Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

 

MOVING PARTY: Cross-Defendant Leo David 

 

RESPONDING PARTY: Cross-Complainant Aurice Veloso 

 

 

BACKGROUND 

 

This case arises from an employment dispute.  Cross-Complainant Aurice Veloso was a caregiver for Cross-Defendant Leo David and his late wife, Ruth David.  (Cross-Compl. ¶ 10.)  She was responsible for cooking meals, housecleaning, running errands, chauffeuring, and assisting with business parties and travel.  (Cross Compl. ¶¶ 14, 16.)  In connection with her duties, David provided her “perks” including a “work vehicle”.  (Cross-Compl. ¶ 14.)   

According to Veloso, trouble began in 2016 when she “earned the enmity of Leo David’s current girlfriend [Svetlana] Sirot.”  (Cross Compl. ¶¶ 14, 16.)  Veloso alleges “Sirot treated Plaintiff with contempt,” and falsely accused her of blocking Sirot’s phone number in David’s phone, which resulted in her termination.  (Cross Compl. ¶¶ 18-19.)   

Subsequently, David demanded the return of the “work vehicle.”  (Cross-Compl. ¶ 27.)  Veloso alleges David and Alon Zeltzer (David’s business partner) extorted Veloso’s return of the car when they “wrongfully filed a lawsuit against Veloso accusing her of theft and threatened to report her to the police if she did not return the car.”  (Cross-Compl. ¶ 27.)   

The cross-complaint alleges two claims for (1) extortion (against David and Zeltzer) and (2) tortious interference with economic advantage (against Sirot).   

Veloso voluntarily dismissed the cross-complaint on February 17, 2023, two days after David filed an anti-SLAPP motion, a demurrer and a motion to strike.  The dismissal mooted the demurrer and motion to strike but not the request for attorneys’ fees and costs in connection with the anti-SLAPP motion.  The Court awarded $4,000 in attorneys’ fees (10 hours at an hourly rate of $400), and David now seeks costs of $691.80 incurred in connection with the entire cross-action.           

This hearing is on Veloso’s motion to tax costs.  Veloso argues this Court has already awarded costs in connection with the special motion to strike, and David cannot recover costs associated with the other motions because he was not the prevailing party as those motions were rendered moot by Veloso’s voluntary dismissal of her cross-complaint.  Additionally, Veloso argues that certain costs are not covered under the statutory list of permitted expenses and are not reasonable and necessary.    

LEGAL STANDARD 

Generally, a “prevailing party” is entitled to costs. (Code Civ. Proc. § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606.).  “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the¿notice of entry of judgment… The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.”  (Cal. Rules of Court, rule 3.1700.) 

The losing party may contest the costs that a prevailing party seeks.  (CCP §1034(a).) The challenging party has the burden of demonstrating that those costs are unreasonable or unnecessary. (Adams v. Ford Motor Co.,¿(2011) 199 Cal. App. 4th 1475, 1486; 612¿South LLC v. Laconic Limited Partnership, (2010) 184 Cal. App. 4th 1270, 1285.)  

Code of Civil Procedure § 1033.5 sets forth the costs recoverable by the prevailing party. (Code Civ. Proc., § 1033.5.)  “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.”  (Code Civ. Proc., §1033.5(c)(2); Perko’s Enterprises, Inc. v. RRNS Enterprises (l992) 4 Cal.App.4th 238, 244.)  A “properly verified memorandum of costs is considered prima facie evidence that the costs listed in the memorandum were necessarily incurred.”  (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308; see also Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.)   

This puts the burden 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, 773-74.)  If items are properly objected to, they are put in issue, and the burden of proof is on the party claiming them as costs. (Id.) 

The memorandum of costs need not contain invoices, billings, or statements.  (Bach, 215 Cal.App.3d at 308; see also Cal. Rules of Court, Rule 3.1700(a)(1) (only verification required).) “Documentation must be submitted only when a party dissatisfied with the costs claimed in the memorandum challenges them by filing a motion to tax costs.”  (Bach, 215 Cal.App.3d at 308.)     

ANALYSIS 

Veloso first argues that service of the memorandum of costs was untimely, and therefore, the memorandum should be stricken.  Veloso attests the parties entered into an agreement that “all service documents to Plaintiff be served through electronic service”.  (Ex. D to Abrolat Decl.)  David served its memorandum by mail, and according to Veloso, the memorandum was not received within the 15 day period required by California Rule of Court 3.1700(a)(1).  (Motion at 4.)  Even so, in the absence of prejudice, the Court has broad discretion in allowing relief from the time limitation imposed by Rule 3.1700(a)(1).  (Gunlock Corp. v. Walk on Water Inc. (1993) 15 Cal.App.4th 1301, 1304 (“a trial court has broad discretion in allowing relief from a late filing [on a cost memorandum] where as here there is an absence of a showing of prejudice to the opposing party); see also California Rule of Court 3.1700(b)(3) (authorizing court to extend time for filing a cost memorandum).  Veloso has not shown prejudice caused by David’s failure to serve the memorandum by email.  She maintained the ability to challenge the memorandum.  On these facts, the Court will consider the memorandum on its merits.      

