Judge: Melvin D. Sandvig, Case: PC058126, Date: 2023-04-18 Tentative Ruling
Case Number: PC058126 Hearing Date: April 18, 2023 Dept: F47
Dept. F47
Date: 4/18/23
Case #PC058126
MOTION TO
STRIKE ENTIRE MEMORANDUM OF COSTS
ALTERNATIVELY,
TO STRIKE OR
TAX COSTS
Motion filed on 1/19/23.
MOVING PARTY: Plaintiff Hari Hara, LLC
RESPONDING PARTY: Defendant Team Enterprises, LLC
NOTICE: ok
RULING: The request to strike the entire
memorandum of costs is denied. The
request to strike or tax certain costs is granted, in part, and denied, in
part, as set forth below.
SUMMARY OF RELEVANT PROCEDURAL HISTORY
On 7/18/19, this Court granted Defendant Team Enterprises,
LLC’s (Team) first motion for summary judgment and on 5/26/20 judgment was
entered. (See 7/18/19 Minute
Order; 5/26/20 Judgment). The Judgment
was reversed and remanded. (See
12/23/21 Court Order on Remittitur).
On 11/10/22, this Court granted Team’s second motion for
summary judgment in favor of Team and against Plaintiff Hari Hara, LLC
(Plaintiff). (See 11/10/22 Minute
Order). On 12/20/22, an order on a
Stipulated Request for Voluntary Dismissal of Entire Case was entered. (See 12/20/22 Stipulated Request for
Voluntary Dismissal of Entire Case). On
12/20/22, Judgment was entered based on the order granting Team’s Motion for
Summary Judgment and the Stipulated Request for Voluntary Dismissal of Entire
Case. (See 12/20/22 Judgment). On 1/4/23, Team filed and served a Memorandum
of Costs seeking a total of $22,296.25 from Plaintiff. (See 1/4/23 Memorandum of Costs).
On 1/19/23, Plaintiff filed and served the instant motion
seeking an order striking the entire Memorandum of Costs filed by Team on
1/4/23, or, in the alternative, an order striking certain costs in the
Memorandum of Costs and taxing certain other costs. Team has opposed the motion and Plaintiff has
filed a reply to the opposition.
ANALYSIS
ENTIRE MEMORANDUM OF COSTS
Plaintiff contends that in the Stipulated Request for
Voluntary Dismissal of Entire Case, Team waived its claim for costs in this
matter and that the Court erred in signing the Judgment which provides that
Team is entitled to recover costs of suit.
This Court disagrees.
The 12/20/22 Stipulated Request for Voluntary Dismissal
of Entire Case and Order thereon provides:
Plaintiff and Cross-Defendant, Hari
Hara LLC (“Plaintiff”), Defendant and Cross-Complainant Team Enterprises, LLC,
formerly known as Team Enterprises, Inc. (“Team”) and Cross-Defendant Mark
Weinstein, trustee of the Weinstein Family Trust, MJW Investments Inc., and
Bouquet Canyon Road LP (“Weinstein Parties”), (collectively, the “Parties”),
through their respective attorneys of record, enter into this stipulation and
request for dismissal as follows.
1. Whereas, on November 10, 2022,
Team’s motion for summary judgment against Plaintiff came on regularly for
hearing as scheduled, during which the Court granted Team’s motion against
Plaintiff.
2. Whereas, Team requests that
judgment be entered in the proposed judgment that accompanies this stipulation.
3. Whereas, the Court’s ruling also
resolves Team’s first amended cross-complaint.
Therefore, it is hereby stipulated
and agreed by and between the Parties that:
1. Team’s First Amended
Cross-Complaint against Plaintiff and Weinstein shall be dismissed, without
prejudice. Team and Weinstein shall bear their own costs and fees of
litigation.
2. The Court did not waive court
fees and costs.
The Parties respectfully request
that the Court enter the foregoing dismissal without prejudice, which will
serve to dispose of the entire action that remains
apart from the judgment in favor of Team and against Plaintiff to be entered by
the Court, as submitted concurrently herewith.
