Judge: Cynthia A Freeland, Case: 37-2009-00063244-CU-OR-NC, Date: 2023-12-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - December 28, 2023

12/29/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Other Real Property Motion Hearing (Civil) 37-2009-00063244-CU-OR-NC CIELO HOMEOWNERS ASSOCIATION VS. BENNET [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike or Tax Costs, 06/27/2023

Defendant Pamela Bennett ('Defendant')'s motion to tax costs is granted in part.

Initially, the court must address Mr. Judge's December 18, 2023 declaration requesting a continuance of the hearing on this matter. See ROA No. 454. While the court is sympathetic to Mr. Judge's personal circumstances and certainly expresses its condolences, his declaration fails to accomplish its desired goal for three reasons. First, any previous difficulties Mr. Judge has had communicating with Defendant does not excuse his obligation to at least attempt to meet and confer with Defendant about a continuance. Second, any opposition to the motion was due by December 15, 2023 after accounting for the court holiday on December 25, 2023 – two days before the loss Mr. Judge identifies in his declaration. Third, a declaration filed by counsel, three days after the opposition was due, seeking relief from a failure to file an opposition and seeking a continuance of the hearing is not the appropriate method to secure the requested relief. Consequently, Mr. Judge's request for a continuance is denied.

California Rules of Court ('CRC'), Rule 8.278 governs costs on appeal. See Alan S. v. Sup. Ct. (2009) 172 Cal. App. 4th 238, 260; Musaelian v. Adams (2011) 197 Cal. App. 4th 1251, 1259. A party claiming appellate costs must serve and file in the superior court a verified memorandum of costs under CRC, Rule 3.1700 within 40 days after issuance of the remittitur. See Cal. R. Ct. 8.278(c)(1), 3.1700(a)(1). A party contesting appellate costs may then serve and file a motion in the superior court to strike or tax appellate costs under CRC, Rule 3.1700. See Cal. R. Ct. 8.278(c)(2), 3.1700(b)(1). 'A properly verified memorandum of costs is considered prima facie evidence that the costs listed in the memorandum were necessarily incurred.' Bach v County of Butte (1989) 215 Cal. App. 3d 294, 308. The burden is on the party moving to strike or tax appellate costs to establish that each disputed item is not recoverable. Ibid.

The objecting party must do more than merely allege that the costs were not necessary or reasonable; rather, he or she is obliged to present evidence proving that the claimed costs are not recoverable. See Seever v. Copley Press, Inc. (2006) 141 Cal. App. 4th 1550, 1557. If there is a proper objection to an item, the burden shifts back to the party claiming costs to prove they were necessary and reasonable.

See Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 774.

CRC, Rule 8.278(d)(1)(A) expressly allows a party to recover his or her filing fees. See Cal. R. Ct.

8.278(d)(1)(A). Since CRC, Rule 8.278(d)(1)(A) explicitly allows the claimed charges and the costs are facially proper, Defendant bears the initial burden of demonstrating that Plaintiff Cielo Homeowners Association ('Plaintiff') is not otherwise entitled to the claimed costs. In this case, Defendant has demonstrated that Plaintiff's filing fee at the Court of Appeal was $390.00, not $544.80 as set forth in Plaintiff's Memorandum of Costs on Appeal. As a result, Plaintiff is entitled only to $390.00 in filing fees.

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2989169 CASE NUMBER: CASE TITLE:  CIELO HOMEOWNERS ASSOCIATION VS. BENNET  37-2009-00063244-CU-OR-NC As for Plaintiff's claim for 'other' costs in the amount of $57.15, Defendant has satisfactorily demonstrated that said costs, which Defendant notes are permissible under California Civil Code § 5975(c), are not costs expressly permitted under CRC, Rule 8.278(d). Moreover, the court construes Plaintiff's lack of opposition as a concession of the motion's merits on this point. See San Diego Rules of Court, Rule 2.1.19.B. As a result, Plaintiff is not entitled to recover the $57.15 in costs sought by way of ¶ 9 on its Memorandum of Costs on Appeal.

In light of the foregoing, the court grants Defendant's motion to tax costs in part. The court awards Plaintiff costs in the total amount of $390.00.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, December 29, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of December 29, 2023.

If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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