Judge Bruce G. Iwasaki, Case Number: BC567687, Date: 2023-09-01 Tentative Ruling

Tentative Ruling: The Motion to Tax Costs is denied. The Motion for Sanctions is granted in the amount of $2,000.

On December 31, 2014, Plaintiff Michael Flint (Plaintiff) filed a complaint against Defendant Pamela Koslyn (Defendant) alleging Defendant failed to pay rent and breached her fiduciary duty owed to Plaintiff arising from Defendant’s prior attorney-client relationship with Plaintiff.

On June 3, 2015, the Court granted Defendant’s motion to compel this matter to arbitration. On December 20, 2017, the arbitrator entered an award in favor of Defendant in the amount of $87,136.42 On March 22, 2018, the Court granted Defendant’s petition to confirm the arbitration award and entered judgment.

Relevant to the motions at issue here, on March 22, 2023, Defendant/Judgment Creditor filed a Memorandum of Costs After Judgment, Acknowledgment of Credit, And Declaration of Accrued Interest. Thereafter, on April 12, 2023, Plaintiff/Judgment Debtor filed a motion to tax costs. Defendant opposed the motion. No reply was filed.

On August 4, 2023, Defendant filed a motion for sanctions against Plaintiff Flint on the grounds the Plaintiff’s filing of a Motion to Tax Costs was made in bad faith, was frivolous or solely intended to cause unnecessary delay, and was made for an improper purpose. No opposition was filed to the motion for sanctions.

Plaintiff’s motion to tax costs is denied as untimely. Defendant’s motion for sanctions pursuant to pursuant to Code of Civil Procedure section 128.7 is granted. Plaintiff Flint shall pay to Defendant’s attorney $2,000 in sanctions.

Plaintiff moves to tax/strike the costs asserted in Defendant’s March 23, 2023 Memorandum of Costs. Defendant opposes the motion as untimely.

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.”].) Mere conclusory assertions are insufficient to rebut a prima facie showing by the prevailing party. (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) “On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. [Citations.] Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.” (Ladas, supra, 19 Cal.App.4th at p. 774.)

Plaintiff moves to tax costs arguing the costs incurred are not substantiated and are unreasonable.

With respect to the timeliness of the motion, Plaintiff contends California Rules of Court 3.1700, subdivision (b), provides that a party may contest costs by filing a motion 15 days after the date of service of the Memorandum of Costs, with five added days for mailing. Here, Plaintiff argues that the Memorandum of Costs was served by mailed on March 23, 2023 – rendering his motion (filed on April 12, 2023) timely. (Mot. 3:7-13.)[1]

Defendant’s opposition to the motion to tax costs is well-taken; the motion to tax costs is untimely.

Code of Civil Procedure sections 685.070 and 685.080 “allow a judgment creditor to pursue two alternative means of claiming postjudgment costs, including fees, incurred in enforcing a judgment: (1) by a memorandum of costs (§ 685.070) or (2) by a noticed motion (§ 685.080).” (Highland Springs Conference & Training Center v. City of Banning (2019) 42 Cal.App.5th 416, 424; see also David S. Karton, A Law Corp. v. Dougherty (2009) 171 Cal.App.4th 133, 145 [“The judgment creditor may seek to recover attorney's fees incurred in enforcing a judgment by filing either a ‘memorandum of costs’ under section 685.070, subdivision (b), or a ‘noticed motion’ under section 685.080, subdivision (a).”].)

Here, Defendant filed a memorandum of costs for her post-judgment costs pursuant to Code of Civil Procedure section 685.070. Thus, the timing requirements of Code of Civil Procedure section 685.070, subdivision (c) applies – not California Rules of Court 3.1700.

Under Code of Civil Procedure section 685.070, subdivision (c), the judgment debtor may file a motion to have the costs taxed by the court within 10 days after the cost memorandum is served. (Code Civ. Proc. § 685.070, subd. (c); Highland Springs, supra, 42 Cal.App.5th at p. 424.) Further, the deadline to file a motion to tax costs is extended by five calendar days where, as here, the judgment creditor serves the memorandum of costs on the judgment debtor by mail at an address in California. (Code Civ. Proc. §§ 685.070, subd. (f); 1030, subd. (a).) If the judgment debtor does not timely move to tax costs, “the costs claimed in the memorandum are allowed.” (Code Civ. Proc § 685.070, subd. (d).)

Here, the memorandum of costs was filed and served by mail on March 22, 2023. Thus, the deadline to file a timely motion to tax costs was 15 days later, on April 6, 2023. Plaintiff did not file his motion until April 12, 2023. The motion to tax costs is denied as untimely.

(2.) Motion For Sanctions Pursuant to Code of Civil Procedure sections 128.5 and 128.7

Defendant moves for sanctions in the amount of $2,000 pursuant to pursuant to Code of Civil Procedure sections 128.5 and 128.7 on the grounds that Plaintiff’s motion to tax costs was made in bad faith, was frivolous or solely intended to cause unnecessary delay, and was made for an improper purpose. Plaintiff does not oppose this motion.

Code of Civil Procedure section 128.7 allows a court to impose sanctions against parties and attorneys who file papers in court frivolously or for an improper purpose. (Civ. Code Proc. § 128.7, subd. (b).) There are strict procedural steps that must be met before a court imposes section 128.7 sanctions. Code of Civil Procedure section 128.5 contains nearly identical procedural requirements when seeking sanctions. (Code Civ. Pro. § 128.5, subd. (f).)

