Judge: Mark E. Windham, Case: 21SMCV01143, Date: 2022-08-01 Tentative Ruling

Case Number: 21SMCV01143    Hearing Date: August 1, 2022    Dept: 26

MOTION TO TAX COSTS

(CCP § 1033.5; CRC Rule 3.1700(b))

TENTATIVE RULING:

Plaintiff Sharp Vision, Inc.’s Motion to Strike or Tax Costs is GRANTED AS TO ITEM NO. 10 (ATTORNEY’S FEES) IN THE AMOUNT OF $500.00 AND DENIED AS TO THE REMAINING ITEMS.

ANALYSIS:

On June 30, 2021, Plaintiff Sharp Vision, Inc. (“Plaintiff”) filed the instant action for breach of construction contract, foreclosure of mechanic’s lien, and quantum meruit against Evelyn Greenspon, individually and trustee of The Evelyn Greenspon Survivor’s Trust As Amended Restated May 14, 2019 (“Defendant”) and Michael Greenspon (“Michael”). Following the filing of a demurrer to the Complaint, Plaintiff filed a First Amended Complaint that dropped Michael Greenspon from the action. On January 6, 2022, the case was reclassified from an unlimited jurisdiction case to this limited jurisdiction department.

Defendant and Michael filed a Cross-Complaint against Plaintiff on February 17, 2022. On March 11, 2022, Plaintiff dismissed the Complaint with prejudice; on March 23, 2022, Defendant and Michael dismissed the Cross-Complaint without prejudice.

In response to the Memorandum of Costs Defendant filed on March 22, 2022, Plaintiff filed the instant Motion to Strike or Tax Costs on March 24, 2022. Defendant filed an opposition to the Motion on July 12, 2022 and Plaintiff replied on July 18, 2022.

Discussion

Plaintiff moves to strike the entire Memorandum of Costs, or alternatively, to tax each item listed therein pursuant to Cal. Rules of Court rule 3.1700. Under Cal. Rules of Court, Rule 3.1700, subdivision (a)(1), a prevailing party must file a memorandum of costs: (1) 15 days after the clerk’s mailing of notice of entry of judgment or dismissal; (2) 15 days after any party’s service of such notice; or (3) 180 days after entry of judgment. (Cal. Rules Court, Rule 3.1700, subd. (a)(1).) Defendant timely filed the Memorandum of Costs 12 days after dismissal of the Complaint. A motion to strike or tax costs must be filed and served 15 days after service of the memorandum of costs. (Cal. Rules of Court, Rule 3.1700, subd. (b)(1).) The instant Motion to Tax Costs was timely filed and served two days after the Memorandum of Costs.

Plaintiff disputes that Defendant is entitled to recover costs as the prevailing party. It cites to Civil Code section 1717, subdivision (b)(2), which states that “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.” (Civ. Code, § 1717, subd. (b)(2).) By its own terms, the limitation on finding a prevailing party in this statute only applies to attorney’s fees and costs sought under section 1717, that is, sought pursuant to a contractual provision. (See Civ. Code, § 1717, subd. (a).) Defendant’s request for costs is brought pursuant to Code of Civil Procedure section 1032, and therefore, is not barred by Civil Code section 1717. However, the request for attorney’s fees in the amount of $500.00 in the Memorandum of Costs is brought pursuant a contractual provision. (Memo of Costs, filed March 22, 2022, ¶10.) Defendant’s contention that this was a “consultative fee” is belied by the reference to the contractual provision. Therefore, the request for attorney’s fees at Item No. 10 is taxed in its entirety.

Nor has Plaintiff otherwise shown that Defendant is not the prevailing party in this action pursuant to Code of Civil Procedure section 1032, which defines a prevailing party to include the party with the net monetary recovery and as a defendant in whose favor a dismissal has been entered. (Code Civ. Proc., § 1032, subd. (a)(4).) Defendant meets both of those definitions.

Plaintiff alternatively moves to tax the itemized costs set forth in the Memorandum of Costs. Code of Civil Procedure section 1033.5 sets forth the costs recoverable by the prevailing party. To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount. (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 244.) 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 Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.)  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.) In other words, the burden is first on Plaintiff to demonstrate that the costs to which it is objecting were not reasonably necessary to the litigation or were an unreasonable amount.

Item No. 1, Filing Fees

Defendant claims costs of $1,822.21 for filing fees, to which Plaintiff objects that Defendant is only entitled to first appearance fees and motion filing fees. Yet the Motion offers no analysis as to why the amount claimed is improper, such as a showing that more than appearance fees and motion filing fees are included in the $1,822.21 figure. This does not carry Plaintiff’s burden to object to the costs in Item No. 1 and the request to strike it is denied.

Item No. 5, Service of Process Fees

Defendant claims costs of $241.00 for service of process, which Plaintiff legitimately challenges based on lack of any service of process with respect to the Complaint. In opposition, Defendant argues that service of the Cross-Complaint on the general contractor was the key to settling this action and therefore, was reasonably necessary to the litigation. Defendant also provides invoices for this service, as well, as for service on material witnesses. (Opp., Evelyn Greenspon Decl., Exh. 2.) In reply, Plaintiff does not explain why this service of process fee should be taxed. The request to tax the costs in Item No. 5, therefore, is denied.

Item No. 12, Models, enlargements, and photocopies of exhibits

Defendant claims costs of $66.13 for this Item, which Plaintiff properly objects to on the grounds that such items are recoverable with respect to trial and no trial was held in this case. (See Code Civ. Proc., § 1033.5, subd. (a)(13).) Defendant appeals to the Court’s discretion to award these costs pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(4). The exhibits were attached to the Cross-Complaint in order to show the extent of Plaintiff’s alleged breach of the construction contract, therefore, the Court finds the costs to be reasonably necessary and reasonable in amount. (Opp., Evelyn Greenspon Decl., Exh. 2.) The request to tax the costs in Item No. 12 is denied.

Item Nos. 14, 15 and 16

Plaintiff’s argument regarding the costs sought in Item Nos. 14, 15 and 16 were cut off when the Motion was filed with the Court. (See Motion, p. 6:25-28.) However, in opposition, Defendant has provided an explanation of the costs and evidence to demonstrate that the costs were incurred. (Opp., Evelyn Greenspon Decl., Exh. 2.) Specifically, Item No. 14 claims $1,017.10 in electronic filing and service fees, which included fees to file courtesy copies required by the unlimited jurisdiction courtroom. (Opp., Evelyn Greenspon Decl., Exh. 2.) Item No. 15 claims $227.75 for retrieval of electronic hosted documents, including copies of title documents, copies of documents from the docket corporate records, title documents and certified copies of records from the Contractors State Licensing Board. (Ibid.) Finally, for Item No. 16, Defendant claims $1,777.88 for word processing/secretarial services, printing and postage incurred as a result of 84.75 hours of work billed by her personal assistant over this nine-month litigation. (Ibid.) Defendant is 96 years old and disabled and it was necessary to hire someone to do this work while litigating this action in pro per.

Plaintiff’s reply makes no response to this evidence. (Reply, pp. 1-3.) Therefore, the Court finds the costs in Items Nos. 14, 15 and 16 proper and denies the request to tax them.

Conclusion

Plaintiff Sharp Vision, Inc.’s Motion to Strike or Tax Costs is GRANTED AS TO ITEM NO. 10 (ATTORNEY’S FEES) IN THE AMOUNT OF $500.00 AND DENIED AS TO THE REMAINING ITEMS.

Defendant to give notice.