Judge Kevin C. Brazile, Case Number: BC623542, Date: 2023-05-01 Tentative Ruling

Judge: Kevin C. Brazile, Case: BC623542, Date: 2023-05-01 Tentative Ruling

Case Number: BC623542 Hearing Date: March 12, 2024 Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20

Hearing Date: Tuesday, March 12, 2024

Case Name: Running et al v. Covina Irrigating Company et al

Case No.: BC623542

Motion: Motion to Tax Memorandum of Costs filed by the City of Azusa and Azusa Valley Water Company

Moving Party: Plaintiffs Praxedes E. Running, Praxedes E. Running Trust

Responding Party: Defendants City of Azusa and Azusa Valley Water Company

Notice: OK

Ruling: The Motion to Tax Costs is GRANTED IN PART and DENIED IN PART. The Memorandum of Costs is taxed in the amount of $80,902.89.

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.

BACKGROUND

On March 20, 2017, Plaintiffs Praxedes E. Running and the Praxedes E. Running Trust filed the operative Third Amended Complaint against Covina Irrigating Company (“CICO”), City of Azusa (“City”), Canyon Water Company (“Canon”), William L. McIntyre, Andrew McIntyre, and others and arising out of Defendants’ actions to deprive Plaintiff Praxedes E. Running of water she was entitled to receive through her property.

On December 20, 2023, Plaintiffs filed the instant motion to tax memorandum of costs filed by Defendants City of Azusa and Azusa Valley Water Company. On February 20, 2024, Defendants opposed. On March 4, 2024, Plaintiffs replied.

DISCUSSION

Applicable Law

Under the law, a verified memorandum of costs is correct. However, a party may contest the costs that a prevailing party seeks. (Code Civ. Proc., §1034 subd. (a).) The challenging party has the burden of demonstrating that those costs are unreasonable or unnecessary. (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486; 612 South LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th 1270, 1285.) If the challenging party properly objects to the costs, “they are put in issue and the burden of proof is on the party claiming them as costs.” (Ladas v. California State Automobile Association (193) 19 Cal.App.4th 761, 774.) To be recoverable, the costs must be “reasonably necessary” to the conduct of litigation. (Code Civ. Proc., §1033.5 subd. (c).)

“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, supra, 19 Cal.App.4th at p. 744; see also Code Civ. Proc., §1033.5 subd. (c).) However, items not mentioned in the code of civil procedure and “asserted upon application may be allowed or denied in the court’s discretion.” (Code Civ. Proc., §1033.5, subd (c)(4) [“Section 1033.5”].)

Application to Facts

A. Filing and Motion Fees, Memorandum of Costs Item 1

Plaintiffs move to tax the filing and motion fees by $2,720.00 on the grounds that Defendants did not pay any of the amount claimed. Plaintiffs state that many of the filing fees are for the benefit of co-defendants, including CICO, a non-prevailing party. Defendants argue the filing fees are recoverable under subdivision (a)(1) (hereinafter “subdivision” refers to subdivisions of Code of Civil Procedure Section 1033.5). Defendants also state the filing fees that they bring in this cost bill are for motions or applications that they brought on their own behalf.

Subdivision (a)(1) provides generally that filing fees are recoverable. (Code Civ. Proc., § 1033.5, subd. (a)(1).) Counsel for Defendants provide a declaration stating that the filing fees set forth in their memorandum of costs are for motions and ex parte applications that they brought on their own behalf and for their benefit. (Pisano Decl. ¶ 3.) This declaration is insufficient to show that these costs were incurred on Defendant’s behalf. Defendants attach no receipts, documents, or exhibits to show that these fees were actually incurred. Thus, the Court taxes $2,720.00 in filing and motion fees.

