Judge: Gail Killefer, Case: BC711889, Date: 2023-08-11 Tentative Ruling
Case Number: BC711889 Hearing Date: August 11, 2023 Dept: 37
HEARING DATE: Friday, August 11, 2023
CASE NUMBER: BC711889
CASE NAME: Barbara Gatlin v. Dellita Johnson, et al.
MOVING PARTY: Defendant, D International Services, LLC
OPPOSING PARTY: Plaintiff, Barbara Gatlin
TRIAL DATE: Post-Judgment
PROOF OF SERVICE: OK
PROCEEDING: Motion to Tax Costs
OPPOSITION: 8 August 2023
REPLY: None
Filed
TENTATIVE: Defendant
D. International Services, LLC’s Motion to Tax
Cost is granted in part and $1,014.25 will be
taxed from Plaintiff’s Memorandum of Cost.
Background
This matter arises
from a series of fraudulent transfers by Defendant D International
Services, LLC, aka D & G International Investment Services, LLC, a
California limited liability company (“D. International”) and Defendant Dellita
Johnson (“Johnson”) of a parcel of real property to avoid satisfying a judgment
entered against Johnson in the case of Barbara Gatlin and Rosa Salazar v.
Oasis C&D Incorporated, Dellita Johnson and Cindy Martin, LASC Case No.
BC396586 (the Underlying Action.”) The
property at issue is 1726-1728 Leighton Avenue, Los Angeles, California (the
“Leighton Avenue Property”).
The
Third Amended Complaint (“TAC”) in this action, filed November 30, 2020, alleged
three causes of action: 1) fraudulent transfer (Civ. Code § 3439); 2) common
law fraudulent transfer; and 3) constructive trust (Civ. Code § 2224). This Court previously found that the first
cause of action was barred by the statute of limitations. (Minute Order, 10/29/2020.)
The court conducted a bench trial on February 22, 2023. Plaintiff Barbara Gatlin
(“Gatlin”) appeared through her attorney Frances M. Campbell of Campbell &
Farahani, LLP. Gonzalez represented D. International. On August 2, 2021, the
court entered default against Johnson on the operative TAC and thus no
appearance was entered on her behalf.
The court entered Judgment on March 27, 2023, finding:
On
the second cause of action, the Court finds in favor of Plaintiff Barbara
Gatlin and awards Barbara Gatlin $284,612.09 in damages against Defendant D
International Services, LLC, aka D & G International Investment Services,
LLC, a California limited liability company, and Defendant Dellita Johnson aka
Delita Johnson individually and as trustee of the Johnson Family Trust and New
Life Living Trust, jointly and severally.
On the third cause of action, the
Court finds that Barbara Gatlin and non-party Rosa Salazar have a right to the
Leighton Avenue Property, and that Defendant D International Services, LLC, aka
D & G International Investment Services, LLC, a California limited
liability company, acquired the Leighton Avenue Property through fraud. The
Court orders Defendant D International Services, LLC, aka D & G
International Investment Services, LLC, a California limited liability company,
and all others acting by and through it, including Dellita Johnson aka Delita
Johnson, individually and as trustee of the Johnson Family Trust and New Life
Living Trust, and Greta S. Curtis, to hold, maintain and protect the Leighton
Avenue Property until a receiver is appointed by this Court, and then to convey
it to the receiver for the benefit of Barbara Gatlin and non-party Rosa
Salazar, who will then take charge of the Leighton Avenue Property, sell it or
take any other action necessary to satisfy the judgment in the Underlying
Action, and return the excess proceeds, if any, to Defendant D International
Services, LLC, aka D & G International Investment Services, LLC, a
California limited liability company
Plaintiff filed a Memorandum of Costs on April 4, 2023. Defendant D International filed a Motion to
Tax Costs on April 6, 2023. Plaintiff
filed opposing papers August 8, 2023.
I. Legal Standard: Motion to Tax Costs
A prevailing party is entitled to recover costs, including
attorneys’ fees, as a matter of right.¿ (CCP, §§ 1032(a)(4), 1032(b), 1033.5.)¿
Pursuant to Plaintiff’s Memorandum of Costs,
Plaintiff seeks to recover $2,538,13 in costs.
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.” (Id.)
The
court acknowledges that Plaintiff’s opposition to this motion was untimely
filed but it retains the discretion to consider the late filing unless the
opposing party shows evidence of prejudice. (See Cal. Rules of Court, rule
3.1300(d); Tate
v. Superior Court (1975)
45 Cal.App.3d 925,
930.) Accordingly, the court will consider Plaintiff’s late-filed opposition.
A. Item 1 – Filing and Motion Fees
Defendant
objects to the $61.65 allocated for the Motion for Appointment of Receiver because
it is not an allowable cost. Defendant
also objects to the fees for the “Ex Parte App for TRO” in the sum of $66.00;
“Motion for PI” in the sum of $66.00; and “Ex Parte re New Transfer” in the sum
of $61.65 on the basis that Plaintiff did not prevail on the first cause of
action and did not post a bond within five (5) days of the order approving the
Preliminary Injunction. (CCP, § 529(a).)
