Judge: Armen Tamzarian, Case: 21STCV07923, Date: 2023-11-06 Tentative Ruling
Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.
Case Number: 21STCV07923 Hearing Date: March 8, 2024 Dept: 52
Plaintiffs/cross-defendants City of
Burbank and the People of the State of California by and through Joseph H.
McDougall, City of Burbank City Attorney move to strike and tax the memorandum
of costs by defendants/cross-complainants Barfly, Inc., Baret Lepejian, Lucas
Lepejian, and Tayla Lepejian.
Defendants/cross-complainants did
not timely serve and file their 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.” (Cal. Rules of Court, rule
3.1700(a)(1).) The clerk served notice
of entry of judgment by mail on December 1, 2023. After extending the deadline by five days for
service by mail (CCP § 1013(a)), defendants/cross-complainants had to file
their memorandum of costs by December 21.
Defendants/cross-complainants served and filed their memorandum of costs
on January 12, 2024. It is untimely and may
therefore be stricken.
Defendants/cross-complainants also
cannot recover their costs because they were not prevailing parties. “[A] prevailing party is entitled as a
matter of right to recover costs in any action or proceeding.” (CCP § 1032(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.” (Id., subd. (a)(4).)
Plaintiffs/cross-defendants were the
prevailing parties. They successfully
moved for summary judgment on the cross-complaint. On their complaint, they recovered
non-monetary relief against defendants. “Trial
courts determine who is the prevailing party based on an evaluation of whether
a party prevailed on a practical level.
Among the factors the trial court should consider is the extent to which
each party has realized its litigation objectives.” (Regency Midland Construction, Inc. v.
Legendary Structures Inc. (2019) 41 Cal.App.5th 994, 1000.) When plaintiffs moved for summary judgment, the
court dismissed the complaint as moot because they had already acquired the
relief they sought: an injunction prohibiting defendants from operating the
restaurant Tin Horn Flats Saloon in violation of various laws. Plaintiffs achieved their litigation
objectives.
Disposition
Plaintiffs/cross-defendants City of
Burbank and the People of the State of California by and through Joseph H.
McDougall, City of Burbank City Attorney’s motion to strike costs is granted.
The
court hereby strikes the entire memorandum
of costs filed by defendants/cross-complainants Barfly, Inc., Baret Lepejian,
Lucas Lepejian, and Tayla Lepejian on January 12, 2024. Defendants/cross-complainants Barfly, Inc.,
Baret Lepejian, Lucas Lepejian, and Tayla Lepejian shall recover no costs from
plaintiffs/cross-defendants.