ORDER
Based on the forgoing, IT IS HEREBY
ORDERED THAT:
1. Team’s Cross-Complaint shall be
dismissed, without prejudice. Team and Weinstein shall bear their own costs and
fees of litigation.
2. This Order of Dismissal serves
to dispose of the entire action that remains apart from the judgment in favor
of Team and against Plaintiff to be entered by the Court.
IT IS SO ORDERED.
The Judgment, entered the same
day, states:
The motion for summary judgment, or
summary adjudication in the alternative, filed by Defendant and
Cross-Complainant Team Enterprises, LLC, formerly known as Team Enterprises,
Inc. (“Team”) against Plaintiff Hari Hara, LLC (“Plaintiff”) came on regularly
for hearing as scheduled in Department F47 of the above-captioned court on
November 10, 2022 at 8:30 a.m., the Honorable Melvin D. Sandvig presiding, and
the Court entered an Order granting Team’s motion as to all claims asserted
against Team in the First Amended Complaint. Team’s first amended
cross-complaint, the only other pleading pending in this action, has been
dismissed without prejudice pursuant to the Stipulated Request for
Voluntary Dismissal of Entire Case; Order entered by this Court on December 5,
2022. Said stipulation was entered into by the parties in order to facilitate
the entry of a final, appealable judgment.
IS HEREBY ORDERED, ADJUDICATED AND
DECREED that judgment shall be entered in favor of defendant Team and against
Plaintiff on all causes of action in the First Amended Complaint, and
Plaintiff’s claims against Team in the First Amended Complaint are hereby
dismissed with prejudice. Team is entitled to recover
costs of suit and may file and serve a memorandum of costs and any other post
judgment motions. This is a final, appealable judgment as all remaining
claims are dismissed without prejudice pursuant to the Court’s Order on the
stipulated voluntary dismissal.
When read together, it is clear that the waiver of costs
was only between Team and Weinstein as to Team’s Cross-Complaint. The stipulated dismissal expressly states
that it is intended “to dispose of the entire action that remains apart from
the judgment in favor of Team and against Plaintiff to be entered by the Court,
as submitted concurrently herewith.” (emphasis added). There would be no logical reason for Team to
waive its right to costs as the prevailing party on Plaintiff’s claims as
Team’s motion for summary judgment had already been granted. The foregoing interpretation is supported by
the language in the Judgment which specifically states that Team, but not
Weinstein, is entitled to recover costs of suit and may file and serve a
memorandum of costs and any other post judgment motions. The fact that Plaintiff’s counsel reviewed
and approved the stipulated dismissal and the Judgment before they were
submitted to the Court for entry further supports a finding that all parties
intended that the only costs being waived were as between Team and Weinstein on
Team’s Cross-Complaint based on indemnity.
(See Monroe Decl., Ex.2, 3).
Based on the foregoing, Plaintiff’s request to strike the
entire memorandum of costs is denied.
STRIKE AND TAX CERTAIN COSTS
A verified memorandum of costs is prima facie evidence of
the propriety of items that appear on their face to be proper charges and the
burden is on the party seeking to tax such costs to show they were not
reasonable or necessary. Ladas (1993) 19 CA4th 761, 774-776; Bender
(2013) 217 CA4th 968, 989; Jones (1998) 63 CA4th 1258, 1266 (Mere
statements in points and authorities and in declarations of counsel are insufficient
to rebut a prima facie showing.).
However, if items are properly objected to, the burden of proof is on
the party claiming them as costs. Ladas,
supra. Whether an item in a
memorandum of costs was reasonably necessary is a question of fact for the
trial court, whose decision is reviewed on appeal for abuse of discretion. Bender, supra.
Item 1.b. ($513.75): Plaintiff seeks to strike the cost associated
with the filing of Team’s first motion for summary judgment on 4/16/19 which
was reversed and remanded on appeal. The
reversal was based on Team’s failure to meet its burden of showing that
Plaintiff’s claims were barred by the 2001 Settlement Agreement due to its
failure to submit a copy of Exhibit 1 to the Settlement Agreement. (See 9/29/21 Court of Appeal Opinion). As such, the Court finds that the cost was
not reasonably necessary to the conduct of the litigation and is, therefore,
stricken. See CCP 1033.5(c)(2).
