Judge: Malcolm Mackey, Case: BC719866, Date: 2023-02-22 Tentative Ruling
Case Number: BC719866 Hearing Date: February 22, 2023 Dept: 55
ESCOBAR
v. GOWER CAR WASH BC719866
Hearing Date: 2/22/23,
Dept. 55
#5: MOTION TO TAX
COSTS.
Notice: Okay
Opposition
MP:
Defendant GOWER CAR WASH.
RP:
Plaintiffs.
Summary
On 8/31/18, plaintiffs JOSE MAXIMO MORA ESCOBAR and
OTHONIEL JUAREZ MARTINEZ filed a Complaint, alleging the employer defendants,
GOWER CAR WASH, PAUL MANDER, SERGIO VENEGAS, and JAIME VENEGAS, are liable as
to wage-and-hour violations, including failures to pay minimum wages, pay overtime
wages, provide meal and rest breaks or compensation in lieu thereof, produce
Plaintiffs’ employee file and payroll records upon request, provide itemized
employee wage statements, and pay wages upon termination.
The jury rendered the verdict for plaintiffs, on 2/17/22.
MP
Positions
Moving party requests an order taxing plaintiffs’
costs, on bases including the following:
·
Plaintiffs’ Memorandum of Costs is not
timely under California Rules of Court, Rule 3.1700(a). Plaintiffs’
Memorandum of Costs was filed more than fifteen (15) days after the date the
Clerk served the Notice of Entry of Judgment on September 9, 2022
·
Plaintiffs are requesting the
reimbursement of fees and costs without any documentation, making it impossible
to determine whether they are reasonably necessary to the conduct of the
litigation or reasonable in amount, or whether they are in fact costs permitted
by Code of Civil Procedure section 1033.5.
·
Plaintiffs seek the reimbursement of fees
and costs in their Memorandum of Costs that are not permitted under Code of
Civil Procedure section 1033.5(b). “Fees
of experts not ordered by the court” are “items not allowable as costs.” See Code Civ. Proc. § 1033.5(b)(1). The task of calculating interest is
objectively not an onerous task that requires expert knowledge to complete.
RP
Positions
Opposing parties request denial, and orders that Defendant
to pay all costs of $11,207.42, and that defendants pay interest on wages
pursuant to the calculations of Angel Facundo in the amount of $13,619 for Jose
Maximo Mora Escobar and $5,995 for Othoniel Juarez Martinez (LABOR CODE § 218.6),
for reasons including the following:
·
Plaintiffs’ October 25, 2022 notice of
entry of judgment controls the timing for filing their memorandum of costs,
because the clerk’s September 9, 2022 notice did not indicate that it was
issued pursuant to an order from the court under C.C.P. § 664.5. Van Beurden Ins. Services, Inc. v. Customized
Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 65.
·
A verified memorandum of costs is prima
facie evidence that costs claimed have been necessarily incurred. Jeffers v.
Screen Extras Guild, Inc. (1955) 134 Cal.App.2d 622, 623.
·
Expert expenses relate to calculating
interest on wages under Labor Code Section 218.6.
Tentative
Ruling
The motion is granted as to taxing expert costs, and
is otherwise denied.
The Court taxes expert costs in the sum of $2,500.00,
and allows costs in the remaining amount of $8,707.42.
The cost memorandum was timely filed.
The form Notice of Entry of Judgment did not include
any statement about it being pursuant to the order of the Court or pursuant to
CCP Section 664.5, and hence did not commence the 15 days to file the cost
memorandum.
“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….” CRC Rule
3.1700(a)(1). See also Haley v. Casa Del Rey Homeowners Assn.
(2007) 153 Cal. App. 4th 863, 879. “[I]f a written notice of judgment or
dismissal is served by mail within the State of California, the time for filing
a memorandum of costs is extended by five days.” Nevis Homes LLC v. CW Roofing, Inc.
(2013) 216 Cal.App.4th 353, 356. “[T]o
qualify as a notice of entry of judgment under Code of Civil Procedure section
664.5, the clerk's mailed notice must affirmatively state that it was given ‘upon
order by the court’ or ‘under section 664.5,…’ " Van Beurden Ins. Servs. v. Customized
Worldwide Weather Ins. Agency (1997) 15 Cal.4th 51, 64 (addressing new trials, but it is same
Section 664.5 that applies to costs).
Plaintiffs do not have the burden to document
costs.
If items appear on their face to be proper, the
verified memorandum of costs is prima facie evidence of their propriety,
shifting the burden of proof to the attacking party. Adams
v. Ford Motor Co. (2011) 199
Cal.App.4th 1475, 1486-87; Benach v.
County of L. A. (2007) 149 Cal. App. 4th 836, 855; Seever v. Copley Press, Inc. (2006)
141 Cal.App.4th 1550, 1557; Nelson
v. Anderson (1999) 72 Cal. App. 4th 111, 131-32 (“trial court erred in
requiring additional proof from” the party claiming costs, where the party
attacking costs had the burden); Santantonio
v. Westinghouse Broad. Co. (1994) 25 Cal. App. 4th 102, 116, 121 (after a
prima facie showing based on verified cost memorandum, objecting party has the
burden to prove costs should be disallowed);
Ladas v. Cal. State Auto. Assn. (1993) 19 Cal.App.4th 761,
773; Rappenecker v. Sea-Land Serv.,
Inc. (1979) 93 Cal. App. 3d 256, 266.
Where they do not appear regular on their face, the burden is on the
claiming party. Jones v. Dumrichob
(1998) 63 Cal.App.4th 1258, 1267.
The Court did not order the use of the expert.
Fees of experts are recoverable only if ordered by the
court. Gorman v. Tassajara Dev. Corp.
(2009) 178 Cal.App.4th 44, 74.
The opposing request for interest based on unpaid
wages, is denied, as being outside of the procedure a motion to tax costs.
Courts may only consider issues or grounds specified
in the notice of motion or supporting papers incorporated by reference in the
notice. Luri v. Greenwald (2003) 107 Cal. App. 4th 1119, 1125; Geary
St., L.P. v. Sup. Ct. (1990) 219 Cal.App.3d 1186, 1199-1200; People v. Am. Sur. Ins. Co. (1999) 75
Cal. App. 4th 719, 726; Carrasco v.
Craft (1985) 164 Cal. App. 3d 796, 808;
Taliaferro v. Riddle (1959) 167 Cal.App.2d 567, 570; Traders' Credit Corp. v. Sup. Ct.
(1931) 111 Cal.App. 663, 665.
A cited opinion distinguishably did not address costs
procedures as a means to obtain interest on wages or expert costs. See
Naranjo v. Spectrum Sec. Servs., Inc. (2022) 13 Cal. 5th 93,
121 (“We now turn to a question concerning
the calculation of prejudgment interest. The trial court awarded Naranjo 10
percent prejudgment interest on his meal break claim. The Court of Appeal
reversed with instructions to recalculate the award based on a 7 percent
rate.”). “Language used in any opinion
is of course to be understood in the light of the facts and the issue then
before the court, and an opinion is not authority for a proposition not therein
considered.” Ginns v. Savage
(1964) 61 Cal.2d 520, 524, n.2.