Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Duke Choi’s unopposed motion to tax costs is granted in amount of $4,655.34.  Plaintiff is therefore entitled to costs in the reduced total amount of $4,125.00

Defendant Duke Choi (“Choi”) (“Defendant”) moves unopposed for an order to strike all Plaintiff Art Colony Property LLC’s (“Art Colony”) (“Plaintiff”) costs to the extent they exceed $4,125.00 on the grounds that this is an action in contract which provides for a $1,500.00 cap on any award of fees and/or costs, though parties subsequently agreed to share the cost of hiring a court reporter at trial, of which Defendant’s reasonable share is $2,625.00.  (Notice of Motion, pg. 1.) 

Background

On March 7, 2022, the Court entered Judgment in favor of Plaintiff and against Defendant.  (Judgment, pg. 2.)  This Court held trial for an unlawful detainer action on February 14, 15, 16, and 17, 2022.  (Judgment, pg. 1.)  After deliberations on February 17, 2022, the jury returned a verdict in favor of Plaintiff.  (Judgment, pg. 1.)  On March 24, 2022, Plaintiff filed a Memorandum of Costs seeking $8,780.34 in total costs.  (Memorandum of Costs, pg. 1.)  On April 18, 2022, Defendant filed this motion.  As of the date of this hearing, Plaintiff has not filed an opposition.

CRC Violation

Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum, with an extra five days for service by mail in accordance with C.C.P §1013.  (CRC, Rule 3.1700(b)(1).)  The party claiming costs and the party contesting costs may agree to extend the time for serving and filing the cost memorandum and a motion to strike or tax costs. This agreement must be confirmed in writing, specify the extended date for service, and be filed with the clerk. In the absence of an agreement, the court may extend the times for serving and filing the cost memorandum or the notice of motion to strike or tax costs for a period not to exceed 30 days.  (CRC, Rule 3.1700(b)(3).)

Defendant’s motion to tax costs was due on April 13, 2022.  Defendant filed his motion to tax costs on April 18, 2022.  Defense counsel concedes he neglected to file a motion to strike or tax costs within the deadline “because it was not immediately apparent that such a motion would be applicable,” and “defense counsel did not realize until slightly past the deadline that there was a basis to tax the costs.”  (Motion, pgs. 3-4; Decl. of Sherred ¶¶5-6.)

The court grants Defendant’s request to extend the time to file a motion to tax costs on the basis of excusable neglect, pursuant to C.C.P. §473.  (C.C.P. §473(b).)

Motion to Tax Costs

“‘If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, 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.’”  (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

“[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]” (Id.)

“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]” (Id.)

A prevailing party is entitled as a matter of right to recover costs in any action or proceeding, except as otherwise expressly provided by statute. (C.C.P.  §1032(b).)  California law recognizes three types of litigation costs: allowable, not allowable, and discretionary.  (C.C.P. §1033.5(a), (b), (c)(4).)  Items not specifically allowable as costs under C.C.P. §1033.5(a), and not specifically prohibited under §1033.5(b), may be allowed as costs at the discretion of the trial court if reasonably necessary to the conduct of the litigation. (Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 506, citing Ladas v. California State Auto Association (1993) 19 Cal.App.4th 761, 774.)  For allowable costs, C.C.P. §1033.5(c) provides:

(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.

(3) Allowable costs shall be reasonable in amount.

(C.C.P. §1033.5(c)(2)-(3).) 

To the extent Defendant challenges costs, they must be challenged as costs that were not, “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” or not “reasonable in amount.”  (C.C.P. §1033.5(c)(2)-(3).)  As discussed above, Plaintiff is the prevailing party in this action, and as such, are entitled to costs pursuant to C.C.P. §1032(b).

Item No. 11 (Court Reporter Fees)

Defendant argues Plaintiff is not entitled to litigation costs in the amount of $8,150.34 because it exceeds the maximum amount prescribed in the contract under which Plaintiff is suing.  (Motion, pg. 2, Exh. A §24.4 [Lease].)  Defendant argues although neither party signed the Lease, it took effect by operation of Civil Code §827 after Plaintiff served a notice to that effect.  (Motion, pg. 2, Exh. B [Notice of Change in Terms of Tenancy]; see Decl. of Choi ¶¶4-7.)  Defendant argues Plaintiff is estopped to deny that the Lease is in force because Plaintiff brought this action relating to the agreement and relief on its rent term.  (Motion, pg. 2.)  Defendant concedes that defense counsel agreed with Plaintiff’s counsel to split the cost of having a court reporter present, “in light of last-minute uncertainty as to which reporter would be able to attend,” and although Plaintiff’s Memorandum of Costs exceeds the $1,500.00 cap, he does not oppose paying half the cost of a court reporter’s attendance that was agreed upon as a mutual benefit to both parties.  (Motion, pg. 2; Decl. of Sherred ¶7.) 

Defendant argues Plaintiff’s invoices for the amounts spent of court reporter services includes costs Plaintiff paid for transcripts, which were included in parties’ agreement to pay court reporter costs.  (Motion, pg. 3, Exhs. C, D, E.)  Defendant concedes his costs are the contractual $1,500.00 in addition to $2,625.00 for half of court reporter costs incurred on February 15, 16, and 17. (Motion, pg. 3.)

Section 24.4 of the operative Lease states:

In the event of any litigation relating to this Agreement or the rights or liabilities of any party arising hereunder, the prevailing party of such litigation shall be entitled to its costs, including reasonable attorney’s fees, incurred in such litigation, not to exceed the maximum total of $1,500.00 in fees and/or costs. . . . An eviction or unlawful detainer action shall be considered an action relating to this Agreement and thus subject to this provision.

(Motion, Exh. A §24.4.)  Plaintiff’s costs incurred in litigation is limited by the express terms of the operative contract, $1,500.00, which Defendant owes.  (See Nelson v. Spence (1960) 182 Cal.App.2d. 493, 497-498.)  Defendant concedes he owes half of the cost parties agreed to pay for court reporter services.  Court reporter invoices indicate the actual amount for court reporter services for February 15, 16, and 17 total $1,750.00 for each day, with a total cost of $5,250.00 for both parties, or $2,625.00 due from each party.  Accordingly, Plaintiff’s costs for transcripts, which were included in the invoices sent to Defendant and indicated in Item 11 of Plaintiff’s Memorandum of Costs, are to be excluded.  Therefore, Defendant’s costs are the contractual $1,500.00 in addition to the $2,625 for half of parties’ court reporter costs, for a total of $4,125.00.

Conclusion

Based on the foregoing, Defendants’ motion to tax costs is granted in the amount of $4,655.34.  Plaintiff is therefore entitled to costs in the reduced total amount of $4,125.00.

Dated: October _____, 2022

Hon. Monica Bachner

Judge of the Superior Court