3) Vista Royale's Award
Anaheim asserts that the amounts Vista Royale claimed as costs were incurred in defending the litigation, not in pursuing Anaheim on an inverse condemnation claim, and that, therefore, Vista Royale should not have been entitled to recover those costs. In support of this argument, Anaheim cites primarily to numerous briefs it filed in the trial court, containing more than 130 pages of Anaheim's opinion on the subject. Anaheim does not cite any portion of Vista Royale's motion for costs. However, it does cite approximately 150 pages of briefing that Vista Royale and 396 filed in opposition to Anaheim's motion to tax costs. Regrettably, Anaheim does not provide page point references for the specific portions of that briefing that Anaheim contends supports its argument.
"Counsel is admonished that . . . citations are to include the internal page reference where the applicable point is found. [Citation.]" (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768.) " t is counsel's duty to point out portions of the record that support the position taken on appeal. The a
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