Judge: Andrew E. Cooper, Case: 19TRCV00282, Date: 2025-03-13 Tentative Ruling

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Case Number: 19TRCV00282    Hearing Date: March 13, 2025    Dept: F51

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MOTIONS TO STRIKE/TAX COSTS

Motions Filed: 10/1/24

MOVING PARTY: Defendants Cross Creek Village Homeowners Association; Brian Martin; Janice Meldola; Nicolass Pacitto; Lois Bass; and Kodi Mattox (collectively, “Defendants”)

RESPONDING PARTY: Plaintiff Alexandar Cvetkovich, in pro per (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: An order striking Plaintiff’s memorandum of costs in its entirety, or, in the alternative, taxing items 1, 5, 8, 10, 11, 12, and 16.

TENTATIVE RULING: Defendants’ motion is granted. The Court strikes Plaintiff’s memorandum of costs

MOVING PARTY: Plaintiff Alexandar Cvetkovich, in pro per (“Plaintiff”)

RESPONDING PARTY: Defendants Cross Creek Village Homeowners Association; Brian Martin; Janice Meldola; Nicolass Pacitto; Lois Bass; and Kodi Mattox (collectively, “Defendants”)

NOTICE: OK

RELIEF REQUESTED: An order striking Defendants’ memorandum of costs in its entirety, or, in the alternative, taxing the costs therein.

TENTATIVE RULING: Plaintiff’s motion is granted in part. Defendants are awarded $34,309.46 in costs.

BACKGROUND

This is an action by the owner of a condominium unit against the homeowners’ association (HOA), the HOA’s counsel, and others. The operative Second Amended Complaint, filed on 9/9/20, contains the following causes of action: (1) breach of governing documents, (2) breach of fiduciary duty, (3) breach of written contract, (4) breach of Davis Stirling Act, (5) discrimination in violation of FEHA and Unruh Civil Rights Act, (6) RICO Conspiracy, (7) unfair debt collection practice, (8) fraud, (9) negligence, (10) nuisance, (11) negligent infliction of emotional distress, (12) injunctive relief, (13) declaratory relief, (14) malicious prosecution and (15) accounting.

On 7/15/24, non-jury trial of the matter commenced. On 8/16/24, the Court issued a ruling in favor of Plaintiff and against the HOA on the Breach of Governing Documents cause of action only, and in favor of Defendants on all remaining causes of action. On 8/27/24, the Court entered its judgment pursuant to its 8/16/24 ruling and awarded Plaintiff $85,000 in damages.

On 9/3/24 and 9/16/24, Plaintiff filed his memorandum of costs. On 9/13/24, Defendants filed their memorandum of costs. On 10/1/24, Plaintiff and Defendants filed the instant motions. On 2/4/25, Defendants filed their opposition to Plaintiff’s motion. On 2/7/25, Plaintiff filed his opposition to Defendants’ motion. On 2/7/25, Defendants filed their objection to Plaintiff’s opposition. On 2/10/25, Plaintiff filed his reply.

ANALYSIS

A prevailing party is entitled as a matter of right to recover costs of suit in any action or proceeding. (Code Civ. Proc. § 1032, subd. (b).) Costs recoverable under Section 1032 are restricted to those that are both reasonable in amount and reasonably necessary to the conduct of the litigation. (Code Civ. Proc. § 1033.5, subd. (c)(2)–(3).)

A.    Timeliness

1.      Memorandum of Costs

A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Ct., rule 3.1700(a)(1).)

Here, as a preliminary matter, Defendants argue that the Court should strike Plaintiff’s memorandum of costs because it was untimely filed pursuant to rule 3.1700 of the California Rules of Court. Here, the Court previously determined that the effective date of the Court’s mailing of notice of entry of judgment as 11/13/24. (11/13/24 Min. Order.) Accordingly, the Court finds that Plaintiff’s 9/16/24 Memorandum of Costs is not untimely.

