Judge: Daniel S. Murphy, Case: 20STCV48783, Date: 2022-10-05 Tentative Ruling

Case Number: 20STCV48783    Hearing Date: October 5, 2022    Dept: 32

BACKGROUND

            This action was initiated on December 22, 2020 by Plaintiff Chamroun Pisey Lor (“Lor”), alleging causes of action for partition, waste, and accounting. On May 27, 2021, Defendant and Cross-Complainant Chi Vouy Chao (“Chao”) filed his First Amended Cross-Complaint (“FACC”) against Plaintiff and Cross-Defendant Lor, alleging causes of action for quiet title, recission of deed, breach of fiduciary duty, and conversion.

            Chao and Lor were married from 2003 to 2015. The property that is the subject of this action is a home located in Carson, California. Plaintiff alleges that she is the owner of one-half of the property. Defendant alleges that he was defrauded into executing a grant deed adding Defendant as a joint tenant of the Carson property.

            The matter came on for a bench trial in June 2022, after which judgment was entered on August 4, 2022. The judgment provides, in pertinent part: (1) “The Court determines that Lor and Chao each own a one-half interest in the property located at 826 E. Sandpoint Court, Carson, California (the "Property"). The Court orders the partition of the property by sale in accordance with these interests;” and (2) “Prior to the appointment of a referee, either Lor or Chao may purchase the other party's interest in the property. The present fair market value of the property is $750,000.”

            On August 23, 2022, Lor filed a memorandum of costs, seeking a total of $191,259. On September 9, 2022, Chao filed the instant motion to tax costs, challenging (1) filing and motion fees, (2) deposition costs, (3) service costs, (4) attorneys’ fees, (5) court reporter fees, (6) interpreter fees, and (7) appraiser fees. The Court denied Lor’s request for appraiser fees on September 21, 2022, and the attorneys’ fees will be addressed in a separate motion.

LEGAL STANDARD

            The statutory scheme for cost recovery establishes three categories of trial preparation expenses: (1) one category allowable as a matter of right to the prevailing party (Code Civ. Proc., § 1033.5, subd. (a)); (2) one category disallowable unless expressly authorized elsewhere by law (Id., § 1033.5, subd. (b)); and (3) one category allowable or disallowable in the court’s discretion (Id., § 1033.5, subd. (c)(4)). Even where costs are deemed allowable, such costs are only recoverable to the extent that they are (1) reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation and (2) reasonable in amount. (Id., § 1033.5, subd. (c)(2)-(3).)

“In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face. ‘If so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.’ [Citation.] Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.” (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29-30.)

DISCUSSION

I. Filing and Motion Fees

            Chao objects to $420 of filing fees for seven discovery motions on the grounds that the motions were either taken off calendar through stipulation, or the matter of fees was already addressed in the motions themselves. However, the stipulation to remove some of the motions does not negate Lor’s expenditures in having to file them in the first place. Lor did not count previously-paid fees as part of the request in the Memorandum of Costs. (Eskridge Decl. ¶ 3.) This cost is recoverable.

II. Deposition Costs

            Chao argues this cost should be “stricken as vague” because it includes “travel videotaping,” which is not reasonably necessary. However, “travel videotaping” is merely a potential category of deposition costs listed in Lor’s worksheet breakdown. Lor did not list any amounts under “travel videotaping.” Instead, all of the costs arise from “transcribing.” The cost of transcribing depositions is expressly allowed. (See Code Civ. Proc., § 1033.5(a)(3)(A).) This cost is recoverable.

III. Service of Process

            Chao objects to this cost on the grounds that he was represented by counsel at the time, and “there was no effort to determine if counsel would accept service.” However, there is no indication that Chao agreed to have his attorneys accept service on his behalf. Lor was not obligated to “determine if counsel would accept service.” Furthermore, it did not appear that Chao was even represented by counsel at the time. (Eskridge Decl. ¶ 5.) This cost is recoverable.

IV. Court Reporter Fees

            Costs for “[t]ranscripts of court proceedings not ordered by the court” are expressly not recoverable. (Code Civ. Proc., § 1033.5(b)(5).) However, “[c]ourt reporter fees as established by statute” are recoverable. (Id., § 1033.5(a)(11).) “The costs for the services of the official court reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law.” (Gov. Code, § 68086(c).) If an official reporter is unavailable, a certified shorthand reporter may serve as an official pro tempore reporter, and “[t]he fees and charges of the certified shorthand reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law.” (Id., subd. (d)(2).)

