Judge Kerry Bensinger, Case Number: 21STCV27787, Date: 2023-09-07 Tentative Ruling

RESPONDING PARTY: Defendants Loren Jacob Goldman, Dawnyell Trashawna Dixon, and Andres Lauro Sanchez Garcia

On July 28, 2021, Plaintiff, Jehan Zeb Mir, filed this action against Defendants, Loren Jacob Goldman (“Goldman”), Dawnyell Trashawna Dixon (“Dixon”), and Andres Lauro Sanchez Garcia (“Garcia”) for injuries and damages arising from a multi-vehicle accident.

Plaintiff has been declared a vexatious litigant. In Mir v. Pomona Valley Hosp. Medical Center (Feb. 24, 2003) 2003 WL 403301, the Court of Appeal entered an expanded prefiling order against Plaintiff prohibiting him from filing new litigation “in propria persona or through an attorney without first obtaining leave of the presiding judge of the court in which the litigation is proposed to be filed.” (Id. at *22-23.) The Court of Appeal in Mir v. Mercury Ins. Group (Jul. 23, 2020) B286741 also recognized that Plaintiff is subject to the expanded prefiling order. (See id. at *3.)[1]

On September 13, 2022, Plaintiff’s Complaint was dismissed without prejudice for failure to obtain leave of the presiding judge prior to initiating this litigation. The Court denied Plaintiff’s motion for reconsideration of the dismissal on June 1, 2023.

In the interceding period, each defendant filed a Memorandum of Costs.[2] Goldman seeks $4,818.45 in costs. Dixon seeks $4,785.87 in costs. Garcia seeks $1,988.86 in costs. Plaintiff now moves to strike the foregoing costs in their entirety. Each defendant filed oppositions. Plaintiff filed a reply.

The motion was heard on July 6, 2023. The Court continued the motion and ordered the parties to submit additional briefing on the following issues: (1) whether the Court can rule on this motion if the dismissal was entered without prejudice; (2) whether downstream procedural matters affect the Court’s consideration of the memorandum of costs.

On August 23, 2023, the parties submitted supplemental briefing. The Court rules as follows.

A party challenging the amounts claimed may file a motion to tax costs, which must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4). (Cal. Rules of Court., rule 3.1700, subd. (b)(1).) “Unless objection is made to the entire cost memorandum, the motion ... must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” (Cal. Rules of Court, rule 3.1700, subd. (b)(2).)

The memorandum of cost is a verified statement by the party, attorney, or agent that the costs are correct and were necessarily incurred in the case. (Cal. Rules of Court, rule 3.1700, subd. (a)(1).) “If 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, and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) “[I]f the correctness of the memorandum is challenged either in whole or in part by the affidavit or other evidence of the contesting party, the burden is then on the party claiming the costs and disbursements to show that the items charged were for matters necessarily relevant and material to the issues involved in the action.” (Id. at p. 699.)¿

Code of Civil Procedure section 1033.5 lists the costs that are recoverable. Section 1033.5 provides: “(1) Costs are allowable if incurred, whether or not paid. (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount. (4) Items not mentioned in this section ... may be allowed ... in the court’s discretion.” (Code Civ. Proc., §¿1033.5, subd. (c)(4).)¿

A. First Issue: Whether the Court can rule on this motion if the dismissal was entered without prejudice

Upon consideration of the additional briefing, the Court finds it can rule on this motion.

Code of Civil Procedure section 1032 provides that a defendant who is dismissed from the action is a prevailing party and is entitled as a matter of right to recover costs in any action or proceeding unless a statute expressly states otherwise. (Code Civ. Proc. § 1032, subd. (a)(4).) A defendant dismissed from the action is the “prevailing party” regardless whether the dismissal is voluntary or involuntary. (Weil & Brown, (The Rutter Group 2022) California Practice Guide: Civil Procedure Before Trial, ¶ 17:214, citing Santisas v. Goodin (1998) 17 Cal.4th 599, 606.) A defendant is entitled to costs regardless of whether the dismissal is with or without prejudice. (Cano v. Glover (2006) 143 Cal.App.4th 326, 331, citing Code Civ. Proc., § 1032, subd. (a)(4); see e.g., Catello v. I.T.T. General Controls (1984) 152 Cal.App.3d 1009, 1012, fn. 4.)(emphasis added.) “Nothing in the wording of the statute indicates that a defendant’s right to recover costs is limited to certain types of dismissals (e.g., dismissals on nonjurisdictional grounds). Since the Legislature has not distinguished between types of dismissals in the statute, we will not read such a restriction into it.” (Brown v. Desert Christian Center (2011) 193 Cal.App.4th 733, 738.) The Court retains jurisdiction to determine matters ancillary to the underlying action, such as costs and attorney fees. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1290.) As applied here, that dismissal of Plaintiff’s complaint was entered without prejudice does not impact the Court’s jurisdiction over Plaintiff’s motion to tax costs. The Court proceeds to the second issue.

B. Second Issue: Whether downstream procedural matters affect the Court’s consideration of the memorandum of costs

The Court may consider Defendants’ memoranda of costs. As Defendants point out, Plaintiff has exhausted his ability to move for reconsideration of the September 13, 2022 order dismissing his Complaint without prejudice.[3] Given Plaintiff’s inability to move for further reconsideration of the order dismissing his Complaint and Plaintiff’s failure to commence this action consistent with the prefiling order, there are no downstream procedural matters affecting the disposition of the memoranda of costs.

In sum, the Court may consider Defendants’ memoranda of costs and Plaintiff’s motion to tax costs. As such, the Court adopts its prior tentative ruling regarding Plaintiff’s motion to tax each memorandum of costs. That discussion follows.

