Judge: Alison Mackenzie, Case: 21STCV43745, Date: 2025-02-25 Tentative Ruling
Case Number: 21STCV43745 Hearing Date: February 25, 2025 Dept: 55
NATURE OF PROCEEDINGS: Hearing on (1) Defendant’s Objection to Proposed Judgment on
Cross-Complainant Jerey Messod Abesera’s Dismissed Cross-Complaint; Motion to Strike
or, in the Alternative, to Tax Costs; and (2) Plaintiff’s Motion to Tax
Defendant Abesera’s Alleged Costs
BACKGROUND
Plaintiff Alain V. Bonavida filed this case against Defendant
Jeremy Messod Abesera following a physical altercation between the two men
outside of Defendant’s home. Plaintiff alleged claims against Abesera for
battery, assault, violation of the Ralph Civil Rights Act (Civil Code Section
51.7 and 52) and the Tom Bane Civil Rights Act (Civil Code Section 52.1), and
intentional infliction of emotional distress. Defendant filed a cross-complaint
in December 2021 alleging claims for battery, assault, intentional infliction
of emotional distress, and slander. On 11/28/2022, Defendant served Plaintiff
with a Code of Civil Procedure section 998 Offer to Compromise (“998 Offer”) in
the amount of $15,000 in exchange for dismissal of Plaintiff’s Complaint and Defendant’s
Cross-Complaint. Plaintiff did not accept the 998 Offer.
On November 19, 2024, Defendant dismissed his
Cross-Complaint with prejudice. The parties proceeded to trial in December
2024. During trial, Plaintiff dismissed his claims for violation of the Ralph Act
and Bane Act. At trial, the jury returned a verdict against Bonavida on the claims
for battery and intentional infliction of emotional distress. The jury found
that Defendant had assaulted Plaintiff but awarded Plaintiff $0 dollars in damages.
Following trial, Plaintiff submitted a proposed judgment on
Defendant’s dismissed Cross-Complaint and a Memorandum of Costs (followed two days
later by a verified Memorandum of Costs) seeking costs in the amount of $8,161,63.
The proposed judgment states that Plaintiff is the prevailing party on the dismissed
Cross-Complaint and is entitled to costs incurred up to November 19, 2024.
Defendant filed an objection to the proposed judgment, motion to strike the
Memorandum of Costs or, in the alternative, a motion to tax Plaintiff’s memorandum
of costs. Plaintiff opposes.
Defendant filed a proposed judgment on Plaintiff’s Complaint
and a verified Memorandum of Costs seeking costs in the amount of $13,493.61.
Plaintiff filed an objection to the proposed judgment and a motion to tax
Defendant’s costs and Defendant opposes. This tentative ruling addresses both
parties’ motions.
LEGAL STANDARD
Pursuant to Code of Civil Procedure section 1032,
subdivision (b), a prevailing party is entitled to recover costs. A prevailing
party is defined as including (1) “the party with a net monetary recovery,” (2)
a defendant (or cross-defendant) “in whose favor a dismissal is entered,” (3) “a
defendant where neither plaintiff nor defendant obtains any relief,” and (4) a
defendant as against those plaintiffs who do not recover any relief against
that defendant.”
Generally, when a party falls squarely within one of the
four situations enumerated in the definition of a prevailing party under
section 1032, that party is entitled to recover costs as a matter of right. Great
Western Bank v. Converse Consultants, Inc. (1997) 58 Cal.App.4th 609,
612–614. “In other situations, the trial court in its discretion determines the
prevailing party, comparing the relief sought with that obtained, along with
the parties' litigation objectives as disclosed by their pleadings, briefs, and
other such sources.” On-Line Power, Inc. v. Mazur (2007) 149 Cal. App.
4th 1079, 1087, citing Code of Civil Procedure section 1032(a)(4) (“in
situations other than as specified [i.e., the 4 situations listed above] the ‘prevailing
party’ shall be as determined by the court, and under those circumstances, the
court, in its discretion, may allow costs or not…”).
Code of Civil Procedure section 1033.5, subdivision (c)(1)
provides that certain items are allowable costs, including filing and motion
fees, court-ordered transcripts, court reporter fees as established by statute,
fees for electronic service or filing, and models, enlargements, and photocopies
of exhibits. Code of Civil Procedure section 1033.5, subdivision (b) sets forth
items that are not allowable as costs, including transcripts of court
proceedings not ordered by the court.
Costs must be both reasonable in amount and reasonably
necessary to the conduct of the litigation. Code Civ. Proc., § 1032; §
1033.5(c)(2) and (3).) To obtain a costs award, the prevailing party must serve
and file a memorandum of costs. Cal. Rules of Court, rule 3.1700(a). If items
on their face appear to be proper charges, the verified memorandum of costs is
prima facie evidence of their propriety, and the burden is on the party seeking
to tax costs to show they were not reasonable or necessary. ‘On the other hand,
if items are properly objected to, they are put in issue and the burden of
proof is on the party claiming them as costs.’ However, whether a cost item was
reasonably necessary is still a question of fact to be decided by the trial
court.” Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266 (quoting Ladas
v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774. Supporting
documentation such as bills or invoices are not required unless costs are put
in issue by a motion to tax costs. Id. at p. 167.