As a preliminary matter, “a party seeking sanctions under sections 128.5 and 128.7 must follow a two-step procedure.” (Transcon Financial, Inc. v. Reid & Hellyer, APC (2022) 81 Cal.App.5th 547, 550 [citing Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 698].) First, the “ ‘moving party must serve on the offending party a motion for sanctions.’ ” (Ibid.) Service of the sanctions motion triggers the 21-day safe harbor period during which the moving party may not file the motion. (Ibid.) The offending party may avoid sanctions by withdrawing the challenged pleading during the 21-day period. (Ibid.) Second, if the offending party does not withdraw the challenged pleading during that period, then the moving party may file the sanctions motion. (Ibid.)

Here, on June 27, 2023, Defendant e-mailed and mailed to Plaintiff a copy of this Motion. (Mickelson Decl., Ex. 4.) Plaintiff did not withdraw his motion within 26 days (21 days plus 5 days for mailing), as required by Code of Civil Procedure section 128.5, subdivision (f)(1)(D), and 128.7, subdivision (c)(1). As a result, the “safe harbor” period for withdrawing the motion had expired. Accordingly, Defendant filed and served this motion for sanctions on August 4, 2023.

Based on the foregoing, the motion for sanctions complies with the procedural requirements of both Code of Civil Procedure sections 128.5 and 128.7. Moreover, in the absence of any opposition to the motion, Plaintiff has forfeited any challenge to the notice provided in the sanctions motion. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 826; Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 342-343.)

The Court will first address the requirements for Code of Civil Procedure section 128.7. Under section 128.7, “there are basically three types of submitted papers that warrant sanctions: factually frivolous (not well grounded in fact); legally frivolous (not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law); and papers interposed for an improper purpose. [Citations.]” (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.) Courts apply “an objective standard in making its inquiry concerning the attorney's or party's allegedly sanctionable behavior in connection with a motion for sanctions brought under section 128.7. [Citations.]” (Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 921.) Unlike sanctions under section 128.5 that requires a finding of subjective bad faith, “section 128.7 imposes a lower threshold for sanctions ... that the conduct [merely] be ‘objectively unreasonable.’ ” (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.)

Here, Plaintiff brought his motion to tax costs pursuant to California Rules of Court 3.7000. In response to this motion, on April 17, 2023, Defendant’s counsel emailed Plaintiff that this motion to tax costs was untimely and that Plaintiff’s reliance on California Rules of Court 3.7000 was improper for Defendant’s post-judgement memorandum of costs. (Mickelson Decl., ¶ 4.)

Defendant re-sent this email on April 28, 2023 using an email service that confirmed the email had been received and opened. (Mickelson Decl., ¶ 4.) Plaintiff never responded to these emails. (Mickelson Decl., ¶ 4.)

On June 22 and June 23, Defendant again sent emails asking Plaintiff to withdraw the motion and warning that Defendant would seek sanctions if Plaintiff did not comply. (Mickelson Decl., ¶ 4.) On June 27, 2023, Defendant emailed Plaintiff a copy of the motion for sanctions. (Mickelson Decl., ¶ 5.)

As noted in the Court’s analysis on the motion to tax costs, Defendant’s legal argument on the timeliness of the motion to tax costs is well-taken. The applicable law on the timeliness of post-judgment motions to tax costs is unambiguous. Further, the timing calculation from the date of the service of the memorandum of costs was equally obvious. Additionally, Defendant’s repeated efforts to clarify the law for Plaintiff and repeated requests for Plaintiff to withdraw his untimely motion support finding Plaintiff’s motion to tax costs was legally frivolous.

The evidence also suggests that Plaintiff’s conduct was done in bad faith. Plaintiff did not submit a reply to Defendant’s opposition to the motion to tax costs and did not file an opposition to the motion for sanctions; both omissions indicate that Plaintiff knew his legal position was indefensible. Lastly, Defendant also submits evidence suggesting that this more-than-decade-long litigation had become both contentious and personal; in an email obtained in discovery in a related matter proceeding in Orange County Probate Court, Plaintiff described Defendant as his “enemy.” (Mickelson Decl., ¶ 3, Ex. 2.)

For the foregoing reasons, Defendant is entitled to sanctions pursuant to Code of Civil Procedure section 128.7 against Plaintiff for persisting in a motion that was objectively unreasonable and legally frivolous.

Defendant requests sanctions in the amount of $2,000. This amount includes the attorney fees incurred in opposing the motion to tax costs and in bringing the motion for sanctions ($1,137.50), plus an additional amount to deter Plaintiff from further abuses ($862.50).

Section 128.7, subdivision (d) provides: “A sanction imposed for violation of subdivision (b) shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated.” Further, attorney fees and expenses “incurred as a direct result of the violation” may be awarded. (Code Civ. Proc. § 128.7, subd. (d).)

The amount Defendant requested to deter future abuses is not excessive and the amount requested in attorney’s fees were fees incurred as a direct result of Plaintiff’s frivolous motion to tax costs. The sanction amount requested is proper.

The motion for sanctions pursuant Code of Civil Procedure 128.7 is granted in the amount of $2,000.[2] Plaintiff Flint is ordered to pay $2,000 to Defendant’s attorney on or before September 20, 2023.

[1] Court records and the proof of service indicate that the Memorandum of Costs was filed and served on March 22, 2023.

[2] Based on this ruling, the Court need not address whether sanctions are also appropriate under Code of Civil Procedure section 128.5.

Department 58