Judge Daniel M. Crowley, Case Number: 21STCV03788, Date: 2024-11-27 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SMCDEPT71@lacourt.org. Do not click on the email address, either copy and paste it or type it into your email. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

            Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line.

            If you elect to argue your matter, you are urged to do so remotely, via Court-Connect. If the moving party fails to appear and/or submit to the Court’s tentative ruling, the Court will take the matter off calendar.

            Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court.

If you submitted a courtesy copy of your papers containing media (such as a DVD or thumb drive), unless you request the return of the media in your papers, the court will destroy it following the hearing of your matter.

Defendants Stephen Pattillo’s, individually and dba Quality Stamp Shows and OrcoExpo, Brianna Pattillo’s, and Eric Pattillo’s motion to tax pro per Plaintiff Wesley Robbins’ memorandum of costs is denied.

Defendants Edwin Kawasaki’s, Stephen Radell’s, William Miller’s, William Janson’s, Caj Brejtfus’, and Lois Evans’ joinder to Defendants Stephen Pattillo’s, individually and dba Quality Stamp Shows and OrcoExpo, Brianna Pattillo’s, and Eric Pattillo’s motion is denied.

Defendants Stephen Pattillo, individually and dba Quality Stamp Shows and OrcoExpo (“Stephen”), Brianna Pattillo (“Brianna”), and Eric Pattillo (“Eric”) (collectively, “Pattillo Defendants”) move to tax costs requested by pro per Plaintiff Wesley Robbins (“Robbins”) (“Plaintiff”) in their entirety on the basis Plaintiff was not the prevailing party in this case, and thus is not entitled to claim costs, and therefore, the entirety of Plaintiff’s Memorandum of Costs must be stricken. (Notice Motion, pg. 2.)

Defendants Edwin Kawasaki (“Kawasaki”), Steven Radell (“Radell”), William Miller (“Miller”), William Janson (“Janson”), Caj Brejtfus (“Brejtfus”), and Lois Evans (“Evans”) (“Joining Defendants”) join the Pattillo Defendants’ motion to tax and strike the entirety of the Memorandum of Costs filed by Plaintiff. (Notice Joining Motion, pg. 2.)

On July 19, 2024, at trial, all Defendants moved for nonsuit after parties rested upon the close of evidence before a jury. (8/14/24 Minute Order.) Upon Defendants’ motion, Plaintiff agreed to dismiss all the remaining causes of action against Defendants.

On July 29, 2024, Cobb filed a dismissal of his Cross-Complaint against Plaintiff without prejudice. The dismissal was entered on July 30, 2024.

On August 19, 2024, Plaintiff filed a Memorandum of Costs claiming $29,880.00 in costs, consisting of $3,830.00 in filing and motion fees; $150.00 in jury fees; $300.00 in deposition costs; $14,600.00 in service of process; $5,000.00 in attorney fees; $3,500.00 for models, enlargements, and photocopies of exhibits; and $2,500.00 in “Other” unspecified costs. (See Memorandum of Costs.) Plaintiff’s memorandum of costs does not indicate under which pleading and which Defendants he seeks to recover such costs. However, the docket reflects, under the register of actions, that on August 19, 2024, Plaintiff filed the memorandum of costs against David Cobb (Cross-Complainant), Carl Shaff, II (Defendant), and Steve Radell (Defendant). The docket also reflects on the register of actions that on August 19, 2024, Plaintiff changed the parties the memorandum is filed against from Stephen Pattillo (Defendant), Lionel Pereira (Defendant), Steve Radell (Defendant), John Weigle (Defendant), Carl Shaff, II (Defendant), David Cobb (Cross-Complainant), Briana Pattillo (Defendant), Eric Pattillo (Defendant) to David Cobb (Cross-Complainant). Therefore, the memorandum is only filed against David Cobb (“Cobb”) as a Cross-Complainant.

On August 19, 2024, Plaintiff also filed a proposed judgment against David Cobb as Cross-Complainant.

On August 20, 2024, Cobb filed an objection to Cross-Complainant Robbins’ Proposed Judgment on August 19, 2024.

On August 20, 2024, this Court denied Robbins’ proposed judgment against Cross-Complainant Cobb.

On August 27, 2024, Pattillo Defendants filed the instant motion. On September 4, 2024, Joining Defendants filed their joinder. On November 12, 2024, Plaintiff filed his opposition. As of the date of this hearing no reply has been filed.

