Oppenheimer v. Moebius

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[Civ. No. 23149. Second Dist., Div. Three. Dec. 3, 1958.]

JOHN G. OPPENHEIMER, Appellant, v. R. MOEBIUS et al., Defendants; PACIFIC ELECTRIC RAILWAY COMPANY (a Corporation), Respondent.


John G. Oppenheimer, in pro. per., for Appellant.

E. D. Yeomans and Walt A. Steiger for Respondent.



Upon a former appeal by plaintiff in this cause, one of the defendants, Pacific Electric Railway Company, a respondent on the appeal, prevailed and became entitled to costs on appeal under rule 26(c), Rules on Appeal, consisting of the reasonable costs of printing or reproduction of briefs by other process of duplication. Pacific Electric filed a cost bill for $93.18 as the amount of debt it incurred and paid for the printing of a brief. Plaintiff moved to tax costs upon the ground that the charges of the printer were unreasonably high and the expense was not necessarily incurred. In support of the motion plaintiff filed his affidavit by which he averred that the reasonable cost of the brief of the respondent was $40 which was the prevailing rate in the printing industry when the brief was printed. In opposition to the motion, the respondent filed an affidavit of Robert M. Parker, Jr., president and general manager of the firm of Parker and Son, Inc., the printer of the brief. The general tenor of the affidavit was that the charge, which included $3.58 sales tax and 20 cents postage, was at the customary rate and was reasonable. Plaintiff's motion was denied and he has appealed.

[1] It appears from a settled statement on appeal that upon a hearing of the motion plaintiff offered to testify that another printing firm did similar and comparable work for $2.95 per printed page and that Parker and Son charged from $4.40 to $4.60 per page. The court declined to receive said evidence. There was no error. Substantially the same facts were stated in plaintiff's affidavit and were not in dispute.

[2] The evidence with respect to the reasonableness of the charge was in substantial conflict and since the question was one of fact, the ruling may not be disturbed. The question before us is essentially the same as the one we decided in Oppenheimer v. Robinson, 163 Cal. App. 2d 367 [329 P.2d 318]. Consistent with our decision on that appeal, we hold that the order appealed from having substantial support in the evidence must be affirmed, and it is so ordered.

Wood (Parker), J., and Vallee J., concurred.