Judge: Daniel M. Crowley, Case: BC663036, Date: 2023-09-07 Tentative Ruling
Case Number: BC663036 Hearing Date: September 7, 2023 Dept: 71
Superior Court of California
County of Los Angeles
DEPARTMENT 71
TENTATIVE RULING
| KIUMARS SOLEIMANY, et al., vs. MOSTAFA NARIMANZADEH, et al. | Case No.: BC663036 Hearing Date: September 7, 2023 |
Defendants Mostafa Narimanzadeh’s, Fariba Atighechi’s, and Pink Partners, Inc.’s motion to tax Plaintiffs Kiumars Soleimany’s and Shanaz Soleimany’s costs is granted reduced total of $9,261.00.
Defendants Mostafa Narimanzadeh (“Narimanzadeh”), Fariba Atighechi (“Atighechi”), and Pink Partners, Inc. (“Pink Partners”) (collectively, “Defendants”) move to tax costs requested by Plaintiffs Kiumars Soleimany (“Kiumars”) and Shanaz Soleimany (“Shanaz”) (collectively, “Plaintiffs”) in the total amount of $34,431.92. (Notice Motion, pg. 2; CRC, Rule 3.1700(b)(1).)
Background
This action came on regularly for trial in its first phase on October 1, 2018; its second phase on December 16, 2019, and following the Court of Appeal’s published opinion issued on May 17, 2022, its third and final phase on January 4, 2023, in a non-jury trial. On March 29, 2023, Judgment was entered on Phase III of the retrial for Plaintiffs against Defendants, jointly and severally, in the principal sum of $17,824.00. (3/29/23 Judgment.)
On April 18, 2023, Plaintiffs filed their memorandum of costs. On May 1, 2023, Defendants filed the instant motion. On August 24, 2023, Plaintiffs filed their opposition. On August 29, 2023, Defendants filed their reply.
Motion to Tax Costs
“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.
(3) Allowable costs shall be reasonable in amount.
(C.C.P. §§1033.5(c)(2)-(3).)
To the extent Defendants challenge 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).)
Item No. 1: Filing and Motion Fees
Defendants move to tax $1,363.25 in filing and motion fees of the $2,007.45 requested in Plaintiffs’ memorandum of costs. Defendants argue Plaintiffs are not entitled to recover costs incurred in recording the (i) Lis Pendens ($60.50); (ii) Civil Deposit ($165.00); (iii) ex parte application to continue trial ($61.75); and (iv) renewed ex parte application to continue trial ($61.75) because they were not reasonably necessary in the conduct of litigation and at most merely served Plaintiffs’ convenience. (Motion, pg. 5.) Defendants argue Plaintiffs’ appeal claimed costs ($952.50) are not recoverable because the Court of Appeal, in reversing the original judgment in part, did not specifically order that Plaintiffs are entitled to recover the costs of appeal against Defendants. (Motion, pg. 5.) Defendants also argue Plaintiffs failed to provide any invoices or documentation to establish such costs, and as such the amounts are uncertain. (Motion, pg. 5.) Defendants fail to meet their burden to challenge Plaintiffs’ costs because they do not provide a legal standard to support this challenge to Plaintiffs’ costs.
Even assuming, arguendo, Defendants met their burden to challenge costs, Plaintiffs sufficiently met their burden to demonstrate the costs at issue are recoverable. Plaintiffs submitted evidence that the Judgment orders that Plaintiffs are entitled to costs and submitted invoices in support of the challenged fees. (Decl. of Pai ¶5, Exh. C.) The Court of Appeal Opinion further stated, “we also reverse the trial court’s ruling on attorney fees and remand the matter for a new prevailing party determination and award of fees and costs as appropriate.” (5/17/22 Court of Appeal Opinion, pg. 14.) Therefore, costs incurred on appeal are allowable.
Accordingly, Defendants’ request to tax costs for filing and motion fees is denied.
Item No. 4: Deposition Costs
Defendants move to tax all $4,018.50 in deposition costs that Plaintiffs request. Defendants argue in a conclusory fashion that the costs were not reasonably necessary to conduct the litigation and merely served Plaintiff’s convenience. (Motion, pg. 5.) Defendants fail to meet their burden to challenge Plaintiffs’ costs.
Even assuming, arguendo, Defendants met their burden to challenge costs, Plaintiffs sufficiently met their burden to demonstrate the costs at issue are recoverable. Plaintiffs submitted evidence that the costs are allowable under C.C.P. §1033.5(a)(3)(A), are a reasonable amount, and are supported by evidence. (Decl. of Pai ¶6, Exh. D.)
Accordingly, Defendants’ request to tax costs for deposition costs is denied.
