Judge: Daniel M. Crowley, Case: 21SMCV00756, Date: 2023-04-05 Tentative Ruling

Case Number: 21SMCV00756    Hearing Date: April 5, 2023    Dept: 207

Background

This case arises from the sale of real property located at 2478 Glyndon Avenue, Los Angeles, CA 90291. Defendant Allstar Financial Services, Inc., the lender on a loan secured by the property, sought to sell the property at a non-judicial foreclosure sale. Plaintiff Alvin Cox (“Cox”) claims he was the highest bidder for the property under the provisions of a recently enacted statutory scheme which changes the procedures for certain non-judicial foreclosure sales as codified by the Legislature at Civil Code § 2924m. The property and Defendant Allstar Financial Services, Inc.’s (“Allstar”) attempted sale have given rise to multiple lawsuits which have been consolidated in whole or in part with the initial suit brought by Sunrise Projects, LLC (“Sunrise”), Case Number 21SMCV00756.

On January 24, 2023, the Court granted Allstar’s motion for summary judgment as to Cox’s First Amended Complaint. On February 9, 2023, Allstar filed a cost memorandum seeking to collect $5,334.39 in costs incurred in defending Cox’s First Amended Complaint. Cox now moves to strike or tax the costs claimed by Allstar. Allstar opposes Cox’s motion.

Legal Standard

In general, the prevailing party is entitled as a matter of right to recover costs for suit in any action or proceeding.¿ (C.C.P.¿§ 1032(b);¿Santisas¿v.¿Goodin¿(1998) 17 Cal.4th 599, 606;¿Scott Co. Of¿Calif.¿v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.)¿ Assuming the prevailing party¿requirements are met, the trial court has no discretion to order each party to bear his or her¿own¿costs of suit. (Michell¿v. Olick¿(1996) 49 Cal.App.4th 1194, 1198;¿Nelson v. Anderson¿(1999) 72 Cal.App.4th 111, 129.)¿The term prevailing party is defined by statute to include:¿The party with a net monetary recovery;¿a¿defendant who is dismissed from the action;¿a¿defendant where neither plaintiff nor defendant recovers anything; and¿a¿defendant as against those plaintiffs who do not recover any relief against that defendant.¿ (C.C.P.¿§¿1032(a)(4).)¿

¿

Allowable costs under Code Civ. Proc.¿§¿1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount.¿An item not specifically allowable under¿§¿1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount).¿If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.¿¿(Ladas v.¿California¿State Automotive Assoc.¿(1993) 19 Cal.App.4th 761, 773-774.)¿Whereas, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Id.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.¿ (Id.)¿ However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.)¿ Discretion is abused only when, in its exercise, the court exceeds the bounds of reason, all of the circumstances being considered.¿

Analysis

            1.         Timeliness

On February 9, 2023, Allstar filed a cost memorandum claiming costs of $5,334.39 in filing and motion fees, deposition costs, and electronic filing fees. On February 27, 2023, Cox filed this motion to strike or tax Allstar’s costs. Allstar argues Cox’s motion is untimely. The Court disagrees. California Rule of Court, rule 3.1700(b)(1) provides a motion to strike or tax costs must be filed and served no more than 15 days after service of the cost memorandum. It further provides “If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” Allstar’s cost memorandum attaches a proof of service indicating it was served by mail and by electronic transmission. Under Code Civ. Proc. § 1010.6, the time period to respond is extended by two court days where a document is served electronically, making February 28 the deadline for Cox to file his motion. Alternatively, under Code Civ. Proc. § 1013, the time period to respond is extended by five calendar days when a document is served by mail, making Cox’s deadline March 1. Cox’s motion Cox’s motion was filed on February 27, before the expiration of either deadline.

            2.         Request to Strike Costs

Cox asks the Court to strike Allstar’s claimed costs in their entirety, arguing Allstar failed to comply with the requirements of Civil Code § 2924m in conducting the sale of the property and thus “should not benefit from the literal mess they have created due to their unlawful, negligent and/or fraudulent conduct.” (Motion at 6.) Alternatively, Cox requests the Court tax Allstar’s costs by 70% for the same reason. (Id.) The Court rejects both contentions. In granting Allstar’s motions for summary judgment on Cox’s Complaint and Cross-Complaint, the Court found Cox failed to abide by the terms of Civil Code § 2924m in making a bid for the property, and thus could not claim a right to the property under that statute. In allowing Allstar to recover costs it incurred in defending against Cox’s Complaint, Allstar is not receiving a benefit or windfall as a result of its allegedly unlawful conduct, rather it is recouping some of the expenses it incurred in defending claims raised by Cox which the Court has found to be without merit.

Cox argues Allstar’s conduct spawned multiple actions, but Allstar is not seeking to recover costs incurred in those other actions whose respective merits have yet to be adjudicated. There has been no judicial determination at this point that Allstar violated the terms of Civil Code § 2924m, only that Cox did not follow the requirements of that statute. The Court thus declines to strike Allstar’s costs in their entirety or reduce them by a an arbitrary 70% based on Cox’s assertion that Allstar violated section 2924m.

            3.         Request to Tax Costs

Cox also challenges the amounts of costs claimed by Allstar. Cox claims the $3,412.53 sought in costs to take his deposition is unreasonable because the same information could have been obtained through written discovery instead. Cox also argues the deposition costs incurred by Allstar to take his deposition should be reduced because they exceed the 2020 fee schedule to retain a court reporter for a hearing. Both arguments are unsupported by any authority and are rejected.

Cox next argues the invoices prepared by Allstar’s counsel seek to recover costs of “Mailing” through vendor iMailTracking which are not allowed by statute. The Court agrees. Allstar’s legal invoices show seven charges for vendor iMailTracking, totaling $399.89. The descriptions of those billing entries have been heavily redacted so as to only indicate they are for “Mailing,” “Mailing fees,” or “order.” These descriptions do not allow the Court to determine what these costs were incurred for or whether they were reasonably incurred or even permissible as costs. The Court thus taxes Allstar’s claimed costs by $399.89 for these claimed costs.

Conclusion

Cox’s motion to strike or tax Allstar’s costs is GRANTED in part and DENIED in part. The Court taxes Allstar’s costs in the amount of $399.89, leaving a total cost award to Allstar of $4934.5. Cox’s motion is otherwise denied.