Judge: Mark A. Young, Case: 21SMCV00756, Date: 2025-05-15 Tentative Ruling

Case Number: 21SMCV00756    Hearing Date: May 15, 2025    Dept: M

CASE NAME:           Sunrise Projects LLC v. Allstar Financial Services, Inc., et al.

CASE NO.:                21SMCV00756

MOTION:                  Motion to Tax/Strike Costs

HEARING DATE:   5/15/2025

Legal Standard

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606.) “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. (CCP § 1032 (a)(4).) 

“Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (CCP § 1033.5(c)(2).) “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 Auto. Assn. (1993) 19 Cal. App. 4th 761, 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. (Id.) 

Analysis

Plaintiff Sunrise Projects LLC moves to strike/tax certain costs claimed by Defendant Allstar Financial Services Inc.’s memorandum of costs filed on December 23, 2024. Allstar opposes the motion.

Item 1(s) and (t): Summary Judgment Filing Fees

These items pertain to two $500.00 filing fees incurred by Allstar for its motions for summary judgment, filed on December 29, 2022, and January 1, 2023, as to Alvin Cox.

Plaintiff argues that these costs are not recoverable as “Filing, motion, and jury fees” because these filing fees were for summary judgment motions against Plaintiff/Cross-Complainant Alvin Cox. Cox brought a separate action against Allstar, which was consolidated with this action. Cox initiated his own action against Allstar in case no. 21SMCV01011, and filed a Cross-Complaint in case no. 21SMCV00756. On January 24, 2023, the Court granted Allstar’s motion for summary judgment as to Cox’s First Amended Complaint in the 21SMCV01011 action. On February 6, 2024, the Court granted Allstar’s motion for summary judgment as to Cox’s Cross-Complaint in the 21SMCV00756 action.

Allstar argues that it should be able to recover fees against Sunrise for Cox’s complaint and cross-complaint because the actions were consolidated with Plaintiff’s action. However, Allstar puts forth no authority that it may recover costs against Sunrise that were incurred on another plaintiff’s independent action. Allstar is correct that consolidation does not affect a party’s right to recover costs. (See Fields v. Napa Mill. Co. (1958) 164 Cal.App.2d 442 [in a multi-plaintiff personal injury action, costs were appropriately denied as to non-recovering plaintiffs and granted as to the recovering plaintiff].) Allstar’s other authorities are in accord with this principle. (See Rappenecker v. Sea-Land Serv., Inc., (1979) 93 Cal,App.3d 256, 258 [consolidation of actions does not deprive a successful plaintiff of the right to recover full statutory costs necessary to prosecute his action regardless of whether some other plaintiff in a related but separate action may derive an incidental benefit from some of the costs incurred]; Ducoing Mgmt., Inc. v. Superior Ct., (2015) 234 Cal.App.4th 306, 315 [where a defendant is the prevailing party against multiple plaintiffs who sue jointly on a single liability theory, there is little need to apportion the cost award as between the plaintiffs because the costs are joint and several].) Allstar, however, did not incur these costs in defense of Sunrise’s action. Instead, it incurred those costs pursuant to a separate, but related action by another party, Cox. Even though Allstar prevailed against Cox’s claims at summary judgment, Allstar cannot recover those costs as a matter of right against Sunrise. For the same reasons, the costs were not reasonably necessary to Allstar’s defense of Sunrise’s action. Thus, the Court will not grant these as discretionary costs.

Accordingly, Items 1(s) and (t) are properly taxed in their entirety.

Item 1(x): Stipulation and Initial Filing Fee

            This item pertains to a Stipulation and Initial Filing Fee filed on December 23, 2022, for $23,533.62. Plaintiff objects to these costs on the grounds that there is no basis to claim a filing fee in the amount of $23,533.62 on December 23, 2022. Allstar explains that these costs comprise the first appearance fees for the 48 investor co-defendants represented by its counsel, and that Allstar actually paid these costs.

