Judge: Margaret L. Oldendorf, Case: 21STCV14689, Date: 2023-05-19 Tentative Ruling

Case Number: 21STCV14689    Hearing Date: September 1, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

          I.        INTRODUCTION

          This lawsuit stems from a dispute between neighbors owning adjacent properties in Sierra Madre. Plaintiff Cesar Romero (Romero) owns and resides in one of the properties. Defendants Andrew Van Horn and Kristine Chase live in the other; the property is owned by their trust. Other defendants include The F.A. Bartlett Tree Expert Company (Bartlett), whom Van Horn and Chase employed to trim trees on their property.

          The operative Second Amended Complaint (filed December 10, 2021) alleges ten causes of action stemming from the trimming of trees and hedges that run along the border between the two properties and the trimming of branches from trees on the Romero Property that hung over onto the Van Horn Property. Bartlett moved for summary judgment and/or adjudication of the claims against it. On May 19, 2023, that motion was heard and granted. Judgment was entered June 7, 2023. Bartlett timely filed its memorandum of costs within 15 days thereafter.

          Before the Court is Romero’s motion to tax costs, which was timely filed within 15 days of Barlett’s memorandum of costs. For the reasons that follow, the motion is denied.

II.       LEGAL STANDARD

          Code Civ. Proc. §1032(b) provides that a prevailing party is entitled as a matter of right to recover costs. Section 1033.5 itemizes those costs that are recoverable.

          California Rules of Court, rule 3.1700(a)(1) requires that a memorandum of costs be filed within 15 days after service of entry of judgment or dismissal by the clerk.

          Rule 3.1700(b)(1) requires that a motion to strike or tax costs be filed and served within 15 days of service of the memorandum of costs. Subdivision (b)(2) provides, “Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.”

“ ‘If the items in a cost memorandum appear proper, the verified memorandum is prima facie evidence the expenses were necessarily incurred by the’ prevailing party. (Citation.) To controvert this evidence, the burden is on the objecting party to present evidence showing the contrary. (Ibid.)” Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, 1115.

“[A] party’s ‘mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of its 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.

III.     DISCUSSION

Challenged items are discussed in the order they appear in the cost bill.

ITEM 1 – Filing and Motion Fees                                $1,527

Romero’s challenge to this item includes the argument that Bartlett is attempting to recover costs associated with its surety, Fidelity. This argument lacks merit. Fidelity recovered its own $435 first appearance fee, and half the cost for the jointly filed demurrers and motions to strike. (Fidelity cost bill filed August 22, 2022.) Despite the fact that the Fidelity memorandum of costs clearly indicates that it was only claiming half the cost of motions it jointly filed with Bartlett, Romero filed an (unsuccessful) motion to tax those costs on the basis that Fidelity was attempting a double recovery. (September 26, 2022 Minute Order.)

          Romero argue further that Bartlett should not recover for unsuccessful motions. This argument lacks merit. Code Civ. Proc. §1033.5(a)(1) provides for the recovery of filing fees. The code does not limit filing fees to motions that were successful.

          Romero argues that the filing fee for summary judgment is $500 and Bartlett should not recover $513.75. Bartlett provides evidence that this is what it was charged for such filing. Exhibit K to Pole Declaration. As this is what Bartlett was charged for the filing, it is fairly recovered by Bartlett.

          Romero’s argument that the memorandum of costs “appears to be false or incomplete” and urging that the Court should require a sworn declaration of counsel is completely without merit as the memorandum of costs includes such declaration.

          ITEM 15 -  Fees for hosting electronic documents          $1,184.25

          As explained in Bartlett’s opposition, this cost was intended to go on line 14:

Item 14 – Electronic Filing. Section 1033.5(a)(14) provides for this cost. The inadvertent placement of this cost on the wrong line does not justify disallowing this recoverable cost. Bartlett has demonstrated the validity of each of these costs, and in fact has shown that it undercalculated them.

          ITEM 16 – Other                                                        $1,500

          Here, Bartlett seeks to recover an unpaid discovery sanction. On August 20, 2021, Judge William Stewart (Dept. A of the Burbank Courthouse) issued a minute order that included a tentative ruling denying Romero’s motion to compel further responses from Bartlett and ordering Romero to pay $1,500 in monetary sanctions. The minute order indicates that following oral argument, the request for a monetary sanction was taken under submission. On September 1, 2021, Judge Stewart issued a minute order adopting its tentative and issuing a $1,500 monetary sanction against Romero.

          Romero failed to pay the sanction. On October 26, 2027, Bartlett filed a motion requesting that an OSC re: contempt be set. By that time the case had been transferred. Judge Colin Leis (Dept. 3 of the Alhambra Courthouse) denied the motion on December 2, 2021. The ruling was this: “The Court denies F.A. Bartlett Tree Expert Company’s request to issue an order to show cause whether to find Romero in contempt because the unsigned September 1, 2021 minute order’s silence on a date for Romero’s performance creates uncertainty, vagueness, and ambiguity fatal to finding contempt. To establish contempt, which is a quasi-criminal proceeding, F.A. Bartlett must prove beyond a reasonable doubt that the order is certain, clear, and unambiguous. Construing the time for performance as “reasonable,” which F.A. Bartlett urges here – even assuming one may insert a word into an order in a contempt proceeding – does not cure the order’s defect because ambiguity must be construed in Romero’s favor.”

          Romero’s argument that this order means the sanction somehow went away, or was resolved against Bartlett at this hearing, is without merit.

          Discovery sanctions are immediately enforceable as a judgment. Newland v. Superior Court (1995) 40 Cal.App.4th 608, 610. While Bartlett could have attempted collection via that route, it is not improper to add this item as a cost. Under Code Civ. Proc. §1033(c)(4), the Court in its discretion allows this cost.

IV.     ORDER

          Romero’s motion to tax costs is denied.

          Bartlett is ordered to give notice of ruling.

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT