Judge: Mark H. Epstein, Case: BC491048, Date: 2022-12-06 Tentative Ruling

Case Number: BC491048    Hearing Date: December 6, 2022    Dept: R

The motion to tax costs is DENIED. 

On July 29, 2020, this Court entered an amended judgment in defendants’ favor.  An appeal was filed and the judgment was affirmed.  The remittitur issued on September 29, 2022.  On October 6,2022, defendant filed a memorandum of costs on appeal (which are the costs here at issue).  On October 20, 2022, plaintiff filed a motion to tax costs.  The Notice of Motion stated that plaintiff “will move the Court to tax the cost bill submitted on October 6, 2022, by defendants Valley Surgical Center, LLC, Cindy Omidi, Julian Omidi, and Michael Omidi.  No hearing is requested at this time.”  Not only was there no hearing date in the actual motion, no hearing date was set forth in the caption (likely because, as was stated, no hearing date was requested) and the notice was phrased in the future tense.  On November 8, 2022, plaintiff filed a “Renewed Notice of Motion to Tax Costs on Appeal.”  The notice of that renewed motion stated that “on December 6, 2022, . . . plaintiff Michele Pelter will move the Court to tax the cost bill submitted on October 6, 2022 . . . .” 

Costs, and the taxing of them, are governed by various rules and strictures.  California Rule of Court 3.1700(b)(1) requires that “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.”  The same is true as to motions to tax costs on appeal pursuant to Rule 8.278(c)(2), which states that a motion to tax costs on appeal shall be filed “in the manner required by rule 3.1700.” 

There is no question but the motion filed on October 20, 2022 was timely if it counts as a motion.  The question is whether that motion stopped the clock because it is plain that if the only operative motion is the one filed on November 8, 2022, it is outside the 15 day window.  Plaintiff’s reason for not setting a hearing date was counsel’s belief that no hearing date was required.  The court credits counsel’s explanation—as plaintiff’s counsel stated, plaintiff gained no advantage by not including such a date.  But that does not answer the question whether the motion was in fact made in a timely fashion.

Defendant contends that the October 20, 2022 motion was not timely because it was not really a motion.  The court agrees.  There is little or no case law on point, but the court’s belief is that it is not proper to file and serve a motion with no hearing date.  Code of Civil Procedure section 1010 states that a notice of motion “must state when . . . [the motion] will be made . . . .”  Similarly, California Rule of Court 3.1110(b)(1) states that the caption must set forth “the date, time, and location, if ascertainable, of any scheduled hearing.”  That suggests that a motion must be accompanied by a hearing date and, upon service, the motion is deemed to have been made.  The failure to include a date and time for the hearing rendered the motion improper.  

Plaintiff argues that if the renewed motion does not count, then the court should relieve counsel of the untimeliness pursuant to Code of Civil Procedure section 473.  The declaration adverts to subdivision (b), which imposes a mandatory duty to grant relief where the request is accompanied by an attorneys’ affidavit of fault.  But that subdivision does not apply to a motion to tax costs; it applies only to defaults and dismissals.  That said, the court does have discretion to grant such relief.  (Lane v. Pacific Greyhound Lines, (1947) 30 Cal.2d 914.)  The court would, frankly, be more inclined to look with favor on such a request were the costs really excessive or obnoxious rather than the $750 actually at issue.  The race hardly seems worth the candle. 

The court will, nevertheless, consider the merits.  Plaintiff claims that motions to extend the time to file a brief were convenient, but hardly necessary.  The court disagrees.  Motions to extend the time are “convenient” in one sense—one supposes that with adequate planning and staffing, one could always file a brief within 30 days.  But that is not how the court reads the rule.  These sorts of routine motions are recoverable.  Plaintiff also argues that the court should deny the filing fees for plaintiff’s motion to dismiss, which plaintiff lost.  But the test is not whether the motion is successful.  The filing fee is recoverable even for unsuccessful motions.  If the motion was so meritless as to be sanctionable, plaintiff had to seek those sanctions from the appellate court, not this court through a motion to tax.  Finally, on the motion front, plaintiff contends that the fee for the motion to be relieved as counsel was convenient but not necessary—and had nothing to do with plaintiff in any case.  But again, motion fees are recoverable.  Plaintiff also complains that the filing fees seem to be higher than the appellate court’s schedule.  But defendants claim that the court charged what it charged, schedule or not.  That is sufficient to recover the fees. 

Plaintiff also challenges printing and copying costs as well as messenger fees.  The court will not second guess the manner of printing or copying.  There is no showing that defendant made an excessive number of copies, for example, or that defendant is charging for internal use copies.  As to the messenger, one might argue that defendant could have used other means to serve materials, but the court is not going to second guess counsel. 

In short, the court does not believe plaintiff’s counsel has made a compelling case for relief here, but on balance, the court will consider the motion.  Having considered it, however, the court finds that the costs sought are reasonable and necessary and therefore appropriate.  The motion to tax costs is DENIED.