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Filed 2/22/02
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ROBERT A. BORISSOFF, as Executor,
etc.,
A093450 & A094395
Plaintiff and Appellant,
(City & County of S.F.
v.
Super. Ct. No. 995058)
TAYLOR & FAUST et al.,
Defendants and Responde nts.
[PUBLISHED PART]
Robert A. Borissoff (Borissoff) is executor of the estate of decedent Veronica M.
Smith. Following a will contest and related litigation during which the estate was in the
hands of court-appointed special administrators, Borissoff brought this legal malpractice
action against the law partnership of Taylor & Faust, partner Leland H. Faust (Faust), and
Burton McGovern (McGovern) for claimed malpractice in tax matters while the
administrators handled the estate.1
After a trial of designated issues on stipulated facts, the court gave judgment for
all defendants, finding that the one-year statute of limitation (Code Civ. Proc., § 340.6,
subd. (a); undesignated section references are to that code) had run before the May 1998
filing of this lawsuit and had not been tolled by lack of "actual injury" (id., subd. (a)(1));
such injury existed by September 1993 from either (1) loss of the right to amend a "Form
706" federal estate tax return to obtain a refund or (2) loss of the right to claim certain
"pre-death" expenses as deductions. The court further found that Borissoff, a successor
fiduciary to any fiduciary defendants had advised, lacked standing to sue for malpractice.

* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified
for publication with the exception of part II.
1

Borissoff appeals the judgment (A093450), challenging the tolling and standing
findings. He also claims the court exceeded the scope of stipulated issues by granting
judgment based on the statute of limitation rather than ruling just on the tolling issue of
actual injury. He claims this prejudicially foreclosed litigation of possible tolling due to
legal disability (§ 340.6, subd. (a)(4)), and he requests judicial notice of certain probate
proceedings to bolster his disability theory. He has separately appealed a post-judgment
award of costs (A094395), challenging denial of his motion to tax costs. We ordered the
appeals consolidated for decision.
We will find the issue of standing dispositive and thus not reach the tolling issues
or find reason to grant Borissoff's related request for judicial notice.2 We set out the
stipulated facts and supporting documents, stressing the dispositive issue, and reserve
discussion of the costs award for part II (post).
BACKGROUND
Decedent died in June 1989 and left conflicting wills, one from 1983 and another
from 1987, and the latter designated Borissoff as executor. In September 1989, Mary
O'Connor, decedent's grandniece, filed a probate action contesting the 1987 will, and the
court appointed Clifton Ohman as special administrator. Ohman was removed four
months later, and Springer, an attorney and former probate commissioner, was appointed
to assume his duties, including marshalling the estate assets and preparing a federal estate
tax return. Springer filed an application for extension of time to file the return, and in
May 1990, O'Connor filed another action related to the will contest.

1 We refer to Faust and his firm collectively as the Faust defendants.
2 McGovern notes in his respondent's brief that whether he ever acted as successor
counsel to any administrator after the Faust defendants ceased representing special
administrator Paul Springer was an issue not placed before the court by the parties'
stipulation or addressed by the judgment. While, in theory, this lack of adjudication
might have left open the door for some duty by McGovern toward Borissoff to support
standing, we need not ponder this, for Borissoff's counsel clarified for the court below, at
the hearing, that should the court "find there is no standing" as to the other defendants,
"there is no standing to sue McGovern as a defendant also[.]"
2

