Judge: Anne Richardson, Case: 20STCV30117, Date: 2024-05-07 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 20STCV30117    Hearing Date: May 7, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

On August 10, 2020, Plaintiff The Law Firm of Fox and Fox (Fox & Fox) initiated this action by filing a Complaint alleging claims of (1) Breach of Contract and (2) Common Counts against Defendants David J. Itzikman and Does 1 through 10.

The claims arose from allegations that Fox & Fox “represented Defendant [Itzikman] in the dissolution of marriage matter, filed in Los Angeles Superior Court, Case Number BD 646 625. Defendant [Itzikman] owed the sum of $61,169.44, in fees and costs, as of August 3, 2020.”

B. Default Judgment and Set Aside

On October 14, 2020, Fox & Fox filed a proof of service purporting to reflect personal service of the summons and Complaint on Defendant Itzikman.

On December 8, 2020, based on a failure to file a responsive pleading to the Complaint, Fox & Fox secured an entry of default against Defendant Itzikman.

On December 15, 2020, Fox & Fox requested default judgment.

On December 17, 2020, Defendant Itzikman filed an Answer.

On February 7, 2021, the Court granted default judgment.

On June 17, 2021, the Clerk issued a writ of execution.

On June 28, 2021, Defendant Itzikman filed a motion to set aside the default and default judgment against him and to quash the writ of execution on the ground that the judgment was void for lack of any service on Defendant Itzikman. Itzikman argued that service had not been effected on him personally as reflected in the proof of service, but rather, had been effected on a third person at Defendant Itzikman’s former place of business in Los Angeles County, at a time when Defendant Itzikman was physically present in San Diego County where his then-usual place of business was located.

On July 8, 2021, Fox & Fox filed an opposition to Defendant Itzikman’s motion to set aside.

On August 20, 2021, the Court granted Defendant Itzikman’s motion to set aside the default and default judgment and to quash the writ of execution.

The record fails to reflect a proof of service for service of the summons and Complaint other than the October 14, 2020, proof of service.

C. Motion to Deem Truth of Admission Requests Admitted

On February 28, 2023, Fox & Fox filed a motion to deem admitted the truth of matters in certain requests for admission served on Defendant Itzikman. The motion also requested sanctions.

On July 31, 2023, after full briefing by both sets of parties, the Court denied Fox & Fox’s motion, reasoning that Itzikman had served Code-compliant responses on July 13, 2023, and that sanctions were not awardable where counsel was representing his own law firm.

D. Motions in Limine

On September 8, 2023, Fox & Fox filed a single motion in limine.

On September 19, 2023, Defendant Itzikman filed an opposition to the motion in limine.

On September 25, 2023, Fox & Fox filed a reply to the opposition.

The motion was denied at the Final Status Conference on or around October 6, 2023.

E. Trial and Judgment

In November 2023, a non-jury trial was held in this action.

On January 11, 2024, the Court posted a final statement of decision after trial, which found in favor of Fox & Fox as to the Complaint’s two causes of action as against Defendant Itzikman, for compensatory damages of $57,974.79.

That same day, the Court entered judgment to this effect, and the Clerk gave notice of entry of judgment.

F. Motion Before the Court

On January 30, 2024, Fox & Fox filed a memorandum of costs seeking $1,882.49 in costs.

On February 13, 2024, Defendant Itzikman filed a motion to strike or tax costs from Fox & Fox’s memorandum of costs.

On April 22, 2024, Fox & Fox filed an opposition to Defendant Itzikman’s motion.

On April 29, 2024, Defendant Itzikman replied to Fox & Fox’s opposition.

Defendant Itzikman’s motion is now before the Court.

II. Motion to Strike or Tax Costs: GRANTED, in part.

A. Timeliness

The Court briefly notes that while the moving papers challenge the timeliness of the costs memorandum, the opposition argues and the reply concedes that the memo was timely filed and served.

The Court therefore does not further discuss this issue.

B. Legal Standard

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (Code Civ. Proc., § 1032, subd. (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” for costs purposes is defined by statute to include:  

(1) The party with a net monetary recovery;  

(2) A defendant who is dismissed from the action;  

(3) A defendant where neither plaintiff nor defendant recovers anything; and  

(4) A defendant as against those plaintiffs who do not recover any relief against that defendant.

(Code Civ. Proc., § 1032, subd. (a)(4).)

 Allowable costs under Code of Civil Procedure section 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 Section 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 (Ladas).) Moreover, a verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred. (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.) A party seeking to tax costs must provide evidence to rebut this prima facie showing. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266 (Jones), superseded by statute on other grounds in Code Civ. Proc., § 998, subd. (c)(1) [whether costs permissible from filing of complaint or from date of 998 offer].) Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred. (Jones, supra, at p. 1266.) On the other hand, 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. (Ibid.)

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. (Ladas, supra, 19 Cal.App.4th at p. 774.) Because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Ibid.) Discretion is abused only when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances being considered.” (Lincoln, supra, 39 Cal.App.4th at p. 105.) 

C. Analysis

1. Item No. 7, Service of Process

a. Parties’ Arguments

Defendant Itzikman challenges service of process costs of $710.12 as (1) excessive, (2) unreasonable beyond $65 for initial service, (3) unreasonable in whole because service was never effected on Itzikman, who filed an Answer before being served, with the proof of service in the record being incorrect as to service on Itzikman, and (4) unreasonable based on this Court ordering a vacatur of the default against Itzikman, which was void for lack of proper service.

In opposition, Fox & Fox provides an itemized list of costs amounting to a total of $1,012.85, all but $133.12 of which relate to service of subpoenas on third parties and costs for courier services to drop off documents with or pick up documents from the Court between October 2023 and March 2024. The $133.12 in costs relate to the October 9, 2020, service of the summons and Complaint by purported personal service on Defendant Itzikman.

