Judge: Mark C. Kim, Case: 22LBCV00135, Date: 2023-03-30 Tentative Ruling

Case Number: 22LBCV00135    Hearing Date: March 30, 2023    Dept: S27

1.     Complaint

Plaintiff, The Fort Inn, Inc. filed this action against Defendant, 1715 W. Anaheim, Inc. for unlawful detainer.  Plaintiff’s complaint alleges Defendant has refused to vacate the subject property despite being served with a three-day notice to pay rent or quit and a three-day notice to perform covenants or quit.  The three-day notices are attached to the complaint as exhibits.  The three-day notice to pay rent or quit demands Defendant pay past-due rent from 11/01/18 to 3/01/22 in the total amount of $227,099.98.  The three-day notice to perform or quit demands Defendant remove all weed and debris, repair and replace all broken wall coverings, repair and replace all windows, replace the defective and deteriorating roof covering, and remove all graffiti. 

The case proceeded to jury trial on 8/19/22, and the trial continued on 8/22/22.  After jury instructions were given by the Court, Defendant moved for nonsuit.  The Court granted the motion. 

2.     Motion to Tax Costs

a.     Memorandum of Costs

Defendant filed and served its memorandum of costs on 9/14/22.  Defendant seeks to recover a total of $8023.51 in costs as the prevailing party in the action. 

b.     Issues Presented 

Plaintiff opposes the motion, arguing it was not timely filed, Defendant is not the prevailing party, and various items claimed are not recoverable. 

c.     Prevailing Party

Plaintiff argues Defendant is not the prevailing party in this case because (a) Plaintiff prevailed in connection with a prior UD between the parties, and (b) Plaintiff prevailed in connection with a companion arbitration proceeding between the parties. 

The Court, in connection with Defendant’s motion for attorneys’ fees, considered this issue and ruled as follows:

Plaintiff provides a copy of the transcript of proceedings in the parties’ first UD wherein the parties agreed to a resolution of the matter between them.  The parties indicated, on the record, that they were agreeing to dismiss the case without prejudice, and that both parties would waive costs without prejudice.  The parties specifically stated, “We are waiving costs without prejudice.  We are not going to be asking for costs in this case, but if there is another case down the road that follows up, we would want – we are – both sides are reserving the right to ask for the fees that they have incurred in this case.” 

Plaintiff argues that, because it obtained almost $50,000 in connection with the prior settlement, Defendant is not the prevailing party in this case.  However, Defendant obtained a verdict by nonsuit in this case.  That is an absolute defense verdict.  It is not clear how the prior settlement could have possibly contemplated the parties reserving the right to recover costs and fees in the future if a complete defense verdict would not ever be enough for Defendant to recover costs.  This argument, therefore, fails.

Plaintiff also argues the parties had a companion arbitration proceeding pending, and Plaintiff ultimately obtained part of the relief it sought in this case, back rent, by way of that proceeding.  Plaintiff was free to arbitrate and litigate its rights in as many forums as it chose to do so.  The issue in this action, however, is whether Defendant was the absolute prevailing party.  It was.  Plaintiff can seeks fees in connection with the arbitration if Plaintiff believes it prevailed there and is entitled to fees (notably, Defendant establishes in reply that the arbitrator determined IT, not Plaintiff, was the prevailing party in the arbitration). 

The Court finds Defendant is entitled to its attorneys’ fees per the parties’ contract, as it obtained a complete defense verdict in this case and was therefore the prevailing party as a matter of law.

For the same reasons detailed in the 3/09/23 order re: attorneys’ fees, the Court finds Defendant was the prevailing party for purposes of costs. 

d.     Timeliness of Memorandum of Costs

Defendant lodged a proposed judgment on 8/25/22.  The Court signed the judgment on 9/06/22, and Defendant gave notice of entry of judgment the same day.  Defendant filed its memorandum of costs on 9/14/22.  Plaintiff argues the memorandum of costs was not filed timely, as it was not filed within fifteen days after entry of judgment. 

It appears the confusion stems from the fact that Defendant, in its notice of entry of judgment, indicates judgment was entered on 8/25/22.  This is erroneous.  Judgment was lodged on 8/25/22, but not entered until 9/06/22.  9/14/22 was within fifteen days thereafter, and therefore the memorandum was timely filed.

e.     Costs Incurred in First Action

Plaintiff argues costs of suit incurred in the first action are not recoverable in this action.  Plaintiff fails, however, to address the parties’ discussion, on the record and detailed above, wherein they explicitly agreed that costs incurred in the first action would be recoverable if and when there was a second action.  The motion to tax those costs is therefore denied.

f.      Witness Fees (line 8)

Plaintiff argues Defendant is seeking unnecessary witness fees because it seeks witness fees for three days and four days, when trial only lasted two days.  Defendant, in opposition, explains that these fees are for a total of five witnesses, each of whom were called for only one day.  Specifically, Defendant states, “Defendant is not requesting more than one day for any witness.  Rather, each City employee who was subpoenaed, and there were five who were…was subject to a…witness fee of $275.” 

The parties agree that ordinary witness fees are in the amount of $275/day.  Defendant is claiming $1925 in ordinary witness fees, which comes out to a total of seven days.  Because Defendant concedes, in opposition, that only five days’ worth of fees were actually incurred, the amount at line eight is reduced from $1925 to $1375. 

g.     FedEx (line 16)

Defendant seeks to recover $20.42 in FedEx charges.  Plaintiff moves to tax the item on the ground that it is akin to postage, which is not recoverable.  Defendant does not oppose the motion.  The $20.42 charge in line sixteen is therefore taxed. 

Plaintiff is ordered to give notice. 

Parties who intend to submit on this tentative must contact the clerk at 562-256-2227 indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.