The order appointing Springer provided that he could "be represented by legal
counsel of his choice, in the event that [he] elect[ed] to be represented by counsel," and
he did this in June 1990, engaging the Faust defendants "to assist him in filing the
Estate's tax returns, to provide [him] with tax planning advice concerning the [estate],
and to `perform any other legal services which you [Springer] request."
Faust filed federal and state fiduciary income tax returns for the estate for fiscal
year 1989-1990 and, in September 1990, filed the Internal Revenue Service (IRS) Form
706, and state, returns at issue in this malpractice action. The gross estate was valued at
$1,831,000, and $344,897 was paid in state and federal estate taxes. Faust attached to the
Form 706 a statement summarizing the will contest, stating that the parties had made no
progress in resolving it, and saying the estate would "amend the Form 706, if necessary."
A file memo by William McCullough of the firm noted that when the form was amended,
real estate taxes and "other odds and ends" not originally deducted (some itemized with
dollar amounts in the stipulated facts) should be reexamined regarding deductibility.
A timely amendment had to be filed by September 14, 1993, three years after the
original filing, but this never occurred. By then, Faust had resigned as counsel, Springer
had died, no extension of time (a federal Form 843) had been sought as to that particular
filing, and the estate had undergone a period of months without an administrator. During
the representation, Faust had filed later tax returns and extension requests, and Springer
sought and obtained court approval of attorney fees for the work. Springer's petition of
December 1990 to approve first report, settling first account, and for instructions, shows
his retention of Faust as tax consultant and request for approval of payment of $6,470 for
work detailed in a declaration by Faust, which notes that Faust had "acted as tax counsel
to Paul E. Springer, Special Administrator of this Estate." Springer, himself an attorney,
stated in the petition that he "waive[d] any employment of a[n] estate attorney." The
court ultimately approved the attorney fees.
Springer found himself in trouble for having misused estate funds and turned to
the Faust defendants for legal advice in that regard as well. In early November 1992, he
wrote to Steven Kravitz of the firm to explain, despondent and worried, that he had
3

"`borrowed'" from the estate during a sale of one home and purchase of another and that
the estate now had "an interest of $115,933" in the matter. An ensuing exchange of
letters, and a meeting with Faust, were addressed to the problem and an unsuccessful
effort to have Springer borrow replacement money from a financier client. Then, in early
February 1993, Faust wrote to inform Springer that the firm had decided not to represent
him any longer.
Springer died in late May 1993, and the estate files were eventually turned over to
McGovern. In July, Borissoff moved to have a particular person appointed successor to
Springer, but that person was not appointed. The time for filing the amended return or a
time extension passed without action in September. Pacific Bank was appointed special
administrator in February 1994, and the bank retained McGovern as counsel.
In September 1995, a judgment in the probate litigation resulted in the 1987 will
being admitted to probate; the next month the court issued letters testamentary and
appointed Borissoff executor.
In January 1997, Borissoff filed a petition to surcharge the Springer estate and
Pacific Bank for Springer's embezzlement, documenting $178,000 as missing from the
estate. He filed the instant malpractice action in May 1998, but was aware since April
1996 of the failure to timely file a Form 843 to extend the time.
As already noted, the court in this action held that Borissoff lacked standing to
maintain the action against attorneys to the predecessor estate administrator, Springer.
The tolling issue we do not reach is whether, as Borissoff contends, there was no actual
injury until December 1997, when a judgment settling his second and final account and
report awarded attorney fees for the underlying action.
DISCUSSION
I. Standing
The court's standing ruling rested primarily on Goldberg v. Frye (1990) 217
Cal.App.3d 1258 (Goldberg), which examined at length and rejected possible bases for
granting beneficiaries under a will standing to sue an estate administrator's attorney for
malpractice allegedly harming the estate. Borissoff does not directly challenge Goldberg
4

