Judge: Gail Killefer, Case: 20STCV47310, Date: 2022-09-08 Tentative Ruling

Case Number: 20STCV47310    Hearing Date: September 8, 2022    Dept: 37

HEARING DATE:                 September 8, 2022

CASE NUMBER:                  20STCV47310

CASE NAME:                        Mehdi Amini Moghadam, et al.v. Keller William Realty West, et al.

MOVING PARTIES:             Plaintiffs, Mehdi Amini Moghadam and Parvin Mirabadi

OPPOSING PARTIES:          Defendants, Sara Kotler and Rodeo Realty

TRIAL DATE:                        None.  

PROOF OF SERVICE:          OK

MOTION:                               Plaintiffs’ Motion to Strike and/or Tax Costs  

OPPOSITION:                       No opposition filed as of September 7, 2022.

REPLY:                                  No opposition filed.   

Tentative:                                Plaintiffs’ motion is granted. Defendants’ memorandum of costs is stricken in its entirety as untimely. Plaintiffs are to give notice.

Background

This action arises out of a transaction for the purchase of property located at 14960 Dickens Street, Unit 214, Sherman Oaks, 91403 (the “Property”).  Two individuals, Mehdi Amini Moghadam (“Mr. Moghadam”) and Parvin Mirabadi (“Ms. Mirabadi”) (“Plaintiffs”), hired Defendants Mark Rader (“Rader”), a real estate agent working for defendant, Keller Williams Realty Westlake Village (“Keller Williams”) to represent them in purchasing the Property. Defendants Nahum Monosov, Zhava Kachlon, Fireda Naftali and Sara Temple are trustees for the Monosov Revocable Family Trust and were owners of the Property. Further, Defendants Rodeo Real Estate (“Rodeo”) and Sara Kotler (“Kotler”) represented the Monosov Revocable Family Trust and its trustees as brokers and real estate agents. According to the Complaint, Plaintiffs finalized the purchase of the Property on September 11, 2019.

After Plaintiffs purchased the property for investment income, Plaintiffs allege that they attempted to rent the Property out and were repeatedly told by Rader that they were not allowed to rent the Property for the first two years. Additionally, Rader allegedly failed to inform Plaintiffs that they were required to follow other Covenants, Conditions, and Restrictions (CC&Rs) for the Property. The remaining Defendants also allegedly knew of the rental restrictions and CC&R restrictions on the Property but failed to inform Plaintiffs prior to their purchase of the Property. 

Plaintiffs’ Complaint alleges the following causes of action: (1) breach of fiduciary duty against Keller Williams, Rader, Kotler, Rodeo, (2) constructive fraud against all defendants, (3) professional negligence and negligence against Keller Williams, Rader, Rodeo and Kotler, (4) violation of Civil Code §§ 1102-1102.15, (5) concealment against all defendants, (6) negligent misrepresentation against all defendants, (7) negligent infliction of emotional distress against all defendants.

On June 23, 2021, Plaintiff filed the First Amended Complaint (“FAC”) The FAC alleges the same seven causes of action. On September 29, 2021, the court sustained the demurrer to the FAC filed by Kotler and Rodeo (“Moving Defendants”).     

On October 14, 2021, Plaintiff filed the operative Second Amended Complaint (“SAC”).  On December 31, 2021, the court sustained Defendants’ demurrer to the SAC without leave to amend.

On January 24, 2022, the court entered judgment of dismissal following the ruling on Defendants’ demurrer. On February 7, 2022, Defendants gave notice of entry of judgment.

On February 25, 2022, Rodeo and Kotler filed their memorandum of costs. On March 10, 2022, Plaintiffs filed the instant motion to tax costs. The motion is unopposed.

Plaintiffs’ motion now comes for hearing.

Timeliness of Motion 

Pursuant to California Rules of Court, rule 3.1700(b)(1), “[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 February 25, 2022. According to the proof of service, Plaintiffs were served by electronic service. Thus, Plaintiffs’ deadline to file the instant motion was March 15, 2022. The instant motion was filed on March 10, 2022.

Thus, Plaintiffs’ motion to tax costs 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.”  (CCP § 1032(a)(4).)  

CCP § 1033.5(c)(1)-(3) 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 it was untimely filed: the court entered a judgment of dismissal on January 24, 2022, and Defendants served Plaintiffs with the notice of entry of dismissal on February 7, 2022. (Motion, 1-8; Mirabel Decl., Exh. A.) Plaintiffs contend that pursuant to California Rules of Court 1.10 and 3.1700, Defendants were required to serve Plaintiffs by February 24, 2022 and did not. (Motion, 3-4.) Plaintiffs further contend that no agreement was reached between the parties to allow for an extension. (Id.) Thus, Plaintiffs contend the deadline “is statutory, and the court has no discretion to enlarge it.” (Id.; citing Nevis Homes LLC v. CW Roofing, Inc. (2013) 216 Cal.App.4th 353.)

As the motion is unopposed, the court finds that Defendants’ memorandum of costs was untimely filed. Pursuant to California Rules of Court, rule 3.1700, the memorandum of costs was to be filed 15 days after “service of the notice of entry of judgment” or “written notice of entry of judgment or dismissal,” “whichever is first.” Plaintiffs’ exhibits show the notice of entry of dismissal on February 7, 2022. Thus, February 7, 2022, is the operative date pursuant to Rule 3.1700 by which Defendants’ memorandum of costs is deemed timely or untimely. Defendants did not file their memorandum of costs until February 25, 2022, 3 days later, or one day later under Rule 1.10’s enumeration of electronic service. Thus, Defendants’ memorandum of costs is untimely.

For these reasons, Plaintiffs’ motion is granted. Having granted Plaintiffs’ motion on this basis, the court does not address the remainder of the parties’ arguments.

Conclusion

Plaintiffs’ motion is granted. Defendants’ memorandum of costs is stricken in its entirety as untimely. Plaintiffs are to give notice.