Judge: Cherol J. Nellon, Case: 21STCV20252, Date: 2023-10-10 Tentative Ruling


Case Number: 21STCV20252    Hearing Date: April 3, 2024    Dept: 14

Pope v. Thorton

Case Background

 

            Plaintiff alleges that he bought a house in part for its view, and in part based on the agent’s representation that no construction was planned on the neighboring lot. Plaintiff claims that the neighboring lot was owned by an enterprise in which the agent had an interest. No sooner had escrow closed and Plaintiff moved in than a massive construction project began on that neighboring lot. If completed, the project will eliminate the view from Plaintiff’s property. Finally, Plaintiff alleges that the house itself was defectively constructed.

 

            On February 14, 2023, Plaintiff filed his Third Amended Complaint (“TAC”) for (1) Breach of Contract, (2) Breach of Express Warranty, (3) Breach of Implied Warranty, (4) Violation of Civil Code §§ 895 et seq., (5) Fraud, (6) Negligent Misrepresentation, (7) Promissory Fraud, (8) Public Nuisance Per Se, (9) Public Nuisance, (10) Private Nuisance, (11) Rescission, (12) Negligence, and (13) Breach of Fiduciary Duty against Defendants Roy Carson Thornton (“RC”), Oliver Thornton (“Oliver”), Friends of Macapa Drive, LLC (“FMD”), Thornton Holdings, LLC (“Holdings”), Compass California, Inc. (“Compass”), F&M Networking, Inc. (“F&M”), Laura Pardini (“Pardini”), and DOES 1-50.

 

The 1st, 2nd, 3rd, 7th, and 11th causes of action are asserted against Defendants RC, Oliver, and FMD. The 4th cause of action is asserted against Defendants RC, FMD, and F&M. The 5th and 6th causes of action are asserted against Defendants RC, Oliver, FMD, and Compass. The 8th, 9th, and 10th causes of action are asserted against Defendants RC, Oliver, and Holdings. The 12th and 13th causes of action are asserted against Defendants Pardini and Compass.

 

On March 15, 2023, Defendants RC, FMD, and Holdings filed their joint Answer.

 

On March 20, 2023, Defendants Oliver, Compass, and Pardini filed their joint Answer.

 

On August 24, 2023, Defendant F&M filed its Answer.

 

On September 21, 2023, Plaintiff voluntarily dismissed Defendant Pardini, without prejudice.

 

            Jury Trial is currently set for April 15, 2024.

 

(1)        Motion to Continue Trial

 

Defendants RC, FMD, and Holdings now moves this court for an order continuing trial to October of 2024.

 

Decision

 

            The motion is GRANTED, in part. Trial is continued to July 1, 2024, at 9:00 am. Final Status Conference is continued to June 25, 2024, at 10:00 am. All counsel and any unrepresented parties are to be present in person at the Final Status Conference. All discovery and other deadlines are to track with the new date.

 

            The court sets an OSC re: Dismissal of Defendant F&M Networking, Inc. for April 15, 2024, at 8:30 am.

 

Discussion

 

            California Rules of Court Rule 3.1332(a) provides that trial dates are to be treated as firm. However, Rule 3.1332(c) provides that, although continuances are “disfavored,” requests should be considered on an individual basis. That subsection also includes a non-exhaustive list of possible grounds for a continuance.

 

            Defendants rest their motion on Rule 1332(c)(2)-(3). They provide evidence that Defendant RC is engaged in a series of surgical procedures which would render him unable to participate in the trial for several weeks past the last surgery date, which is April 14, 2024. (Declaration of Alan J. Carnegie ¶ 5). They also provide evidence that trial counsel will be engaged in trial on a much older case in front of Judge Theresa M. Traber, in this building, on April 15, 2024. (Declaration of Alan J. Carnegie ¶ 4). Review of Judge Traber’s calendar indicates that that case is likely to proceed.

 

            For both of those reasons, Defendants are entitled to a continuance. The question is, for how long? This case will be three years old on May 28, 2024, and while the court appreciates counsel’s desire to avoid double-booking, the fact of the matter is that if trials were set on dates where all counsel, parties, and witnesses were certain to be available, they would never be set at all. Therefore, this court will follow its practice of selecting a date on which this case would be the oldest matter set.

 

            There is one other housekeeping matter that requires attention. On October 10, 2023, this court granted a motion for determination of good faith settlement as to Defendant F&M. However, Plaintiff has failed to file a request for dismissal of Defendant F&M. Until that dismissal is filed, they remain in the case. Plaintiff needs to file that dismissal as soon as possible.

 

Conclusion

 

            Because Defendant RC has medical issues which will prevent his participation for some weeks, and because Defense trial counsel will almost certainly be engaged on the currently-set trial date, the motion is GRANTED, in part. Trial is continued to July 1, 2024, at 9:00 am. Final Status Conference is continued to June 25, 2024, at 10:00 am. All counsel and any unrepresented parties are to be present in person at the Final Status Conference. All discovery and other deadlines are to track with the new date.