but tries to distinguish it as limited to the standing of beneficiaries, not successor estate
fiduciaries (administrators or executors), and he urges that provisions of the Probate
Code, as well as reasoning in Moeller v. Superior Court (1997) 16 Cal.4th 1124
(Moeller), support successor standing.
To frame the issue in a broader context: "An attorney generally will not be held
liable to a third person not in privity of contract with him since he owes no duty to
anyone other than his client. The question of whether an attorney may, under certain
circumstances, owe a duty to some third party is essentially one of law and, as such,
involves `a judicial weighing of the policy considerations for and against the imposition
of liability under the circumstances. [Citation.]'" (Schick v. Lerner (1987) 193
Cal.App.3d 1321, 1329.) It is a policy matter involving the balancing of various factors.
(Id. at pp. 1329-1330, citing Lucas v. Hamm (1961) 56 Cal.2d 583, 588, and Biakanja v.
Irving (1958) 49 Cal.2d 647, 650.) "The imposition of a duty of professional care toward
third persons generally has been limited to those situations wherein the nonclient was an
intended beneficiary of the attorney's services to the client, or where the foreseeability of
harm to the nonclient as a consequence of professional negligence was not outweighed by
other policy considerations." (Schick v. Lerner, supra, at p. 1330.)
Goldberg, in finding lack of standing for an estate beneficiary, outlined many of
the considerations pertinent here, for a successor representative of the estate, beginning
with lack of privity. "[I]t is well established that the attorney for the administrator of an
estate represents the administrator, and not the estate. [Citations.] A key element of any
action for professional malpractice is the establishment of a duty by the professional to
the claimant. Absent duty there can be no breach and no negligence. [Citations.] By
assuming a duty to the administrator of an estate, an attorney undertakes to perform
services which may benefit legatees of the estate, but he has no contractual privity with
the beneficiaries of the estate." (Goldberg, supra, 217 Cal.App.3d at p. 1267, italics
added.) Also, while it was "conceivable" in Goldberg that the attorney might have
"undertake[n] to perform legal services at the behest of, and as attorney for, a beneficiary
of the estate," there was no supporting evidence of any "direct contacts" between attorney
5

and beneficiary (ibid.), and thus any grounds for a malpractice action depended on
circumstances and principles "from which a duty may arise absent privity of contract, and
not based upon an attorney-client relationship." (Id. at pp. 1267-1268.)
Goldberg's observation that an administrator's attorney represents the
administrator, and not the estate, applies here as well. Also, Springer's petition seeking
approval for fees paid to Faust specified that he "waive[d] any employment of a[n] estate
attorney," which we take to mean that he was going to rely on his own expertise--as an
attorney and a longtime probate commissioner--for matters of the estate other than taxes.
Indeed: "There is no such office or position known to the law as `Attorney of an Estate.'
When an attorney is employed to render services in procuring the admission of a will to
probate, or in settling the estate, he acts as the attorney of the executor, and not of the
estate, and for his services the executor is personally responsible." (In re Ogier (1894)
101 Cal. 381, 385; Estate of Kruger (1904) 143 Cal. 141, 145.) The estate itself is not a
legal entity capable of being a client. (See Ross & Moore, Cal. Practice Guide: Probate
(The Rutter Group 2001) ¶¶ 1:14 to 1:15.) We have no evidence here of direct contact
between the Faust defendants and Borissoff, as successor representative, to support an
attorney-client relationship between them having been created through an undertaking.
Goldberg continued: "The determination of duty rests upon the assessment of six
considerations: `(1) the extent to which the transaction was intended to affect the
plaintiff; (2) the foreseeability of harm to the plaintiff; (3) the degree of certainty that the
plaintiff suffered injury; (4) the closeness of the connection between the defendant's con-
duct and the injury; (5) the policy of preventing future harm; and (6) whether recognition
of liability under the circumstances would impose an undue burden on the profession.'"
(Goldberg, supra, 217 Cal.App.3d at p. 1268.) Goldberg acknowledged case precedent
finding a duty on the part of will-drafting attorneys toward third party legatees (Biakanja
v. Irving, supra, 49 Cal.2d at p. 650; Garcia v. Borelli (1982) 129 Cal.App.3d 24, 32), but
found it "impossible" in that case "to conclude that the parties to the attorney's contract
. . . entered into same for the principal purpose of providing benefit to the legatees. We
find nothing to indicate that this attorney's retention was in any respect different from the
6

