Judge: Kevin C. Brazile, Case: 21STCV15803, Date: 2022-08-15 Tentative Ruling

Hearing Date: August 15, 2022

Case Name: Zhou v. Wark, et al.

Case No.: 18STCV00803

Matter: Motion to Tax Costs

Moving Party: Plaintiff Tracey Zhou

Responding Party: Defendant William J. Martel, Jr.

Ruling: The Motion to Tax Costs is granted.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On April 26, 2022, Defendant William J. Martel, Jr. filed a memorandum of costs on appeal listing the following costs: $1,544 for filing fees, $130 for a reporter’s transcript, and $243,054.55 in other costs, which includes $237,000 in attorneys’ fees incurred on appeal.  The total request is for $244,745.55 in costs.

Plaintiff Tracey Zhou has filed a motion to tax the entirety of Defendant’s costs.

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.  On the other hand, 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.  Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.”  (Ladas v. Cal. State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) 

As an initial matter, the request for attorneys’ fees is moot because on May 26, 2022, the Court awarded Defendant his appellate fees in the reduced amount of $86,240.  Thus, for the purposes of this Motion, only Defendant’s remaining costs in the amount of $7,745.55 are at issue. 

Plaintiff argues that the remaining costs should be stricken because “none of the items relate to the appeal which has been concluded. Instead, the items appear to relate to either a pending appeal or matters occurring in the trial court.”  More specifically, Plaintiff contends, “[t]he only appeal in this case which has been concluded was remitted in August of 2021 and more than forty days has elapsed therefrom so that any newly filed memorandum of costs (or any revised memorandum) is barred as untimely.”

Defendant contends that “Plaintiff owes Martel costs on appeal in the amount of $8,776.82. Plaintiff owes Martel costs in appeal in the amount of $4,429.27 pursuant to the court’s Final Ruling on Plaintiff’s prior Motion to Tax Costs on Appeal as to Martel’s original Cost Memo on Appeal; and Plaintiff owes Martel additional costs on appeal in the amount of $4,347.55 for the additional costs she forced Martel to incur in seeking and defending his right to recover attorney fees on appeal, as reflected in Martel’s instant Revised Cost Memo on Appeal.”

Of course, there is suddenly a new issue about how the Court’s November 2021 ruling on Plaintiff’s prior motion to tax costs omitted mention of whether Defendant is due $4,429.27 in costs because (1) Plaintiff filed a motion to tax item 9 of the prior memo, but alternated between seeking to strike “item 9” and “attorney’s fees” when item 9 included $4,429.27 on top of fees and (2) the Court agreed that fees should be stricken, but struck all of item 9 without analyzing whether the $4,429.27 in non-fees was warranted.  Defendant contends that since the Court meant to strike fees only, Defendant is due the remaining $4,429.27.

The Court has already ruled with respect to taxing Defendant’s appellate costs.  Therefore, there is no basis to further seek the same costs via Defendant’s April 2022 memorandum of costs.  

Defendant’s assertion about $4,429.27 does have some validity, but regardless, an order was entered actually striking these costs, and so a motion for reconsideration would be required to alter the Court’s prior ruling.  Defendant does not seem to meet the requirements to assert such a motion.  (See Code Civ. Proc. § 1008(a).)  Further, there is no authority cited to indicate that a subsequent cost memo can resurrect costs that have already been stricken.  

Further, the Court will not award the remaining costs associated with obtaining Defendant’s appellate fees as these were not appellate costs.  Defendant argues that there are three types of costs—prejudgment, post judgment enforcement, and appellate—and as the costs at issue are not prejudgment and do not relate to judgment enforcement, they must be appellate costs, which can be obtained by a memorandum of costs on appeal.

No direct authority is cited for Defendant’s proposition.  Further, “[a]s [Code Civ. Proc. §] 1033.5 does for trial-related costs, [Cal Rules of Court,] rule 8.278 enumerates ‘[r]ecoverable costs,’ which it expressly provides are the only costs that may be recovered on appeal. (Cal. Rules of Court, rule 8.278(d)(1).) Those costs include filing fees, brief printing, and the cost to produce additional evidence on appeal. (Cal. Rules of Court, rule 8.278(d)(1)(A), (C), (E).)”  (Stratton v. Beck (2018) 30 Cal.App.5th 901, 910.)  Rule 8.278 does not provide for costs in the trial court associated with seeking appellate fees.  Therefore, the attempt to seek such fees via the subject memorandum of costs is improper.  The Court has no duty to explain to defense counsel how these costs could have been obtained.  

In sum, the Motion to Tax Costs is granted because (1) the costs at issue were already stricken or (2) are not actually appellate costs.  

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.