Judge: H. Jay Ford, III, Case: 20SMCV01820, Date: 2023-04-06 Tentative Ruling

Case Number: 20SMCV01820    Hearing Date: April 6, 2023    Dept: O

Case Name:  Batal, et al. v. Pacific Investment Co., L.P., et al.

SUBJECT:                (2)  MOTION TO TAX COSTS   

MOVING PARTY:   (1)  Plaintiff Brian Deming

                                    (2)  Plaintiff Wendy Deming  

RESP. PARTY:         (1) and (2) Defendants Lowell J. Cauffiel, Larry Larson and Pacific Invesment Co.  

TENTATIVE RULING

            Plaintiff Brian Deming’s Motion to Tax Costs is GRANTED as to Item 13 in the amount of $279.57, leaving a total of $2,009.43 in Other costs, and DENIED as to all other Items.

            Plaintiff Wendy Deming’s Motion to Tax Costs is GRANTED as to Item 13 in the amount of $279.57, leaving a total of $2,009.43 in Other costs, and DENIED as to all other Items.

I.  Defendants are entitled to recovery of costs as a matter of right as “prevailing parties” under CCP §1032(a)(4)

            Defendants are prevailing parties for purposes of costs under CCP §1033.5.  Defendants qualify as prevailing parties under the definition set forth under CCP §1032(a)(4).  “‘Prevailing party’ includes…a defendant in whose favor of 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). 

            Civil Code §1717 does not apply to recovery of costs under CCP §1033.5.  Civil Code §1717 only pertains to recovery of attorney’s fees and costs pursuant to a contract provision for prevailing party attorney’s fees.  Whether a party is a prevailing party under CCP §1032 and whether a party is a prevailing party under CC §1717 are two distinct issues.  “Courts have consistently held the prevailing party for the award of costs under section 1032 is not necessarily the prevailing party for the award of attorney's fees in contract actions under section 1717.”  Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1142.  “The definition of prevailing party under section 1717 thus differs significantly from section 1032.”  Id. 

II. Plaintiffs fail to identify any defect in the memo of costs and Defendants agree to reduction of “other” costs based on FedEx charges

“In ruling upon a motion to tax costs, the trial court's first determination is whether the statute expressly allows the particular item and whether it appears proper on its face.  If so, the burden is on the objecting party to show the costs to be unnecessary or unreasonable.  Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.”  Rozanova v. Uribe (2021) 68 Cal.App.5th 392, 459. 

“Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.  However, because the right to costs is governed strictly by statute [citation] a court has no discretion to award costs not statutorily authorized.  When the issue to be determined is whether the criteria for an award of costs have been satisfied, and that issue requires statutory construction, it presents a question of law requiring de novo review.”  Id.

The memorandum of costs must be “verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” CRC 3.1700(a)(1). Initial verification will suffice to establish the reasonable necessity of the costs claimed. There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Supporting documentation must be submitted only if costs have been put in issue by a motion to tax costs See Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.

Defendants completed a Judicial Council Form Memorandum of Costs.  Defendants were also not required to itemize the breakdown of the cost items or submit invoices in support of those items.  Id. 

In addition, Defendants seek filing fees and deposition costs. These are expressly allowed for under CCP §1033.5(a)(1) and (3). 

Defendants also list $2,289 in “Other” costs.  Defendants provide an itemization of the “other” costs requested.  Based on the itemization:

(1) Defendants are not entitled to recover FedEx costs under CCP §1033.5(b)(3).  See Ripley v. Pappadopoulos (1994) 23 Cal.App.4^th 1616, 1627. 

(2) Defendants are entitled to recover costs to serve documents electronically under CCP §1033(a)(14).

(3) Defendants are entitled recover court reporter fees in accordance with statute under CCP §1033.5(a)(11). 

(4) Defendants may recover the remote appearance costs under CCP §1033.5(c)(4) in the Court’s discretion. 

            Item 13 is reduced by $279.57 for FedEx fees, leaving a total of $2,009.43 in Other costs.  Defendants agree to this reduction.

            Plaintiffs argue Defendants would have incurred these costs even if the Plaintiffs had not been present in the case, because these same costs would have been incurred as to the remaining Plaintiffs.  Plaintiff Wendy and Brian Deming’s argument underscores that all Plaintiffs sued Defendants on a single, unified theory of liability and were represented by the same attorney.  Plaintiffs Wendy and Brian fail to cite any authority requiring the Court to reduce or apportion Defendants’ costs award because Defendants have only prevailed as to the Demings at this time. 

 Case
Name:  Batal, et al. v. Pacific
Investment Co., L.P., et al.