Plaintiff offers the following arguments as to each defendant’s Memorandum of Costs.

Goldman seeks total costs of $4,818.45, consisting of $435 in filing and motion fees, $28.40 in electronic filing or service fees, $150 in jury fees, $933.05 in deposition costs and $3,272 in expert fees.

Plaintiff argues that the foregoing costs are unnecessary and excessive. With respect to deposition costs, Plaintiff argues that the deposition was not necessary as Plaintiff’s contentions and damages could be ascertained from his interrogatory responses. With respect to expert fees, which Goldman seeks pursuant to Code of Civil Procedure section 998, Plaintiff argues that Goldman does not substantiate a section 998 offer was made, does not describe the necessity or nature of the expert testimony, nor did Goldman notice the expert witness pursuant to CCP section 2034.230.

Each argument lacks merit. First, filing, motion, and jury fees are allowable costs. (Code Civ. Proc., §¿1033.5, subd. (a)(1) and (14).)¿ Second, deposition costs are also allowable costs. (Code Civ. Proc., §¿1033.5, subd. (a)(3).)¿ Plaintiff does not dispute that Goldman deposed Plaintiff and misconstrues the burden. In seeking to strike or tax costs, Plaintiff as the objecting party has the burden of showing that an item is not properly chargeable or is unreasonable. (Oak Grove School Dist., supra, 217 Cal.App.2d at p. 698.) If the charges appear proper, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant. (Id.) Last, Goldman offers evidence that he offered a CCP section 998 offer of compromise, which Plaintiff did not accept. (See Goldman Opp., Miyamoto Decl., Exs. A, B.) Because Plaintiff failed to obtain a more favorable judgment, the rejected section 998 offer permits Goldman, as a dismissed defendant, to seek recovery for expert fees. If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer. (Code Civ. Proc., §¿998, subd. (c)(1).)¿ It does not matter for the purposes of section 998 that the Complaint was involuntarily dismissed without prejudice. (See, e.g., Cano, supra, 143 Cal.App.4th at p. 331 [“Defendant is entitled to costs regardless of whether the dismissal is with or without prejudice.”].)

Plaintiff’s motion to tax Goldman’s cost memorandum also fails for being untimely filed. A party challenging the amounts claimed may file a motion to tax costs, which must be served and filed 15 days after service of the cost memorandum. (Cal. Rules of Court., rules 3.1700, subd. (b)(1).) Goldman filed and served the cost memorandum on September 16, 2022. Plaintiff filed this motion more than 15 days later on October 11, 2022. The motion is untimely.

Dixon seeks total costs of $4,785.87, consisting of $435 in filing and motion fees, $36.37 in electronic filing or service fees, $150 in jury fees, $1,799 in deposition costs and $2,365.50 in expert fees. Plaintiff asserts the same arguments against Dixon’s Memorandum of Costs. As discussed above, filing and motion fees, jury fees, electronic filing or service fees, and deposition costs are allowable under section 1033.5. However, Dixon improperly seeks to recover expert fees. Fees of experts not ordered by the court are not allowable as costs. (Code Civ. Proc., §¿1033.5, subd. (b)(1).)¿ As Plaintiff points out, the court did not order expert witnesses, nor does Dixon show otherwise. The Court further notes that Dixon did not submit a CCP section 998 offer of compromise to Plaintiff. A rejected CCP section 998 offer would have entitled Dixon to recovery of expert fees.

Accordingly, the Court taxes expert fees of $2,365.50 from Dixon’s Memorandum of Costs.

Garcia seeks total costs of $1,988.86, consisting of $435 in filing and motion fees, $150 in jury fees, $1,026.36 in deposition costs, and $377.50 for Array copy service records. Plaintiff argues that Garcia’s cost memorandum should be struck because it was served and filed more than 15 days after the order dismissing Plaintiff’s Complaint. 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. (Cal. Rules of Court., rules 3.1700, subd. (a)(1).) Here, the Certificate of Mailing of the order of dismissal is dated September 14, 2022. Garcia filed and served a cost memorandum on September 29, 2022—15 days later. Garcia’s cost memorandum is timely.

As Garcia timely filed and served a Memorandum of Costs, and because Plaintiff does not challenge any of the costs claimed, the motion to tax costs as to Garcia is DENIED.

The motion to tax costs from Defendant Loren Jacob Goldman’s Memorandum of Costs is denied. The Court awards Goldman costs in the total amount of $4,818.45.

The motion to tax costs from Defendant Dawnyell Trashawna Dixon’s Memorandum of Costs is granted in part. The Court taxes $2,365.50 from Dixon’s Memorandum of Costs and awards Dixon costs in the total reduced amount of $2,420.37.

The motion to tax costs from Defendant Andres Lauro Sanchez Garcia’s Memorandum of Costs is denied. The Court awards Garcia costs in the total amount $1,988.86.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] The Court cites this unpublished case for relevant background facts concerning Plaintiff’s vexatious litigation. (Pacific Gas & Electric Co. v. City and County of San Francisco (2012) 206 Cal.App.4th 897, 907, fn. 10 (“We may also appropriately cite the decision to explain the factual background of the case and not as legal authority.”)

[2] Goldman filed and served a cost memorandum on September 16, 2022. Dixon filed a served a cost memorandum on September 22, 2022. Garcia filed and served a cost memorandum on September 29, 2022.

[3] Plaintiff’s claims may also be time barred. An action for injury caused by the wrongful act or neglect of another must be commenced within two years of the incident. (Code Civ. Proc., § 335.1.) This action arises from a motor vehicle accident that occurred on August 5, 2019. More than four years have passed since the alleged accident.