Judge: Cynthia A Freeland, Case: 37-2022-00047363-CU-OR-NC, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - September 14, 2023

09/15/2023  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) 37-2022-00047363-CU-OR-NC ROBINSON VS. BURGESS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike or Tax Costs, 05/10/2023

Plaintiff Gary Robinson ('Plaintiff')'s motion to tax costs is denied.

Plaintiff's objection to ¶ 14 of Mr. Webb's declaration is sustained on the grounds that it lacks foundation and constitutes inadmissible speculation.

California Code of Civil Procedure ('CCP') § 1032(b) provides that '[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.' Cal. Code Civ. P. § 1032(b). '[S]ection 1033.5 sets forth the items that are and are not allowable as the costs recoverable by a prevailing party under section 1032[.]' Chaaban v. Wet Seal, Inc. (2012) 203 Cal. App. 4th 49, 52. CCP § 1033.5(a) enumerates the items allowable as costs, whereas CCP § 1033.5(b) lists items not recoverable as costs. See Segal v. Asics America Corporation (2020) 50 Cal. App. 5th 659, 664. The court has discretion to allow or deny costs for items not explicitly identified under CCP §§ 1033.5(a) or (b). See Cal. Code Civ. P. § 1033.5(c)(4). 'All costs awarded, whether expressly permitted under subdivision (a) or awardable in the trial court's discretion under subdivision (c), must be 'reasonably necessary to the conduct of the litigation' and be 'reasonable in amount.'' Segal, 50 Cal. App. 5th at 664 (quoting Cal. Code Civ. P. §§ 1033.5(c)(2)-(3)).

In ruling on a motion to strike or tax costs, the court first must decide whether CCP § 1033.5(a) expressly allows costs for the item objected to and whether it appears facially proper. See Gorman v. Tassajara Development Corp. (2009) 178 Cal. App. 4th 44, 71. If so, the objecting party bears the burden of establishing that the costs are unnecessary or unreasonable. 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 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. If, on the other hand, the claimed costs are not expressly authorized by statute, the party claiming them bears the burden of demonstrating that they were reasonable and necessary. See Gorman, 178 Cal. App. 4th at 71.

Initially, to the extent Plaintiff objects to the entire Memorandum of Costs (the 'MOC') on the ground that Defendant did not attach to the MOC supporting documentation or a copy of the MC-011 Memorandum of Costs (Worksheet), such contention is not well taken. Defendant was not initially required to submit an itemization or other supporting documentation establishing the reasonableness of the claimed costs.

See, e.g., Jones v. Dumrichob (1998) 63 Cal. App. 4th 1258, 1267. The court will now address each challenged cost in turn.

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2971599 CASE NUMBER: CASE TITLE:  ROBINSON VS. BURGESS [IMAGED]  37-2022-00047363-CU-OR-NC Items 1 (Filing and Motion Fees) and 14 (Fees for Electronic Filing or Service) CCP § 1033.5(a)(1) expressly allows costs for '[f]iling, motion, and jury fees.' Cal. Code Civ. P. § 1033.5(a)(1). CCP § 1033.5(a)(14) expressly allows costs for '[f]ees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.' Cal. Code Civ. P. § 1033.5(a)(14). Since CCP §§ 1033.5(a)(1) and (a)(14) explicitly allow the claimed charges and the costs are facially proper, Plaintiff bears the initial burden of providing evidence that the costs are unreasonable and unnecessary. The court finds that Plaintiff has not met his burden. More specifically, and as set forth above, it is insufficient for Plaintiff to allege in conclusory fashion, and without evidentiary support, that the claimed costs are unreasonable and/or unnecessary. Plaintiff must provide evidence that the claimed charges are not recoverable – he fails to do so.

Accordingly, the motion is denied as to Items 1 and 14.

Item 16 (Other) Defendant's claimed costs for 'other' expenses is not explicitly identified under CCP §§ 1033.5(a) or (b).

Therefore, Defendant bears the initial burden of demonstrating that the charges were reasonably and necessarily incurred. Moreover, the court has discretion to allow or deny the claimed costs if it determines that they were or were not reasonably and necessarily incurred. In this case, Defendant has claimed $3,017.80 in 'other' expenses owing to: (1) his retention of land surveyor Ray Spear ($3,010.00), and (2) 'Pleadings from Register of Action' ($7.80). Toward that end, Plaintiff is correct that fees of experts not ordered by the court are not allowable as costs except when authorized by law. See Cal. Code Civ. P. § 1033.5(b)(1). However, there is no evidence before the court to refute Defendant's assertion that he hired Mr. Spear as a mere consultant to provide an opinion as to whose property the Removed Tree was located on. See Webb Decl., ¶ 9, Ex. 3. Mr. Spear ultimately concluded that the Removed Tree was located 13.8 feet within Defendant's property line and not on Plaintiff's property.

Ibid., ¶ 10, Ex. 3.

Plaintiff cites ¶10 of Mr. Webb's declaration for the proposition that Defendant retained Mr. Spear to offer an expert opinion. That does not, however, mean that Mr. Spear qualifies as an 'expert' for purposes of CCP § 1033.5(b)(1). Indeed, there is no evidence that the parties engaged in an exchange of expert witnesses or any expert discovery. Nor has Plaintiff provided evidence that Defendant retained Mr.

Spear with the expectation that he would deposed or called as a witness at trial. In addition, the court agrees with Defendant that his retention of Mr. Spear was reasonable and necessary to the conduct of this litigation. The gravamen of the Complaint is that Defendant hired Defendant Flores Tree Service ('Flores') to remove an oak tree that was purportedly located on Plaintiff's property. The Complaint alleges causes of action for trespass, negligence, encroachment, and nuisance arising from Defendant and Flores' unauthorized entry onto Plaintiff's property and the removal of the oak tree without Plaintiff's permission. The location of the oak tree, to which Mr. Spear has opined, consequently was germane to the action. More specifically, if the oak tree were found to be located on Defendant's property, then Plaintiff's claims could not survive as a matter of law. This was, in large part, the basis for Defendant's motion for sanctions under CCP § 128.7. Indeed, on April 6, 2023, Defendant's counsel provided Plaintiff's counsel with notice of Mr. Spear's findings and that a motion for sanctions in the form of striking the Complaint would be filed if the Complaint was not dismissed within the 21-day safe harbor period. See Webb Decl., Ex. 5. Plaintiff dismissed his Complaint against Defendant on April 27, 2023 – the last day of the 21-day safe harbor period for filing the sanctions motion. See ROA No. 41. Given the foregoing, the court must conclude that the fees Defendant incurred in hiring Mr. Spear to opine as to the location of the oak tree were reasonable and necessary to the disposition of this action.

Accordingly, the court denies the motion as to Item 16.

In light of the foregoing, the court denies Plaintiff's motion to tax costs. The court awards Defendant Calendar No.: Event ID:  TENTATIVE RULINGS

2971599 CASE NUMBER: CASE TITLE:  ROBINSON VS. BURGESS [IMAGED]  37-2022-00047363-CU-OR-NC costs in the total amount of $3,623.17.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, September 15, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of September 15, 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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