2.      Motion to Strike/Tax Costs

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. … If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (Cal. Rules of Ct., rule 3.1700(b)(1).) Here, Plaintiff argues that Defendants’ motion is untimely. (Pl.’s Opp. 5:13–18.) While the proof of service attached to Plaintiff’s memorandum of costs states that the document was electronically served on Defendant on 9/13/24, Defendants’ counsel declares that it was not received on that date. (Decl. of Michelle M. McCliman ¶¶ 1–2.) Defendants’ counsel attaches an email exchange showing that Plaintiff’s attempt to serve Defendants was unsuccessful. (Ex. A to McCliman Decl.)

Based on the foregoing, the Court determines that Plaintiff’s memorandum of costs was served on Defendants on 9/16/24. Accordingly, the deadline for Defendants to file their motion was 10/3/24, which is 15 days after the service of the memorandum, plus two days for electronic service. (Cal. Rules of Ct., rule 3.1700(b)(1).) Accordingly, as Defendants’ motion was filed and served on 10/1/24, the Court finds that Defendants’ motion is not untimely.

3.      Plaintiff’s Opposition

“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days … before the hearing.” (Code Civ. Proc. § 1005, subd. (b).) Here, the deadline for Plaintiff to file and serve his opposition to the instant motion was 2/4/25. (Ibid.) However, Plaintiff filed his opposition on 2/7/25, and Defendants contend that they were not served with the opposition. (Defs.’ Obj. 2:7–9.) Moreover, Defendants argue that “any replies would be due on February 10, 2025. Thus, the late-filed Opposition(s) do not provide adequate time to properly prepare a reply.” (Id. at 2:14–15.)

The Court exercises its discretion, under Rule 3.110 of the California Rules of Court, to excuse the untimely-filed opposition, particularly where it appears that Defendants have had an opportunity to review the opposition.

B.     Prevailing Party

Defendants argue that Plaintiff’s entire memorandum of costs should be stricken because Plaintiff is not the prevailing party in this action. “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc. § 1032, subd. (b).) “‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034. (Id. at subd. (a)(4).)

“A prevailing party who is represented by the same counsel as a nonprevailing party may only recover those costs the prevailing party incurred and were reasonably necessary to the prevailing party’s conduct of the litigation, not the other jointly represented parties’ conduct of the litigation.” (Charton v. Harkey (2016) 247 Cal.App.4th 730, 744.) “When allocating costs between jointly represented parties, the court must examine the reason each cost was incurred, whether the cost was reasonably necessary to the conduct of the litigation on behalf of the prevailing party, and the reasonableness of the cost.” (Id. at 745.)

Here, Defendants assert that Plaintiff did not prevail because “the breach of governing documents claim was clearly just one small piece of the entire litigation puzzle and even if Plaintiff is deemed the prevailing party on this cause of action, any costs recovery should be reduced by about 90% since it represents only 1/15 of Plaintiff’s entire Action. Any recovery should further be reduced since Plaintiff did not prevail on his cause of action against the Board Member Defendants.” (Defs.’ Mot. 6:2–6.)

The Court agrees, and finds that here, the individual defendants are “prevailing parties” because Plaintiff did not recover any relief against them. (Code Civ. Proc. § 1032, subd. (a)(4).) Additionally, the HOA prevailed on all the claims brought against it by Plaintiff with the exception of Plaintiff’s first cause of action. The Court therefore finds that Defendants are the prevailing party as defined under Code of Civil Procedure section 1032, subdivision (a)(4).  

C.    Reasonable Costs

Here, Plaintiff argues that several items in Defendants’ memorandum of costs should be stricken as not reasonably incurred.

1.      Filing and Motion Fees

Filing, motion, and jury fees are expressly recoverable by statute. (Code Civ. Proc. § 1033.5, subd (a)(1).) While Plaintiff challenges the costs incurred by Defendants for these items, the Court finds that the costs were reasonably incurred and therefore recoverable.

2.      Models, Enlargements, and Photocopies of Exhibits

“Models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.” (Code Civ. Proc. § 1033.5, subd (a)(13).) Here, Plaintiff argues that Defendants improperly seek to recover “costs relating to exhibits that were not used at trial and excessive number of sets that were are not reasonably necessary to the conduct of the litigation/trial.” (Pl.’s Mot. 4:17–18.) The Court finds that these costs were reasonably incurred and therefore recoverable.