SUBJECT:                MOTION FOR
ATTORNEY’S FEES  

MOVING
PARTY:   Defendants Pacific Investment
Co., L.P., Larry Larson and Lowell J. Cauffiel

RESP.
PARTY:         Plaintiffs Brian Deming
and Wendy Deming  

TENTATIVE
RULING

            Defendants Pacific Investment Co., L.P., Larry Larson and
Lowell J. Cauffiel’s Motion for Attorney’s Fees is GRANTED.

Defendants’ Objections to
Dec. of J. Roberts—SUSTAIN

I. Defendants are
prevailing parties in this action pursuant to Civil Code §1942.5(i).  Civil Code §1717(b)(2) does not apply.

            Plaintiffs Brian and Wendy Deming filed a voluntarily
dismissal of their claims against Defendants Pacific Investment Co., L.P.,
Larry Larson and Lowell J. Cauffiel.  See
Request for Dismissal filed on 1-4-23 by Plaintiffs Brian Deming and Wendy
Deming.  Plaintiffs asserted a cause of
action for retaliatory eviction pursuant to Civil Code §1942.5. 

            Defendants seek fees pursuant to Civil Code
§1942.5(i).  “In any action brought for
damages for retaliatory eviction, the court shall award reasonable attorney’s
fees to the prevailing party if either party requests attorney’s fees upon the
initiation of the action.”  Civil Code
§1942.5(i). 

            Defendants were dismissed from this action with
prejudice.  Plaintiffs obtained nothing
from Defendants, including monetary damages or equitable relief.  Defendants are clearly prevailing parties if
the definition of “prevailing party” under CCP §1032(a)(4) is applied:  “‘Prevailing party’ includes…a defendant in
whose favor of 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). 

            Plaintiffs offer no other potential interpretation of
“prevailing party” under Civil Code §1942.5(i). 
Instead, Plaintiffs argue that under Civil Code §1717(b)(2), there is no
prevailing party where a plaintiff voluntarily dismisses a complaint.  However, Plaintiffs fail to establish that
Civil Code §1717 applies to Defendants’ request for fees.  Plaintiffs relies on case law involving
requests for attorney’s fees based on contractual provisions and involving tort
claims.  See Santisas v. Goodin
(1998) 17 Cal.4^th 599, 602 (Civil Code §1717(b)(2) precludes an
award of prevailing party fees on contract claims but it does not preclude an
award of fees on tort or other noncontract claims); Yoon v. Cam IX Trust
(2021) 60 Cal.App.5th 388, 392–393 (in action that only asserted tort claims, prevailing
defendants could recover attorney’s fees based on prevailing party clause in note
and deed of trust because tort claims were based on note and deed of trust). 

            Defendants are not seeking fees pursuant to Civil Code
§1717 or any contract. Defendants are seeking statutory fees under Civil Code
§1942.5(i).  Civil Code §1717(b)(2) does
not apply here. (See, e.g.,  Intelligent
Investments Corp. v. Gonzales (2016) 1 Cal.App.5th Supp. 1, 4 (Section
1717(b) does not apply to fees sought under a fee shifting ordinance in an unlawful
detainer action involving properties in REAP.)

II.  Defendants’ requested attorney’s fees are
reasonable

            Defendants sufficiently document their requested fees, and
Plaintiffs do not challenge the reasonableness of the amount requested.

Defendants
request fees in the amount of $58,500 in fees based on 117 hours @ $500/hr.  Defense counsel submits a declaration
attesting to the work performed on the case. 
See Motion, Dec. of A. Kavcioglu, ¶2.  Defendants filed a SLAPP motion, filed a
demurrer, propounded substantial written discovery, engaged in multiple meet
and confer attempts, attended multiple hearings and deposed a
co-plaintiff.  Id.  Defense counsel also sets forth a table of
tasks performed, the time spent and the date on which the tasks were performed
in his declaration.  Id. at
¶3.  Defendants exclude from the 117
hours any time spent on the unlawful detainer action.  Id. at ¶4.  Defendants sufficiently document the time
spent on this action.    

“In challenging attorney fees as excessive because too many
hours of work are claimed, it is the burden of the challenging party to point
to the specific items challenged, with a sufficient argument and citations to
the evidence. General arguments that fees
claimed are excessive, duplicative, or unrelated do not suffice. Failure to
raise specific challenges in the trial court forfeits the claim on
appeal.”  Premier Medical Management Systems, Inc. v. California Ins.
Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.  Plaintiff did not file an
opposition. 

            Plaintiffs do not argue that the fees are unreasonable or
excessive.  Plaintiffs do not argue that the
fees should be apportioned or allocated among themselves and the remaining
Plaintiffs in the action.  The
reasonableness of the fees is therefore unchallenged.