Veloso next argues that David can only recover costs associated with the special motion to strike, and the Court has already awarded those costs in its March 16, 2023 minute order.  The Court disagrees.   

The Court’s March 16, 2023 minute order only considered David’s request for attorneys’ fees.  While the Court stated it was awarding fees and costs, the substance of its ruling dealt only with attorneys’ fees.  The Court awarded $4000 which was based on an hourly rate of $400 multiplied by the reasonable time expended of 10 hours.   

In addition, David may recover costs associated with his other motions even if they were rendered moot by Plaintiff’s voluntary dismissal.  Pursuant to¿section 1032, subdivision (b), “a prevailing party¿is entitled as a matter of right to recover costs in any action or proceeding.” A defendant who has been voluntarily dismissed is a prevailing party.  (§ 1032, subd. (a)(4)¿(“[p]revailing party” includes “a defendant in whose favor a dismissal is entered”); see¿Santisas v. Goodin¿(1998) 17 Cal.4th 599, 606¿(“Because plaintiffs voluntarily dismissed this action with prejudice, the seller defendants are defendants in whose favor a dismissal has been entered. Accordingly, they are ‘prevailing parties’ within the meaning of¿Code of Civil Procedure section 1032, subdivision (b), and are ‘entitled as a matter of right to recover costs’ unless another statute expressly provides otherwise.”).) 

Veloso also argues the Court should strike the motion because David failed to mitigate his damages.  According to Veloso, David filed the motions after Veloso’s counsel had informed defense counsel she intended to dismiss her two cross-claims.  Counsel’s declaration, however, does not support this chronology.  Counsel attests she contacted opposing counsel “on February 16, 2023 and advised that Veloso was filing an amended Cross Complaint to remove the two counts[.]”  (Abrolat Decl. ¶4.)  However, Defendants filed their motions on February 15, 2023, a day before this contact.  Accordingly, the Court cannot conclude that the costs associated with the motions could have been avoided.  

Veloso next argues that fees for electronic filing ($15.75) and for hosting electronic documents ($95.90) were not required by the Court and, therefore, are not reasonable or necessary.  The Court agrees in part.  Section 1033.5(14) allows for “fees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.”  Under the First Amended General Order (Mandatory Electronic Filing for Civil) issued on May 3, 2019, the Los Angeles Superior Court mandated that all litigants represented by counsel must electronically file all documents in unlimited civil actions.  (See also California Rules of Court 2.253(b).)  As to fees for the hosting of electronic documents, they are no longer an allowable cost under Section 1033.5(15) (“Fees for the hosting of electronic documents if a court requires or orders a party to have documents hosted by an electronic filing service provider.  This paragraph shall become inoperative on January 1, 2022.”)     

Veloso further argues that David’s requests for “other costs” ($313) that are not expressly allowed under §1033.5 should be taxed because David has not met his burden of showing they were reasonable and necessary.  The Court agrees in part.  Given the parties’ email service agreement, the Court concludes that the fees for service of documents on Plaintiff ($59.75) are unnecessary.  However, courtesy copies are required under this Department’s rules, and accordingly, costs incurred in connection with providing those courtesy copies are reasonable and necessary.   

Veloso also argues that “because this is a FEHA action, [to] recover costs, David must show that the claims are frivolous, which he has not even attempted to do, recognizing that such [an] attempt would be futile.”  But this is not a FEHA action.  That Plaintiff may have a separate action alleging FEHA violations against David does not transform this action into a FEHA action.   

Lastly, Veloso argues that even if the Court concludes the costs are reasonable and necessary, they should be taxed considering her modest means.  The trial court has discretion to deny or reduce a cost award to a prevailing defendant when a large award would impose undue hardship on the plaintiff—the financial circumstances of the losing plaintiff and the impact of the award on that party are relevant circumstances in determining whether the costs to be awarded are “reasonable¿in amount.”  (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1062-63.)  Veloso is a low wage worker litigating against her substantially wealthier employer.  She has no substantial assets.  Given these facts, the Court exercises its discretion to reduce the requested costs to $100.      

CONCLUSION 

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Cross-Complainant’s motion to tax costs.  Costs of $100 are awarded to Cross-Defendant.    

DATED:  May 2, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court