Item No. 5: Service of Process
Defendants move to tax all $1,275.00 in service of process fees on the basis all service of process costs claimed by Plaintiffs were costs incurred in serving other defendants in the action, such as ABCO Leasing, Bellagio LLC, Citibank (South Dakota) NA, Discover Bank, Ford Motor Credit Company, Fresh & Ready Foods of Colton Inc, Internal Revenue Service, Lehman Foods, Los Angeles Tax Collector, Performance Food Group, Solbeil Davood, State Board of Equalization, Trade Supplies Inc., Uniti Bank, Wells Fargo Bank, Wells Fargo National Association, and WH Tuscany Investors LP. (Motion, pg. 6.) It is within the trial court's discretion to allocate awards of fees and costs. (Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1297.) The Court finds that these costs should not be charged against Defendants.
Accordingly, Defendants’ request to tax costs for service of process is granted.
Item No. 11: Court Reporters Fees
Defendants move to tax the total amount of $7,896.00 for court reporter fees on the basis the Court did not order a copy of the transcript, as costs for transcripts of court proceedings not ordered by the court are expressly prohibited under C.C.P. §1033.5(b)(5), this Court should not award them. (Segal v. ASICs America Corp. (2022) 12 Cal.5th 651, 666.) Defendants met their burden to challenge Plaintiffs’ costs for court reporter fees.
Plaintiffs fail to meet their burden to demonstrate the costs for transcripts of court proceedings not ordered by the court are allowable costs and the law that expressly authorizes them as allowable costs.
Accordingly, Defendants’ request to tax court reporter fees is granted in the amount of $7,896.00.
Item No. 12: Models, enlargements, and photocopies of exhibits
Defendants move to tax the total amount of $6,606.96 in fees for models, enlargements, and photocopies of exhibits. Defendants argue C.C.P. §1033.5(a)(13) provide that expenses for trial exhibits are only allowed “if they were reasonably helpful to aid the trier of fact,” and that fees are not authorized for exhibits not used at trial. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557-1558.) Defendants argue that at trial, Plaintiffs neither used any models nor enlargements of exhibits, and if Plaintiffs’ claim cost is for photocopies of exhibits, they did not provide invoices or attachments to establish such costs. (Motion, pg. 7.) Further, Defendants argue out of Plaintiffs’ 80 exhibits, Plaintiffs only used approximately forty percent of their exhibits. (Motion, pg. 8.) Defendants met their burden to challenge Plaintiffs’ costs.
Plaintiffs submitted invoices in support of their costs for exhibits. (Decl. of Pai ¶9, Exh. G.) Plaintiffs sufficiently demonstrated their costs for copies of exhibits were reasonable in amount and supported by documentation. Accordingly, Defendants’ request to tax costs for models, enlargements, and photocopies of exhibits is denied.
Item No. 13: Interpreter Fees
Defendants move to tax the full amount of $1,866,44 for interpreter fees on the basis the cost is unnecessary and unreasonable. Defendants also argue the cost was not incurred during the Phase III re-trial but rather during Phase I and Phase II. Defendants do not provide a legal standard to support this challenge to Plaintiffs’ costs.
Assuming, arguendo, Defendants met their burden, Plaintiffs sufficiently demonstrated their costs for interpreter fees were reasonable in amount and supported by documentation, as both Plaintiffs do not speak English as their first language and made use of a Farsi-English interpreter during their testimonies on the witness stand. (Opposition, pg. 7; Decl. of Pai ¶10, Exh. H.)
Accordingly, Defendants’ request to tax costs for interpreter fees is denied.
Item No. 14: Fees for Electronic Filing or Service
Defendants move to tax all $326.66 in fees for electronic filing or service on the basis Plaintiffs did not attach invoices or documentation establishing such costs. Defendants do not provide a legal standard to support this challenge to Plaintiffs’ costs.
Assuming, arguendo, Defendants met their burden, Plaintiffs sufficiently demonstrated their costs for electronic filing and service were reasonable in amount and supported by documentation. (Decl. of Pai ¶11, Exh. I.)
Accordingly, Defendants’ request to tax costs for electronic filing or service is denied.
Defendants move to tax $11,229.11 in other fees. Defendants move to tax (i) court appearance costs ($1,094.59), (ii) messenger fees for court filings and personal delivery of courtesy copies ($3,237.34); (iii) mediation fees ($3,445.00); and (iv) appeal-related filings and transcripts ($3,452.18). (Motion, pg. 8.)
a. Court appearance costs
Accordingly, Defendants’ request to tax costs for court appearances is denied.
b. Messenger fees
Accordingly, Defendants’ request to tax costs for messenger fees is denied.
c. Mediation fees
Accordingly, Defendants’ request to tax costs for mediation fees is denied.
d. Appeal-related filings and transcripts
Defendants fail to provide a legal standard in support of their challenge to appeal-related filings and transcripts. Assuming, arguendo, Defendants met their burden to challenge these costs, Plaintiffs submitted supporting documentation. (Opposition, pg. 8; Decl. of Pai ¶12, Exh. J.)
Accordingly, Defendants’ request to tax costs for appeal-related filings and transcripts is denied.
Conclusion
Defendants’ motion to tax costs is granted in the reduced total of $9,261.00.
Moving party to give notice.
Dated: September _____, 2023