B. Jury Fees, Item 2

Plaintiffs request that the Court tax jury fees in the amount of $1,050.92 as they are a percentage of the total jury fees paid by all defendants. The Court finds that it may award costs to Defendants even though they may have been shared by non-prevailing defendant CICO. “Whether to award costs that were incurred by both the prevailing party and the nonprevailing party, and were reasonably necessary to the conduct of the litigation for both the prevailing and nonprevailing party, is left to the trial court’s sound discretion based on the totality of the circumstances.” (Charton v. Harkey (2016) 247 Cal.App.4th 730, 744.) This is distinguishable from the case where prevailing party and non-prevailing party are both represented by the same counsel. “A prevailing party who is represented by the same counsel as a nonprevailing party may only recover those costs the prevailing party incurred and were reasonably necessary to the prevailing party’s conduct of the litigation, not the other jointly represented parties' conduct of the litigation.” (Charton,supra, 247 Cal.App.4th at 744.) While the Court may not “make an across-the-board reduction based on the number of jointly represented parties,” it has the discretion to allocate costs here because all defendants were not represented by the same counsel.” (Id. at p. 744-745.) (See Pisano Decl. ¶ 4.) Thus, the Court declines to tax any amount for the jury fees.

C. Deposition Costs, Memorandum of Costs Item 4

Plaintiffs request that the Court tax costs in the amount of $50,187.22 for deposition costs. Plaintiffs state that the Court should tax $8,232.09 for travel costs to personally attend remote depositions because all counsel agreed to conduct depositions remotely. Plaintiffs also state that $40,503.58 should be taxed because the invoices only show a few were approved for payment and there is no declaration that Defendants actually incurred or paid for them. Defendants attach a declaration from counsel stating that they did in fact pay for all the transcripts and related expense in the cost bill, but provide no receipts or documentation to support this showing. Thus, the Court taxes deposition costs in the amount of $50,187.22.

D. Service of Process, Memorandum of Costs Item 5

Plaintiffs seek to tax service of process costs in the amount of $2,581.22 on the grounds that they are unnecessary and unjustified because there was no need to incur rush fees and some of the witnesses were not produced at trial. The Court finds Plaintiffs’ objection here does not shift the burden of proof because the argument does not necessarily show the charges are improper on their faces. The witnesses at issue may not have appeared at trial for any number of justifiable reasons. The fact that the witnesses did not appear does not establish the service of process charges is improper on their faces. Further, Defendants are entitled to these costs pursuant to the cost sharing agreement with the co-defendants. Thus, the Court declines to tax service of process costs.

E. Expert Fees (998), Memorandum of Costs Item 8b

Plaintiffs seek to tax expert fees in the amount $6,976.28 on the grounds that Defendants’ joint 998 offer is invalid because the terms were conditional and required the release of claims outside the case. Plaintiffs state that the joint 998 also did not have a signature line for either plaintiff to accept it, but only had a signature line for an attorney who was not on record. Further, Plaintiffs state that the 998 offer was conditioned on the acceptance by both plaintiffs.

In opposition, Defendants state that they are mindful that CICO’s 998 offer was invalid because it was made to both Plaintiffs, and there was no apportionment of the offer as between the two. However, Defendants claim they are in a different position than CICO because the unity of interest exception is applicable here given that there is only one theory upon which Plaintiffs sued Defendants (City Defendants). City Defendants also state that unlike CICO’s 998 offer, their offer was not conditioned upon Plaintiffs singing an undisclosed settlement agreement.

Pursuant to CCP section 1033.5, expert witness fees are allowable as costs if the expert witnesses were ordered by the court. (Code Civ. Proc., § 1033.5(a)(8).) Expert witness fees are not allowable as costs when not ordered by the court. (Id., § 1033.5(b)(1).) However, pursuant to CCP section 998, the court may require one party to pay a reasonable sum to cover the costs of expert witnesses actually incurred and reasonably necessary if another party makes an offer to compromise that is not accepted by the first party and that party fails to obtain a more favorable judgment or award. (Id., § 998(d).)

The Court finds that Defendants have not sufficiently shown that they are entitled to these costs. Defendants fail to sufficiently show that the unity of interest exception applies since Plaintiffs were suing for separate injuries — Plaintiff estate of Praxedes E. Running sued for financial elder abuse while co-trustees of Praxedes E. Running Trust sued for breach of easement contracts and breach of good faith. This shows that the 998 offer may not be valid as it does not accommodate the separate interests and injuries of each plaintiff and violates the principle that a valid 998 offer must be made to a single plaintiff or adequately portioned among multiple plaintiffs. Thus, the Court taxes expert fees in the amount of $6,976.28.

