Judge Holly J. Fujie, Case Number: 22STCV18501, Date: 2024-11-27 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.

RESPONDING PARTY: Defendant REVEL MANAGEMENT GROUP (“Revel” or “Defendant”)

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

This action arises out of a business relationship. On June 6, 2022, Plaintiff initiated this action against Defendants Roberto Banuelos Jr. and Revel (collectively, “Defendants”). The First Amended Complaint (“FAC”) was filed on September 16, 2022.

On August 14, 2023, Defendants filed a Motion for Summary Judgment with regard to the FAC, which was granted by the Court in its entirety in an Order dated June 14, 2024.

On February 15, 2024, Revel filed a cross-complaint (“Cross-Complaint”) against Plaintiff, Alexandra del Salto and The Muse Agency, LLC (collectively, “Cross-Defendants”). Cross-Defendants each filed an answer to the Cross-Complaint, and Revel filed demurrers to Cross-Defendants’ respective answers to the Cross-Complaint. On June 27, 2024, Cross-Defendants jointly filed their First Amended Answer to the Cross-Complaint (“FAA”). As a result, Revel’s initial demurrer to Cross-Defendants’ respective answers was moot and taken off the calendar. Revel again filed a demurrer to Cross-Defendants’ FAA. On October 24, 2024, the Court overruled Revel’s demurrer to the FAA.

On June 28, 2024, Defendants filed a Memorandum of Costs. On July 16, 2024, Plaintiff filed the instant Motion to Tax and Strike Costs (the “Motion”). Revel filed an opposition to the Motion on November 12, 2024. No reply has been filed.

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].)

Here, Defendant is a prevailing party by virtue of the June 14, 2024 Order granting summary judgment in its favor. This is not disputed by Plaintiff in his Motion.

Plaintiff seeks to tax and/or strike Items 4(a), (b) and (c) of Defendants’ Memorandum of Costs on the basis that these depositions were taken and used to support the filing of Revel’s Cross-Complaint and are therefore, unnecessary to the litigation of Plaintiff’s action.

Code of Civil Procedure § 1033.5 explicitly allows for the recovery of costs related to the taking, videotaping, and transcribing of necessary depositions. (CCP, § 1033.5 (a)(3).) The determination of whether such costs are necessary is within the trial court’s discretion, and the burden of proof lies with the party objecting to the costs to show that they were unnecessary or unreasonable. (County of Kern v. Ginn (1983) 146 Cal.App.3d 1107.)

Here, the Court notes that the depositions of the three witnesses claimed in Defendants’ Memorandum of Costs all occurred after the filing of the Motion for Summary Judgment. (Declaration of Kasey Diba in Support of Opposition to the Motion, ¶¶ 3-4; Declaration of Mohamad Adwan in Support of Motion [Adwan Decl.”], ¶ 2.) Thus, the depositions could not have been used as bases to support the filing of the Motion for Summary Judgment which was eventually granted in Defendants’ favor. Plaintiff also submits evidence that Defendants largely used the subject depositions to support the filing of the Cross-Complaint against Cross-Defendants. (Adwan Decl., ¶5, Exh. 5.)

The Court concludes, therefore, that while the deposition may be reasonably necessary for the litigation of Revel’s cross-action, which is still pending and has yet to be resolved, the depositions were not necessarily incurred for the purpose of litigation or defense in Plaintiff’s action, in which Revel is a prevailing party. Accordingly, the Court strikes Defendants’ claimed costs related to these depositions in the total amount of $4,472.50.

Based on the foregoing, the Motion is GRANTED. The amount to be taxed is $4,472.50

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