Pursuant
to CCP § 1033.5, filing and motion fees are statutorily allowable costs.
Accordingly, Plaintiff asserts she is entitled to recover $61.65 for the Motion
for Appointment of Receiver all fees related to the TRO and Preliminary
injunction.
Defendant
D International also objects to the $478.00 filing fee on the basis that in
2016 the filing fee to commence an action was $435.00. The court notes that
Plaintiff’s Complaint in this action was filed in 2018, not 2016. Plaintiff’s
opposing papers assert that filing and motion fees totaled $733.80, including
the fees for the Complaint. There was no “double billing” for e-filing fees and
all fees were necessarily incurred. (Opp. at 2:12-13.)
Therefore,
Item 1 will not be taxed.
B. Item 2 – Cost for Jury Fees
Defendant
D International asserts that Plaintiff’s $150.00 request for Jury Fees is
unreasonable because the fee is nonrefundable, and Plaintiff waited until the
day of trial to request a bench trial.
In Naser v. Lakeridge Athletic
Club (2014) 227 Cal.App.4th 571, 576, the Appeal Court affirmed that
the $150.00 jury fee is an allowable cost even though a jury trial never took
place as the plaintiff was required to pay the fee in order to preserve its
right to a jury trial.
Therefore,
Item 2 will not be taxed.
C. Item 4 – Deposition Costs
Defendant D International objects to Plaintiff’s deposition costs
as no depositions took place in this action, and if Plaintiff did notice a
deposition, notice was not given to any Defendant.
The court notes that Plaintiff’s Memorandum of Costs does not claim
any deposition costs. D International objects to Deposition Costs but fails to
direct the court to what charge it deems objectionable and in what amount.
Therefore, Item 4 will not be taxed as no costs are listed.
D. Item 5 – Service of Process
Defendant D International objects to Item 5 on the basis that
Defendant Delita Johnson was never properly served, and Johnson submitted to
the jurisdiction of the court by filing a demurrer to the original Complaint.
Secondly, Defendant D International successfully moved to set
aside a Default Judgment entered against it on September 29, 2020, due to
improper service. Per court order, D International filed an answer to the
Second Amended Complaint within 20 days of the September 29, 2020 hearing date.
Third, D International asserts that a review of the proof of
service for the OSC RE: Preliminary Injunction and Ruling on the Temporary
Restraining Order proves that none of the defendants were not served.
The court finds that D International has successfully challenged
the $882.50 in service of process fees and the burden is on Plaintiff to show
that the fees were reasonably incurred and necessary to the conduct of the
litigation.
Plaintiff
asserts that the fees are allowable under CCP § 1033.5(a)(4)(B). However,
service of process costs are only recoverable in “the amount actually
incurred in effecting service . . . unless those charges
are successfully challenged by a party to the action.” (Id.) Here,
Defendant D International successfully challenged the fact that service on
Defendants was not effective. Plaintiff
has failed to rebut this presumption.
Therefore, Item 5 will be taxed in
the amount of $882.50.
E. Item 14 – Fees for Electronic Filing or
Service of Documents
Defendant D. International objects to Item 14 on the
basis that Plaintiff did not provide receipts that show that the provider
charged Plaintiff separately for its fees and that they were not included in
the filing fees of Item 1.
The
court finds that Defendant has failed to properly object to costs in Item 14 as
the Attachment to the Memorandum of Costs contains a list showing the date,
filing, and filing fee incurred by Plaintiff that total $338.70.
Therefore,
Item 14 will not be taxed.
F. Item 16 – Other Costs
Defendant D International objects to
$248.08 in Item 16 as it relates to the “Certified copy of PI ($26.00),
Recording PI ($105.75); Court connect ($99.00) courier ($17.33)” on the basis
that Plaintiff never posted the required undertaking for the Preliminary
Injunction. (CCP, § 529(a);
Stevenson
v. City of Sacramento (2020) 55 Cal.App.5th
545, 551 [“Compliance with section 529’s requirements is typically a necessary
condition to obtain a valid preliminary injunction.”].)
Plaintiff
asserts that the CourtConnect fees of $99.00 were necessarily incurred as they
relate to CourtConnect fees that were incurred when CourtConnect was not a free
service. (Opp. at 3:15-17.) Plaintiff also asserts that courier fees are
allowable where they are necessary to the litigation. (Foothill-DeAnza
Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30.)
Plaintiff asserts the courier fees were related to a FedEx charge to deliver
courtesy copies to the court. (Opp. at 3:21-22.) Plaintiff has not addressed the issue that charges
for the “Certified copy of PI ($26.00)” and “Recording PI ($105.75)” were costs
that were necessary and reasonably incurred.
Therefore, $131.75 ($105.75 + $26.00 =
$131.75) will be taxed from Item 16.
The court taxes the
following Items from Plaintiff’s Memorandum of Costs:
·
$882.50 from Item 5
·
$131.75 from Item 16
In total, $1,014.25 will
be struck from Plaintiff’s Memorandum of Costs.
Conclusion
Defendant
D International Services, LLC’s Motion to Tax
Cost is granted and $1,014.25 will be
taxed from Plaintiff’s Memorandum of Cost.