F. Court-Ordered Transcripts, Memorandum of Costs Item 9

Plaintiffs request that the Court tax transcripts in the amount of $ $6,976.20 on the grounds that there were no transcripts ordered by the court. Defendants do not dispute this and state that this was inadvertently included. However, Defendants claim the amount sought in the cost bill was $6,296.37. The costs memorandum shows that court-ordered transcripts claims $6,296.37. Thus, the Court taxes court ordered transcripts in the amount of $6,296.37.

G. Court Reporter Fees as established by Statute, Memorandum of Costs Item 11

Plaintiffs request the Court tax court reporter fees in the amount of $20,832.85 on the grounds that Defendants never asked the Court if any reporter was available and also because the reporting includes proceedings after grant of nonsuit which only benefitted non-prevailing party CICO.

The Court finds that court reporter fees as established by statute, and are allowable costs under Code of Civil Procedure, Section 1033.5, subdivision (a). (Code Civ. Proc., §§ 1033.5, subd. (a)(11).) Further, the Court agrees that Defendants were not required to obtain the services of an official court reporter before employing a private reporter. However, the Court agrees that Defendants are not entitled to some of these costs because it appears that they include costs for reporting for CICO after grant of nonsuit to City. Reporting of proceedings after grant of nonsuit to City includes costs in the amount of $1,891.50. Thus, the Court taxes court reporter fees in the amount of $1,891.50.

H. Models, enlargements, and photocopies of exhibits, Memorandum of Costs Item 12

Plaintiffs request that the Court tax these costs in the amount of $3,805.44 on the grounds that they were not reasonably necessary and made for the benefits of other defendants, including non-prevailing defendant CICO and there is no declaration to support them.

Section 1033.5 provides reimbursement is appropriate for, “[m]odels, the enlargement of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including the costs of rental equipment and electronic formatting. . .if they were reasonably helpful to aid the trier of fact.” (Code Civ. Proc., §1033.5, subd. (a)(13).)

The Court finds that Defendants are entitled to these costs as the charges related to copying a map and blowback was for trail exhibit 2000A, which was used in Mr. Hsu’s deposition and was useful in depicting the location of the City’s water treatment plan. Defendants state that they would have used it in their case-in-chief if they had not prevailed on nonsuit. (Pisano Decl. ¶ 10.) The Court finds these requests to be reasonably incurred and necessary for trial. Thus, the Court declines to tax costs for item 12, models, enlargements, and photocopies of exhibits.

I. Trial Consultants, Item 16 and Other Costs

Plaintiffs request the Court tax costs for trial consultants and other costs in the amount of $30,738.19 on the grounds that it includes costs that are not allowed such as hotel expenses, food costs, zoom calls to strategize, calls re “case issues, jury selection and trial advice,” development of jury profiles, and similar consulting services from the individual signing Ex P IPP Trial Consulting Invoices, Cynthia G. Veneciano.

In opposition, Defendants assert that the cost for the rental equipment, electronic formatting, and electronic presentation of exhibits, is a recoverable cost if it was reasonably helpful to aid the trier of fact. (Code Civ. Proc., § 1033.5, subd. (c)(13).) Also, cost items that are not specifically mentioned as allowable or not allowable may be awarded as recoverable costs, within the Court’s discretion. (Code Civ. Proc., § 1033.5, subd. (c)(4).)

The Court declines to award costs for hotel expenses, meals of $737.71, zoom calls to strategize, calls re “case issues, jury selection and trial advice,” development of jury profiles, however, the Court finds that the costs for the consultant was reasonable and necessary to assist the trier of fact. Defendants assert that they only included the fees of Cynthia Veneciano, who ran the trial technical equipment and was present in trial each day, and Gary Barns, who assisted in the setting up and taking down the equipment, as well as the rental cost for the equipment itself. (Pisano Decl., ¶ 11.) The Court finds the $17,906.67 to be reasonable, but the remaining $12,831.52 has not been sufficiently justified. Thus, the Court taxes other costs in the amount of $12,831.52.

