Judge: Joel L. Lofton, Case: 19STCV14782, Date: 2023-03-13 Tentative Ruling

Case Number: 19STCV14782    Hearing Date: March 13, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      March 13, 2023                      TRIAL DATES: December 6, 7, 13, and 14

CASE:                         KATHERINE M. STRIDE, v. LANCE YANG, MELANIE YANG, AND DOES 1-100

CASE NO.:                 19STCV14782

MOTION TO QUASH

MOVING PARTY:               Plaintiff Katherine M. Stride (“Plaintiff”)

RESPONDING PARTY:      Defendants Lance Yang and Melanie Yang (“Defendants”)

SERVICE:                              Filed February 7, 2023

OPPOSITION:                       Filed February 16, 2023

REPLY:                                   Filed March 6, 2023

RELIEF REQUESTED

            Plaintiff moves to quash the memorandum of costs, or in the alternative, to strike or tax costs.

BACKGROUND

             This case arises out of a Plaintiff Katherine M. Stride’s (“Plaintiff”) claim that her condominium unit suffered extensive water damage caused by the owners of the condominium unit above hers. Plaintiff filed this complaint on April 29, 2019, against Defendants Lance Yang, Melanie Yang, Michael Messian (“Messian”), previously Doe 1, and Arroyo Oaks Homeowners Association (the “HOA”), previously Doe 2, (collectively “Defendants”) alleging three causes of action for (1) trespass, (2) nuisance, and (3) negligence.

            After jury trial, the jury found in favor of Defendants on December 14, 2022, and judgment was entered on January 3, 2023.

TENTATIVE RULING

            Plaintiff’s motion to quash the memorandum of costs is DENIED.

            Plaintiff’s motion to tax costs is GRANTED in part.

            Defendant’s memorandum of costs is ordered reduced by $1,396.80.

DISCUSSION

            Motion to Quash

             Plaintiff brings this motion to quash on the grounds that Defendants filed their memorandum of costs too late and too early.

            California Rules of Court, Rule 3.1700, subdivision (a)(1), provides: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. 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.”

            The court’s record show that Defendants submitted a memorandum of costs on two separate dates, December 29, 2022, and February 7, 2023. The court notes that the costs listed by Defendants vary slightly for each memorandum, with the December 29, 2022, memorandum requesting total costs of $9,615.99 and the February 7, 2023, memorandum requesting $9.699.94. Because the February 7, 2023, memorandum of costs is outside of the statutory requirement, the court conducts its analysis with the December 29, 2022, memorandum of costs.

            Plaintiff relies on Boonyarit v. Payless Shoesource, Inc. (2006) 145 Cal.App.4th 1188 to argue that Defendants’ memorandum of costs should be quashed. Boonyarit is inapplicable and unhelpful to Plaintiff. In Boonyrait, the Court held that the prevailing defendant was not entitled to costs because it had never obtained an order of dismissal, which was a prerequisite for recovery of costs. (Id. at p. 1193.) The Court did not base its ruling on an untimely filed memorandum.

            Further, in Lowry v. Port San Luis Harbor District (2020) 56 Cal.App.5th 211, 221, the Court held “[a] prematurely filed memorandum of costs is ‘ “a mere irregularity at best” that does not constitute reversible error absent a showing of prejudice’ and is treated ‘as being timely filed.’ ” Here, after the jury verdict, Defendants filed a memorandum of costs three court days prior to the notice of entry of judgment. The early filing of the memorandum of costs is not fatal to Defendants’ recovery of their costs.  

            Motion to Strike or Tax Costs

            Code of Civil Procedure section 1032, subdivision (b), provides: “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.” “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.” (Cal. Rules of Court, Rule 3.1700, subd. (b)(1).)

                “If items on a memorandum of costs appear to be proper charges on their face, those items are prima facie evidence that the costs, expenses, and services are proper and necessarily incurred. [citations.] The burden then shifts to the objecting party to show them to be unnecessary or unreasonable.” (Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 693.) “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.’ [citation.] (Foothill-De Anza Community College Dist. v. Emerich (2007 ) 158 Cal.App.4th 11, 29.)

            Plaintiff argues various costs should be taxed, providing two side-by-side costs breakdowns. However, in her motion, Plaintiff fails to meet her burden to show that any of the sought costs are unnecessary or unreasonable. For example, Plaintiff suggests that the $3,796.80 under the section “Court Reporter Fees as Established By Statute” should be reduced to zero without explanation.

            However, Defendants seek recovery of the costs of transcripts. Code of Civil Procedure section 1033.5, subdivision (b)(5) expressly precludes recovery of “[t]ranscripts of court proceedings not ordered by the court.” Thus, $1,396.80 (Exhibit 3, section VI) sought for the recovery of court transcripts is not authorized by statute.

CONCLUSION

            Plaintiff’s motion to quash the memorandum of costs is DENIED.

            Plaintiff’s motion to tax costs is GRANTED in part.

            Defendant’s memorandum of costs is ordered reduced by $1,396.80.

            Moving Party to give notice.

Dated:   March 13, 2023                                 ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org