Allstar does not submit authority that it is permitted to recover the costs of its co-defendants as a matter of right, or that it reasonably and necessarily incurred the appearance costs of its co-defendants. The fact that Allstar paid the costs does not mean that it incurred the costs. Section 1033.5(c)(1) instructs that costs “are allowable if incurred, whether or not paid.” (Emphasis added.) The investor co-defendants incurred such first appearance fees as costs. If those co-defendants claim a right to recover such costs, then those co-defendants should file a memorandum of costs.

Allstar notes that the subject stipulation “referred to the requirement of paying the first appearance filing fees for 48 investor defendants.” (Tungate Decl., ¶ 10.) Allstar does not demonstrate that the terms of the stipulation would require Allstar to pay for each and every filing fee on behalf of the co-defendants, and that if Allstar prevails, it would be entitled to recover such costs directly against Sunrise. Accordingly, Allstar cannot recover the fees, although actually paid, but not incurred by it.

Accordingly, the item is taxed by the amount of $23,513.62. This leaves $20.00 for the costs of filing the Stipulation itself, but not the first appearance fees for the co-defendants.  As to the filing fees, Sunrise would be obligated to pay these costs, but to the correct parties.

Item 5(a-y): Service of Process; Item 8a: Ordinary Witness Fees

These items regard the service of process of subpoenas on third parties for appearance at trial, and for ordinary witness fees. Allstar demonstrates that it incurred costs in the amount of $6,546.09 for service of process costs for the service of trial subpoenas. (Tungate Decl., ¶ 11, Ex. 5, pp. 3-4, 10-14.) Allstar shows incurred costs in the amount of $1,749.75 in witness fees for 26 subpoenaed trial witnesses. (Id.) Such costs are expressly allowed. (CCP §1033.5(a)(4)(7).)

Plaintiff contends that these items should not be recovered because those witnesses were subpoenaed in order to authenticate documents, and the parties stipulated to the authentication of such documents on the first day of trial. Plaintiff reasons that to the stipulation to authenticity of those documents removed the need to have such witnesses appear and thereby eliminated the need for the costs. Further, Plaintiff asserts that Defendant did not timely provide its witness list. However, this argument is not substantiated. Plaintiff’s counsel only notes that Allstar first listed these witnesses “at the deadline for the parties to submit their witness lists as witnesses.” (Steponovich Decl., ¶ 7.) Since Allstar timely listed these witnesses, and the costs were incurred prior to the trial stipulation, the costs are reasonably incurred. Even if the trial stipulation rendered certain witness testimony moot, Allstar reasonably prepared these trial subpoenas well prior to the parties’ stipulation. As such, the item will not be taxed.

Item 11 (12): Court reporter fees

This item regards claimed court reporter fees of $15,671.62. Sunrise claims that Allstar misidentifies the court reporter fees by Veritext in the amount of $14,682.30. Sunrise contends Veritext provided transcripts in some instances. These transcripts were not ordered by the Court and such, are disallowed.

In support of its claim, Allstar provides only a generic explanation that it incurred costs in the amount of $14,682.30 in court reporter fees for a court reporter at trial, without responding to Sunrise’s claim that this figure includes disallowed transcription fees. The attached exhibit supporting fees notes that the fees were for “COURT REPORTER: VERITEXT, LLC COURT REPORTER FEE FOR PROFESSIONAL ATTENDANCE AND TRANSCRIPTION OF TRIAL…” (Ex. 5, at p. 14, emphasis added.) Thus, the requested amount includes unpermitted fees for transcripts. Plaintiff persuasively shows that Allstar is only entitled for reimbursement in the amount of the $1,225.00 per session, which equals $4,900.00 in actual court reporter fees. The remainder of the claimed costs is apparently for transcript fees, which were not authorized.

Accordingly, the item is taxed in the amount of $9,782.30. This leaves $5,889.32 remaining for item 11.