CONCLUSION

The Motion to Tax Costs is GRANTED IN PART and DENIED IN PART. The Memorandum of Costs is taxed in the amount of $80,902.89.

The Court taxes the following costs:

(1) filing and motion fees in the amount of $2,720.00;

(2) deposition costs in the amount of $50,187.22;

(3) expert fees in the amount of $6,976.28;

(4) court ordered transcripts in the amount of $6,296.37;

(5) court reporter fees in the amount of $1,891.50; and

(6) other costs in the amount of $12,831.52.

The Court declines to tax the following:

(1) jury fees;

(2) service of process costs; and

(3) models, enlargements, and photocopies of exhibits.

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.

Tentative Ruling

Judge Kevin C. Brazile

Department 20

Hearing Date: Tuesday, March 12, 2024

Case Name: Running et al v. Covina Irrigating Company et al

Case No.: BC623542

Motion: Motion to Tax Memorandum of Costs filed by San Gabriel River Water Committee

Moving Party: Plaintiffs Praxedes E. Running, Praxedes E. Running Trust

Responding Party: Defendant San Gabriel River Water Committee

Notice: OK

Ruling: The Motion to Tax Costs is GRANTED IN PART and DENIED IN PART. The Memorandum of Costs is taxed in the amount of $38,375.72.

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.

BACKGROUND

On December 18, 2023, Plaintiffs filed the instant motion to tax memorandum of costs filed by Defendant San Gabriel River Water Company. On February 27, 2024, Defendant opposed. On March 5, 2024, Defendants replied.

DISCUSSION

Applicable Law

Application to Facts

A. Filing and Motion Fees, Memorandum of Costs Item 1

Plaintiffs move to tax the filing and motion fees by $3,053.15 on the grounds that only $705.50 are related to this case and the remaining amount relate to the Yuba and Los Angeles probate cases (Yuba Superior Court case PRPB22-00151 and LASC No. 23STPB00407). Defendant asserts that the course of this instant action concerned issues regarding the validity of the General Power of Attorney that Patricia Beecham had on behalf of Plaintiff, such that Defendant was required to obtain the probate records and ultimately pursue a probate action.

Subdivision (a)(1) provides generally that filing fees are recoverable. (Code Civ. Proc., § 1033.5, subd. (a)(1).) However, Defendant provides no authority stating that filing fees incurred in other actions, even if relevant and necessary to this case, are recoverable. Thus, the Court taxes $3,053.15 in filing and motion fees.

B. Deposition Costs, Memorandum of Costs Item 4

Plaintiffs request that the Court tax costs in the amount of $2,255.85 for deposition costs on the grounds that the following claimed expenses are unnecessary and unjustified:

1/3/2018 Running, Tina 12-18-17 CNA (Veritext) $ 345.00

1/9/2018 Running, Cheyenne 12-21-17 CNA (Veritext) $ 360.85

1/16/2018 Running CNA (Veritext) $ 345.00

1/19/2018 Running, CNA Video Cancellation (Veritext) $ 395.00

6/7/2023 Site Visit - VIDEO (Veritext) $ 430.00

7/12/2023 Hennon, Robert 4-26-23 Video Synched $380.00

Total $2,255.85

Plaintiffs state that it is unclear what Tina and Cheyne have contributed to this case and whether her deposition was even taken. As to the entries Running CNA (Veritext) and Running, CNA Video Cancellation (Veritext), Plaintiffs assert that they did not attend any deposition relating to these demanded costs; no detail or justification is provided for them. Also, Plaintiffs state that although Defendants visited the subject property and made a video on June 7, 2023, Plaintiffs did not receive a notice to produce the property for inspection, and the only matter on calendar on June 7, 2023 is defendants’ motion to bifurcate.

