Judge: Martha K. Gooding, Case: 2018-00979038, Date: 2022-09-12 Tentative Ruling
Motion to Strike or Tax Costs
Before the Court is Plaintiff Hovik Nazaryan’s Motion to strike or tax the Memorandum of Costs filed jointly by Defendants Femtometrix Inc., Alon Raphael, Brian Larzelere, Tyler Rubin, and Tom Rolfes. The Memorandum of Costs at issue is ROA # 888.
A. The Motion is granted as to Defendants Femtometrix Inc., Raphael, and Rubin.
The Court strikes the Memorandum in its entirety as to Defendants Femtometrix Inc., Alon Raphael, and Tyler Rubin.
For cost awards under section 1032(a)(4) of the Code of Civil Procedure (“CCP”) there is only one prevailing party. (Sharif v Mehusa, Inc. (2015) 241 CA4th 185, 195.) CCP section 1032(a)(4) describes four categories of litigants that automatically qualify as prevailing parties. (Charton v Harkey (2016) 247 CA4th 730, 736). A judge has no discretion to deny prevailing party status to a litigant that falls within one of these four categories. Id. at 737; In re Tobacco Cases II (2015) 240 CA4th 779, 806.) One of these categories is the party with a net monetary recovery.
Because Nazaryan obtained a net monetary recovery against Defendants Femtometrix, Raphael, and Rubin, he is the prevailing party as to these defendants, and he is entitled to his costs against them, not the other way around. Code Civ. Pro. § 1032(a)(4) (“Prevailing party” includes the party (plaintiff or defendant) who obtains “a net monetary recovery.”)
Defendants argue the prevailing party is not entitled to costs in an “unlimited” civil case where the amount recovered could have been obtained in a limited civil case or small claims action. Where a plaintiff recovers a judgment in an unlimited civil case that could have been recovered in a limited civil case (i.e., $25,000 or less), the award of costs to the prevailing plaintiff is discretionary. CCP § 1033(a); Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 989. But section 1033(a) is not applicable here; the Motion before the Court does not address an award of Plaintiff’s costs as the prevailing party; this motion deals with Defendants’ attempt to obtain an award of their costs. Whether Plaintiff should be denied an award of its costs under CCP section 1033(b)(1) is a question for another day, another motion.
B. The Motion is granted in part as to Defendants Rolfes and Larzelere
Defendants Rolfes and Larzelere are prevailing parties as to Plaintiff.
A defendant as against those plaintiffs who do not recover any relief against that defendant is the prevailing party. (See Nelson v Anderson (1999) 72 CA4th 111, 128; Andersen v Pacific Bell (1988) 204 CA3d 277, 286–287).
However, where co-parties jointly incurred costs and fewer than all co-parties prevail at the conclusion of trial, the court must apportion costs between the parties based on the reason the costs were incurred and whether the costs were reasonably necessary to the prevailing co-parties' conduct of the litigation. The court may not simply divide the total costs jointly incurred by all co-parties by the number of prevailing co-parties. (Charton v. Harkey (2016) 247 CA4th 730, 743-745—where only 1 of 4 codefendants prevailed, court erred in simply allocating to prevailing codefendant 25% of total costs jointly incurred by all codefendants.)
Whether to award costs that were jointly incurred by both the prevailing party and the non-prevailing party, and were reasonably necessary to the conduct of the litigation for both the prevailing and nonprevailing party, is left to the trial court's sound discretion based on the totality of the circumstances. (Charton, supra, 247 CA4th at p. 744, internal citations omitted.)
All of the Defendants were named in each cause of action, and trial proceeded against all Deendants on all of the Plaintiff’s asserted causes of action. Although Rolfes and Larzelere did not issue the Form 1099s that formed that basis for the breach of contract claim, they were equally sued on all of Plaintiff’s claims for breach of contract, fraud, and breach of fiduciary duty. Thus, the costs to defend all causes of action were incurred on behalf of all defendants, including the prevailing defendants Rolfes and Larzelere.
Based on the Court’s knowledge of this case and the briefing by the parties, the Court apportions $1,740 for the answers that were filed on behalf of Defendants who are not prevailing parties.
In addition to apportioning $1,740 in costs, the Court also taxes the following amounts:
(1) $5,182.73 for trial transcripts and $5,627.62 in “court reporter fees” for hearings, neither of which were ordered by the court as they are specifically disallowed. (CCP § 1033.5(b); see Davis v. KGO-T.V., Inc. (1998) 17 C4th 436, 440-442, (disapproved on other grounds by Williams v. Chino Valley Independent Fire Dist. (2015) 61 C4th 97, 105-107);
(2) $724.50 for a messenger fee to serve a motion on the last possible date; the Court finds this exorbitant messenger fee was not reasonable or reasonably necessary for the litigation;
(3) $623.36 in duplicative costs that were improperly included in Defendants’ memorandum of costs.
(4) the Court taxes all but $580.48 of the $4,332.31 Defendants seek for “models, enlargements, and photocopies of exhibits.” See ROA 888 at p. 11. Defense counsel declares that the $4,332.31 amount included “copying, tabbing and digitizing” as well as “blowback digital sets.” Schein Decl. ¶ 8. Defendants do not show that amounts incurred to “digitize” and “tab” and create “blowback digital sets” are reimbursable at all under CCP section 1033.5(a)(13) or, in any event, that such amounts are reasonable in amount and reasonably helpful to aid the trier of fact. Thus, the Court taxes another $3,751.83 of the $4,332.31 sought. [See CCP § 1033.5(a)(13); see Cristler v. Express Messenger Systems, Inc. (2009) 171 CA4th 72, 90-91—costs award for exhibits and blowups used at trial; Ripley v. Pappadopoulos (1994) 23 CA4th 1616, 1623—rental of overhead projector used at trial was recoverable cost item].
Thus, in total the Court will enter a cost award in favor of Defendants Rolfes and Larzelere and against Plaintiff in the amount of $21,477.62.
Plaintiff is ordered to give notice.