Judge Daniel M. Crowley, Case Number: BC667915, Date: 2023-10-12 Tentative Ruling

Defendant Broadway Federal Bank f.s.b.’s motion for attorneys’ fees is denied.

Plaintiffs Slauson Gas Station, LLC (“Slauson”), Hooman Nissani (“Hooman”), and Ebrahim Nissani (“Ebrahim”) (collectively, “Plaintiffs”) move to tax costs requested by Defendant Broadway Federal Bank f.s.b. (“BFB”) (“Defendant”) in their entirety on the basis Defendant’s costs memorandum is entirely vague and fails to outline the items encompassed in the $5,382.73 figure such that it cannot be established that such costs are reasonably necessary to the litigation or whether the costs are reasonable in amount. (Notice Motion Tax, pg. 2; CRC, Rule 3.1700.)

Defendant moves for an award of attorneys’ fees in its favor and against Plaintiff. (Notice Motion Attorneys Fees, pg. 1.)

Defendant’s 12/4/23 request for judicial notice of the memorandum of costs and motion to strike costs filed in this case is denied, as the Court does not need to take judicial notice of filings in the instant matter.

On October 23, 2023, Defendant filed a Memorandum of Costs claiming $4,229.73 in filing and motion fees, and $1,153.00 in “Other” costs. Defendant only filed form MC-010 Summary but failed to file the accompanying Worksheet (MC-011).

On November 3, 2023, Plaintiffs filed the instant motion. On December 4, 2023, Defendant filed its opposition. As of the date of this hearing Plaintiffs have not filed a reply.

Defendant argues that Plaintiff’s Opposition was untimely because it was not filed until November 3 when it was due November 2. Plaintiffs have submitted a declaration indicating that the Opposition was filed and served on November 2, 2023, by email. The declaration explains that the Court rejected the filing because Plaintiff’s office chose the wrong drop-down menu item, resulting in Plaintiff having to refile the Opposition on November 3, 2023. Under the circumstances, the Court elects to consider the Opposition as timely. (Douglas v. Willis (1994) 27 Cal. App. 4th 287, 290.)

“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 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).)

For the purpose of the instant motion, Defendant is the prevailing party. Further, in the instant motion, Plaintiffs do not argue they are the prevailing party in this action.

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).) Defendant timely filed its Memorandum of Costs and the related verification.

Accordingly, Plaintiffs’ request to tax costs for filing and motion fees is granted.

Plaintiffs move to tax $1,153.00 in other fees. Defendant does not provide a breakdown of such fees for this Court to determine if these “other” costs are allowable, not allowable, and discretionary. (C.C.P. §§1033.5(a), (b), (c)(4).) The Court and Plaintiffs have no way of identifying if such “other fees” are allowable and entitled to such a presumption, as the cost memorandum is not proper on its face. (Nelson, 72 Cal.App.4th at pg. 131.)

Plaintiffs met their burden to challenge such costs. Defendant fails to meet its burden to demonstrate that such costs are allowable or discretionary.

Accordingly, Plaintiffs’ request to tax costs for other costs is granted in the amount of $1,153.00.

On April 17, 2009, Plaintiff, Slauson Gas Station, LLC, entered into a loan with Defendant. Ebrahim Nissani was not a signatory to the loan, but he did sue Defendant claiming he was damaged by Defendant’s breach of the loan agreements. (First Amended Complaint in Ebrahim Nissani, an Individual; and Hooman Nissani, an Individual, Plaintiffs, vs. Broadway Federal Bank, F.S.B., A Subsidiary of Broadway Financial Corporation, Defendant, LASC Case No. BC717180.) On September 28, 2023, Ebrahim Nissani voluntary dismissed his complaint against Defendant. Defendant now moves for an award of attorney’s fees against Ebrahim Nissani.

A party is to bear its own attorney’s fees unless a statute, or the agreement of the parties provides otherwise. (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504; C.C.P. §1021.)

Defendant has established that the loan documents on which Ebrahim Nissani sued provides for attorney’s fees and costs. (RJN, No. 1, Declaration of Teresa Taylor in Support of Defendant’s Notice of Motion and Motion for Summary Judgment, or, Alternatively, Summary Adjudication of Issues, filed in this action concurrently with the Motion for Summary Judgment on July 12, 2023.)

Code of Civil Procedure section 1717(a) provides, “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.”

Code of Civil Procedure section 1717(b) provides, “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.”

Defendant argues that it is entitled to recover its attorney’s fees notwithstanding Section 1717(b)’s prohibition because the prohibition applies only to the defense of contractual claims, and not to the defense of tort claim. (Santisas v. Goodin (1998) 17 Cal. 4th 599, 622-623.) Defendant argues that Ebrahim Nissani’s complaint was comprised of both contractual and tort claims.

Indeed, in addition to Breach of Contract, the First Amended Complaint contained causes of action for Negligent Misrepresentation, Breach of the Implied Covenant of Good Faith and Fair Dealing, Accounting, and Violation of California Civil Code section 1785.1, et seq. But Defendant’s motion characterized Ebrahim Nissani’s claim as being essentially a claim under contract. (Motion, 6:22-9:27 [“The Majority of Ebrahim’s Claims Against Broadway Are ‘On a Contract’”.]) Further, Defendant makes no showing of what fees it spent defending against the limited tort claim versus the “majority” contract claims.

Accordingly, the Court finds that Defendant is not the prevailing party under the terms of the agreements sued upon and denies Defendant’s motion for attorney’s fees against Ebrahim Nissani.

Hon. Daniel M. Crowley

Judge of the Superior Court