Judge: Gail Killefer, Case: 19STCV14652, Date: 2022-09-15 Tentative Ruling

Case Number: 19STCV14652    Hearing Date: September 15, 2022    Dept: 37

HEARING DATE:                 September 15, 2022

CASE NUMBER:                  19STCV14652

CASE NAME:                        BABAK PILTAN vs MARIO NOVELL, JR.., et al.

MOVING PARTY:                Plaintiff, Babak Piltan

OPPOSING PARTIES:          Defendants, Mario Novell and Novell Productions, LLC

TRIAL DATE:                        None—Judgment entered March 7, 2022.

PROOF OF SERVICE:          OK

MOTION:                               Plaintiffs’ Motion to Tax Costs  

OPPOSITION:                       September 1, 2022

REPLY:                                  September 8, 2022  

Tentative:         Plaintiffs’ motion is denied. Defendants are to give notice.

Background

Per the first amended complaint, Plaintiff Babak Piltan (hereinafter "Plaintiff") intended to invest money into a film with Defendants Mario Novell Jr., Novell Productions, LLC, Ytifini Pictures, and David Suarez. Plaintiff alleges he was coerced to be in the film, including through the use of unspecified threats. Plaintiff did not authorize his name or likeness to be used in the film, but his name and likeness were used. The film is currently available for purchase.  

The parties were previously in litigation in Piltan v. Novell, et al., LASC Case No. BC622302 and Piltan v. Novell, et al. LASC Case No. 19STCV14652. In Piltan v. Novell, et al., LASC Case No. BC622302, the Court entered judgment in favor of Plaintiff and awarded him “$100,000 jointly and severally as against defendants Novell Productions and Mario Novell, and $45,000 as against deceased defendant Mac Jay.” In Piltan v. Novell, et al. LASC Case No. 19STCV14652, the 12-member jury found unanimously that Piltan, Novell, and Novell Productions, LLC did not enter into the Settlement Agreement which Defendants seek to enforce in this present action.

This action came on for trial on November 29, 2021. On December 2, 2021, after hearing evidence and arguments of counsel, the jury was provided instructions by the court and the cause was submitted to the jury with directions to return a special verdict on the questions. On December 3, 2021, the jury returned its special verdict, finding Mac Daddy Films, LLC to have a right to possess copyright and company asserts for the film “Mac Daddy’s Vegas Adventure.” (Special Verdict, filed December 10, 2021, 2-3.) The Special Verdict also concluded Defendants Novell and Novell Productions, LLC interfered with Mac Daddy Films, LLC’s property by taking possession of the copyright and funds. (Id.)

On February 16, 2022, the court granted Defendants’ Judgment Notwithstanding the Verdict, finding “[f]rom the facts introduced at trial, there was no value to the LLC of the copyright that it did not get. While the LLC spent money to make the Film, that does not mean that Film had any value not already assigned to the distributor, so there was no value lost when Novell registered the copyright in its name. In addition, there was no evidence that the LLC expended any time or money to attempt to transfer the copyright from Novell to the LLC. Thus, having failed to prove any damages, the court will grant defendant’s motion for JNOV.” (Minute Order, February 16, 2022, 12-13.)

On March 7, 2022, the court entered judgment following the ruling on Defendants’ JNOV. On March 7, 2022, Defendants gave notice of entry of judgment.

On March 21, 2022, Defendants filed their memorandum of costs. On April 4, 2022, Plaintiffs filed the instant motion to tax costs. Defendants oppose the motion.

Plaintiffs’ motion now comes on for hearing.

Timeliness of Motion 

Pursuant to California Rules of Court, rule 3.1700(b), “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum,” with extensions for the manner of service.  (Cal. Rules of Court, rule 3.1700(b)(1); CCP § 1013(a).) 

Defendants filed their memorandum of costs on March 21, 2022. According to the proof of service, Plaintiffs were served by electronic service. The instant motion was filed on April 4, 2021.

Thus, Plaintiffs’ motion is timely.

Discussion 

I.                   Legal Standard

CCP § 1032 allows for the recovery of costs by a prevailing party as a matter of right. 

“‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.”  (Id. § 1032(a)(4).)  CCP § 1033.5(c) provides: “(1) Costs are allowable if incurred, whether or not paid.  (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.”  Items not mentioned in section 1033.5 and items assessed upon application may be allowed or denied at the court’s discretion.  (Id. § 1033.5(c)(4).)   

