Judge: Mark C. Kim, Case: NC061566, Date: 2023-01-12 Tentative Ruling

Case Number: NC061566    Hearing Date: January 12, 2023    Dept: S27

1.     Trial

This habitability case commenced trial on 2/28/22 and concluded trial on 3/10/22.  The trial was bifurcated, with issues of liability going forward first and the issue of amount of punitive damages to go second, if necessary.  At the conclusion of trial, the jury returned a special verdict.  It found Defendant liable for various failures in connection with the property, and awarded special damages in the amount of $223,091.45. 

On calendar today are Plaintiff’s motion for attorneys’ fees and Defendant’s motion to strike or tax costs. 

 

2.     Motion to Strike or Tax Costs

a.     Procedural History of Costs

The Court entered judgment on 6/23/22.  The Clerk gave notice the same day.  Plaintiff filed a memorandum of costs on 7/11/22, seeking to recover costs in the amount of $106,277.69.  On 7/21/22, Defendant filed a motion to strike or tax costs, arguing that (a) Plaintiff failed to include the required costs worksheet with her memorandum, and (b) Plaintiff is not entitled to recover expert costs because she was not awarded a judgment in excess of her §998 offer. 

 

On 9/06/22, Plaintiff filed an amended memorandum of costs, seeking to recover costs in the amount of $95,718.30.  On 9/16/22, Defendant filed this motion to strike or tax costs. 

 

Any opposition to the motion was due on or before 12/29/22.  The Court has not received timely opposition to the motion.  The Court will not consider untimely opposition to the motion. 

 

b.     Timeliness of Amended Memorandum of Costs

Defendant does not challenge the amended memorandum on the ground that it was not timely filed.  The Court notes, however, that CRC 3.1700(a)(1) requires a memorandum of costs within fifteen days after notice of entry of judgment.  It is not clear that the amended memorandum was timely filed.  Because the amended memorandum reduces the amount of costs sought, and because Defendant did not challenge the amended memorandum on this ground, the Court will consider the amended memorandum timely for purposes of this ruling. 

 

c.     Costs Worksheet

Plaintiff did not include a costs worksheet with her first memorandum of costs.  Oddly, even after Defendant challenged the first memorandum by way of a motion to tax costs, she also did not include a costs worksheet with her second memorandum of costs. 

 

The Court could not find authority specifically requiring the costs worksheet to be filed and served with the memorandum.  Defendant did not cite any such authority either.  It is, however, common practice to do so, and Defendant cannot meaningfully evaluate the costs claimed without the worksheet.

Pursuant to Ladas v. California State Auto. Ass’n (1993) 19 Cal.4th 761, 774-776, if items appear on their face to be proper charges, the verified memorandum is prima facie evidence of their propriety, and the burden is on the party challenging the costs to show that they are not reasonable or necessary.  Once the challenging party places those costs at issue, the burden shifts to the party claiming the costs to show they are properly claimed.

 

In this case, Plaintiff arguably did not meet even the prima facie requirement to show that the costs were proper, as Plaintiff did not file the required worksheet.  Even if she did meet that initial burden, Defendant placed the costs at issue, and in the absence of timely opposition to the motion, she necessarily failed to meet her shifted burden to show the costs are proper. 

 

The motion to strike costs is granted in full on the ground that Plaintiff failed to provide the required worksheet, and failed to file opposition to the motion containing evidence in support of her claimed costs. 

 

d.     Expert Costs

The Court declines to rule on the additional issue of whether the expert costs are properly claimed, as doing so is not necessary to a resolution of the merits of the motion.  All costs are stricken per the above analysis, including expert costs.

 

3.     Motion for Attorneys’ Fees and Interest

a.     Attorneys’ Fees Pursuant to Civil Code §1942.4

Plaintiff seeks to recover her attorneys’ fees pursuant to Civil Code §1942.4, which permits recovery of attorneys’ fees if a public officer inspects the premises and gives the landlord written notice that it must abate the nuisance or repair and property, and the landlord fails to do so within 35 days. 

Plaintiff fails, in her moving brief, to cite to any portion of the record showing that there was any such inspection, any such written notice, or any such failure to cure.  Defendant, in opposition to the motion, contends there was not.  It concedes there was a notice of violation by the City on 7/15/16, but provides evidence that the City issued a notice that the defect had been corrected on 8/22/16.  Plaintiff, in reply, contends the property continued to be uninhabitable after 8/22/16, despite the fact that the notice of correction indicated the warning notice was in effect for one year from the date of issuance, and that repeat violations would be assessed per the Code if continuing violations were found.  Plaintiff cites to the 2/04/17 Apex Mold Inspection report, which showed elevated moisture readings in the kitchen, which was one of the areas at issue in the 7/15/16 notice. 