ANALYSIS
Prevailing party
Plaintiff objects to the proposed judgment submitted by
Defendant because, Plaintiff argues, it contains unnecessary extraneous
information and includes a specific amount for costs rather than leaving that
space blank. Plaintiff does not,
however, dispute Defendant’s statement in the proposed judgment that Defendant
is the prevailing party on Plaintiff’s Complaint. The Court agrees that Defendant’s
proposed judgment contains extraneous verbiage and that Defendant will need to
submit a revised proposed judgment after this tentative ruling becomes final.
Defendant objects to the proposed judgment submitted by
Plaintiff because, Defendant argues, Plaintiff is not the prevailing party on
the dismissed Cross-Complaint. In determining the prevailing party in this
action, the Court acknowledges that both parties achieved a status that Code of
Civil Procedure section 1032 defines as a prevailing party. On the one hand,
Defendant dismissed with prejudice his Cross-Complaint against Plaintiff. On
the other hand, Plaintiff dismissed two of his claims against Defendant, the
jury found against Plaintiff on two of his three claims, and as for the third
claim, the jury awarded Plaintiff no damages. Thus, Plaintiff did not obtain
any recovery against Defendant. Because both parties achieved a status that
could warrant a finding of prevailing party, Code of Civil Procedure section
1032(a)(4) makes clear that in such a situation, the Court must exercise its
discretion to determine the prevailing party and whether costs should be
awarded.
Here, Plaintiff dismissed two of his claims during trial
and, despite requesting millions of dollars of damages at trial, he received no
recovery against Defendant. Moreover, Plaintiff rejected the 998 Offer in 2022
to settle both cases. Plaintiff did not, of course, obtain a more favorable
outcome than the 998 Offer at trial and so he is not, under any circumstances, entitled
to any post-offer costs pursuant to Code of Civil Procedure section 998. These
facts demonstrate that Plaintiff did not meet his litigation objectives because
he hoped to recover millions of dollars against Defendant and instead received
nothing. That Defendant dismissed the Cross-Complaint as the case neared trial is
not a significant fact militating in favor of finding Plaintiff to be the
prevailing party given that the totality of facts in this case suggest that
Defendant, not Plaintiff, prevailed in this litigation.
Defendant’s 998 Offer is persuasive evidence of his
willingness to compromise and resolve this case. Defendant has presented
credible evidence that he dismissed the Cross-Complaint in a good faith effort
to streamline the case and facilitate a settlement. At trial, Defendant
successfully defended Plaintiff’s claims. Plaintiff dismissed two of his claims
mid-trial. The jury found against Plaintiff and awarded no damages. Plaintiff thus
obtained no relief against Defendant. Under these circumstances, the Court
exercises its discretion to determine that Defendant is the prevailing party
under Section 1032(a)(4) because he sought to resolve this case and ultimately
succeeded in beating back Plaintiff’s claims. The Court further exercises its
discretion in allowing Defendant to seek costs pursuant to Code Civ. Proc., §
1032(a)(4); § 1033.5. The Court therefore grants Defendant’s motion to strike
Plaintiff’s Amended Memorandum of Costs and denies the motion to tax Plaintiff’s
costs as moot.
In connection with Defendant’s Memorandum of Costs, Plaintiff
broadly argues that Defendant is not entitled to any of his claimed costs
because he did not provide any documentation for his costs. But as noted above,
the verified Memorandum of Costs is prima facie evidence of their propriety. The
Court cannot and will not consider a vague argument against all the costs
without a specific objection. Moreover, Defendant’s request for filing costs,
court reporter fees, and photocopies of exhibits appear reasonable. Plaintiff
also confusingly argues that Defendant cannot recover costs incurred by Plaintiff
through the date of Defendant’s dismissal of the Cross-Complaint. First,
Plaintiff does not explain how or why he believes Defendant was seeking costs
that Plaintiff incurred and does not specify which of the specified costs should
be taxed under this theory. Second, the Court has determined that Plaintiff is
not the prevailing party in this action and thus Plaintiff’s arguments about
the import of the dismissal of the Cross-Complaint are of no consequence.
Plaintiff does specifically object to Defendant’s request
for $3,042.95 for “court-ordered transcripts,” noting correctly that this Court
did not order any transcripts. Rather, the parties agreed between themselves to
pay for a court reporter to prepare transcripts at trial. Defendant does not attempt
to justify this claimed cost, which is expressly disallowed under Code of Civil
Procedure section 1033.5(b)(5). The Court therefore taxes $3,042.95. Plaintiff argues
for the first time in reply that certain other amounts in the Memorandum of
Costs should be taxed, but he failed to specify these amounts in his initial
motion and the Court therefore rejects those arguments.
CONCLUSION
Plaintiff’s Motion to Tax costs is granted in part and
denied in part. The Court orders that $3,042.95 be taxed, leaving the total costs
awarded to Defendant in the amount of $10,450.66.
Defendant’s Motion to Strike Plaintiff’s Memorandum of Costs
is granted, and the Motion to Tax is denied as moot.
Plaintiff shall prepare a revised judgment.