typical retention of counsel by the fiduciary of a decedent's estate. As noted above, such
retention constitutes the counselor the attorney for the fiduciary, and not the attorney for
the estate, its beneficiaries, its creditors or others who may be interest therein." ( Ibid.)
"Innumerable instances in modern practice are encountered in which services performed
by an attorney will benefit others besides his client. . . . The fact that third parties are
thus benefited, or damaged, by the attorney's performance does not give rise to a duty by
the attorney to such third parties, and hence cannot be the basis for a cause of action by
the third parties for the attorney's negligence. In these cases the third parties are
incidental beneficiaries, and `[a]n incidental benefit does not suffice to impose a duty
upon the attorney.' [Citations.]" ( Id. at pp. 1268-1269.)
Similarly here, nothing out of the ordinary appears from Springer's retention of
the Faust defendants to help him carry out his settled and routine fiduciary duties to see
that estate taxes were filed and paid. (See, e.g. Estate of Harvey (1964) 224 Cal.App.2d
555, 557-558.) This was certainly meant to preserve and thus benefit the estate, but it is
the very essence of an administrator's duties to preserve the estate. Nothing unusual
appears to indicate a principal purpose to benefit the estate as opposed to Springer, the
one charged with that duty. Indeed, the stipulated facts show that Springer waived
counsel for the estate and that a highly personalized attorney-client relationship evolved
in which he sought legal advice from the Faust defendants about the delicate matter of
personal risk for embezzling estate funds.
Goldberg also saw dire professional burdens should attorneys for administrators
be liable to legatees. "Particularly in the case of services rendered for the fiduciary of a
decedent's estate, we would apprehend great danger in finding stray duties in favor of
beneficiaries. Typically in estate administration conflicting interests vie for recognition.
The very purpose of the fiduciary is to serve the interests of the estate, not to promote the
objectives of one group of legatees over the interests of conflicting claimants. [Citation.]
The fiduciary's attorney, as his legal adviser, is faced with the same task of disposition of
conflicts. It is of course the purpose and obligation of both the fiduciary and his attorney
to serve the estate. In such capacity they are obligated to communicate with, and to
7

arbitrate conflicting claims among, those interested in the estate. While the fiduciary in
the performance of this service may be exposed to the potential of malpractice (and hence
is subject to surcharge when his administration is complete), the attorney by definition
represents only one party: the fiduciary. It would be very dangerous to conclude that the
attorney, through performance of his service to the administrator and by way of
communication to estate beneficiaries, subjects himself to claims of negligence from the
beneficiaries. The beneficiaries are entitled to evenhanded and fair administration by the
fiduciary. They are not owed a duty directly by the fiduciary's attorney. [Citation.]"
(Goldberg, supra, 217 Cal.App.3d at p. 1269.)
The professional burdens would be potentially magnified were liability extended
to successor fiduciaries, for each fiduciary necessarily guides an estate--already steeped
in potential conflict among beneficiaries, creditors and others--at times when different
parties and interests exist. Here, for example, three successive special administrators
(Ohman, Springer and Pacific Bank) guided the estate through a long period of litigation
before Borissoff assumed control as executor under one of two competing wills, having
failed in an attempt to have a special administrator of his choosing appointed. The record
is rife with potential conflict and crowned with Springer actually soliciting and receiving
confidential advice from the Faust defendants about his exposure for embezzlement.
This case classically illustrates why, for policy reasons, an attorney to one fiduciary
should not be subject to malpractice liability claimed by a successor fiduciary.
Borissoff argues, however, that whatever case-law policy considerations might
arise, the matter is controlled by statute. He reasons: (1) Springer, as the client, could
have sued Faust; (2) as the "personal representative" of the estate, Springer could have
done so under his authority to "[c]ommence and maintain actions . . . for the benefit of
the estate" (Prob. Code, § 9820, subd. (a); id., § 8544, subd. (a)(3) [power likewise exists
for special administrator except as limited by appointing order]); (3) a "successor
personal representative has the powers and duties in respect to the continued
administration that the former personal representative would have had" (id., § 8524, subd.
8