Item 4.c. ($2,291.55): Plaintiff seeks to strike
the costs for the taking and videotaping of the deposition of Dr. Surya Reddy
as the person most knowledgeable for Plaintiff because Plaintiff claims that
Team did not use Dr. Reddy’s testimony in its motion for summary judgment. Contrary to Plaintiff’s assertion, portions
of Dr. Reddy’s deposition were used in support of Team’s motion for summary
judgment. (See Appendix of
Exhibits, Vol. I, Ex.3 filed 8/18/22).
It is not until the reply that Plaintiff specifically
challenges the cost associated with videotaping the deposition. However, such a cost is specifically
recoverable. CCP 1033.5(a)(3)(A). The burden of proof that a deposition was
“unnecessary” or that the cost of taking the deposition was “unreasonable” is
on the party seeking to have the item taxed or reduced. County of Kern v.
Ginn (1983) 146 CA3d 1107, 1113; Nelson (1999) 72 CA4th 111, 131 (The
party seeking to tax deposition costs of a designated expert has the burden to
prove the cost was unnecessary at the time it was incurred or was unreasonable.). Plaintiff has failed to meet its burden as to
this item.
Item 4.e. ($3,789.29): Plaintiff seeks to
strike/tax the costs associated with the taking of Suzi Rosen’s deposition
($990.00 for videotaping + $2,689.29 for deposition costs). Plaintiff argues that because the deposition
was not used in support of Team’s motion for summary judgment, it was not
reasonably necessary to the conduct of the litigation and should be stricken. See CCP 1033.5(c)(2). The fact that the deposition testimony may
not have been specifically used in support of the summary judgment does not
establish that the cost was unnecessary at the time the deposition was
taken. See Nelson, supra. As explained in the opposition to the instant
motion, the deposition and costs related thereto were reasonably necessary to
the conduct of the litigation as Rosen was deposed as the person most qualified
from Partners Engineering & Science, Inc., Plaintiff’s environmental
consultant. (See Greben Decl.
¶¶3-4 and Ex.1 thereto; Opposition, p.5:12-p.6:2). As such, Plaintiff’s request to strike and/or
tax this item is denied.
Item 4.e. ($2,966.30 & $3,143.55): Plaintiff
seeks to strike and/or tax the costs associated with the depositions of Chris
Carson ($2,966.30) and David Horrell ($3,143.55), both of Partners Engineering,
Plaintiff’s environmental consultant. Again,
Plaintiff argues that the deposition testimony of these individuals was not
used in support of Team’s motion for summary judgment and, therefore, the costs
were not reasonably necessary to the conduct of the litigation. CCP 1033.5(c)(2). Plaintiff then contends that there was no
justification for videotaping the depositions.
Since the costs for taking, video recording and
transcribing necessary depositions are proper on their face based on the
verified cost memorandum, Plaintiff bears the burden of establishing that the
costs were not reasonably necessary or were unreasonable. CCP 1033.5(a)(3)(A); Ladas (1993) 19
CA4th 761, 774-776; Bender (2013) 217 CA4th 968, 989; Jones
(1998) 63 CA4th 1258, 1266; County of Kern v. Ginn (1983) 146 CA3d 1107,
1113; Nelson (1999) 72 CA4th 111, 131.
Plaintiff has failed to meet its burden.
The opposition to the instant motion further supports a
finding that the costs related to these depositions were reasonably necessary
to the conduct of the litigation and reasonable in amount as these witnesses were
key to Plaintiff’s environmental claims and could be out of subpoena range at
the time of trial.
Based on the foregoing, Plaintiff’s request to strike
and/or tax these costs is denied.
Item 5.d. ($75.00 & $95.00): Plaintiff seeks
to strike the costs for service of process on Mark Weinstein ($75.00) and his
entities, MJW Investments and BCR, ($95.00) because these parties were
dismissed by Team pursuant to the Stipulated Requests for Dismissal. Therefore, Plaintiff contends the costs were
not reasonably necessary to the conduct of the litigation. CCP 1033.5(c)(2).