3.      Mediation Fees

Mediation costs “fall within the ‘discretionary category,’ … that is, they are allowable if in the court’s discretion they were ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’” (Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1132, quoting Code Civ. Proc. § 1033.5, subd (c)(2).) Here, as it is undisputed that the mediation did not go forward, the Court exercises its discretion to strike mediation costs from Defendants’ cost memorandum, for a reduction of $2,445.00.

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4.      Onsite Setup Fees

Defendants seek to recover $934.50 for “On-Site Setup Fee (local), Scanned Images, Mileage, and Digital Delivery.” (Defs.’ Mem. of Costs, p. 11.) Plaintiff argues that this is a “fraudulent claim that is not related to this litigation, nor is such cost authorized by statute.” (Pl.’s Mot. 4:22–23.) In opposition, Defendants assert that “Item 16-b is a charge to obtain documents from the client in order to respond to a Request for Production of Documents propounded by Plaintiff. The responses were served on December 30, 2021, after being reviewed for privilege and whether they were responsive to any requests.” (Defs.’ Opp. 7:8–10.)

As these fees are not expressly recoverable by statute, the Court exercises its discretion to strike these costs from Defendants’ cost memorandum, for a reduction of $934.50.

5.      Investigation Fees

“Investigation expenses in preparing the case for trial” are expressly nonrecoverable, except when authorized by law. (Code Civ. Proc. § 1033.5, subd (b)(2).) Here, Defendants seek to recover a total of $943.79 for “Investigative Services,” “Data Search,” and “Research.” (Defs.’ Mem. of Costs, p. 11.) As these fees are expressly excluded by statute, the Court strikes these costs from Defendants’ cost memorandum, for a reduction of $943.79.

6.      Court Reporter Fees

Defendants seek to recover $4,383.40 in costs for court reporter cancellation fees and transcripts. (Defs.’ Mem. of Costs, p. 12.) However, these costs are only recoverable when ordered by the Court or otherwise expressly authorized by law. (Code Civ. Proc. § 1033.5, subds. (a)(9) and (b)(5).) Based on the foregoing, the Court strikes these costs from Defendants’ cost memorandum, for a reduction of $4,383.40.

Plaintiff further challenges Defendants’ costs for a videographer and trial technician/hot seat operator, which total $12,422.00. (Pl.’s Mot. 7:1–4; Defs.’ Mem. of Costs, pp. 11–13.) Defendants argue in opposition that “the use of a trial technician and technology to display the exhibits was reasonably necessary to the presentation of Defendants’ case—and, in some instances, assisted Plaintiff when he would fumble around trying to find particular exhibits to present to the witness for examination.” (Defs.’ Reply 6:18–20.) The Court finds that these fees were not reasonably incurred, and therefore exercises its discretion to strike these costs from Defendants’ cost memorandum, for a reduction of $12,422.00.

7.      Travel Fees

Plaintiff further challenges Defendants’ attorney’s travel and lodging expenses incurred during trial. (Pl.’s Mot. 10:27–28.) However, lodging and “meal expenses incurred by attorneys while attending out-of-town depositions … have been held to be recoverable.” (Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 695.)

In Doe, the Court of Appeal found no abuse of discretion where the trial court allowed the recovery of expenses for meals and lodging incurred during trial, which was located approximately 90 miles from defense counsel’s office. (Ibid.) Here, Defendants assert that “given the notoriously heavy traffic and the fact that the courthouse was 70 miles from counsel’s office in Irvine and 90 miles from counsel’s home in South Orange County, these costs were reasonably necessary and reasonable in amount.” (Defs.’ Reply 7:24–26.)

Based on the foregoing, the Court finds that these costs were reasonably incurred and therefore recoverable.

CONCLUSION

Defendants’ motion is granted in full. Plaintiff’s motion is granted in part. Defendants are awarded $34,309.46 in costs.