(c)); therefore (4) Borissoff, as a successor, had power to sue Springer's counsel for
malpractice. The Faust defendants do not address this reasoning, but it is easily refuted.
First, Borissoff cites no authority for his linchpin premise that a malpractice action
brought by an administrator against his attorney is an action "for the benefit of the estate"
(Prob. Code, § 9820, subd. (a)), and we find contrary authority in Estate of Lagios (1981)
118 Cal.App.3d 459 (Lagios), where our own Division One reviewed a probate court
order charging an executor and his attorneys for losses to the estate. The surcharge
against the attorneys was held in excess of jurisdiction, for these reasons: "The statutory
jurisdiction of the probate court expressly includes the power to impose surcharges upon
the executor or administrator for any losses in chargeable accounts. [Citations.] [¶]
However, while the estate representative is empowered to employ an attorney to act in
behalf of the estate (see [Prob. Code,] §§ 902, 910-911), no similar statutory authority
exists to surcharge such attorney for estate losses due to negligence or misconduct for
which the duly appointed representative is held exclusively accountable to the estate.
[Citations.] Moreover, strong policy considerations require rejection of any claim of
surcharge liability based upon a theory of an implied duty owed to the probate court.
[Citation.]" ( Id. at p. 463.) Obviously, if a surcharge against an administrator's attorney
for legal malpractice is unauthorized, then such a suit is not one the administrator has
power to bring in the probate court "for the benefit of the estate" (Prob. Code, § 9820,
subd. (a)). Such an action, rather, is for the benefit of the administrator personally.3

3 Borissoff relies on an implied contrary assumption made in Saks v. Damon Raike &
Co. (1992) 7 Cal.App.4th 419 (Saks), which rejected standing in a nonprobate action for
beneficiaries of a testamentary trust to sue a trustee and two agents (a real estate broker
and an attorney) on behalf of the trust, stating: "Under both the common law and the
provisions of the Probate Code governing the administration of trusts, [plaintiffs'] only
proper course was to proceed against the trustee in the probate department, seeking either
to compel [the trustee] to proceed against [the agents], or to remove it and to appoint a
trustee ad litem to sue the third parties." (Id. at p. 430, italics added.) However, the case
authority cited for that statement had to do with the propriety of having trustees ad litem
(Getty v. Getty (1988) 205 Cal.App.3d 134, 140-142; Powers v. Ashton (1975) 45
Cal.App.3d 783), not a probate action against an administrator's negligent "third party"
9

This result accords with the statutory scheme in ways implicit but not detailed in
Lagios. Estate administrators have long had broad authority and duties. (Hill v. Superior
Court (1940) 16 Cal.2d 527, 531.) Those duties are generally nondelegable, and thus
while an administrator may employ attorneys or agents, he or she is bonded for the
protection of the estate and remains responsible. ( Estate of Spirtos (1973) 34 Cal.App.3d
479, 488; see also United States v. Boyle (1985) 469 U.S. 241, 249-250.) He or she
cannot avoid surcharge by claiming reliance on an attorney's negligence, even though he
or she may not have selected the attorney negligently. (In re Estate of Guiol (1972) 28
Cal.App.3d 818, 824-826.) The rare exception is where, without imprudence or fault by
the administrator, the attorney commits misconduct like embezzlement. ( Estate of
Barbikas (1959) 171 Cal.App.2d 452, 458-459; see Ross & Moore, Cal. Practice Guide:
Probate, supra, ¶ 16:200.) And of course: "A representative who is surcharged for acts
performed in reliance on legal counsel or the conduct or neglect of probate counsel is not
left without recourse. His or her remedy lies against the attorney in a suit for
malpractice." (Ross & Moore, supra, ¶ 16:201.)
Because duties remain so firmly with the administrator, surcharging the
administrator is an effective remedy, and one readily invoked through objections to
accountings ( Estate of Fain (1999) 75 Cal.App.4th 973, 991). The remedy passes to a
successor representative, who "may bring an action on the bond of any former personal
representative of the same estate, for the use and benefit of all interested persons" (Prob.
Code, § 9822). "[T]he purpose of bonding the estate representative [is] to assure
administrative integrity" ( Estate of Spirtos, supra, 34 Cal.App.3d at p. 489), and if
malpractice suits by an administrator or executor against a predecessor's attorney were
contemplated, then "both the estate representative and the attorney would have to be
bonded to give adequate safeguard to distributees" (ibid.).

attorney, and a cited statute specially limited trustee liability for acts of agents (Prob.
Code, § 16401). The case is not on point, and for decedent's estate purposes, we reject
the assumption Saks made.
10

