Judge: Armen Tamzarian, Case: 24STCV05798, Date: 2024-11-08 Tentative Ruling

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Case Number: 24STCV05798    Hearing Date: November 8, 2024    Dept: 52

Plaintiff WF Chateau Partners LLC’s Motion to Strike or Tax Costs

            Plaintiff WF Chateau Partners LLC moves to strike or tax the memorandum of costs filed by defendant Michael Niro.

Timeliness

            Plaintiff contends the court should strike the entire memorandum of costs because he did not timely serve and file it.  California Rules of Court, rule 3.1700(a)(1) provides, “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.” 

The clerk served notice of dismissal by mail on August 12, 2024.  Doing so extended the deadline to serve and file a memorandum of costs by five days.  (Code Civ. Proc., § 1013; Nevis Homes LLC v. CW Roofing, Inc. (2013) 216 Cal.App.4th 353, 354–355.)  Defendant therefore had until September 3, 2024, to serve and file the memorandum of costs.  The proof of service included on the memorandum of costs (form MC-010, p. 2) defendant served it by mail on September 2, one day before the deadline.  But defendant filed it on September 4, the day after the deadline.

The court will exercise its discretion not to strike the memorandum of costs as untimely.  “ ‘[I]t [is] settled that the time limitation” for serving and filing a memorandum of costs is “not jurisdictional in character and that a trial court has broad discretion in allowing relief from a late filing where, as here, there is an absence of a showing of prejudice to the opposing party.’ ”  (Gunlock Corp. v. Walk on Water, Inc. (1993) 15 Cal.App.4th 1301, 1304.)  Plaintiff has shown no prejudice.  Defendant served the memorandum of costs on plaintiff within the time allowed.  That defendant filed the memorandum one day after the deadline caused no prejudice to plaintiff.

Specified Items

Under Code of Civil Procedure section 1032, the prevailing party is entitled to recover costs.  (§ 1032(b).)  Section 1033.5, subdivision (a) sets forth a list of allowable costs.  Section 1033.5, subdivision (b) lists costs that are not allowable.  If the items on a memorandum of costs appear proper on their face, the prevailing party has produced prima facie evidence the costs were reasonable and necessary (Seaver v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557; Doe v. Department of Children & Family Services (2019) 37 Cal.app.5th 675, 693), and the burden is on the party seeking to tax costs to show otherwise.  (Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1128; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 855 [if the claimed costs are expressly allowable, “ ‘the burden is on the objecting party to show them to be unnecessary or unreasonable’ ”].) 

            Plaintiff moves to tax $16,669 in attorney fees claimed in the memorandum of costs.  Defendant conceded that the amount of attorney fees should be decided by noticed motion.  On October 17, 2024, the court granted defendant’s motion for attorney fees in part and awarded him $9,967.50 in fees.  The court will therefore tax the fees included in the memorandum of costs.    

            Plaintiff moves to tax defendant’s filing and motion fees of $775.  “Filing, motion, and jury fees” are allowed as costs.  (Code Civ. Proc., § 1033.5, subd. (a)(1).)  Defendant states he paid $775 to file a petition for writ of mandate with the Court of Appeal.  (Niro Decl.)  As the court stated when reducing the lodestar on defendant’s motion for attorney fees, both petitions for writ of mandate “were unnecessary and unsuccessful.”  (Oct. 17, 2024 minute order, p. 2.)  The court will therefore tax the $775 defendant claims for filing fees.

            Plaintiff also moves to tax $108.90 for models, enlargements, and photocopies of exhibits.  Recoverable costs include “[m]odels, 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).)  Defendant asserts, “The $108.90 was for the copying of exhibits.”  (Niro Decl.)  Though defendant succeeded on demurrer before trial, the court sustained the demurrer on August 12, 2024, the same day as the final status conference.  The trial was scheduled for August 20.  Defendant reasonably incurred costs to copy exhibits.  Had the case proceeded to trial, those copies would likely have been reasonably helpful to aid the trier of fact.  Defendant may recover these costs.     

            Finally, plaintiff moves to tax $126.50 in fees for electronic filing or service.  The court exercises its discretion to award those costs.  (Code Civ. Proc., § 1033.5, subd. (c)(4).)  Those costs were “reasonably necessary to the conduct of the litigation” (id., subd. (c)(2)) and “reasonable in amount” (id., subd. (c)(3)). 

Disposition

            Plaintiff WF Chateau LLC’s motion to strike or tax costs is granted in part as to $775 in filing fees and $16,669 in attorney fees claimed in the memorandum of costs by defendant Michael Niro.  The court hereby taxes the memorandum of costs by $17,444.  Defendant Michael Niro shall recover $234.50 in costs from plaintiff WF Chateau Partners LLC in addition to the $9,967.50 in attorney fees the court awarded defendant on October 17, 2024.  Defendant therefore shall recover a total of $10,202 in costs and attorney fees from plaintiff.