Judge Lee S. Arian, Case Number: 20STCV12995, Date: 2024-01-09 Tentative Ruling

MOVING PARTY: Plaintiff Technology Insurance Company, Inc. (“Technology Insurance”)

This action arises from Mason Breaux (“Breaux”) being knocked unconscious due to a falling roof/ceiling on May 1, 2018. On April 1, 2020, Breaux filed the instant Complaint against Defendants Carmanita Corporation, Estate of Richard Rhee, and Does 1 to 50, alleging causes of action for: (1) General Negligence and (2) Premises Liability.

On August 19, 2020, Breaux filed an Amendment to Complaint which substituted Defendant 4301 Beverly, LLC (“4301 Beverly”) in place of Doe 1.

On April 23, 2020, Technology Insurance Company (“Technology Insurance”) filed a Complaint in subrogation against 4301 Beverly, Black Equities Group, LTD, Carmanita Corporation, and Estate of Richard Rhee, in Technology Insurance Company v. 4301 Beverly, LLC, LASC Case No. 20STCV15466 (the “2d Action”). Technology Insurance filed the 2d Action to recover workers compensation benefits paid to Astromic LLC dba Honey Bum (“Astromic”) for the injuries Breaux sustained on May 1, 2018.

On April 16, 2021, a Notice of Related Case was filed which indicated that the instant action was related to the 2d Action. On May 12, 2021, the Court deemed the instant action and the 2d Action related, with the instant action being the lead case. (05/12/21 Minute Order.)

On September 10, 2021, the Court granted the ex parte application filed by 4301 Beverly to consolidate the instant action and the 2d Action. (09/10/21 Minute Order.) This action was deemed the lead case. (09/10/21 Minute Order.)

On October 6, 2023, after hearing oral argument, the Court granted the motion for summary judgment filed by 4301 Beverly as to the complaint filed by Technology Insurance. (10/06/23 Minute Order.)

On October 27, 2023, 4301 Beverly filed and served a Memorandum of Costs which seeks costs in the amount of $1,819.15 for fees for electronic filing or service.[1]

On November 15, 2023, judgment was entered in favor of 4301 Beverly. The Court indicated that: (1) Technology Incorporated’s complaint against 4301 Beverly was dismissed without prejudice; and (2) 4301 Beverly was awarded costs pursuant to code in the amount of $1,819.15.

On November 15, 2023, Technology Insurance filed the instant Motion to Strike or Tax Costs claimed by 4301 Beverly (the “Motion”). On December 22, 2023, 4301 Beverly filed an opposition to the Motion. On January 2, 2024, Technology Insurance filed a reply brief.

“Except as otherwise provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) “The right to recover . . . costs is determined entirely by statute.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.) “In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face.” (Ibid.) “If so, the burden is on the objecting party to show the costs to be unnecessary or unreasonable.” (Ibid. [citation omitted].) “Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.” (Ibid. [citation omitted].) “Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court.” (Ibid. [citation omitted, internal quotations omitted].) “Fees for the electronic filing or service of documents through an electronic filing service provider” are allowable as costs “if a court requires or orders electronic filing or service of documents.” (Code Civ. Proc., § 1033.5, subd. (a)(14).) Allowable costs also include “[f]illing, motion, and jury fees.” (Code Civ. Proc., § 1033.5, subd. (a)(1).)

“[T]he items on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred.” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) “There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) “Only if the costs have been put at issue must supporting documentation be submitted.” (Ibid.) “If the items appearing on 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.” (Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761, 774 [citations omitted].) “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.” (Ibid. [citations omitted].) “[T]he mere filing of a motion to tax costs may be a proper objection to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131 [citation omitted, internal quotations omitted].)

“Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).) “Allowable costs shall be reasonable in amount.” (Code Civ. Proc., § 1033.5, subd. (c)(3).) “Items not mentioned in [Section 1033.5] . . . may be allowed or denied in the court’s discretion.” (Code Civ. Proc., § 1033.5, subd. (c)(4).)

Technology Insurance seeks to strike Item 14 from the Memorandum of Costs filed by 4301 Beverly for “Fees for electronic filing or service.” Technology Insurance contends that because 4301 Beverly “failed to provide any documentation to support its claimed costs, [Technology Insurance] is unable to assess where such claimed costs were necessary to the conduct of the litigation, and if so, reasonable.” (Escalante Decl., ¶ 27.) Counsel declares that because 4301 Beverly obtained other than monetary relief by way of its motion for summary judgment, the Court may allow or disallow costs. (Id., ¶ 29.) Technology Insurance requests that the Court disallow costs claimed by 4301 Beverly. (Id., ¶ 30.)

In opposition to the Motion, 4301 Beverly presents copies of bills, invoices, and receipts in support of its costs for filing and motion fees. (Dzharatanyan Decl., ¶ 6; Exhibit C.)

Initially, the Court finds that 4301 Beverly is the prevailing party as a dismissal was entered in favor of 4301 Beverly as to Technology Incorporated’s Complaint. (Code Civ. Proc., § 1032, subd. (a)(4).)

Moreover, it appears that there may have been a formatting issue on the Memorandum of Costs. Due to the placement of the monetary amount sought on the Memorandum of Costs, the Court cannot ascertain if the $1,819.15 in claimed costs are for interpreter fees, fees for electronic filing or service, or some other cost item. The opposition, however, clarifies such fact. The opposition contends that the $1,819.15 in costs sought is for filing and motion fees. (Opposition, 7:18-20.) Given the stated basis for such costs, the Court finds that such costs are expressly allowed under Code Civ. Proc. § 1033.5. 4301 Beverly has presented a Memorandum of Costs and documentation which substantiates its costs of $1,819.15 for filing and motion fees. Technology Incorporated, on the other hand, merely presents a declaration of its counsel which primarily recounts the procedural history of this action. Technology Incorporated has failed to meet its burden by failing to show that the costs of 4301 Beverly are unnecessary or unreasonable. The crux of Technology Incorporated’s motion is that 4301 Beverly failed to provide documentation to support its claimed costs. Such contention, however, is not persuasive as 4301 Beverly, in fact, has now provided such documentation. (Dzharatanyan Decl., Exhibit C.)

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.

Hon. Lee S. Arian

Judge of the Superior Court

[1] As will be discussed below, it appears that there is a formatting error on the Memorandum of Costs as 4301 Beverly indicates in the opposition to Technology Incorporated’s Motion to Strike or Tax Costs that such costs are for filing and motion fees.