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MOTION FOR ATTORNEY FEES

Motion Filed: 10/28/24

MOVING PARTY: Defendants Cross Creek Village Homeowners Association; Brian Martin; Janice Meldola; Nicolass Pacitto; Lois Bass; and Kodi Mattox (collectively, “Defendants”)

RESPONDING PARTY: Plaintiff Alexandar Cvetkovich, in pro per (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: An order granting Defendants their attorney fees in the amount of $641,957.50.

TENTATIVE RULING: The motion is granted in part. Defendants are awarded $83,020.00 in attorney fees. Defendants’ request for judicial notice is granted.

BACKGROUND

This is an action by the owner of a condominium unit against the homeowners’ association (HOA), the HOA’s counsel, and others. The operative Second Amended Complaint, filed on 9/9/20, contains the following causes of action: (1) breach of governing documents, (2) breach of fiduciary duty, (3) breach of written contract, (4) breach of Davis Stirling Act, (5) discrimination in violation of FEHA and Unruh Civil Rights Act, (6) RICO Conspiracy, (7) unfair debt collection practice, (8) fraud, (9) negligence, (10) nuisance, (11) negligent infliction of emotional distress, (12) injunctive relief, (13) declaratory relief, (14) malicious prosecution and (15) accounting.

On 7/15/24, non-jury trial of the matter commenced. On 8/16/24, the Court issued a ruling in favor of Plaintiff and against the HOA on the Breach of Governing Documents cause of action only, and in favor of Defendants on all remaining causes of action. On 8/27/24, the Court entered its judgment pursuant to its 8/16/24 ruling and awarded Plaintiff $85,000.00 in damages.

On 10/28/24, Defendants filed the instant motion. ¿On 2/10/25, Plaintiff filed his opposition. On 2/13/25, Defendants filed their reply.

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ANALYSIS

A.    Right to Recovery

An award of attorney fees is proper when authorized by contract, statute, or law. (Code Civ. Proc. §§ 1032, subd. (b); 1033.5, subd. (a)(10).) Here, attorney fees are available under the Federal Fair Debt Collection Practices Act, the Rosenthal Fair Debt Collection Practices Act, and Fair Employment and Housing Act, where the Court finds that the action was brought frivolously or in bad faith. (15 U.S.C. § 1692k, subd. (a)(3); Civ. Code § 1788.30, subd. (c); Gov. Code § 12965, subd. (b)(6).) Here, the Court finds that the Unfair Debt Collection and FEHA causes of action were not brought frivolously or in bad faith.

Attorney fees are also recoverable under the Davis-Stirling Common Interest Development Act. (Civ. Code § 5975, subd. (c) [“In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.”].)

Moreover, Defendants base the instant motion on “Article XV, Section 9 of the CC&Rs, [which] states: ‘In case a suit is instituted, the prevailing party shall recover the cost of the suit, in addition to the aforesaid costs and fees.’” (Defs.’ Mot. 2:25–3:1.) Based on the foregoing, the Court finds that attorney fees are recoverable as authorized by both the Davis-Stirling Act and by contract.

B.     Prevailing Party

1.      Breach of Governing Documents (CC&Rs)

For recovery of attorney fees based on a contractual attorney fee provision, “the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.” (Civ. Code § 1717, subd. (b)(2).)

Defendants assert that “here, Martin, Pacitto, Meldola, and Bass prevail against Plaintiff on his Breach of the CC&Rs cause of action and the HOA prevailed on the Breach of Davis-Stirling Act one.” (Defs.’ Mot. 3:3–5.) “In addition, the Court determined that the Individual Defendants prevailed on all causes of action asserted against them by Plaintiff.” (Id. at 3:9–12.)

In opposition, Plaintiff asserts that “because Plaintiff received the most relief, he is the prevailing party in the lawsuit.” (Pl.’s Opp. 6:21.) The Court disagrees, and notes that a determination of a prevailing party for the purposes of costs is distinct from a determination of a prevailing party under the terms of a statutory or contractual attorney fee provision. Defendants argue that they are the prevailing parties because “Plaintiff failed to recover against the HOA on all the asserted causes of action except for certain portions of one, which makes the HOA also a prevailing party.” (Defs.’ Mot. 3:14–16.)