 

            The court sets an OSC re: Dismissal of Defendant F&M Networking, Inc. for April 15, 2024, at 8:30 am.

 

(2)        Motion to Tax Costs

 

            Plaintiff now moves this court for an order striking Defendant Pardini’s Memorandum of Costs entirely, or in the alternative, apportioning the costs between Defendant Pardini and her co-defendants.

 

Governing Standard

 

“There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum [of costs]. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted.” Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267. If an item in the costs bill appears proper on its face, the moving party bears the burden of providing evidence that that item was not reasonable and necessary. Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989; see also Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131 (“[t]he court's first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face”).

 

            By contrast, where an item both (a) appears improper on its face and (b) moving party has objected, the opposing party bears the burden of producing evidence to support that item. Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774; Oak Grove School Dist. of Santa Clara County v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.  “An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court.” Ladas, supra, 19 Cal.App.4th at 774.

 

Decision

 

            The motion is GRANTED, in part. Item Nos. 1(b)-1(c) and 4(b)-4(c) are STRICKEN from the Memorandum of Costs filed on October 6, 2023. Defendant Pardini is to recover costs in the reduced amount of $1,544.08.

 

Discussion

 

            “A prevailing party who is represented by the same counsel as a nonprevailing party may only recover those costs the prevailing party incurred and were reasonably necessary to the prevailing party's conduct of the litigation, not the other jointly represented parties' conduct of the litigation.” Charton v. Harkey (2016) 247 Cal.App.4th 730, 744. Where litigation has terminated as to all parties, the trial court has discretion to award a prevailing party full, partial, or no reimbursement for any costs shared with non-prevailing parties. Id. However, where litigation against some parties continues, the court must apportion the shared costs. Fennessey v. Deleuw-Cather Corp. (1990) 218 Cal.App.3d 1192, 1196. This avoids two potential scenarios: (a) double recovery, with multiple parties recovering for the same item, or (b) the first party to prevail recovering fully while the remaining parties recover little, raising the potential for subsequent litigation between them. Id.

 

Defendants Oliver, Compass, and Pardini share representation. They have, therefore, to some extent shared costs. Only one of them has prevailed. The case continues as to the other two. Therefore, the court must apportion the shared costs between the three of them. Defendant Pardini argues first that there is no need for apportionment (an argument foreclosed by the authorities cited above), and second that the costs she has claimed are already apportioned.

 

The Memorandum of Costs filed on October 6, 2023, contains effectively seven entries: three filing fees and four deposition charges. Each entry is discussed in turn. Additionally, the court notes for the record that Plaintiff did not file a Reply to this motion.

 

Item 1(a): The Answer

 

            After Plaintiff amended his complaint to include Defendant Pardini, she filed a joint answer with her co-defendants. The court charged $459.50, a total which clearly includes Defendant Pardini’s $435 first appearance fee (which the other defendants had already paid) plus the ordinary document fees. Defendant Pardini is clearly entitled to recover her $435 first appearance fee. And, had Plaintiff not amended the complaint to add Pardini as a defendant, there would have been no need to file another answer. Therefore, this entire expense is attributable to Defendant Pardini and is recoverable by her. The motion is DENIED as to this item.

 

Items 1(b)-(c): The Opposition and Supporting Declaration

 

            When Plaintiff sought to amend the complaint to include Defendant Pardini, Defendants Oliver and Compass filed opposition papers. While these papers doubtless served Defendant Pardini’s interests, she was not party to the case or to the motion. That expense belongs to Defendants Oliver and Compass, not Defendant Pardini. The motion is GRANTED as to these items.

 

Item (4)(a): Deposition of Laura Pardini

 

            Defendant Pardini seeks to recover the entire cost of her own deposition. Plaintiff argues that she would have been deposed regardless of whether she was added as a party. That may be true, but it is not precisely relevant. Defendant Pardini was added as a party, at Plaintiff’s urging. She was deposed as a party; she incurred the expense as a party. She is entitled to recover it. The motion is DENIED as to this item.

 

Item 4(b): Deposition of Oliver Thornton

 

            The analysis employed above cuts in the opposite direction here. Defendant Oliver is also a party to this case. He was deposed as a party; he incurred the expense as a party. Therefore, the cost of that deposition belongs to him. The same rule that would permit Defendant Pardini to recover her whole deposition expense prohibits her from recovering that of another defendant. The motion is GRANTED as to this item.

 

Item 4(c): Deposition of Fran Hughes

 

            Fran Hughes was deposed as the Person Most Knowledgeable for Defendant Compass. That makes her the party witness for Defendant Compass. For the reasons given above, the expense of her deposition belongs to Defendant Compass. The motion is GRANTED as to this item.

 

Item 4(d): Deposition of Scott Purdy

 

             Defendant Pardini seeks to recover one-third of the cost of the deposition of non-party witness Scott Purdy. Plaintiff offers no specific challenge to this expense, and it is reasonable that three parties operating a joint defense would split the expense of a non-party witness deposition three ways. The motion is DENIED as to this item.