Judge: Colin Leis, Case: 20STCV01316, Date: 2025-03-12 Tentative Ruling

Case Number: 20STCV01316    Hearing Date: March 12, 2025    Dept: 74

Topa v. Interinsurance Exchange of the Automobile Club et al.

Plaintiff Nancy Topa’s Motion to Tax Costs

BACKGROUND 

            This motion arises from a Contractual Fraud complaint.

            Plaintiff Nancy Topa (Plaintiff) filed a request for dismissal without prejudice which the Clerk entered on November 18, 2021.

            On November 8, 2021, Judge Court issued an order confirming the dismissal without prejudice and naming defendants Interinsurance Exchange of the Automobile Club; ACSC Management Services, Inc.; and Automobile Club of Southern California as the prevailing party for the purpose of attorney’s fees pursuant to California Code of Civil Procedure sections 1032 and 1033.5.

            Plaintiff now moves to tax costs.

LEGAL STANDARD

Prevailing parties are entitled to recover costs, except as otherwise provided by statute. Sanders v. Lawson (2008) 164 Cal.App.4th 434, 438-439 (citing Code Civ. Proc., §§ 1032, subd. (b) and 1033.5).

If items appear on their face to be proper, the verified memorandum of costs is prima facie evidence of their propriety, shifting the burden of proof to the attacking party.  (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486-1487)

DISCUSSION

            Plaintiff moves to strike costs in their entirety on the grounds that Defendants procured their status as the prevailing party “by fraud and threats.”  Plaintiff additionally alleges that the Court worked in concert with the Defendant’s to violate Plaintiff’s due process and civil rights.  The court finds these arguments unavailing and without evidence.  Plaintiff raises an allegation of unclean hands in the reply.  After reviewing the exhibits provided by Plaintiff, the Court finds these allegations unavailing.

            Plaintiff alleges that Defendants have overreached in the memorandum by seeking costs that are disallowed, unnecessary and/or unreasonable.  Defendant Automobile Club requests $801.67 in costs, $801.67 in filing and motion fees and $37.63 in electronic filing fees and service.  Defendant ACSC Management Services, Inc. requests $903.49 in costs, $861.66 in filing and motion fees and $41.83 in fees for hosting electronic documents.  Defendant Interinsurance Exchange of the Automobile Club requests $967.71 in costs, $921.67 in filing and motions fees and $46.04 in fees for electronic filing or service. SCSE Management Services seems to have improperly labeled their electronic filing fees in the summary of costs as fees for hosting electronic documents.  These fees are facially valid and are supported by a verified memorandum of costs.  Therefore, the burden shifts to Plaintiff to prove that they are unnecessary or unreasonable.  Plaintiff has not presented evidence to conclude that the fees were unnecessary or unreasonable.

            Plaintiff cites to one case that allowed the Court to consider the financial situation of the non-prevailing party.  In Seever v. Copley Press, Inc. (2006), the Plaintiff’s financial situation was relevant to insure that the Plaintiff was not pressured into accepting an unreasonable settlement offer for fear of a financial penalty.  Under California Code of Civil Procedure section 1032, the prevailing party is entitled its fees as a matter of right; there is not the same legislative intent under section 1032.  Therefore, the Court cannot reduce Defendants’ entitled fees in consideration of Plaintiff’s financial status.

CONCLUSION

            The Court denies Plaintiff’s Motion to Tax Costs.

            Defendants to give notice.

////////////////////////////

Plaintiff Nancy Topa’s Motion to Vacate Judgment

BACKGROUND 

            This motion arises from a Contractual Fraud complaint.

            Plaintiff Nancy Topa (Plaintiff) filed a request for dismissal without prejudice which the Clerk entered on November 18, 2021.

            On November 8, 2021, Judge Court issued an order confirming the dismissal without prejudice and naming defendants Interinsurance Exchange of the Automobile Club; ACSC Management Services, Inc.; and Automobile Club of Southern California as the prevailing party for the purpose of attorney’s fees pursuant to California Code of Civil Procedure sections 1032 and 1033.5.

            Plaintiff now moves to vacate judgment.

LEGAL STANDARD

Equitable relief from judgments or dismissals is available only upon a showing of extrinsic factors like extrinsic fraud.  (Advanced Bldg. Maint. v. State Comp. Ins. Fund (1996) 49 Cal.App.4th 1388, 1395.) 

To warrant relief from a judgment based upon fraud, "the fraud must have brought about the entry of the judgment, e.g., by lulling the movant into sacrificing his opportunity to present a defense."  (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1416.

A voluntary dismissal by the clerk without prejudice, is not a judgment.  (Gassner v. Stasa (2018) 30 Cal.App.5th 346, 354.)  Discretionary, but not mandatory, relief provisions of section 473, subdivision (b) apply to voluntary dismissals.  (Matera v. McLeod (2006) 145 Cal.App.4th 44, 65, fn.11; English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 142.) 

DISCUSSION

            Plaintiff moves to vacate the voluntary dismissal entered by the Clerk.  A voluntary dismissal without prejudice is not considered a judgment for the purpose of a motion to vacate judgment.  Therefore, the Court denies Plaintiff’s motion to vacate judgment.

CONCLUSION

            The Court denies Plaintiff’s Motion to Vacate Judgment.

            Defendants to give notice.