Judge: Colin Leis, Case: 20STCV35860, Date: 2023-02-09 Tentative Ruling

Case Number: 20STCV35860    Hearing Date: February 9, 2023    Dept: 74

Superior Court of California

County of Los Angeles – CENTRAL District

Department 74

MOVING PARTIES:             Plaintiff, Elana Luber

RESPONDING PARTY:        Defendant, Kevin Togami

Motion to Tax Costs

The court considered the moving papers, opposition, and reply.

BACKGROUND

            On September 18, 2020, Plaintiff brought this action against Defendant for breach of lease agreement, breach of implied warranty, and failure to return security deposit. On May 18, 2022, Plaintiff filed a request for dismissal of the action. The court dismissed the case on May 20, 2022. That same day, Defendant filed a memorandum of costs requesting $2,633.25 in total costs. On June 8, 2022, Plaintiff filed a motion to tax costs.

LEGAL STANDARD

A prevailing party is entitled to recover costs, including attorneys’ fees, as a matter of right, except as otherwise expressly provided by statute. (¿¿See Code Civ. Proc., §§ 1032, subd. (a)(4), 1032, subd. (b), 1033.5¿¿.)¿Costs recoverable under¿¿section 1032¿¿are restricted to those that are both reasonable in amount and reasonably necessary to the conduct of the litigation. (¿Code Civ. Proc.,¿§§ 1033.5, subd. (c)(2), (3)¿.)¿Costs “¿merely convenient or beneficial¿” to the preparation of a case are disallowed. (¿Code Civ. Proc., § 1033.5, subd. (c)(2)¿.)  

“¿A ‘verified memorandum of costs is prima facie evidence of [the] propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.¿” (¿¿Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486-1487 [italics and brackets omitted]¿¿.)¿Costs otherwise allowable as a matter of right may be disallowed if the court determines they were not reasonably necessary, and the court has power to reduce the amount of any cost item to an amount that is reasonable. (See Perko’s Enterprises, Inc. v. RRNS Enterprises¿(1992) 4 Cal.App.4th 238, 245 [finding that¿“the intent and effect of section 1033.5, subdivision¿(c)(2) is to authorize a trial court to disallow recovery of costs, including filing fees, when it determines the costs were incurred unnecessarily”].)¿ 

DISCUSSION

            Defendant requests $2,633.25 in total costs. This amount includes $582.45 in filing and motion fees, $1,900.00 in attorney fees, $120.80 for fees for electronic filing or service, and $30.00 for “other.”

            Plaintiff argues that the attorney fees cannot be recovered because they are not based on a  fixed contractual or statutory fee and Defendant has not filed a properly noticed motion for attorney fees. In opposition, Defendant argues that the lease includes a contractual attorney fee provision and $1,900 is a reasonable amount. Paragraph 38 of the lease states that “the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs…”

When authorized by contract, statute or law, reasonable attorney fees are allowable costs. (Code Civ. Proc. § 1033.5(a)(10).) However, contractual attorney fees may be fixed only upon noticed motion. (Code Civ. Proc. § 1033.5(c)(5). Contractual attorney fees cannot be awarded as part of the judgment or by an itemized costs bill unless they are fixed by a predetermined formula. (Cal. Rules of Court rule 3.1702.) A noticed motion is required. (Russell v. Trans Pac. Group (1993) 19 Cal.App.4th 1717, 1725.)

Here, the lease agreement did not fix attorney’s fees at a determinable rate beyond requiring that they be “reasonable.” Thus, Defendant was required to file a noticed motion for attorney fees. Moreover, if an action has been voluntarily dismissed as in this case, there is no prevailing party for purposes of awarding section 1717 fees under the contract. (Civ. Code § 1717(b)(2); Santisas v. Goodin (1998) 17 Cal.4th 599, 617.) The court finds that the cost for attorney’s fees ($1,900.00) is appropriately taxed.

            Plaintiff argues that the other costs are not supported with specific facts, but Plaintiff directly addresses only the filing and motion fees. Plaintiff argues that Defendant cannot recover for Defendant’s motion for sanctions filing fee because this motion was frivolous. However, a verified memorandum of costs is prima facie evidence of the propriety of the items, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary. (¿¿Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486-1487.) Plaintiff here offers no evidence that Defendant has included items that were not reasonable or necessary except for the fact that the motion for sanctions ultimately was unsuccessful. The court denies the motion to tax this item.

Based on the foregoing, the court grants in part and denies in part Plaintiff’s motion. Defendant’s costs award is taxed by $1,900.00.

Defendant is awarded $733.25 in costs.

Defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 9, 2023

_____________________________

Colin Leis

Judge of the Superior Court