Team’s claims against Weinstein and his entities were
based on indemnity and essentially became moot once Team’s motion for summary
judgment was granted. The parties
stipulated to dismiss the cross-complaint so that a final appealable judgment
could be entered.
Based on the foregoing, service on Weinstein and his
entities was reasonably necessary for Team to pursue its indemnity claims, if
its request for summary judgment was denied.
As such, Plaintiff’s request to strike these costs is denied.
Item 8.a. ($110.00): Plaintiff seeks to strike the
$110.00 witness fee for Suzi Rosen, who works as Plaintiff’s environmental
consultant at the subject property on the basis that Plaintiff is not aware of
what the $110.00 consists of; therefore, it is unreasonable on its face. The witness fees are set forth in the
deposition transcript of Rosen. (Greben
Decl. ¶5, Ex.2). Plaintiff has failed to
meet its burden to strike this item.
Item 16 – Other – Courier
services, certified record requests fees, copy services ($2,512.74): Since
these items are not expressly recoverable, they are not proper on their face
and Team bears the burden of establishing that they were reasonably necessary
to the conduct of the litigation and that they are reasonable in amount. See Ladas, supra.
The Court finds that Team has failed to meet its burden
as to the majority of the costs claimed in this item. Team identifies these costs as being for “Courier
services, certified record requests fees, copy services.” (See Memorandum of Costs filed 1/4/23,
p.1, No.16). Attachment 16 to the
memorandum of costs indicates that $392.83 is sought for “Copy Service – BCR
records on 9/11/18. Photocopying
charges, except for exhibits, are specifically not recoverable. CCP 1033.5(b)(3). Team has failed to establish that such costs
are recoverable.
Team justifies the “courier services” costs on the basis
that it was complying with the Court’s First Amended General Order ¶9 which it
claims required the delivery of courtesy copies on the same day or next
business day before 10:00 a.m. to the Court before COVID-19. However, the 5/3/19 First Amended General
Order Re Mandatory Electronic Filing for Civil only required the provision of
Printed Courtesy Copies for:
a)For any filing electronically
filed two or fewer days before the hearing, a courtesy copy must be delivered to the courtroom by 4:30 p.m.
the same business day the document is efiled. If the efiling is submitted after
4:30 p.m., the courtesy copy must be delivered to the courtroom by 10:00 a.m.
the next business day.
b)Regardless of the time of
electronic filing, a printed courtesy copy (along with proof of electronic
submission) is required for the following documents:
i)Any printed document required
pursuant to a Standing or General Order;
ii)Pleadings and motions (including
attachments such as declarations and exhibits) of 26 pages or more;
iii)Pleadings and motions that
include points and authorities;
iv)Demurrers;
v)Anti-SLAPP filings, pursuant to
Code of Civil Procedure section 425.16;
vi)Motions for Summary Judgment/
Adjudication; and
vii)Motions to Compel Further
Discovery.
From Attachment 16, it can only be determined that the
Courier Service charge for delivery of MSJ to Court on 4/29/19 falls under one
of the categories set forth in the General Order. However, for the same reasons the Court is
striking the filing fee related to Team’s’ first motion for summary judgment,
the Court also finds that this cost was not reasonably necessary. Since it is not clear that any of the other
documents for which courier fees were incurred fall into one of the covered
categories, Team has failed to meet its burden with regard to the remaining
courier charges.
Based on Plaintiff’s prior objections to records of the
Weinstein Litigation, the Court finds that it was reasonably necessary for Team
to incur the costs associated with obtaining certified copies of such records
to submit in support of its second motion for summary judgment.
Based on the foregoing, $1,503.74 in costs are taxed from
Item 16.
CONCLUSION
The request to strike the entire memorandum of costs is
denied.
The alternative request to strike and/or tax certain
items in the memorandum of costs is granted as to Item 1.b. in the amount of
$513.75 and Item 16 in the amount of $1,503.74 and is otherwise denied.
Based on the foregoing, Item 1 is reduced to $1,078.80
and Item 16 is reduced to $1,009.00 and Team is entitled to recover a total of
$20,278.76.