Judge Michael P. Linfield, Case 21STCV06555 2022-08-22 Tentative Ruling

Judge: Michael P. Linfield, Case: 21STCV06555, Date: 2022-08-22 Tentative Ruling

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Case Number: 21STCV06555 Hearing Date: August 22, 2022 Dept: 34

SUBJECT: Defendants Made by Johnny Group, Inc., John Jung, and Ji Cheol Park’s Notion to Tax Costs

Moving Party: Defendants and Cross-Complainant Made By Johnny Group, Inc, and Defendants John Jung and Ji Cheol Park (“Defendants”)

Resp. Party: Plaintiff and Cross-Defendant Coalition Apparel, Inc. (“Coalition”)

Defendants Made by Johnny Group, Inc., John Jung, and Ji Cheol Park’s Notion to Tax Costs is GRANTED in part. The Court taxes the $6,205.61 in transcript fees. Plaintiff may recover $12,453.05 of its requested $18,656.66 in court reporter fees.

I. BACKGROUND

On February 18, 2021, Plaintiff Coalition Apparel, Inc. filed a complaint against Defendants Made by Johnny Group, Inc., John Jung, and Ji Cheol Park aka Kevin Park, alleging the following causes of action:

1. Breach of Contract;

2. Common Count—Account Stated;

3. Common Count—Open Book Account;

4. Fraud and Deceit;

5. Negligent Misrepresentation; and

6. Unfair Competition (Cal. Bus. & Prof. Code § 17200)

On March 24, 2021, Coalition filed a First Amended Complaint against Defendants Made by Johnny Group, Inc., John Jung, and Ji Cheol Park aka Kevin Park, alleging the same causes of action.

On June 14, 2021, Cross-Complainant Made by Johnny Group, Inc. filed a cross-complaint against Cross Defendants Coalition Apparel, Inc., Patrick Hallett, and Xiangnu Chen aka Sophia Chen, alleging the following causes of action:

1. Breach of Contract

2. Breach Express Warranty

3. Breach of Implied Warranty of Merchantability

4. Breach of Covenant of Good Faith and Fair Dealing

A five-day jury trial was held from May 22, 2022 through May 27, 2022. On May 27, 2022, the jury returned with its verdict. (Minute Order, May 27, 2022, p. 2.) On Coalition’s Breach of Contract claim, the jury found in favor of Coalition and against MBJ. The jury awarded Coalition $233,206.00. On Coalition’s claim for Intentional Misrepresentation, the jury found in favor of MBJ, John Jung, and Ji Choel Park aka Kevin Park. (Minute Order, May 27, 2022, p. 2-3.)

On MBJ’s Breach of Contract claim, the jury found in favor of MBJ. On MBJ’s Breach of Express Warranty, the jury found in Coalition’s favor. On MBJ’s Breach of Implied Warranty claim, the jury found in MBJ’s favor. The jury awarded $126,794.00 in damages to MBJ. (Minute Order, May 27, 2022, p. 4-5.)

On June 6, 2022, Coalition moved the Court “for an Order partially vacating and setting aside the judgment in the above-entitled action entered on May 27, 2022, and to enter judgment in favor of the moving party notwithstanding the verdict rendered by the jury on the first cause of action for breach of contract and third-cause of action for breach of implied warranty of merchantability contained in the Cross-Complaint.” (Motion, filed June 6, 2022, p. 1:5-9.)

On June 30, 2022, the Court denied Plaintiff and Cross Defendant Coalition Apparel, Inc.’s Motion for Partial Judgment Notwithstanding the Verdict.

On July 22, 2022, Defendants and Cross-Complainant Made By Johnny Group, Inc, and Defendants John Jung and Ji Cheol Park move the Court "pursuant to CCP §1033.5 and CRC 3.1700(b) for an order striking or reducing the amount of $18,658.66 claimed as the item 11, namely, court reporter fees as established by statute, in plaintiff Coalition Apparel, Inc.’s Memorandum of Costs. This motion to tax costs by striking or reducing the amount should be granted because the claimed costs are unauthorized or unsupported by the law." (Motion, p. 2:5-9.)

On August 9, 2022, Plaintiff and Cross-Defendant Coalition Apparel, Inc. opposed Defendants’ motion to tax costs.

On August 15, 2022, Defendants replied to Plaintiff and Cross-Defendant Coalition Apparel, Inc.’s opposition.

II. ANALYSIS

A. Legal Standard

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (CCP § 1032(b).)

After judgment is entered, the 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, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule 3.1700(a).) “The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in this case.” (Id.)

In turn, the losing party may file a motion to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b).) Procedurally, “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.” (Ibid.)

Even where parties are unsuccessful as to certain matters, prevailing parties as defined by statute (CCP § 1032) are entitled to recover all costs reasonably incurred, and proof that parties were unsuccessful on particular items is not tantamount to a demonstration that such costs were unreasonably incurred. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1200.)

During the hearing, “the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) “This procedure provides an orderly and efficient way of placing disputed costs at issue on a line-item basis.” (612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285.)

“[T]he mere filing of a motion to tax costs may be a “proper objection” to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. [Citation.] However, “[i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” [Citations.]

The court’s first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. [Citation.] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. [Citation.]” (Nelson, supra, 72 Cal.App.4th at p. 131.)

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. (Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761, 774.) “There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Supporting documentation must be submitted only if costs have been put in issue by a motion to tax costs.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.)

Code of Civil Procedure section 1033.5 sets forth various categories of recoverable costs. Some of the costs include filing, motion, and jury fees (CCP § 1033.5(a)(1).) and service of process by a public officer, registered process server, or other means (CCP § 1033.5(a)(4).) However, allowable costs shall be reasonably necessary to the conduct of litigation rather than merely convenient or beneficial to its preparation. (CCP § 1033.5(c)(2).) Section 1033.5 also explains that if an item is not mentioned in this section, these items may be allowed or denied in the court’s discretion. (CCP § 1033.5(c)(4).)

"Within 40 days after issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700." (Cal. Rules of Court, rule 8.278(c)(1).)

B. Discussion

“The Judicial Council shall adopt rules to ensure all of the following:

(1) That parties are given adequate and timely notice of the availability of an official court reporter.

(2) That if an official court reporter is not available, a party may arrange for, at the party's expense, the presence of a certified shorthand reporter to serve as an official pro tempore reporter. At the arranging party's request, the court shall appoint the certified shorthand reporter to be present in the courtroom and serve as the official reporter pro tempore unless there is good cause shown for the court to refuse that appointment. The fees and charges of the certified shorthand reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law.” (Government Code, § 68086(d)(1, 2).)

On May 23, 2022, the Court appointed Certified Shorthand Reporter Tammie Moore as the official Court Reporter Pro Tempore in this matter. (Order Appointing Court Approved Reporter as Official Reporter Pro Tempore, p. 1.)

The Court finds that under Government Code § 68086(d)(2), costs associated with hiring Ms. Moore are recoverable as the prevailing party’s taxable costs. However, under CCP § 1033.5(b)5), transcripts of court proceedings not ordered by the Court are not allowable as costs.

Thus, Coalition may recover $12,453.05 in court reporter fees, but not the $6,205.61 in transcript fees. (Boren Decl., ¶ 5.)

III. CONCLUSION