Judge: Armen Tamzarian, Case: 19STCV31058, Date: 2024-03-06 Tentative Ruling

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Case Number: 19STCV31058    Hearing Date: March 6, 2024    Dept: 52

Defendants Medicali Holdings Inc., Outleaf, and Charles Weinberger’s Motion to Strike and/or Tax Memorandum of Costs

Defendants Medicali Holdings Inc, a California corporation, Medicali Holdings Inc., a Nevada corporation, Outleaf, and Charles Weinberger move to strike or tax the memorandum of costs on appeal filed by plaintiff Gabriel Flores on January 2, 2024.  Plaintiff’s memorandum of costs claims $775 in filing fees, $1,650 for the reporter’s transcript, and $49.50 for service of papers.  Plaintiff cannot recover these costs because he did not incur them for the appeal on which he prevailed. 

Both sides appealed orders in this case.  The Court of Appeal issued two remittiturs.  First, on March 9, 2023, the Court of Appeal issued a remittitur “[a]s to the notice of appeal filed January 10, 2022, by Appellant Gabriel Flores.”  The remittitur did not state that any party was entitled to costs on appeal.  Defendants claimed costs on that appeal.  Plaintiff moved to strike those costs.  This court found defendants were the prevailing parties and denied plaintiff’s motion.

The Court of Appeal issued a second remittitur on November 22, 2023.  That remittitur was for the Court of Appeal’s opinion on defendant Medicali Holdings, Inc.’s appeal of the order denying its motion for attorney fees.  The remittitur states, “Respondent shall recover costs on appeal.”  Plaintiff was the respondent to that appeal.  But he did not appear or file a respondent’s brief.  Plaintiff does not dispute that he incurred no costs on that appeal.  All costs he claims were incurred for his unsuccessful appeal.

Plaintiff argues it would not make sense for the remittitur to state he “shall recover costs on appeal” if he could not recover anything.  As plaintiff notes, the record of the appeal establishes he did not appear and therefore did not incur any costs on Medicali’s unsuccessful appeal.  Though the Court of Appeal may have known that fact, it does not mean the remittitur on defendant’s appeal implicitly awarded plaintiff costs for his unsuccessful appeal.  “If a remittitur is ambiguous the trial court can interpret it in light of the law and the appellate opinion to determine its duties.”  (People v. Dutra (2006) 145 Cal.App.4th 1359, 1368.)  A remittitur includes a judgment awarding costs, which generally answers only one question: which parties, if any, can recover their costs?  (See Cal. Rules of Court, rule 8.278(b).)  The second remittitur does not identify which costs are recoverable.  The answer to that question is a matter of factfinding for the trial court. 

A party claiming costs on appeal must “serve and file in the superior court a verified memorandum of costs under rule 3.1700.”  (Cal. Rules of Court, rule 8.278(c)(1).)  “The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.”  (Rule 3.1700(a)(1).)  “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.’  [Citation.]  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.)

The Court of Appeal’s second remittitur thus stated only who was entitled to costs on the appeal by defendant/appellant Medicali Holdings, Inc. It stated plaintiff/respondent shall recover his costs on that appeal.  Once plaintiff filed his verified memorandum of costs on appeal, defendants had 15 days to move to strike it.  (Cal. Rules of Court, rule 3.1700(b)(1).)  By filing this motion, defendants put at issue which costs (or the amount of costs) plaintiff may recover.  This trial court must now resolve that question of fact.  As the factfinder, this court concludes plaintiff did not incur any costs for the appeal on which the Court of Appeal permitted him to recover costs.  Plaintiff therefore cannot recover the costs he claims.

Disposition

Defendants Medicali Holdings Inc, a California corporation, Medicali Holdings Inc., a Nevada corporation, Outleaf, and Charles Weinberger’s motion to strike plaintiff Gabriel Flores’s memorandum of costs is granted. 

The court hereby strikes the entire memorandum of costs on appeal plaintiff filed on January 2, 2024.  Plaintiff Gabriel Flores shall recover no costs on appeal from defendants.