Judge: Gregory Keosian, Case: 20STCV23413, Date: 2023-07-10 Tentative Ruling

Case Number: 20STCV23413    Hearing Date: September 7, 2023    Dept: 61

Defendant Plaintiff Tony Cinciprinni’s Motion to Tax Costs sought by Defendant 1201 North Crescent Heights LLC is GRANTED in part; the $500 in attorney fees are taxed, yielding a new cost award of $695.

Defendant to give notice.

I.                   MOTION TO TAX COSTS

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (California Rules of Court Rule 3.1700, subd. (b)(1).)

“Code of Civil Procedure section 1032, subdivision (b) [], guarantees prevailing parties in civil litigation awards of the costs expended in the litigation: ‘Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.’” (Williams v. Chino Valley Independent Fire Dist. (“Williams”) (2015) 61 Cal.4th 97, 100.).

“If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) Although individual cost items are ordinarily challenged by a motion to tax costs, no cost-item is effectively put in issue by “mere statements” claiming them to be unreasonable. (Ibid.) However, where “it cannot be determined from the face of the cost bill whether the items are proper,” “the mere filing of a motion to tax costs may be a ‘proper objection’ to an item.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, 132.)

Plaintiff Tony Cinciprinni, who dismissed his complaint on June 20, 2023, moves to tax costs sought in Defendant’s memorandum of costs filed on June 21, 2023. The memorandum seeks $695 in filing fees and $500 in attorney fees, pursuant to a fee agreement in the lease with a maximum $500 cap. Plaintiff argues that he voluntarily dismissed his complaint, and thus Defendant is not the prevailing party. (Motion at pp. 3–4.) Additionally, Plaintiff argues that Defendant cannot claim 100% of filing fees sought here, since other plaintiffs remain in the action. (Motion at p. 4.) Finally, Plaintiff argues that attorney fees pursuant to contract are unavailable under Civil Code § 1717, which states, “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.” (Civ. Code, § 1717, subd. (b)(2).)

Plaintiff’s arguments as to Defendant’s prevailing party status, and the availability of costs with remaining plaintiffs, are unpersuasive. A prevailing party for the purposes of an award of costs is “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.” (Code Civ. Proc., § 1032, subd. (a)(4).) A dismissal has been entered in favor of Defendant, and it is the prevailing party against Plaintiff.

Moreover, Defendant may seek reimbursement of its filing fees against Plaintiff. In Andersen v. Pacific Bell (1988) 204 Cal.App.3d 277, the court reversed a trial court’s denial of a defendant’s memorandum of costs where the defendant had prevailed against several plaintiffs, who were then dismissed, but not against plaintiffs who remained. (Id. at p. 286.) Where the trial court had reasoned that the remaining plaintiffs might be entitled to recover their own costs if they later prevailed, the appellate court stated that the defendant’s “right as prevailing party to recover its own costs from the dismissed plaintiffs is not dependent on any hypothetical, future right the remaining plaintiffs might have to recover their different costs.” (Id. at p. 287; see also Fields v. Napa Mill Co. (1958) 164 Cal.App.2d 442, 449–50 [holding that defendant who prevailed against some but not all plaintiffs was entitled to recover costs from those plaintiffs as though they had brought separate actions].) The same reasoning applies here, and Defendant may recover its filing fees.

However, Plaintiff is correct as to the availability of attorney fees. Civil Code § 1717 states that no prevailing party exists under that section — applicable to contractual attorney fees provisions — “[w]here an action has been voluntarily dismissed.” (Civ. Code § 1717, subd. (b)(2). Thus the $500 sought in attorney fees are properly taxed.

The motion to tax costs is therefore GRANTED in part; the $500 in attorney fees are taxed, yielding a new cost award of $695.