Judge: Gail Killefer, Case: 22STCV32649, Date: 2023-03-22 Tentative Ruling
Case Number: 22STCV32649 Hearing Date: March 22, 2023 Dept: 37
HEARING DATE: March 22, 2023
CASE NUMBER: 22STCV32649
CASE NAME: Good Vybes Real Estate, LLC. v. John Chaverra, et al.
MOVING PARTY: Plaintiff, Good Vybes Real
Estate, LLC.
OPPOSING PARTIES: Defendants, John Chaverra and
Alternative Protective Services, Inc.
TRIAL DATE: None.
PROOF OF SERVICE: OK
MOTION: Plaintiff’s Motion to Tax Memorandum
of Costs
OPPOSITION: March 6, 2023
REPLY: March 14, 2023
TENTATIVE: Plaintiff’s
motion is granted. Plaintiff is to give notice.
This forcible entry and detainer action arises out of possession
of properties located at 21825, 21827, 21835 Nordhoff Street, Chatsworth, CA
91311 (the “Premises”). Good Vybes Real
Estate, LLC (“Plaintiff”) alleges that John Chaverra and Alternative Protective
Services (“Defendants”) entered the Premises in April 2021 and have unlawfully
possessed the Premises without invitation or permission from Plaintiff.
Plaintiff brought this action for forcible entry and detainer of the Premises.
On November 10, 2022, Plaintiff filed a Request for
Dismissal for the entire action which indicated that Defendants were dismissed
without prejudice. On November 21, 2022, Defendants filed their memorandum of
costs.
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. (CCP
§ 1013(a).)
Here, Defendants’ memorandum of costs were filed on November
21, 2022. Plaintiff’s motion was filed on November 30, 2022, exactly 9 days
later. Thus, the instant 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.” (CCP § 1032(a)(4).) Pursuant
to CCP § 1033.5(c), “(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.” (CCP
§ 1033.5(c)(1)-(3).) Items not mentioned in section 1033.5 and items
assessed upon application may be allowed or denied at the court’s
discretion. (CCP § 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
Defendants’ memorandum of costs
seeks a total of $870.00. Plaintiff contends that Defendants’ costs should be taxed
in their entirety.
Defendants’ memorandum seeks costs
of $870.00 for filing and motion fees. Defendants’ cost memorandum includes no
breakdown of these costs or receipts demonstrating that they were incurred.
Plaintiff contends that Defendants’
entire memorandum of costs must be taxed because Defendants were not a
prevailing party to this litigation as Defendants “voluntarily vacated the
Premises” and Plaintiff’s only “‘litigation objective’ was to obtain possession
of the Premises.” (Motion, 2-3.) Plaintiff therefore contends it is the only
prevailing party here, and Defendants’ cost memorandum should be stricken entirely.
(Id.) Alternatively, Plaintiff contends the cost memorandum should be
stricken since the parties did not have an “email service agreement” in place,
making service of the memorandum defective after the action was dismissed.
(Motion, 4.)
In opposition, Defendants contend
that since Defendants were “forced” to “answer the lawsuit, even after”
suggesting an extension, which only resulted in the dismissal of the action,
they are therefore “prevailing parties in this matter.” (Opp., 3-4.) Defendants
further make the conclusory contention that they are indeed the prevailing
parties, and the voluntary dismissal was made in their favor. (Opp., 2-3;
citing CCP § 1032; Brown
v. Desert Christian Center (2011) l93 Cal. App. 4th 733, 737-738.) Defendants
fail to explain, however, how the dismissal of this action was taken in their
favor since Defendants themselves vacated the Premises and allowed Plaintiff to
regain possession.
In reply, Plaintiff correctly
contends:
“Defendant’s opposition ignores that Plaintiff achieved the
goal of the litigation—to obtain possession of the property and was therefore
the prevailing party.
Defendant presents no evidence to dispute that it only
vacated the premises after it was served with this action.” (Reply, 2.)
The court agrees. Defendants fail
to explain how the dismissal of a forcible entry and detainer action following
their vacating of the Premises can be seen as in their favor, and their filing
of responsive pleadings in this litigation does not provide further support for
such contention. Plaintiff filed this action to regain control of the Premises,
and has regained control of the Premises—its objective for filing this matter
was reached. Plaintiff is the prevailing party in this matter. For these
reasons, court will grant Plaintiff’s motion entirely and strike the memorandum
of costs.
Conclusion
Plaintiff’s motion is granted.
Plaintiff is to give notice.