Here Borissoff petitioned, as successor representative, to surcharge Springer's
estate for losses from Springer's embezzlement of estate funds. That was an opportunity
to seek further surcharge for any mishandling of estate taxes, and leave recourse for legal
malpractice up to the surcharged estate, but this was apparently not done. We hold, as
the trial court did, that Borissoff had no standing to sue a predecessor administrator's
attorneys in the present action.
Contrary to Borissoff's urging, no authority for successor standing exists in the
Supreme Court's Moeller decision. The issue there was not successor standing to sue but
whether a successor--a trustee--held the attorney-client privilege as to communications
made by a predecessor trustee. A four-member majority held that the successor, not the
predecessor, held the privilege, although only as to confidential communications made in
a fiduciary capacity--i.e., on the subject of trust administration--as opposed to personal
capacity. Since the privilege passed to the successor, the predecessor could not assert it
and prevent discovery by the successor in ongoing trust administration. (Moeller, supra,
16 Cal.4th at pp. 1127, 1134-1135, 1139.) Moeller's distinction between consultations
for personal and fiduciary purposes suggests that Springer, by not retaining separate
counsel for his embezzlement problem, risked loss of confidentiality should a successor
fiduciary seek discovery, but it did not mean a successor would gain the right to sue his
attorneys for malpractice. This limited reading of Moeller accords with the high court's
own reading, when it later denied discovery to trust beneficiaries as opposed to successor
trustees. "In Moeller, we did not suggest that anyone other than the current holder of the
privilege might be entitled to inspect privileged communications. Nor did we create or
recognize any exceptions to the privilege. Instead, without questioning that the
communications at issue were privileged, we merely identified the current holder of the
privilege." ( Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201, 209.)
Defendants cite out-of-state cases reaching the conclusion we reach. (E.g., Trask
v. Butler (Wash. 1994) 872 P.2d 1080, 1083-1085 [using California test and relying in
part on Goldberg, no duty found to run from estate personal representative's attorney to
the estate or estate beneficiaries, as they were incidental beneficiaries, a direct cause of
11

action for breach of fiduciary duty was available against the personal representative, and
an unresolvable conflict of interest unduly burdened the legal profession]; Roberts v.
Fearey (Or.App. 1999) 986 P.2d 690, 693-696 & fn. 3 [same result under Oregon law,
distinguishing Moeller].) Their policy analyses are instructive and, to the extent
premised on similar statutory law, consistent with California law.
[UNPUBLISHED PART]
II. Costs
The Faust defendants and McGovern each submitted verified costs memoranda,
and Borissoff filed a motion to tax (§ 1033.5). His supporting memorandum of points
and authorities and counsel declaration are not included in our record, but defendants'
opposition papers are. The motion to tax was denied for the most part, after a hearing,
and the court by order of February 15, 2001, awarded Faust $8,517 and McGovern
$2,316.15. Borissoff's appeal challenges, apparently, only some costs awarded to the
Faust defendants.
Borissoff challenges the costs as unnecessary or unreasonably expensive; but the
court found them necessary and reasonable under the statute, determinations we reverse
only for abuse of discretion (Brake v. Beech Aircraft Corp. (1986) 184 Cal.App.3d 930,
939; Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1298). Absence from the
record of Borissoff's supporting papers is problematic for him. "[T]he mere filing of a
motion to tax costs may be a `proper objection' to an item, the necessity of which appears
doubtful, or which does not appear to be proper on its face. [Citation.] However, `[i]f
the items appear to be proper charges the verified memorandum is prima facie evidence
that the costs, expenses and services therein listed were necessarily incurred by the de-
fendant [citation], and the burden of showing that an item is not properly chargeable or is
unreasonable is upon the [objecting party].'" (Nelson v. Anderson (1999) 72 Cal.App.4th
111, 131; accord Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)
Thus a court's first determination "is whether the statute expressly allows the particular
item, and whether it appears proper on its face. [Citation.] If so, the burden is on the
12