In opposition, Defendant asserts that it arranged for the depositions of members of the Running family who lived in the Running home during the relevant period when water was allegedly diverted from an irrigation canal, leading to the death of vegetation. These depositions were properly scheduled, and the witnesses were officially subpoenaed to appear. However, Defendant asserts that the depositions did not take place because the witnesses, including Mr. Running, did not show up, resulting in fees related to the “Certificate of Non-Appearance” (CNA). Due to Mr. Running’s failure to attend his deposition, the defendants filed a Motion to Compel his deposition, which the court approved on February 1, 2018. Defendant states that the mention of an incorrect entry for June 7, 2023, which has been retracted. The Court finds that the deposition costs were reasonable and allowable under Code of Civil Procedure section 1033.5(a)(3). The Court only taxes $430.00 for the June 7, 2023 entry which Defendant has withdrawn.

C. Service of Process, Memorandum of Costs Item 5

Plaintiffs seek to tax service of process costs in the amount of $6,376.81. Plaintiffs assert that $3,009.07 is unnecessary and unjustified because it relates to the probate case. Additionally, Plaintiffs claim that $3,367.74 for service of process relating to depositions for several individuals who were not produced as witnesses should be taxed as unrelated.

The Court agrees that Defendant is not entitled to costs for service of process related to the probate case, however, the costs regarding service to individuals to be deposed are reasonable even if deposition did not occur or witnesses were not available to testify. The witnesses at issue may not have appeared at trial for any number of justifiable reasons. The fact that the witnesses did not appear does not establish the service of process charges is improper on their faces. Thus, the Court taxes service of process costs in the amount of $3,009.07.

D. Expert Fees (998), Memorandum of Costs Item 8b

Plaintiffs seek to tax $6,649.00 for expert fees on the grounds that the 9section 98 offer was invalid by law. This assertion is supported by the fact that some of the expert fees predate the section 998 offer served on June 28, 2023, while others were incurred after the judgment of non-suit was granted on August 3, 2023. Additionally, Plaintiffs argue that fees associated with expert Delahooke, whose testimony was confined to the value of Plaintiff's real property, were unnecessary, unreasonable, and unjustified, given that Defendants claimed six days of work with him immediately before trial, including a holiday.

Further, Plaintiffs claim that SGRWC’s section 998 offer was improperly conditioned on a section 1542 waiver from each plaintiff and a release of any “potential” and “prospective” claims, which extends beyond the current action and was deemed invalid in previous court rulings. Plaintiffs contend that the offer also failed to address the release of perpetual easements on Plaintiffs’ land or guarantee maintenance of the canal and ditch, which is crucial since maintenance costs alone over the next 30 years are estimated to be significantly higher than the offer amount.

Additionally, the plaintiffs highlight procedural issues with the section 998 offer, including the lack of an acceptance provision for both plaintiffs or both attorneys, and the absence of a signature line for the attorney handling the probate cases against Plaintiffs, which was necessary for the offer’s validity.

In opposition, Defendant asserts that it served a section 998 offer for $125,000, alongside City Defendants and CICO, who also offered $200,000 each, totaling a $525,000 package to the plaintiffs before trial. Defendant states its offer aimed to resolve the lawsuit by dismissing it with prejudice and releasing all related claims, in exchange for the specified amount plus a waiver of costs. The offer was designed considering Plaintiffs’ unity of interest and the indivisible nature of the claimed injury, making a single joint offer viable.

The Court finds that Defendant has not sufficiently shown that they are entitled to these costs. Defendant fails to sufficiently show that the unity of interest exception applies since Plaintiffs were suing for separate injuries. Also, Plaintiffs point out that the cost memorandum does not separate out costs on causes of action for which Defendant is yet to be tried. Defendant further fails to explain that some issues pointed out by Plaintiffs such as fees which were incurred before the section 998 offer was served on June 28, 2023, specifically costs on June 23 ($243.33) and June 27 ($851.27) and fees that were charged after the judgment of non-suit was granted on August 3, 2023, specifically on August 10 ($2,077.93). Thus, the Court taxes expert fees in the amount of $6,649.00.

