Judge Holly J. Fujie, Case Number: 20STCV42969, Date: 2024-10-25 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

The Court has considered the moving papers. No opposition has been filed. Any opposition was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

This case arises from a landlord-tenant dispute. On November 9, 2020, Plaintiff Jason Grendus (“Plaintiff”) filed a complaint against Defendants Yacov Cohen and Kachone, alleging a single cause of action for Breach of Contract. On April 30, 2021, Kachone filed a cross-complaint against Plaintiff for 1) Breach of Implied Warranty of Habitability; 2) Negligence; 3) Nuisance; 4) Breach of Contract; 5) Breach of the Covenant of Good Faith and Fair Dealing; 6) Fraud; 7) Violation of Civil Code section 1946.2; 8) Violation f the Tenant Protection Act; 9) Violation of COVID-19 Tenant Relief Act; and 10) Violation of the CARES Act.

After a bench trial held on April 10 and 11, 2024, the Court issued a ruling in its July 12, 2024 Minute Order, finding, in relevant part to this Motion, as follows:

The Court finds in favor of Plaintiff and against Defendant Kachone on the Complaint in the amount of $7,841.07 for rent unpaid from May 1, 2019 through April 31, 2020. The Court finds that no pre-judgment interest is due on this amount, as it was not a sum certain prior to the date of this order.

The Court finds that Plaintiff is entitled to collect his attorney’s fees, as proven, in an amount not to exceed $500, against Kachone. The Court finds that Plaintiff is entitled to collect his costs against Kachone, on the basis of a Bill of Costs, to be filed and served.

On July 30, 2024, Plaintiff filed his Memorandum of Costs. On August 12, 2024, Kachone filed the instant Motion to Tax Costs (the “Motion”). Judgment was entered on August 14, 2024. On September 6, 2024, Plaintiff filed an Amended Memorandum of Costs.

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. of Calif. V. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) “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).)

Code of Civil Procedure section 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.)

“[T]he mere filing of a motion to tax costs may be a ‘proper objection’ to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) “However, ‘[i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].’” (Id. [quoting Oak Grove School Dist. V. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 699] [alterations in original].)

As an initial matter, the Court notes that Plaintiff filed a Memorandum of Costs prior to the entry of judgment. The Court, however, will proceed to consider it. The premature filing of a memorandum of costs is treated as “a mere irregularity at best” that does not constitute reversible error absent a showing of prejudice. (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 880.) Further, courts treat prematurely filed cost bills as being timely filed. (Id.) Here, there is no evidence that the filing of the memorandum of costs before the entry of judgment caused any prejudice.

Here, Kachone moves to strike Plaintiff’s costs in its entirety, or to strike the following items in Plaintiff’s Memorandum of Costs: 1) court-ordered transcripts; 2) court reporter fees; and 3) fees for electronic filing.

While under Code Civ. Proc. 1033, subd (a), a court does have the discretion to deny a plaintiff’s recovery of litigation costs where a prevailing party recovers a judgment that could have been rendered in a limited civil case, the Court declines to deny Plaintiff’s recovery of costs in its entirety.

The Court, however, shall consider the individual items that Kachone seeks to strike or tax.

Kachone avers that the $462.27 cost pertaining to transcripts should be stricken as he is unaware of any transcripts that were ordered by the Court. Kachone also moves to strike the filing fees, arguing that without a worksheet, it is impossible to discern how the amount claimed is arrived at.

The Court notes that in his Amended Memorandum of Costs, Plaintiff did include a worksheet to support these costs claimed to have been incurred. Moreover, a verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred. (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.) A party seeking to tax costs must provide evidence to rebut this prima facie showing. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred. (Id.) Thus, the Court denies Kachone’s motion as to transcripts and electronic filing fees.

Regarding the court reporter fees, Kachone asserts that the $3,604 should be stricken or taxed, as this expense was split equally between the three parties in this case, and no deposition was taken. This assertion is supported by a declaration of Kachone’s counsel. (Declaration of Barak Isaacs, ¶ 3.) In the absence of an opposition rebutting this assertion, the Court gives credence to the same. Accordingly, the Court taxes the court reporter fees by $2,403 reflecting the share of the two other parties in this case.

Based on the foregoing, the Motion is GRANTED in part, and DENIED in part. The amount taxed is $2,403.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court