 

The Court has reviewed the 7/15/16 notice, and finds nothing in it required Defendant to remediate moisture or mold.  The only mentions of the kitchen were that Defendant was to repair a cabinet under the sink, repair the faucet hardware, and repair the garbage disposal.  Plaintiff provides no citation to any evidence from the trial showing Defendant failed to do so.  The request for fees under this section is therefore denied.

 

b.     Attorneys’ Fees Pursuant to Contract

Plaintiff also seeks to recover her attorneys’ fees pursuant to the parties’ contract.  Defendant, in opposition to the motion, shows that the parties’ contract caps recoverable attorneys’ fees at $500.

 

c.     Prejudgment Interest

Plaintiff seeks to recover prejudgment interest at the rate of 10%.  She seeks recovery of prejudgment interest per CCP §685.020(a) and Civil Code §3287. 

 

i.              Prejudgment Interest Under CCP §685.020

§685.020(a) permits Plaintiff to recover interest from the date the verdict is rendered through the date judgment is entered.  In this case, the verdict was rendered on 3/10/22, and judgment was entered on 6/23/22.

 

Defendant, in opposition to the motion, cites CRC 875 to stand for the position that Plaintiff was required to seek this award prior to entry of judgment, and is barred from doing so now.  CRC 875 was renumbered in 2007 and is now CRC 3.1802.  It provides, “The clerk must include in the judgment any interest awarded by the court.”  It does not provide a mechanism for doing so.  Defendant also relies on N. Oakland Med. Clinic v. Rogers (1998) 65 Cal.App.4th 824, 830-831 and Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 1012 to support the position that the request for prejudgment interest is not timely. 

 

North Oakland held that prejudgment interest is not a cost, but an element of damages.  It therefore held that a cost bill is not an appropriate vehicle for requesting interest under §3287.  It stated, “In our view, prejudgment interest should be awarded in the judgment on the basis of a specific request therefor made before entry of judgment…It further appears that, at the latest, a request for prejudgment interest under section 3287 may be sought as part of a motion for new trial…”

 

Jones held that prejudgment interest under §3287 is an element of damages, but prejudgment interest under §3291 is an item of costs and must be claimed in the memorandum of costs in order to be recovered. 

 

Regardless of whether prejudgment interest per §685.020 is or is not an element of damages, Plaintiff did not take the proper procedural steps to have this interest included in the final judgment.  The motion to recover such interest is therefore denied.  The Court notes that Plaintiff does not address the timeliness issue in her reply papers. 

 

ii.             Prejudgment Interest Pursuant to Civil Code §3287

Plaintiff also seeks to recover prejudgment interest per Civil Code §3287, which permits recovery of prejudgment interest when a person is entitled to recover damages certain or capable of being made certain by calculation.  Plaintiff’s damages were neither certain nor capable of being made certain by calculation, and she cites no evidence showing they were.  Plaintiff does not meaningfully show, in her moving or reply papers, how her damages were certain or capable of being made certain; the nature of her damages was clearly such that the jury had discretion to determine the appropriate amount, meaning the damages were not certain or capable of being made certain. 

 

Plaintiff’s request for prejudgment interest under §3287 is therefore denied both as untimely per the above discussion (which, again, Plaintiff did not address in her reply papers), and also as unsupported by the facts of the case. 

 

d.     Postjudgment Interest

Pursuant to CCP §685.010 and County of Alameda v. Weatherford (1995) 36 Cal.Ap.4th 666, 670, the right to postjudgment interest need not be expressly stated in the judgment, as it accrues automatically.  Thus, while the Court agrees that Plaintiff is entitled to recover such interest, it is not clear what Plaintiff wishes to have done by way of this motion, and the Court finds nothing is necessary. 

 

e.     Expert Fees

The Court notes that Plaintiff briefs her expert fees in her motion.  Her motion is noticed as one to recover attorneys’ fees and interest.  Expert fees are properly claimed by way of a memorandum of costs, and Plaintiff included them therein.  The Court finds recovery of expert fees cannot be granted by way of motion, and in any event no such request has been noticed here.  The Court is therefore not discussing the portion of the brief relating to expert fees, as doing so is not necessary to a resolution of the merits of the motion. 

 

Defendant is ordered to give notice. 

 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org 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.