Judge: Michael E. Whitaker, Case: 24SMCV03529, Date: 2025-02-06 Tentative Ruling

Case Number: 24SMCV03529    Hearing Date: February 6, 2025    Dept: 207

TENTATIVE ruling

MOTION

On July 23, 2024, Plaintiff Gary Karrass as Trustee (“Plaintiff”) filed an unlawful detainer complaint against Defendant Elizabeth Carey (“Defendant”).  On December 20, 2024, following a 2-day non-jury trial, the Court entered judgment in favor of Defendant and against Plaintiff. 

Defendant filed a memorandum of costs on December 27, 2024.  On January 3, 2025, Plaintiff filed the instant motion to tax costs.  Defendant opposes the motion and Plaintiff replies. 

ANALYSIS

1.     Timeliness of Motion

Code of Civil Procedure section 685.070 provides:

(c) Within 10 days after the memorandum of costs is served on the judgment debtor, the judgment debtor may apply to the court on noticed motion to have the costs taxed by the court. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. The court shall make an order allowing or disallowing the costs to the extent justified under the circumstances of the case.

(d) If no motion to tax costs is made within the time provided in subdivision (c), the costs claimed in the memorandum are allowed.

(Code Civ. Proc., § 685.070, subds. (c)-(d).)

Here, Plaintiff filed the motion to tax costs seven days after the memorandum of costs was filed.  As such, the motion to tax costs is timely. 

2.     Costs

Defendant’s memorandum seeks $2,454.92 in costs, composed of $38.25 in filing and motion fees, $1,628.05 in deposition costs, and $788.62 for “models, enlargements, and photocopies of exhibits.”  The memorandum also seeks attorneys’ fees “per motion.” 

Plaintiff moves to tax costs on the grounds that (1) Defendant did not file the memorandum of costs after the entry of judgment; and (2) the lease limits the recovery of reasonable attorneys’ fees and costs to not exceed $1,000 collectively.

Plaintiff’s first argument is premised on the language of California Rules of Court, rule 3.1700, which provides:

A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal […]

            Here, Defendant filed the memorandum of costs on December 27, 2024, yet judgment was not entered until January 31, 2025.  Because the memorandum of costs was not filed after the date of service of the notice of entry of judgment, Plaintiff argues, it is improperly premature.

            The Court does not construe Rule 3.1700 as requiring that a memorandum of costs only be filed within a narrow 15-day window, and Plaintiff has not provided any authority requiring the Court to do so.  Rather, the Court interprets Rule 3.1700 as providing a deadline by which a memorandum of costs must be filed.  But there is nothing preventing a prevailing party from filing a memorandum of costs before entry of judgment.

Regarding Plaintiff’s second argument, Plaintiff provides the Declaration of Mark Henry Shafron, attached to which is a copy of the lease.  Paragraph 36 of the lease provides:

36. ATTORNEY FEES: In any action or proceeding arising out of this Agreement, the prevailing party between Housing Provider and Tenant shall be entitled to reasonable attorney fees and costs collectively not to exceed $1,000, except as provided in paragraph 35A [pertaining to mediation]. 

(Shafron Decl., ¶ 36 [emphasis added].) 

In Opposition, Defendant argues that the parties subsequently agreed to an Addendum modifying this provision of the lease.  In support, Defendant has provided a copy of Addendum No. One to the lease, which provides as follows:

The following terms and conditions are hereby incorporated in and made a part of the Residential Lease

[…]

Paragraph 36, Attorney’s fees to be modified as follows: In the event of a dispute, Tenant shall be responsible for its own attorney’s fees and all associated costs. In the event Landlord prevails in such dispute, Tenant shall be responsible for Landlord’s attorney’s fees and all associated costs. In no event shall Landlord be responsible for Tenant’s attorney [sic] fees and all associated costs.

(Geffner Decl., at ¶ 2 and Ex. A.) 

            Thus, the addendum provision supersedes the original attorney fee provision.  As such, neither party is limited to $1,000 in attorneys’ fees and costs.

Although the addendum provision is unilaterally in favor of Plaintiff on its face, Civil Code section 1717 mandates that unilateral attorney-fee provisions be interpreted bilaterally with respect to civil actions sounding in contract. 

Civil Code section 1717 provides: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.”

“[I]t has been consistently held that when a party litigant prevails in an action on a contract by establishing that the contract is invalid, inapplicable, unenforceable, or nonexistent, section 1717 permits that party's recovery of attorney fees whenever the opposing parties would have been entitled to attorney's fees under the contract had they prevailed.  (Sessions Payroll Management, Inc. v. Noble Const. Co., Inc. (2000) 84 Cal.App.4th 671, 678.)

            Therefore, although the addendum provision is unilateral in favor of Plaintiff on its face, Defendant is also entitled to recover all of its reasonable attorneys’ fees and costs incurred litigating this matter.

Conclusion

Therefore, the Court denies Plaintiff’s motion to tax costs in its entirety and grants Defendant’s request for $2,454.92 in costs.

Plaintiff shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED:  February 6, 2025                                                    ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court