E. Models, enlargements, and photocopies of exhibits, Memorandum of Costs Item 12

Plaintiffs request that the Court tax these costs in the amount of $2,351.00 on the grounds that they are unnecessary and unjustified since Defendant fails to explain the following fees: iDiscovery-Jury Questionnaires Set One $210, iDiscovery-Jury Questionnaires Set

Two $177.45 Integrity Legal $1,936.86.

The Court finds that Defendant is entitled to these costs. Defendant explains that of the three submitted invoices, two of these invoices are explicitly identified as expenses for jury questionnaires and blowbacks, and the third invoice, amounting to $1,963.86, is attributed to the copying of trial notebooks. The Court finds these expenditures are reasonable and necessary for the advancement of the litigation and trial proceedings. Thus, the Court declines to tax costs for item 12, models, enlargements, and photocopies of exhibits.

F. Court Reporter Fees as established by Statute, Memorandum of Costs Item 11

Plaintiffs request the Court tax court reporter fees in the amount of $25,420.00 on the grounds that Defendants never asked the Court if any reporter was available and also because the reporting includes proceedings after grant of nonsuit which only benefitted non-prevailing party CICO. Plaintiffs also assert that the costs incurred are unreasonable as reasonable charges for reporting is $764.00 per day with $382.00 per half day.

The Court finds that court reporter fees as established by statute, and are allowable costs under Code of Civil Procedure, Section 1033.5, subdivision (a). (Code Civ. Proc., §§ 1033.5, subd. (a)(11).) Further, the Court agrees that Defendant was not required to obtain the services of an official court reporter before employing a private reporter. However, the Court agrees that Defendant is not entitled to some of these costs because it appears that they include costs for reporting for CICO after grant of nonsuit to Defendant. Reporting of proceedings after grant of nonsuit to Defendant includes costs in the amount of $1,891.50. Thus, the Court taxes court reporter fees in the amount of $1,891.50.

G. Trial Consultants, Item 16 and Other Costs

Plaintiffs request the Court tax costs for trial consultants and other costs in the amount of $23,343.00 on the grounds that there is no evidence that Defendant incurred this bill and the memorandum makes no attempt to describe what specific services were rendered for the Court to determine whether they were reasonable and necessary. Plaintiffs assert the expenses of IPP Trial Consulting of $126,665 included hotel rooms at the Omni Hotel, parking, dinners, lunches, and zoom meeting and sessions to strategize how to approach the jury.

The Court declines to award these costs on the grounds that Defendant failed to separate out costs on causes of action for which Defendant is yet to be tried. Further, the Court does not find that Defendant is entitled to costs for hotel expenses, meals of $737.71, zoom calls to strategize, calls re “case issues, jury selection and trial advice,” and development of jury profiles. Thus, the Court taxes other costs in the amount of $23,343.00.

CONCLUSION

The Motion to Tax Costs is GRANTED IN PART and DENIED IN PART. The Memorandum of Costs is taxed in the amount of $38,375.72.

The Court taxes the following costs:

(1) filing and motion fees in the amount of $3,053.15;

(2) deposition costs in the amount of $430.00;

(3) service of process costs in the amount of $3,009.07;

(4) expert fees in the amount of $6,649.00;

(5) court reporter fees in the amount of $1,891.50; and

(6) other costs in the amount of $23,343.00.

The Court declines to tax the following:

(1) models, enlargements, and photocopies of exhibits.

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.

Tentative Ruling

Judge Kevin C. Brazile

Department 20

Hearing Date: Tuesday, March 12, 2024

Case Name: Running et al v. Covina Irrigating Company et al

Case No.: BC623542

Motion: Motion to Strike Memorandum of Costs Filed by Defendants the San Gabriel River Water Company, the City of Azusa, and Azusa Valley Water Company

Moving Party: Plaintiffs Praxedes E. Running, Praxedes E. Running Trust

Responding Party: Defendant San Gabriel River Water Committee

Notice: OK

Ruling: The Motion to Strike Memorandum of Costs is DENIED.

