Judge: Alison Mackenzie, Case: SC129938, Date: 2023-05-09 Tentative Ruling
Case Number: SC129938 Hearing Date: May 9, 2023 Dept: 207
Background
Plaintiff David Dwyer, individually and as trustee of The
1987 Dwyer Living Trust (“Plaintiff”) brought this action against Defendants
Nicole Homme and Matthew Homme (“the Hommes”). The Hommes then brought a
Cross-Complaint against Plaintiff and his wife, Maria Dwyer (collectively with
Plaintiff, “the Dwyers”). The parties are neighbors in a community development
known as Sunset Mesa in Malibu, California, and brought claims against each
other for breach of restrictive covenants and nuisance concerning structures
and landscaping located on their respective properties. The Court held a bench
trial on the parties’ claims and on February 22, 2023, entered judgment in
favor of the Hommes, finding them to be the prevailing parties in the action. On
March 15, 2023, the Hommes filed a memorandum of costs. The Dwyers now move to
strike or tax certain costs claimed in the Hommes’ memorandum. The Hommes
oppose this motion.
Legal Standard
In
general, the prevailing party is entitled as a matter of right to recover costs
for suit in any action or proceeding.¿ (C.C.P.¿§ 1032(b);¿Santisas¿v.¿Goodin¿(1998)
17 Cal.4th 599, 606;¿Scott Co. Of¿Calif.¿v. Blount, Inc. (1999) 20
Cal.4th 1103, 1108.)¿ Assuming the prevailing party¿requirements are met, the
trial court has no discretion to order each party to bear his or her¿own¿costs
of suit. (Michell¿v. Olick¿(1996) 49 Cal.App.4th 1194, 1198;¿Nelson
v. Anderson¿(1999) 72 Cal.App.4th 111, 129.)¿The term prevailing party is
defined by statute to include:¿The party with a net monetary
recovery;¿a¿defendant who is dismissed from the action;¿a¿defendant where
neither plaintiff nor defendant recovers anything; and¿a¿defendant as against
those plaintiffs who do not recover any relief against that defendant.¿
(C.C.P.¿§¿1032(a)(4).)¿
¿
Allowable
costs under Code Civ. Proc.¿§¿1033.5 must be reasonably necessary to the
conduct of the litigation, rather than merely convenient or beneficial to its
preparation, and must be reasonable in amount.¿An item not specifically
allowable under¿§¿1033.5(a) nor prohibited under subdivision (b) may
nevertheless be recoverable in the discretion of the court if they meet the
above requirements (i.e., reasonably necessary and reasonable in amount).¿If
the items appearing in a cost bill appear to be proper charges, the burden is
on the party seeking to tax costs to show that they were not reasonable or
necessary.¿¿(Ladas v.¿California¿State Automotive Assoc.¿(1993) 19
Cal.App.4th 761, 773-774.)¿Whereas, if the items are properly objected to, they
are put in issue and the burden of proof is on the party claiming them as
costs. (Id.) Whether a cost item was reasonably necessary to the
litigation presents a question of fact for the trial court and its decision is
reviewed for abuse of discretion.¿ (Id.)¿ However, because the right to
costs is governed strictly by statute, a court has no discretion to award costs
not statutorily authorized. (Id.)¿ Discretion is abused only when, in
its exercise, the court exceeds the bounds of reason, all the circumstances
being considered.¿
Analysis
On March 15, 2023, the Hommes
filed a memorandum of costs claiming $6,229.97 in recoverable costs as the
prevailing parties in this litigation. The Dwyers seeks to strike or tax
$3,231.69 of these costs relating to service of process, filing fees, and Court
Call costs. The Court will address each category in turn.
1. Service of Process
The Dwyers contend the Hommes
improperly seek to recover $59.85 in service costs related to serving Gregg
Bernstein on January 14, 2021, as well as $68.40 in service costs for that same
individual just one week later on January 21, 2021. The Dwyers contend these
costs are duplicative and are attributable to an error by counsel for the
Hommes and seek to strike the $59.85 incurred for the first service attempt. The
Dwyers also seek to strike $1934.20 in costs incurred to serve Mr. Bernstein,
Linda Kay, and Rahul Jain on November 4, 2021. The Dwyers argue these costs
were unreasonable and unnecessary as these were trial subpoenas which were not
served on them and were not necessary because the deposition transcripts of
these witnesses were ultimately used at trial. In total, the Dwyers seek to strike
$1,994.05 of the $2,367.12 in service costs claimed by the Hommes.
