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.



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.




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.




Plaintiff’s motion is granted. Plaintiff is to give notice.