In reply, Defendant Itzikman argues that courier costs are not compensable. Defendant Itzikman further argues that costs related to the October 9, 2020, service are not compensable where that service was void insofar as personal service was never effected on Defendant Itzikman himself—i.e., the basis for this Court’s set aside order.

b. Court’s Determination

The Court determines that the $133.12 in “service of process” costs were properly challenged by Defendant Itzikman and are not compensable. While the October 14, 2020, proof of service reflects personal service of the summons and Complaint on Defendant Itzikman, this Court has found merit to the proposition that such personal service never took place because service was effected on a third party at a former place of business of Defendant Itzikman at a time when Itzikman was not present. (See 6/28/21 Motion; 8/20/21 Minutes.)

The Court, however, finds that costs related to service of third-party subpoenas and courier costs are reasonable pursuant to Code of Civil Procedure section 1033.5, subdivisions (a)(4), and (c)(4), i.e., “[i]tems not mentioned in … section [1033.5, subdivision (a)] and items assessed upon application may be allowed or denied in the court’s discretion.” Third party subpoenas are a valid method of discovery, the use of which is important in civil litigation. The delivery or pickup of documents with or from the Court is reasonably necessary to the conduct of litigation. And here, Fox & Fox provide itemized receipts showing that these costs were incurred. (Opp’n, pp. 6-7 at ¶¶ b.-i., citing Opp’n, Exs. P-V, X.) Under these circumstances, the Court finds that these costs are proper.

The Court thus GRANTS Defendant Itzikman’s motion as to taxing “service of process” costs, in part, in the amount of $133.12.

2. Item No. 1, Filing and Motion Fees, [a] Motion to Continue Trial, [b] Motion in Limine, and [c] Default Judgment

a. Parties’ Arguments

Defendant Itzikman challenges three sets of filing and motion costs: (1) Fox and Fox’s costs related to a motion to continue trial in this action; (2) Fox & Fox’s RFA’s motion and motion in limine costs; and (3) Fox & Fox’s costs related to entry of default judgment in this action. Defendant Itzikman argues that costs related to the motion to continue trial should be denied where Defendant would have stipulated to a trial continuance, that costs related to the admission requests motion and the motion in limine should be denied where those motions were denied by this Court, and that costs related to default judgment should be taxed based on lack of proper service.

In opposition, Fox & Fox provides an itemized list of filing and motion costs amounting to a total of $655. Fox & Fox specifically argues that it asked for a stipulation to continue trial and that Defendant Itzikman refused, leading to Fox & Fox’s motion to continue trial.

In reply, Defendant Itzikman reiterates arguments relating to these three points.

b. Court’s Determination

The Court determines that costs related to default and the writ of execution that followed are not recoverable because they were premised on defective service, as discussed above. The Court thus GRANTS Defendant Itzikman’s motion, in part, as to taxing “filing and motion” costs in the amount of $259.32, comprised of the costs listed on pages four to six of Fox & Fox’s opposition at paragraphs a. to e. and g.

However, the Court determines that the other filing and service costs are proper. The trial continuance, admission requests, and in limine motions were reasonably incurred in connection with advancing this litigation. As for trial continuance, the record is conflicting as to which party is “at fault” for the failure to stipulate to a trial continuance, for which reason those costs were not properly put at issue. Exhibit K, relating to an ex parte application in March 2023, is consistent with the request for trial continuance made on March 20, 2023, pursuant to an ex parte by Plaintiff which was opposed by Defendant.

As for the admission requests motion, even if that motion was denied, it was only denied because Defendant Itzikman filed late responses to the admission requests, thus mooting Fox & Fox’s motion, with sanctions being denied as to Code of Civil Procedure sections 2023 and 2033, not section 1032. As for the motion in limine, like with the admission requests motion, Plaintiff fails to show that the motion was not reasonable or necessary. The mere fact that the motion was denied alone is not enough to meet this burden.

3. Item No. 14, Fees for Electronic Filing or Service

a. Parties’ Arguments

Defendant Itzikman challenges the $517.37 sought by Fox & Fox in electronic filing or service costs on the ground that Fox & Fox has failed to provide any itemization of this cost item or to explain how it was necessarily incurred.

In opposition, Fox & Fox provides a list of the costs related to electronic filing or service, which amount to total expenditures of $674.51.

In reply, Defendant Itzikman does not directly address electronic filing costs.

b. Court’s Determination

Defendant Itzikman’s motion has merit in arguing that the electronic filing or service costs for default judgment should not be awarded, i.e., costs in the amount of $12.17. (See Opp’n, p. 8, at ¶¶ a.-b.)

However, the Court determines that the remaining electronic filing and service costs—amounting to $652.17—are supported by sufficient evidence to be allowed as costs pursuant to Code of Civil Procedure section 1033.5.

Consequently, the full $517.37 in electronic filing or service costs sought by Plaintiff are reasonable.

4. Item No. 14, Fees for Electronic Filing or Service

Pursuant to the above, the Court TAXES the January 30, 2024, memorandum of costs in the amount of $392.44.

Fox & Fox is AWARDED $1,490.05 in costs. 

III. Conclusion

Defendant David J. Itzikman’s Motion to Strike Plaintiff’s Costs Memorandum or, in the Alternative, to Tax Costs is GRANTED, in part.

Plaintiff The Law Firm of Fox and Fox’s January 30, 2023, memorandum of costs is TAXED in the amount of $392.44.

Fox & Fox is AWARDED $1,490.05 in costs.

Plaintiff may submit a Proposed Amended Judgment only adding in the costs awarded.