Judge: Armen Tamzarian, Case: 22STCV15066, Date: 2023-05-08 Tentative Ruling

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Case Number: 22STCV15066    Hearing Date: May 8, 2023    Dept: 52

Plaintiff Meagan Nugent’s Motion to Strike or Tax Defendant Salle Johnson’s Memorandum of Costs

Plaintiff Meagan Nugent moves to strike or tax defendant Salle Johnson’s memorandum of costs.  

Johnson is entitled to recover all $506.19 in costs claimed in her memorandum of costs.  “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.”  (CCP § 1032(b).)  “‘Prevailing party’ includes … a defendant in whose favor a dismissal is entered.”  (CCP § 1032(a).)  Plaintiff requested dismissal of defendant Salle Johnson.  That dismissal was entered on February 15, 2023.  Johnson is therefore a prevailing party entitled to recover her costs.

Johnson claims only two costs: the $435 first appearance fee for her demurer and the $71.19 fee for electronic filing.  Those costs are allowed.  (CCP § 1033.5(a)(1) [“Filing, motion, and jury fees]; § 1033.5(a)(14) [“Fees for the electronic filing or service of documents”].)

Plaintiff argues Johnson cannot recover these costs because plaintiff relied on Johnson’s promise for a “complete walkaway.”  (Motion, p. 5.)  Plaintiff invokes the doctrine of promissory estoppel.  (Ibid.)  Even assuming promissory estoppel could apply in these circumstances, plaintiff fails to show that it applies here.  “The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.”  (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 416, internal quotes or alterations omitted.)

Plaintiff does not show that defendant made a clear and unambiguous promise to waive her costs or that her reliance on any promise was reasonable.  Plaintiff’s only evidence is the declaration of her attorney, Eva B. Kobi.  Kobi states she spoke to defendant’s counsel Zachary Levine on the phone on January 31, 2023, and they “agreed to dismiss prior Defendant Johnson after her declaration was written, unambiguously stating prior she was not involved with Plaintiff’s tenancy as it relates to this case specifically.  Further, Levine and Kobi agreed to dismiss prior Defendant Johnson without prejudice, for a complete walkaway.  This was entirely understood by Kobi, as a walkaway, including prior Defendant Salle Johnson’s served letter and Notice of sanctions (C.C.P. § 128.7), waiver of any fees, costs, etc.”  (Kobi Decl., ¶ 9.) 

Johnson’s counsel states, “I did not discuss, or agree to, a waiver of costs with Plaintiff’s counsel.  Plaintiff’s counsel’s claims to the contrary are disingenuous and the notion of a complete walkaway is ridiculous since Plaintiff did not even dismiss Defendant Johnson with prejudice.”  (Levine Decl., ¶ 9.) 

Based on this record, the court finds defendant made no clear and unambiguous promise that she would waive her costs.  Moreover, any reliance was not reasonable.  Any promise was communicated to plaintiff’s counsel.  The agreement was that plaintiff would dismiss Johnson if she submitted a sworn declaration, which she did.  (Kobi Decl., Ex. C.)  A reasonable attorney in this circumstance would have taken the simple step of entering a written agreement, or at least creating some sort of contemporaneous writing to memorialize their phone conversation, to dismiss Johnson in exchange for Johnson’s waiver of costs. 

Finally, plaintiff argues Johnson’s costs were not reasonable or necessary because “Johnson could have avoided litigation entirely” but did not “engage in conversation” with plaintiff’s counsel before plaintiff filed the action.  (Motion, p. 7.)  Johnson had no duty to persuade plaintiff not to sue her.  Plaintiff sued Johnson.  The first appearance fee (and accompanying filing fee) is as necessary as any expense can be.  If Johnson had not paid it, she would have subjected herself to a default judgment. 

Plaintiff Meagan Nugent’s motion to strike or tax defendant Salle Johnson’s memorandum of costs is denied.  Defendant Salle Johnson shall recover $506.19 in costs from plaintiff Meagan Nugent.