Judge: Jon R. Takasugi, Case: 21STLC01591, Date: 2023-04-12 Tentative Ruling

Case Number: 21STLC01591    Hearing Date: April 12, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

            Plaintiff’s unopposed motion to tax costs in their entirety is granted. Defendants are awarded $0.00 in costs.

            On February 24, 2021, Plaintiff Yun Sam Chung (Plaintiff) filed suit against Yun Kyeong Won and Ji Hyun Kang (collectively Defendants) alleging: (1) breach of oral agreement; (2) open book account; (3) account stated; and (4) breach of personal guarantee.

            On December 6, 2022, Defendants’ request for dismissal was entered as to the entire action of all parties and all causes of action without waiver of court fees and costs.

            On December 14, 2022, Defendants filed a memorandum of costs seeking a total of $7,424.02 for: (1) filing and motion fees $627.44; (2) attorney fees $6,300.00; (3) electronic filing fees $250.00; and (4) other $246.58.

            On December 29, 2022, Plaintiff filed a motion to tax costs. Defendants have not opposed the motion.

Legal Standard

The party serving documents by mail has no burden to show actual receipt by the addressee, where there was statutory compliance with provisions related to service. (Silver v. McNamee (1999) 69 Cal.App.4th 269, 280; Caldwell v. Geldreich (1955) 137 Cal. App. 2d 78, 81.) A mailing or proof of service lacking a fully correct address is ineffective where it “resulted, or could have resulted, in a lack of actual notice….” (Adaimy v. Ruhl (2008) 160 Cal.App.4th 583, 587.)

If items appear on their face to be proper, the verified memorandum of costs is prima facie evidence of their propriety, shifting the burden of proof to the attacking party. (Adams  v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486-87; Benach v. County of L. A. (2007) 149 Cal.App.4th 836, 855; Seever v. Copley Press, Inc. (2006) 141 Cal.App.4^th 1550, 1557; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131-32 [“trial court erred in requiring additional proof from” the party claiming costs, where the party attacking costs had the burden]; Santantonio v. Westinghouse Broad. Co. (1994) 25 Cal.App.4th 102, 116, 121 [after a prima facie showing based on verified cost memorandum, objecting party has the burden to prove costs should be disallowed]; Ladas v. Cal. State Auto. Assn. (1993) 19 Cal.App.4th 761, 773; Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266. Where they do not appear regular on their face, the burden is on the claiming party. Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267. But see  Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1380 (“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.” ); Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308 ("Only after such costs are challenged by a motion to tax do the parties need to justify their claims by submitting documentation of the costs they have incurred.").

Discussion

            The proof of service was ineffective because the stated address resulted in lack of actual notice. Plaintiff seeks to tax costs of each of the four categories of costs sought by Defendants because Plaintiff alleges he was not served with the Memorandum of Costs. The Memorandum of Costs did not comply with the statutory requirement of serving by mail because the address was listed as “20920 W. Center Lane Ste B, Woodland Hills, CA 91367” and not “Warner Center Lane.” Plaintiff’s counsel claims he did not receive the motion through the mail. (Gomez Decl., ¶ 5 and Klier Decl., at ¶¶ 5-6.) Thus, the proof of service was ineffective because the address Defendants served in their proof of service resulted in lack of actual notice.

            Additionally, Defendants have failed to satisfy their burden to submit documentation that they incurred the costs requested in their Memorandum of Costs. Plaintiff objects to each cost contending they were not actually incurred. Thus, according to Acosta, supra, 129 Cal.App.4th 1370, 1380 and Bach, supra, 215 Cal.App.3d 294, the burden shifts to Defendants to submit evidence that they actually incurred the costs claimed in the Memorandum of Costs. Defendants have not submitted any evidence in support of their Memorandum of Costs. Thus, each cost will be taxed in its entirety because Defendants have not satified their burden proving they incurred the costs requested in their Memorandum of Costs.

            Accordingly, the court grants Plaintiff’s motion to tax costs in its entirety.

It is so ordered.

Dated: April     , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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