“[I]tems on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred, and when they are properly challenged the burden of proof shifts to the party claiming them as costs.”  (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.)  “A trial judge ‘is entitled to take all of the circumstances [of the case] into account and is not bound by the itemization claimed in the attorney’s affidavit.’ ”  (Id. at p. 683.)   

II.                Analysis

Pursuant to California Rules of Court, rule 3.1700, “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. 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(a)(1).)

“The time provisions relating to the filing of a memorandum of costs, while not jurisdictional, are mandatory.” (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 929.)

Plaintiffs contend that Defendants’ memorandum of costs must be stricken because Defendant is not the prevailing party since Plaintiff also recovered in the action, and the court’s February 16, 2022 Minute Order “declared that although damages were not proven, Plaintiff and the company were entitled to their interest in the copyright which was the subject of the action.” (Motion, 2.) Plaintiff therefore asks for the court to strike item 4 (Deposition costs), item 10 (Attorney Fees), and item 16 (transcript/parking/miscellaneous fees). (Motion, 2.) Plaintiff further contends that the court accepted as true the jury’s findings of Plaintiffs’ ownership in the copyright to the film during the February 16, 2022 Minute Order. (Motion, 7.) As such, Plaintiff contends they “obtained non-monetary relief against the Defendants in this action... and so Plaintiff prevailed in this action.” (Motion, 7-8.)

Plaintiff argues the court should use its discretion in finding that Plaintiff was also a prevailing party here. (Id.) Plaintiff further asserts that Plaintiffs sought a declaration of rights pursuant “to its declaratory relief cause of action:” “Defendants have ownership of the copyright to the exclusion of the limited liability company. Since the Plaintiff in this action recovered a declaration of its rights to the copyright of the property, the Plaintiff is the prevailing party as to the gravamen of the action its right to the copyright.” (Motion, 8.) Plaintiff further contends that awarding costs to Defendants will be against equitable principles, as “Defendants would have enjoyed profits from their wrongful ownership of the copyright, Defendants would have avoided their obligations to the Plaintiff and the limited liability company, all to Plaintiff’s loss.” (Motion, 9.) In the alternative, Plaintiff asks the court to strike costs in items 11, 14, and 16 for filing fees, courtesy copies, and court reporter fees as requested in Defendants’ Memorandum of Costs. (Motion, 9-10.)

In opposition, Defendants contend that they are the prevailing parties here, as the judgment in this action states Plaintiff “take nothing from this action.” (Opp., 1.) Defendants further clarify that any language in the court’s February 16, 2022 Minute Order was done “for the purposes” of the motions before the court on that hearing. (Id.) Defendant further explains that the filing fees as requested are for two separate Defendants. (Id.) Defendants further explain that the requested courtesy copies required a courier service fee to drop off for the court’s review, and court reporter fees as requested are allowable costs under CCP § 1033.5(a)(l l), and were requested by the court. (Id.) Defendants further affirm that they received judgment in their favor here, that Defendants have not unjustly enriched themselves by requesting costs, and that all costs sought are allowable and reasonably necessary. (Opp., 2-4.) The court agrees.

In reply, Plaintiff explains that the jury finding is undisturbed as to the wrongful taking of the copyright as “Defendants never challenged the jury finding” that Defendants wrongfully took the copyright to the film. (Reply, 2.) Plaintiff further concludes that the operative complaint sought declaratory relief that Plaintiffs were entitled to ownership of the copyright, and that such finding by the jury has not been challenged. (Id.) Here, California courts have recognized that “[t]he existence of an ‘actual controversy relating to the legal rights and duties of the respective parties,’ suffices to maintain an action for declaratory relief.”  (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 605.) While the court recognizes that Plaintiff’s operative complaint asked “[f]or an Order declaring the respective rights and interests of plaintiff and 10 defendants with regard to Mac Jay Films, LLC.,” the court must also recognize that the judgment filed in this matter specifies that “Plaintiff...take nothing in this action...” (FAC, Prayer for Damages, 15; Judgment, March 7, 2022, 2.) As such, the court, in its discretion, finds Defendants to have been prevailing parties, and finds the requested costs to be reasonable as Defendants have explained.

For these reasons, Plaintiffs’ motion is denied.

Conclusion

Plaintiffs’ motion is denied. Defendants are to give notice.