Judge Bruce G. Iwasaki, Case Number: 20STCV10768, Date: 2023-09-25 Tentative Ruling

Tentative Ruling: Motion for Entry of Order awarding Defendant Farmers Group, Inc. costs against Plaintiff M.L. Enterprise Textiles, LLC in the amount of $7,522.68 is granted. Motion for Entry of Order awarding Defendant Farmers Group, Inc. costs against Plaintiff Rotax, Inc. in the amount of $4,753.86 is granted.

This is an action for breach of contract and negligence against varous insurance companies and their agents for procuring the wrong policy. The plaintiffs – originally -- were M.L. Enterprise, LLC (M.L.), the warehouse owner, and Rotax, Inc. (Rotax), the tenant whose merchandise was allegedly destroyed during a fire.

On August 25, 2023, Defendant Farmers Group, Inc. (FGI) moved for an order that judgment be entered in its favor and against Plaintiff M.L. Enterprise Textiles, LLC (Plaintiff ML), and awarding Defendant FGI costs pursuant to memorandum of costs. No opposition was filed.

On August 28, 2023, Defendant FGI also moved for an order that judgment be entered in its favor and against Plaintiff Rotax, Inc. (Plaintiff Rotax) awarding Defendant FGI costs pursuant to memorandum of costs. No opposition was filed.

The “prevailing party” is entitled 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.) “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. (Code Civ. Proc., § 1032, subd. (a)(4).)

Recoverable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).) “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 Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Verification of the memorandum of costs by the prevailing party’s attorney establishes a prima facie showing that the claimed costs are proper.¿(See Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267 [“There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum.”].)

Defendant FGI seeks entry of judgment and costs against Plaintiff ML in the amount of $7,522.68.

On January 12, 2022, Plaintiff ML filed and served its First Amended Complaint (FAC) in the consolidated case (21STCV20307). (Brenner Dec., ¶ 3.) On November 16, 2022, Defendant FGI filed and served its Motion for Summary Judgment as to the FAC. (Brenner Decl., ¶ 7.) On January 17, 2023, Plaintiff ML served a request for dismissal of Defendant FGI. Defendant FGI was dismissed on January 18, 2023. (Brenner Decl., ¶ 8).[1]

On March 6, 2023, Defendant FGI filed and served a memorandum of costs in the amount of $7,522.68. No motion to strike or tax the costs was filed.

To object to a memorandum of costs, the objecting party must file a motion to strike or tax costs as set forth in California Rules of Court, rule 3.1700(b). Rule 3.1700(b) specifically requires a notice of motion to strike or tax costs to be filed 15 days after service of the cost memorandum.

Failure to file a timely motion to tax costs resulted in a forfeiture of the right to object to those costs. (Jimenez v. City of Oxnard (1982) 134 Cal.App.3d 856, 859 [waiver by failing to file motion to tax costs on time]; Santos v. Civil Service Bd. (1987) 193 Cal.App.3d 1442, 1447 [waiver where plaintiff “failed to file an objection to the cost bill by filing a timely motion to tax costs” as required]; Douglas v. Willis (1994) 27 Cal.App.4th 287, 289-290 [failure to file motion to tax costs constitutes waiver].)

Defendant FGI also seeks entry of judgment and costs against Plaintiff Rotax in the amount of $4,753.86.

On January 12, 2021, Plaintiff Rotax filed and served its Second Amended Complaint (SAC) in this action (20STCV10768). (Brenner Decl., ¶ 5). On November 17, 2022, Defendant FGI filed and served its Motion for Summary Judgment as to the SAC. (Brenner Decl., ¶ 7.)

On January 10, 2023, Plaintiff Rotax served a request for dismissal of Defendant FGI and Defendant FGI was dismissed on January 11, 2023. (Brenner Decl., ¶ 8.)[2]

On February 10, 2023, Defendant FGI filed and served a memorandum of costs in the amount of $4,753.86. No motion to strike or tax the costs was filed.

Motion for Entry of Order awarding Defendant Farmers Group, Inc. costs against Plaintiff M.L. Enterprise Textiles, LLC in the amount of $7,522.68 is granted. Motion for Entry of Order awarding Defendant Farmers Group, Inc. costs against Plaintiff Rotax, Inc. in the amount of $4,753.86 is granted.

Defendant Farmers Group, Inc. to prepare a proposed Judgment consistent with the Court’s order herein.

[1] The party requesting dismissal is required to serve and file notice of entry of dismissal.

(Cal. Rules of Court, Rule 3.1390.) Defendant FGI claims that neither the Court nor any party has at any time since entry of the judgment served notice of that entry. (Brenner Decl., ¶ 8.)

[2] The party requesting dismissal is required to serve and file notice of entry of dismissal.

(Cal. Rules of Court, Rule 3.1390.) Defendant FGI argues that neither the Court nor any party has at any time since entry of judgment or dismissal served notice of that entry.

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