objecting party to show them to be unnecessary or unreasonable." ( Nelson v. Anderson,
supra, at p. 131.)
The bulk of the challenge here is to discovery, including depositions of expert and
nonexpert witnesses, which Borissoff complains were "on the merits of the case" (appar-
ently meaning malpractice and damages) and had little or no bearing on the "standing and
statute of limitations" issues ultimately found dispositive in the judgment. But such costs
were allowed under the statute (§ 1033.5, subd. (a)(3)) so long as "reasonably necessary"
(id., subd. (c)(2)) and "reasonable in amount" (id., subd. (c)(3)), and as far as our record
reveals, Borissoff did not demonstrate that either condition was lacking. His complaint
about irrelevance to ultimately dispositive issues fails because the need for a deposition
"must be viewed from the pretrial vantage point" of a litigant who does not yet know
whether to oppose an expert's opinions ( Brake v. Beech Aircraft Corp., supra, 184
Cal.App.3d at p. 940) or forego a percipient witness's testimony. Borissoff's position
below that the whole case could have been resolved by "competent demurrer or motion
for summary adjudication" was disingenuous; he had successfully resisted both pretrial
procedures before submitting his issues on stipulated facts. It is doubly disingenuous
now on appeal, where he vigorously contends that neither ground for the judgment had
merit. As for a disputed $418 incurred to videotape the first of two days of deposition
testimony by McGovern, Borissoff's only argument below was that this must not have
been necessary because defendants themselves, "[f]or whatever reasons," had decided not
to videotape the second day. However, the reasons showing the initial videotaping un-
necessary, were Borissoff's to establish, and our record contains no such showing--just
his speculation. Abuse of discretion is not shown.
Borissoff specially attacks the need to depose Frederick Sroka, who had given
Borissoff tax advice about the estate. The Faust defendants maintain without evident
dispute that Sroka had information pertinent to establishing when the alleged malpractice
was discovered, but Borissoff calls the deposition a "useless act" in that Sroka refused to
answer many questions, based on attorney-client privilege, and says defendants should
have anticipated this. The problem for Borissoff, however, is that the record does not
13

contain his attorney's declaration, which evidently outlined the nature of the questioning
and what answers the witness did give. Abuse of discretion is not shown.
Nor is it shown for allowing, as Borissoff puts it, "expensive messenger services
rather than service by mail." Personal service is authorized by code (§ 1011), and while
courier and messenger costs are not expressly listed, case law allows them in the court's
discretion under section 1033.5, subdivision (c)(4) (Ladas v. California State Auto. Assn.,
supra, 19 Cal.App.4th at p. 776). The total service costs listed in the costs memorandum
was $818, with a cost breakdown for each of 12 witnesses/addresses. There is little in the
record--beyond some discussion of service difficulties with one witness--to show why
the mail was not satisfactory. What Borissoff does not show, however, is which of the 12
cost items involved service by messenger and, crucial to calculating any harm, how much
more expensive this was. His motion papers are not in the record; he complained orally
at the hearing only of charges in the "$63 to almost $200" range, which affected just six
of the witnesses (only one with a cost exceeding $102); comments on the record show
disagreement whether the cost for "run-of-the-mill service of process" was "50 bucks" or
"35 bucks"; and the court in any event disallowed the entire $65 charge for one of the six
witnesses. In short, Borissoff does not carry his burden of showing reversible error by an
adequate record (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575), i.e., by showing
which parts of the costs might be unreasonable and what part of the apparently disputed
$728 should be stricken.
14

[PUBLISHED PART]
DISPOSITION
The judgment and the costs award are affirmed.
_________________________
Lambden, J.
We concur:
_________________________
Haerle, Acting P. J.
_________________________
Ruvolo, J.
15

Trial Court:
Superior Court of the City and County of San Francisco
Trial Judge:
Honorable Paul H. Alvarado
Counsel for Plaintiff and Appellant Robert A. Borissoff:
LAW OFFICES OF MATTANIAH EYTAN
Mattaniah Eytan
Counsel for Defendants and Respondents Taylor & Faust, et al.:
KRIEG, KELLER, SLOAN, REILLEY & ROMAN
James C. Krieg
Allison Lane Cooper
Counsel for Defendant and Respondent Burton McGovern:
LAW OFFICE OF JOSEPH D. JOINER
Joseph D. Joiner
16