Judge: Gail Killefer, Case: 22STCV09172, Date: 2023-06-29 Tentative Ruling

Case Number: 22STCV09172    Hearing Date: January 12, 2024    Dept: 37

HEARING DATE:                 Friday, January 12, 2024

CASE NUMBER:                   22STCV09172

CASE NAME:                        Bruce Gayfield, et al. v. 3101 E. Artesia Apartments LLC, et al.

MOVING PARTY:                 Plaintiffs Bruce Gayfield, Orpha Gayfield, and Vicki Wilson

OPPOSING PARTY:             Defendants Interinsurance Exchange of the Automobile Club and ACSC Management Services, Inc.

TRIAL DATE:                        2 April 2024

PROOF OF SERVICE:           OK

PROCEEDING:                      Motion to Strike/Tax Costs

OPPOSITION:                        29 December 2023

REPLY:                                  5 January 2024

TENTATIVE:                         Plaintiffs’ Motion to Strike and/or Tax Costs is denied.

Background

This premises liability action arises in connection with the apartment located at 6655 Obispo Avenue, Apt. 255, Long Beach, California 90805 (the “Subject Property”). Bruce Gayfield, Orpha Gayfield, and Vicki Wilson (“Plaintiffs”) lived in the Subject Property as lessees of Defendants 3101 E. Artesia Apartments, LLC., Amusement Industry Inc. DBA Westland Real Estate Group (“Owner Defendants”).  

Plaintiffs further allege they were insured for losses sustained at the premises by Defendant, Interinsurance Exchange of the Automobile Club (“AAA”) and its subsidiary, Defendant ACSC Management Services, Inc. (“ACSC”). Plaintiffs allege they retained a renters’ policy with AAA throughout their lease for the Subject Property.  Plaintiffs allege the Subject Property became subjected to an endemic roach infestation, defective structures, and was exposed to an ongoing water intrusion issue which created mold and mildew. Plaintiffs further allege they complained of these conditions to Owner Defendants, but no repairs or cleanings were made.  

Also, Plaintiffs allege they reported their losses to AAA, which did not inform the Plaintiffs of any available benefits. On June 7, 2021, Plaintiffs hired an alleged expert who instructed Plaintiffs to vacate the Subject Property, and on July 1, 2021, Plaintiffs informed Owner Defendants they would be moving out. Plaintiffs allege after AAA received notice of the loss, AAA did not inspect or investigate the premises or any of the alleged covered losses as part of their renters’ policy. Plaintiffs allege the ongoing defects and conditions cause them lasting health problems throughout their tenancy.  

The operative Second Amended Complaint (“SAC”) alleges twelve causes of action: (1) Breach of Express and Implied Contract; (2) Breach of the Implied Covenant of Good Faith and Fair Dealing; (3) Breach of Express and Implied Contract against AAA; (4) Breach of the Implied Covenant of Good Faith and Fair Dealing against AAA; (5) Breach of Warranty of Habitability; (6) Nuisance, Trespass; (7) Negligence-Premises Liability; (8) Negligence-Negligent Supervision, Negligent Management; (9) Violation of Consumer Legal Remedies Act; (10) Intentional Infliction of Emotional Distress; (11) Fraud, Negligent Misrepresentation and Concealment; and (10) Violation of Business & Professions Code § 17200.

On June 29, 2023, the court sustained AAA’s demurrer without leave to amend as to the third and fourth causes of action.

On July 3, 2023, the court dismissed ACSC and AAA from this action.

On July 18, 2023, AAA and ACSC jointly filed a Memorandum of Costs seeking $1,250.10 in costs. On August 3, 2023, Plaintiffs filed a Motion to Strike and/or Tax Costs. AAA opposes the Motion. The matter is now before the court.

motion to strike and/or tax costs

I.                Legal Standard

CCP § 1033.5 sets forth the costs recoverable by the prevailing party.  To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount. (Perko’s Enterprises, Inc. v. RRNS Enterprises (l992) 4 Cal.App.4th 238, 244.) " 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. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.) "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." (Ibid.)

The losing party may dispute any or all the items in the prevailing party’s memorandum of costs by a motion to strike or tax costs. (CRC, rule 3.1700(b).) A motion to strike challenges the entire costs memorandum, whereas a motion to tax challenges particular items or amounts.

