Judge: John C. Gastelum, Case: 18-01026373, Date: 2022-07-28 Tentative Ruling

Motion for Attorney Fees

Ruling:  Off Calendar – no hearing will be held.  Plaintiffs, Fatemeh Hosseini’s and Masoud Ziaie’s Motion for Attorney Fees and Costs is CONTINUED to 8-30-2022, Dept. C11, at 2 pm.

As part of their motion, Plaintiffs seek costs in the amount of $9,908.41, jointly and severally against all Defendants.

However, though not raised by the parties, it does not appear Plaintiffs filed a Memorandum of Costs.

“A party’s right to recover costs is governed entirely by statute. [Citation.]” (Boonyarit v. Payless Shoesource, Inc. (2006) 145 Cal.App.4th 1188, 1192.) “To obtain costs, a party must comply with the applicable rules of court. [Citation.]” (Ibid.)

Code of Civil Procedure section 1034 states, in part: “Prejudgment costs allowable under this chapter shall be claimed and contested in accordance with rules adopted by the Judicial Council.” (Code Civ. Proc., § 1034(a).) Code of Civil Procedure section 1032 provides, in part, that ‘[n]othing in this section shall prohibit the parties from stipulating to alternative procedures for awarding costs in the litigation pursuant to rules adopted under Section 1034.” (Code Civ. Proc., § 1032(c).)

“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.” (CRC, rule 3.1700(a)(1).) Thus, the entry of a dismissal or judgment is a predicate to a costs award. (Boonyarit v. Payless Shoesource, Inc. (2006) 145 Cal.App.4th 1188, 1192.) “A party that request dismissal of an action must serve on all parties and file notice of entry of the dismissal.” (CRC, rule 3.1390.)

“The Judicial Council has adopted a ‘worksheet’ (for itemization) and ‘summary’ forms to be used in claiming costs.” (Weil & Brown, Cal. Practice Guide:  Civ. Proc. Before Trial (The Rutter Group June 2021 update) ¶ 17:501.)

The parties to file supplemental briefs as to whether Code of Civil Procedure section 1034(a), and CRC, rule 3.1700 require Plaintiffs to file a Memorandum of Costs on Judicial Council Form MC-010 and/or MC-011.

The parties to file a supplemental brief of no more than 5 pages addressing this issue. Defendants to file a supplemental brief no later than nine (9) court days before the continued hearing date. Plaintiffs to file a supplemental brief no later than five (5) court days before the continued hearing date.

Clerk to give notice to the parties.