“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. On the other hand, 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.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

“[T]he mere filing of a motion to tax costs may be a ‘proper objection’ to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. [Citation] However, ‘[i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].’ [Citations.]” (Id.)

“The court’s first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. [Citation] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. [Citation.]” (Id.)

A prevailing party is entitled as a matter of right to recover costs in any action or proceeding, except as otherwise expressly provided by statute. (C.C.P. §1032(b).) California law recognizes three types of litigation costs: allowable, not allowable, and discretionary. (C.C.P. §§1033.5(a), (b), (c)(4).) Items not specifically allowable as costs under C.C.P. §1033.5(a), and not specifically prohibited under §1033.5(b), may be allowed as costs at the discretion of the trial court if reasonably necessary to the conduct of the litigation. (Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 506, citing Ladas v. California State Auto Association (1993) 19 Cal.App.4th 761, 774.) For allowable costs, C.C.P. §1033.5(c) provides:

(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.

To the extent Plaintiff challenges costs, they must be challenged as costs that were not, “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” or not “reasonable in amount.” (C.C.P. §§1033.5(c)(2)-(3).)

A defendant who is dismissed from the action is the “prevailing party.” (C.C.P. §1032(a)(4); see City of Long Beach v. Stevedoring Services of America (2007) 157 Cal.App.4th 672, 678, 680 [stating cross-defendant is prevailing party entitled to costs under §1032 when cross-complaint is dismissed as moot].)

A defendant dismissed from the action is the “prevailing party” regardless of whether the dismissal is voluntary or involuntary. (Santisas v. Goodin (1998) 17 Cal.4th 599, 606 [stating defendant entitled to costs as a matter of right after plaintiff voluntarily dismissed proceeding]; Crib Retaining Walls, Inc. v. NBS/Lowry, Inc. (1996) 47 Cal.App.4th 886, 890 [involuntary dismissal pursuant to C.C.P. §877.6 order approving good faith settlement]; Cano v. Glover (2006) 143 Cal.App.4th 326, 328, 331 [defendant who obtained dismissal without prejudice and was unnamed in fourth amended complaint was entitled to dismissal with prejudice and costs award (costs award was not dependent on whether dismissal was with or without prejudice)].)

Where neither plaintiff nor defendant obtains any relief, defendant is the “prevailing party.” (C.C.P. §1032(a)(4).)

Here, the Pattillo Defendants and Joining Defendants are not parties to Cobb’s Cross-Complaint and therefore do not have standing to challenge Robbins’ memorandum of costs on Cobb’s Cross-Complaint; only Cobb could challenge the costs asserted by Robbins on the Cobb Cross-Complaint. Therefore, Pattillo Defendants’ and Joining Defendants’ motions to tax costs on Robbins’ memorandum of costs on Cobb’s Cross-Complaint is denied.

In order for the prevailing party to obtain its costs, all that is required is the timely filing and service of the “memorandum of costs” that is verified with a statement, “that to the best of his or her knowledge the items of costs are correct and were necessarily incurred in the case.” (CRC, Rule 3.1700(a)(1).) Robbins timely filed his Memorandum of Costs.

Here, Robbins was the prevailing party on the Cobb Cross-Complaint because Cobb dismissed Robbins. (C.C.P. §1032(a)(4).) Therefore, Robbins’ memorandum of costs on the Cobb Cross-Complaint is proper.

In light of the fact that Cobb did not file a motion to tax costs, Robbins is entitled to all costs against Cobb in his August 19, 2024, Memorandum of Costs.

Accordingly, Pattillo Defendants’ and Joining Defendants’ motions are denied.

Defendants Stephen Pattillo’s, individually and dba Quality Stamp Shows and OrcoExpo, Brianna Pattillo’s, and Eric Pattillo’s motion to tax pro per Plaintiff Wesley Robbins’ memorandum of costs is denied.

Defendants Edwin Kawasaki’s, Stephen Radell’s, William Miller’s, William Janson’s, Caj Brejtfus’, and Lois Evans’ joinder to Defendants Stephen Pattillo’s, individually and dba Quality Stamp Shows and OrcoExpo, Brianna Pattillo’s, and Eric Pattillo’s motion is denied.

Hon. Daniel M. Crowley

Judge of the Superior Court