The Hommes respond stating that
these costs were not duplicative or attributable to error, but rather merely
reflect that they first attempted to serve Mr. Bernstein at his office on
January 14. (Deal Decl. at ¶2.) This attempt was unsuccessful, which led the
Hommes to attempt service on Mr. Bernstein at his home on January 21, which was
successful. (Id.) As to the trial subpoenas served on November 4, 2021,
the Hommes argue they were not required to serve such subpoenas on the Dwyers,
citing Code Civ. Proc. § 1987(a). The Hommes also argue the fact that
deposition testimony was ultimately used in lieu of the live testimony from
those individuals does not render such service costs unnecessary because they
were only able to use the deposition testimony by subsequent stipulation of the
parties as these witnesses were not otherwise unavailable to testify. The
Hommes have also submitted a summary from counsel’s accounting department
summarizing the costs incurred in this action. (Ex. A to Deal Decl.)
In their reply, the Dwyers argue
the summary documentation attached to the opposition is insufficient to support
the request for service fees, citing Nelson v. Anderson (1999) 72
Cal.App.4th 111. The Court in Nelson held “Whether and in what amount
the expenses for service of process are allowed depends upon who served the
process and what amount is allowed to a public officer in this state for such a
service. [Citation.] Since MPG's memorandum of costs does not state how the
subpoenas were served, it cannot be determined from the face of the cost bill
whether the items are proper. The verified cost bill was therefore
insufficient, MPG had the burden to establish the necessity and reasonableness
of the service costs, but did not do so.” (Id. at 132.) The Court finds Nelson
distinguishable. The Hommes’ memorandum of costs indicates service on these
individuals was effectuated by a registered process server, not by a public
officer. (Cost Memo. at ¶5, Attachment 5d.) “The amount actually incurred in
effecting service of process by a registered process server is specifically
recoverable under Code of Civil Procedure section 1033.5, subdivision
(a)(4)(B).” (Citizens for Responsible Development v. City of West Hollywood
(1995) 39 Cal.App.4th 490, 506.)
The Court finds the Hommes have
adequately demonstrated the reasonableness of these claimed service fees and in
its discretion declines to tax these costs as requested by the Dwyers.
In their reply, the Dwyers for the
first time claim the testimony of these witnesses was unrelated to the subject
matter of the dispute and claim Homme’s counsel did not attend the depositions
of these individuals or ask them any questions. “[P]oints raised for the first
time in a reply brief will ordinarily not be considered, because such
consideration would deprive respondent of an opportunity to counter the
argument. [Citations.]” (Jay v. Mahaffey (2013) 128 Cal.App.4th 1522,
1538.) The Court notes these factual allegations are not supported by declaration,
affidavit, or other evidence. Accordingly, the Court in its discretion declines
to consider these assertions in ruling on the Dwyers’ motion.
2. Filing
Fees
The Dwyers also seek to tax the
$823.84 in electronic filing and service fees included on the Hommes’ cost
memorandum, arguing these claimed costs are not adequately supported. In
response, the Hommes point to the cost summary attached to their opposition to
show they incurred $823.84 in electronic filing fees in connection with the
demurrers and motion to disqualify filed in this action. The Dwyers argue the
documentation submitted by the Hommes does not show how this $823.84 figure was
calculated. The Court agrees. The summary attached to counsel’s declaration
contains one heading for “COURT/RECORDER FEES” totaling $1,790.71 and another
heading for “MESSENGER” totaling $1,579.23. It is not clear to the Court which
costs enumerated under these headings combined to total $823.84 in electronic
filing fees to which the Hommes claim to be entitled.