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.

BACKGROUND

On December 18, 2023, Plaintiffs filed the instant motion to strike costs. On February 20, 2024, Defendant San Gabriel River Water Committee opposed. On February 23, 2024, Plaintiffs replied.

DISCUSSION

Applicable Law

A “prevailing party” entitled to costs: In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding.(Code Civ Proc., § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.) The term “prevailing party” for costs purposes is defined by statute to include:

· The party with a net monetary recovery;

· A defendant who is dismissed from the action;

· A defendant where neither plaintiff nor defendant recovers anything; and

· A defendant as against those plaintiffs who do not recover any relief against that defendant.

(Code Civ Proc., § 1032(a)(4).)

If the party does not fall within one of these four express categories, the court may exercise its discretion to award or deny costs. (See Lincoln v. Schurgin (1995) 39 Cal.App.4th 100, 105.)

“A verified memorandum of costs is prima facie evidence of the propriety of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary. (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989.) “A party’s mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of counsel are insufficient to rebut the prima facie showing that the costs were necessarily incurred.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.)

The losing party may dispute any or all of the items in the prevailing party’s memorandum of costs by a motion to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b).) Technically, a motion to strike challenges the entire costs bill whereas a motion to tax challenges particular items or amounts. California Rules of Court Rule 3.1700 provides that: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing 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.” Code of Civil Procedure section¿1033.5 provides the items that are allowable as costs under Code of Civil Procedure section 1032.

Application to Facts

Plaintiffs seek an order the striking of cost memos filed by Defendants San Gabriel River Water Committee (SGRWC), City of Azusa, and Azusa Valley Water Company (AVWC). Plaintiffs challenge Defendants’ request for a one-third share of all litigation costs. Plaintiffs argue that SGRWC’s cost memo, requesting one-third of all costs, is inappropriate because it includes costs for defending against claims (e.g., elder abuse, breach of easement contracts, and breach of good faith) that SGWRC has not yet been tried for, making it premature to claim prevailing party status. Additionally, Plaintiffs state the memo fails to separately account for costs associated with defending against different plaintiffs with distinct injuries and causes of action. Plaintiffs point out similar issues for the joint memo filed by City and AVWC, where they argue Defendants are not entitled to costs because they failed to apportion them. Plaintiffs argue that costs must be apportioned based on the nature of the costs incurred and their necessity to the litigation, specifically arguing that costs associated with non-prevailing defendants cannot be included in such claims. Plaintiffs further argue that Defendants have not met their burden to show that the claimed costs were necessarily incurred.

In opposition, Defendant SGRWC asserts that it is entitled to costs and there is no basis to strike because Code of Civil Procedure section 1032 allows a prevailing party to recover costs as a matter of right unless otherwise provided by statute. The Court agrees. The Court finds that Plaintiffs fail to provide a sufficient basis to strike the memorandum of costs as a whole. “Whether to award costs that were incurred by both the prevailing party and the nonprevailing party, and were reasonably necessary to the conduct of the litigation for both the prevailing and nonprevailing party, is left to the trial court’s sound discretion based on the totality of the circumstances.” (Charton v. Harkey (2016) 247 Cal.App.4th 730, 744.) This is distinguishable from the case where prevailing party and non-prevailing party are both represented by the same counsel. “A prevailing party who is represented by the same counsel as a nonprevailing party may only recover those costs the prevailing party incurred and were reasonably necessary to the prevailing party’s conduct of the litigation, not the other jointly represented parties' conduct of the litigation.” (Charton, supra, 247 Cal.App.4th at 744.) While the Court may not “make an across-the-board reduction based on the number of jointly represented parties,” it has the discretion to allocate costs here because all defendants were not represented by the same counsel.” (Id. at p. 744-745.) (See Pisano Decl. ¶ 4.) Thus, the Court finds that while some portions of the memorandum may be taxed, there is no basis to strike it as a whole.

CONCLUSION

The Motion to Strike Memorandum of Costs is DENIED.

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.