Judge: Colin Leis, Case: 21STCV14689, Date: 2022-09-26 Tentative Ruling

Case Number: 21STCV14689    Hearing Date: September 26, 2022    Dept: 3

Superior Court of California

County of Los Angeles – NORTHEAST District

Department 3

MOVING PARTY:                Plaintiff Cesar Romero

RESPONDING PARTY:       Defendant Fidelity and Deposit Company of Maryland

Plaintiff’s Motion to Strike and to Tax Costs

The court considered the moving papers, opposition, and reply papers filed in connection with this motion.

BACKGROUND

            Plaintiff Cesar Romero filed this action on April 19, 2021. This action arises out of a dispute between neighbors about trimming trees. Plaintiff filed the operative Second Amended Complaint (“SAC”) in December 2021. Defendants The F.A. Bartlett Tree Expert Company (“Bartlett”) and Fidelity and Deposit Company of Maryland (“Fidelity”) filed an answer to the SAC on May 24, 2022.

            On August 18, 2022, Plaintiff voluntarily dismissed Fidelity from the lawsuit. On August 22, 2022, Fidelity field a memorandum of costs, seeking an award of costs in the amount of $877.50. 

            Plaintiff now moves to strike or tax the costs claimed by Fidelity.

EVIDENCE

            The court overrules Fidelity’s objections to the Declaration of Cesar Romero and Plaintiff’s Exhibits A and B.

The court grants Plaintiff’s request for judicial notice as to Exhibit 1.

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

First, Fidelity is the prevailing party in this action. (Code Civ. Proc., § 1032, subd. (a)(4) [a prevailing party includes a defendant in whose favor a dismissal is entered].) The prevailing party is entitled as a matter of right to recover costs of suit in any action. (Code Civ. Proc., § 1032, subd. (b).)

Next, Plaintiff argues that Fidelity failed to provide any documentation of the claimed costs. But “[t]here is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) In any event, Fidelity does submit invoices and other evidence to support its claimed costs in its opposition.

Next, Plaintiff objects to Fidelity’s $435 first appearance fee, but the court finds that the fee was actually and reasonably incurred by Fidelity. (Pole Decl., ¶ 4, Ex. C.)

Next, Plaintiff objects to the filing fees for the motions filed jointly by Fidelity and Bartlett totaling $210. (Pole Decl., ¶¶ 7-15, Exs. F, G, H, I.) The court finds that the fees were actually and reasonably incurred by Fidelity, especially in light of the fact that Fidelity reduced the filing fees in half because all of the motions were brought jointly by Fidelity and Bartlett. As noted by Fidelity, “[c]osts are allowable if incurred, whether or not paid.” (Code Civ. Proc., § 1033.5, subd. (c)(3).) Here, the evidence establishes that Fidelity, as a moving party on all of the motions filed, incurred costs to file those motions.

Next, Plaintiff objects to the fees for electronic filing or service, totaling $232.50. The court finds that the costs were actually and reasonably incurred by Fidelity. (Pole Decl., ¶ 18, Ex. J.)

Finally, the court denies Plaintiff's request for sanctions.

CONCLUSION

Based on the foregoing, the court denies Plaintiff’s motion to strike or tax costs.

Fidelity is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  September 26, 2022

_____________________________

Colin Leis

Judge of the Superior Court