The Court/Recorder Fees heading includes
line-item charges which appear to be for electronic filing fees, such as a
January 31, 2019, entry for $61.65 to electronically file a motion to
disqualify counsel. However, this heading also contains entries which appear to
be unrelated to motion filing fees, including costs for remote appearances or
costs to purchase documents from the Court’s electronic system. The same is
true with respect to the Messenger heading, which includes potentially relevant
cost entries, such as a February 13, 2019, entry of $13.64 to electronically
file an ex parte application, but also includes costs unrelated to electronic
filing, such as the cost to deliver trial binders to the Court. The Court
should not be forced to guess or speculate as to how the Hommes have calculated
the $823.84 in claimed filing fees.
The Court also notes the requested
fees appear to include fees associated with the February 5, 2019, motion to
disqualify the Dwyers’ counsel which was denied by the Court. The Court does
not find this motion was reasonable or necessary and declines to award the
Hommes their costs in connection with this motion.
The Court GRANTS the Dwyers’
request to strike the $823.84 in electronic filing fees claimed by the Hommes.
3. Court
Call Costs
The Hommes seek an award of $414
in costs incurred to utilize CourtCall to make remote appearances in Court.
Such costs were previously recoverable as prevailing party costs under Code
Civ. Proc. § 367.6(c), which stated “The fee described in this section shall be
a recoverable cost under Section 1033.5 of the Code of Civil Procedure.”
However, section 367.6 was expressly repealed by 2022 Senate Bill 233,
effective January 1, 2023. (2022 Cal Stats. ch. 979, §2.) The Dwyers thus argue
the Hommes are no longer entitled to an award of CourtCall costs.
The Hommes argue the repeal of
section 367.6 was not retroactive in effect and they are thus entitled to
CourtCall fees incurred prior to the effective date of the statute’s repeal. “Generally,
statutes operate prospectively only.” (Myers v. Philip Morris Companies,
Inc. (2002) 28 Cal.4th 828, 840.) “It is an established canon of
interpretation that statutes are not to be given a retrospective operation
unless it is clearly made to appear that such was the legislative intent.” (Aetna
Casualty & Surety Co. v. Industrial Acci. Com. (1947) 30 Cal.2d 388,
393.) The “first rule of construction is that legislation must be considered as
addressed to the future, not to the past . . . . The rule has been expressed in
varying degrees of strength but always of one import, that a retrospective
operation will not be given to a statute which interferes with antecedent
rights . . . unless such be the unequivocal and inflexible import of the terms,
and the manifest intention of the legislature.” (Evangelatos v. Superior
Court (1988) 44 Cal.3d 1188, 1207 [quoting United States v. Security
Industrial Bank (1982) 459 U.S. 70, 79-80] [internal quotations omitted].)
There does not appear to be any
legislative intent for Senate Bill 233 to apply retroactively to preclude an
award of costs which were recoverable under Code Civ. Proc. § 367.6 at the time
they were incurred. The Dwyers do not even attempt to argue the Legislature
intended the legislation to apply retroactively. Instead, they rely on a quote from
Davis v. KGO-T.V.(1998) 17 Cal.4th 436, 439 [superseded by statute on
other grounds as stated in Huerta v. Kava
Holdings, Inc. (2018) 29 Cal.App.5th
74, 80, fn. 12] stating “The right to recover any of such costs is
determined entirely by statute” as showing the Hommes cannot recover costs
incurred under section 367.6 while that statute was in effect. Davis did
not concern the retroactive application of a repeal statute in an award of
costs and offers no guidance to the Court in determining whether SB 233 should
apply retroactively. The Court agrees the Hommes’ right to recover costs is
determined entirely by statute, and in the absence of a Legislative intent to
apply SB 233 retroactively, the Court will determine the Hommes’ right to
recover costs by application of the statute in effect at the time those costs
were incurred. The Court in its discretion declines to tax or strike the $414
claimed in costs for CourtCall appearances.
Conclusion
The Dwyers’ motion to tax costs is GRANTED in part and
DENIED in part. The Court taxes the Hommes’ costs in the amount of $823.84, leaving a total cost award to the Hommes of
$5,406.13. The Dwyers’ motion is otherwise denied.