Judge: Mark E. Windham, Case: 22STLC00458, Date: 2023-05-11 Tentative Ruling

Case Number: 22STLC00458    Hearing Date: May 11, 2023    Dept: 26

Pegasus Investments Real Estate Advisory, Inc. v. ADP TotalSource, Inc., et al.

MOTION TO TAX COSTS

(CRC Rule 3.1700)

TENTATIVE RULING:

Defendant ADP TotalSource, Inc.’s Motion to Strike or Tax Costs is GRANTED IN THE AMOUNT OF $73.62 FOR ITEM 1(D) AND $810.00 FOR ITEM 4(A).

ANALYSIS:

On January 24, 2022, Plaintiff Pegasus Investments Real Estate Advisory, Inc. (“Plaintiff Pegagus Investments”) filed this action against Defendant ADP TotalSource, Inc. (“Defendant”). The First Amended Complaint was filed on July 22, 2022 and added “Pegasus Asset Management, Inc.” (“Plaintiff Pegasus Asset”) as a plaintiff. Defendant filed an answer to the First Amended Complaint on August 22, 2022.

On September 26, 2022, Defendant filed two statutory offers to compromise pursuant to Code of Civil Procedure section 998. The statutory offers were subsequently rejected. Plaintiff filed a Memorandum of Costs on September 27, 2022. Defendant filed the first Motion to Tax Costs on October 14, 2022, which was eventually placed off calendar. (Minute Order 02/06/23.)

On March 9, 2023, Defendant filed two Statutory Offers to Compromise pursuant to Code of Civil Procedure section 998 signed by both Plaintiffs. Plaintiffs filed a Memorandum of Costs on March 21, 2023. On April 5, 2023, Defendant filed the instant Motion to Tax Costs. No opposition has been filed to date. 

Discussion

Entry of Judgment

As an initial matter, the Court enters judgment pursuant to the 998 offers filed on March 9, 2023, as follows:

Judgment is entered in favor of Plaintiff Pegasus Investments Real Estate Advisory, Inc. in the amount of $10,500.00, exclusive of any reasonable attorney fees and costs incurred to the date of this offer, as to be determined by the Court according to noticed motion and memorandum of costs.

Judgment is entered in favor of Plaintiff Pegasus Asset Management, Inc. in the amount of $9,900.00, exclusive of any reasonable attorney fees and costs incurred to the date of this offer, as to be determined by the Court according to noticed motion and memorandum of costs.

Motion to Strike or Tax Costs

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (Cal. Rules of Court, Rule 3.1700, subd. (b)(1).) The Memorandum of Costs was served on Defendant on March 21, 2023 by mail. (Memo of Costs, filed 03/21/23, p. 5.) The instant Motion was timely filed and served 15 days later on April 5, 2023.

Defendant moves to tax certain 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 Defendant to demonstrate that the costs to which it is objecting were not reasonably necessary to the litigation or were an unreasonable amount.

Defendant first moves to tax the filing fees Plaintiffs incurred for the demurrer to the answer and the motion to compel further responses at deposition, in the amount of $73.62 each. (Memo of Costs, ¶1(c)-(d).) Defendant argues the demurrer was unnecessary because it was filed before a proper meet and confer, and the motion to compel deposition was unnecessary because the hearing was cancelled the day after Defendant filed its opposition. The Court finds the demurrer to the answer was not unnecessary to the litigation. Plaintiffs increasingly utilize demurrers to the answer—which are often pled in boilerplate fashion—to streamline the litigation and narrow the relevant issues. That strategy can be seen in this action where the Court sustained the demurrer to the answer as to five affirmative defenses and Defendant agreed to withdraw three others. (Minute Order, 06/09/22.) Therefore, the request to strike the filing costs for the demurrer to the answer is denied.

Regarding the filing fee for the motion to compel further responses and deposition, the Court agrees that it was unnecessary to bring the matter before the Court before a proper meet and confer could take place. The motion was filed on May 19, 2022, just three weeks after Defendant served its objection. (Motion to Compel, filed 05/19/22, Ackerman Decl., Exh. C.) Nor did Plaintiffs’ counsel re-notice the deposition date or amend certain requests for production, as promised in the meet and confer letter. (Ibid.) The discovery motion was also taken off calendar the day after Defendant filed its opposition. (Opp., Olah Decl., Exh. D.) Therefore, the request to strike the filing costs for the motion to compel further responses and deposition is granted in the amount of $73.62. Likewise, the costs associated with taking a non-appearance of Defendant’s person most knowledgeable for failing to appear for the deposition were unnecessary and could have been avoided by a proper meet and confer effort. (Memo of Costs, ¶4(a).) The deposition costs of $810.00 are also struck.

Conclusion

Defendant ADP TotalSource, Inc.’s Motion to Strike or TAX COSTS IS GRANTED IN THE AMOUNT OF $73.62 FOR ITEM 1(D) AND $810.00 FOR ITEM 4(A).

Moving party to give notice.