            Here, the claimed costs are for the services of a certified court reporter, not for transcripts. (Eskridge Decl. ¶ 7, Ex. 2.) Thus, the cost is recoverable.

V. Interpreter Fees

            Chao challenges these costs on the grounds that “Lor did not have an interpreter on June 15, 2022 (testimony of forensic experts and Mr. Chao)” and that “Ms. Lor has demonstrated her ability to speak and understand English as she runs a donut shop in Inglewood without an interpreter.”

However, according to the memorandum of costs, the claimed interpreter fees apply to a Cambodian/Khmer interpreter for the testimony of Lor herself. That cost was necessarily incurred regardless of whether an interpreter was needed on June 15 for the testimony of the forensic expert and Chao. Furthermore, the fact that Lor understands enough English to operate a donut shop does not mean an interpreter is not needed for complex legal proceedings. This cost is recoverable.    

CONCLUSION

            Defendant and Cross-Complainant Chao’s motion to tax costs is DENIED.

BACKGROUND

            This action was initiated on
December 22, 2020 by Plaintiff Chamroun Pisey Lor (“Lor”), alleging causes of
action for partition, waste, and accounting. On May 27, 2021, Defendant and
Cross-Complainant Chi Vouy Chao (“Chao”) filed his First Amended Cross-Complaint
(“FACC”) against Plaintiff and Cross-Defendant Lor, alleging causes of action
for quiet title, recission of deed, breach of fiduciary duty, and conversion.

            Chao and Lor were married from 2003
to 2015. The property that is the subject of this action is a home located in
Carson, California. Plaintiff alleges that she is the owner of one-half of the
property. Defendant alleges that he was defrauded into executing a grant deed
adding Defendant as a joint tenant of the Carson property.

            The matter came on for a bench trial
in June 2022, after which judgment was entered on August 4, 2022. The judgment
provides, in pertinent part: (1) “The Court determines that Lor and Chao each
own a one-half interest in the property located at 826 E. Sandpoint Court,
Carson, California (the "Property"). The Court orders the partition
of the property by sale in accordance with these interests;” and (2) “Prior to
the appointment of a referee, either Lor or Chao may purchase the other party's
interest in the property. The present fair market value of the property is
$750,000.”          

LEGAL
STANDARD

Under a partition action, the prevailing party
is entitled to reasonable attorney fees incurred by a party for the common
benefit. (CCP § 874.040.)  In determining
the amount of the award, courts follow the lodestar method by multiplying the
number of hours reasonably expended by the reasonable hourly rate prevailing in
the community for similar work.  (569 East County Boulevard LLC v. Backcountry
Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 432.)

DISCUSSION

            Defendant moves pursuant to CCP § 874.040
for attorney fees in the amount of $167,615.75.

A.
Entitlement to Fees and Costs

            Under a partition action, the prevailing
party is entitled to reasonable attorney fees incurred by a party for the common
benefit. (CCP § 874.040.) Because Lor was successful in her partition action,
she is entitled to attorney fees under CCP § 874.040.

B.
Reasonableness of Fees

1.
Reasonableness of Hourly Rates

Lor retained the law offices of Eskridge
Law to represented her in connection with this partition action. 

The hourly rate claimed by Eskridge Law attorneys
and support person who worked on this case are as follows:  Gayle Eskridge $500.00 per hour; Janelle
Menges $400.00 per hour; Davina Dawson $300.00 per hour; and Rod Bandt $150.00
per hour.    

“In determining hourly rates, the court must
look to the ‘prevailing market rates in the relevant community.’”  (Heritage
Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 100.)  In making this determination, “[t]he court
may rely on its own knowledge and familiarity with the legal market.”  (Ibid.) 

The Court finds that the $500.00 per hour
is the reasonable hourly rate in this case.

2.
Reasonableness of Number of Hours Billed

The total number of billable hours claimed
by Lor’s attorneys is 371.78 hours.

            Plaintiff claims that the number of
hours billed is unreasonable. 

The Court finds that the reasonable hours
spent by Lor’s attorneys in this matter are 270 hours.  In making this determination, the court found
that Lor’s counsel inappropriately billed for some clerical tasks and that some
of the billing was excessive, especially for an attorney as experienced as Lor’s
counsel. Also, some of the billing did not concern partition (ie, reimbursements.)

CONCLUSION

Based on the foregoing reasons, Defendant’s
motion for attorney fees is GRANTED.  The
Court awards $130,000.00 in attorney fees.