Judge Lee W. Tsao, Case 30 2023-05-09 Tentative Ruling

Judge: Lee W. Tsao, Case: 30, Date: 2023-05-09 Tentative Ruling

Case Number: 30-2021-01178517 Hearing Date: May 9, 2023 Dept: C

WALTZ, et al. v. BREESE, et al.

CASE NO.: 30-2021-01178517

HEARING: 5/9/23 @ 9:30 AM

TENTATIVE RULING

Defendants Anna and Darren Breese’s motion to tax costs is GRANTED as to Item 16, and DENIED as to Item 12.

Opposing Party to give NOTICE.

Defendants Anna and Darren Breese move to tax costs pursuant to CRC § 3.1700(b).

This is an action for partition by sale of the real property located at 29062 Jarod Way, Laguna Niguel, California. (Complaint, ¶ 1.) The Complaint asserts causes of action for:

1. Partition

2. Accounting

3. Declaratory Relief

Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (CCP § 1032(b).)

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. (CRC 3.1700(b).) 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. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.) 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.)

ITEM 12:

Allowable coasts include “[m]odels, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.” (CCP § 1033.5(a)(13).) Costs incurred for exhibits not used at trial are “allowable in the trial court's discretion under section 1033.5(c)(4).” (Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 668). Id. at 667)

Defendants seek to tax $6,037.42 in photocopy costs, and argues that these costs were not necessary for trial because the exhibits should have been exchanged remotely since the entire trial would be remote. However, Plaintiff’s counsel disputes that the parties ever agreed to a “remote” trial. The court finds that the exhibits were necessary to aid the clerk, counsel, witnesses, and the Court, and is a reasonable cost of litigation. Accordingly, the request to tax $6,037.42 is denied.

ITEM 16:

Costs in a partition action may include fees and expenses of the referee (CCP § 874.010(b) or “other disbursements or expenses determined by the court to have been incurred or paid for the common benefit” (CCP § 874.010(e).)

Defendants seek to tax $5,505.00 in expert witness costs.

The court finds that the $3,150.00 claimed for Special Master Mike Kelly’s fees and expenses do not fall within CCP § 874.010(b) because the Special Master was appointed to sell the property, which he completed in July 2021, long before the August 2022 trial. Thus, the court declines to award fees associated with Special Master’s testimony, which benefitted Plaintiff, and not incurred for the common benefit.

The court also declines to award costs in the sum of $2,325.00 for Agle & Associates, who testified for Plaintiffs. Expert witness fees are not allowable as costs. (CCP § 1033.5(a)(8).)

Accordingly, the motion is GRANTED as to Item 16, and DENIED as to Item 12.

The court notes that Defendants have filed a Supplement to Amended Motion, seeking an order to deposit the proceeds owed to Defendants to the client trust account of Defendants’ counsel, or, deposit the entirety of the proceeds with the Court. Plaintiff did not lodge any objection to this request. Regardless, this supplemental request must be made by a separately noticed motion, as it is irrelevant to the motion to tax.