Judge: Joel R Wohlfeil, Case: 37-2021-00021625-CU-BT-CTL, Date: 2024-06-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 10, 2024

06/14/2024  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Business Tort Motion Hearing (Civil) 37-2021-00021625-CU-BT-CTL SILLMAN VS REYNOLDS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike or Tax Costs, 04/19/2024

The Motion (ROA # 1227) of Defendants DIXIE J. REYNOLDS, ATLAS STORAGE, LLC, ATLAS STORAGE CALIMESA, LLC, ATLAS STORAGE SOUTH BAY, LLC, ATLAS STORAGE YUCAIPA, LLC and REYNOLDS CAPITAL ASSETS, L.P. ('Defendants') to tax the Memorandum of Costs (ROA # 1223) filed by Plaintiff STEVEN J. SILLMAN ('Plaintiff'), is DENIED.

Code of Civil Procedure section 1032 authorizes an award costs to Plaintiff as the prevailing party in this case as a matter of right. As both parties acknowledge, the opinion in Michell v. Olick (1996) 49 Cal. App. 4th 1194 is determinative: 'Olick argues, as he did below, that some if not all of the items claimed by Michell should be disallowed because they relate to causes of action upon which Michell did not prevail. The trial court seems to have been persuaded by this argument in reasoning that Michell's unsuccessful claim for assault and battery was 'the predominant issue that ... certainly was the subject of most of the costs.

We, too, are troubled by the fact that Michell's cross-complaint was a shotgun blast; she sued for numerous unrelated grievances - legal malpractice, breach of the fee-splitting agreement, and personal injury at the vending machine. She prevailed on only one. To permit Michell to recover even those costs which relate solely to causes of action upon which she did not prevail would unfairly reward her for joining patently unmeritorious claims (assault and battery at the vending machine) with a single meritorious (legal malpractice) claim.

Nevertheless, we are compelled to apply the statutory directive. The successful plaintiff is entitled to recover the whole of his or her costs, despite a limited victory. The defendant is not entitled to an offset, even though the defendant prevailed to some (lesser) extent. (E.g., Western Concrete Structures Co. v. James I. Barnes Constr. Co., supra, 206 Cal. App. 2d 1, 11; Hyatt v. Sierra Boat Co. (1978) 79 Cal. App. 3d 325, 346 - 350 [no reduction in costs despite reduction in damages for comparative negligence].) Thus, we reluctantly conclude that because Michell obtained a net recovery, she is entitled to recover her costs as a matter of right, even though some or all of the costs may pertain to causes of action upon which she did not prevail.

We leave it to the Legislature to set limits on allowable costs ....' Id. at 1200, 1201 (emphasis added); see also Moreno v. Bassi (2021) 65 Cal. App. 5th 244, 259, 260 ('Under section 1032, a 'successful plaintiff is entitled to recover the whole of his or her costs, despite a limited victory.' (Michell v. Olick (1996) 49 Cal. App. 4th 1194, 1200.) In Michell, the Court concluded the Calendar No.: Event ID:  TENTATIVE RULINGS

3118503 CASE NUMBER: CASE TITLE:  SILLMAN VS REYNOLDS [IMAGED]  37-2021-00021625-CU-BT-CTL statute allowed 'Michell to recover even those costs which relate solely to causes of action upon which she did not prevail.' (Ibid.)').

This Motion is denied based on the authority cited above.

'Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.' Code Civ. Proc. 1033.5(c)(2). The memorandum is 'prima facie evidence the items were necessary, but when a cost bill was properly challenged the burden shifted to the party claiming costs to prove their necessity.' Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal. App. 4th 238, 243.

Defendants argue that the claimed costs were not reasonable and necessary for Plaintiff's prosecution of this action. However, Defendants fail to provide any argument or evidence taking issue with any particular cost item. Defendants, therefore, have not 'properly challenged' the cost memorandum and this argument is not persuasive.

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