Based on the foregoing, the Court finds that the individual Defendants are intertwined with the HOA, therefore neither party prevailed on the Breach of CC&Rs cause of action. Both parties assert that “the issues and evidence related to all of Plaintiff’s other causes of action are inextricably intertwined with his breach of contract claim.” (Id. at 3:20–21; see also Pl.’s Opp 5:24–26 [“the individual defendant were not sued in their unit owner capacity, and have not retained a separate counsel to defend them as individuals.”]; see also Defs.’ Reply 3:23–25 [“the costs incurred by the Individual Defendants were the same costs incurred by the HOA. There was no division of labor among them.”].) Accordingly, the Court finds that Defendants are not entitled to recover contractual attorney fees under the terms of the CC&Rs.

2.      Davis-Stirling Act

The statutory definition of prevailing party for purposes of an award of costs under Code of Civil Procedure section 1032 does not determine who is the prevailing party for purposes of a statutory attorney fee award. (MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1047; Salehi v. Surfside III Condo Owners’ Assn. (2011) 200 Cal.App.4th 1146, 1153.) Instead, “the analysis of who is a prevailing party under the fee-shifting provisions of the [Davis-Stirling] Act focuses on who prevailed ‘on a practical level’ by achieving its main litigation objectives; the limitations applicable to contractual fee-shifting clauses, codified at section 1717, do not apply.” (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 260.)

Here, Plaintiff’s Davis-Stirling Act claims were dismissed when the Court sustained Defendants’ demurrer against it without leave to amend. (1/12/21 Min. Order, p. 2.) Accordingly, Defendants prevailed on Plaintiff’s Davis-Stirling Act claim.

C.    Attorney Fees Incurred

“The burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable.” (Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 169.) In determining a reasonable fee award, the Court begins with the lodestar method of calculation, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.¿(Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 744; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095–1096.)

Here, Defendants seek to recover $628,557.50, encompassing 1,245.2 hours of their attorneys’ time, billed at the following rates:

Plaintiff argues that “in this matter, the Court should reduce any award, because the bills are replete with time billed for review of the related cases, duplicative, and claim that various counsels had to work on the case or that defendant need a Counsel form another country [sic] when there are many Counsels in Los Angles who does not need to travel 70mi to the court.” (Pl.’s Opp. 12:13–17.)

As the Court finds that Defendants are entitled to attorney fees only as it relates to Plaintiff’s dismissed cause of action for Breach of the Davis-Stirling Act, the Court limits its review to those fees incurred by Defendants’ counsel until 1/12/21, the date on which the cause of action was dismissed.

The Court finds that Defendants’ billing statements reflect 0.4 hours (on 6/4/19 and 6/10/19) incurred for purely administrative tasks. (Ex. 7 to Decl. of Kere Tickner.) The Court also finds that 4.1 hours (on 9/25/20, 9/28/20, and 9/30/20) were duplicatively billed. (Ibid.) In striking these fees, the Court therefore further reduces the fee award by $1,880.00.

The Court further finds that Defendants excessively billed 11.2 hours (9/21/20, 9/29/20, 9/30/20, 10/2/20) in drafting their demurrer to Plaintiff’s SAC, and 12.2 hours (10/2/20, 10/16/20, 10/21/20, 10/26/20, 10/28/20, 10/30/20) drafting a motion to strike the same. (Ibid.) Accordingly, the Court reduces these fees by 11.4 hours for a reduction of $4,560.00.

The Court further finds that Defendants excessively billed 7 hours (12/17/20) in reviewing Plaintiff’s ex parte application for a temporary restraining order and preliminary injunction. (Ibid.) Accordingly, the Court reduces these fees by 3 hours for a reduction of $1,800.00.

Based on the foregoing, the Court finds it reasonable to award Defendants $83.020.00 in attorney fees, as outlined below:

CONCLUSION

The motion is granted in part. Defendants are awarded $83,020.00 in attorney fees.