II.             Discussion

A.              Plaintiffs’ Alleged Improper Service

Defendants ACSC and AAA state that Plaintiffs failed to serve Defendants with a memorandum of costs. (CRC, rule 3.1700 [motion to tax costs must be filed and served within 15 days of service of the cost memorandum].) Defendants maintain that Plaintiffs’ falsely assert that they served the Motion to Tax Costs on July 18, 2023, the same day Defendants served the cost memorandum. (Berlin Decl. ¶ 2, Ex. A.) Moreover, defense counsel’s email failed to show that they received the Plaintiffs’ Motion, and Plaintiffs’ counsel has failed to provide a copy of the purported service email. (Moutes-Lee Decl. ¶ 3, Berlin Decl. ¶¶ 3-4, Ex. B.)

The court declines to adjudicate the issue as to whether Defendants were timely served with notice of this Motion because Defendants fail to show that they were prejudiced by Plaintiffs’ failure to serve the Motion. (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7.) Accordingly, the court proceeds to address the Motion on the merits.

B.              Defendants’ Prima Facie Evidence

“If the items in a cost memorandum appear proper, the verified memorandum is prima facie evidence the expenses were necessarily incurred by the defendant. The burden of showing an item is not properly chargeable or is unreasonable falls on the objector.” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 858.)

Plaintiffs argue that Defendants are required to submit a declaration showing that the costs were incurred but Defendants joint memorandum of costs is verified and is prima facie evidence that the expenses were necessary incurred. Moreover, Defendants are correct that there is no prohibition on submitting a joint memorandum of costs, especially because both Defendants are prevailing parties, Defendants are represented by the same counsel and there is no risk of litigation between the Defendants, and there is no risk of double recovery.

In a motion to tax costs “it is not enough for the losing party to attack submitted costs by arguing that he thinks the costs were not necessary or reasonable. Rather, the losing party has the burden to present evidence and prove that the claimed costs are not recoverable.” (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.)

i.                         Item 1 - Filing  Fees

Plaintiffs object to the filing fees on the basis that the costs were not itemized in the appropriate category of electronic filing fees and were instead included in the section for filing fees from the court.

However, Plaintiffs fail to show that the fact that the filing fees cost were in the wrong category is a basis for taxing those costs, let alone that the filing fees were unnecessarily incurred.

First, the fact that Plaintiffs’ counsel uses Journal Technologies Court Portal for electronic filing at a filing cost of only $7.26 per filing does not mean that Defendants’ use of First Legal Network, LLC (“First Legal”) is prohibited by the Code of Civil Procedure or that the costs are unreasonable. (CCP §§ 1010.6(g)(2), 1033.5.) Defendants also provide evidence that First Legal is one of more than 120 approved electronic filing service providers that may be used to file documents with the court. (Berlin Decl. ¶ 7, Ex. D.)

Plaintiffs also claim that there are duplicative costs regarding the four case management statements filed by Defendants because the court did not expressly order that a new statement be filed when continuing each case management conference.

Defendants point out that under Cal. Rules of Court, Rule 3.725, each party is required to file a case management statement no later than 15 calendar days before the hearing. Therefore, the court agrees that the Plaintiffs have failed to show that Defendants were not required to file four case management statements.

Accordingly, no filing fees will be stricken

ii.                      Item 11 - Court Reporter Fes

Plaintiffs object to the court reporter fees on the basis that if the proceedings are anticipated to last one hour or less, Govt. Code § 68086(a)(1) only permits a $30.00 fee for court reporting services.

Defendants state that they retained court reporters for the October 13, 2022, hearing on their Demurrer and Motion to Strike Portions of Plaintiffs’ Complaint and the June 29, 2023, hearing on AAA’s Demurrer and Motion to Strike Plaintiffs’ Second Amended Complaint.

Defendants assert that they did not anticipate that such hearings would last less than one hour, and that Plaintiffs fail to show that Defendants should have anticipated that the hearings would be completed in less than an hour. Defendants also assert that Plaintiffs have not provided evidence that the hearings did in fact last less than one hour.  Plaintiffs filed an appeal and designated as the record on appeal the transcripts of the hearings on the demurrers. (Berlin Decl. ¶ 10, Ex. G.)

The court notes that the use of the word “anticipated” in Govt. Code § 68086(1)(a), suggests that the $30.00 fee is not mandatory and applies only when the proceeding is “anticipated” to be less than an hour. As Plaintiffs have failed to show that the proceedings were for less than one hour and that Defendants should have anticipated that the proceedings would last less than an hour, the court declines to tax the court reporter costs.

Therefore, no court reporter fees will be stricken

Accordingly, the Motion to Strike and/or Tax Costs is denied.

Conclusion

Plaintiffs’ Motion to Strike and/or Tax Costs is denied.