Judge: Olga Alvarez, Case: 37-2017-00021885-PR-TR-CTL, Date: 2023-11-15 Tentative Ruling
SUPERIOR COURT OF CALIFORNIA,
DEPT.:
EVENT DATE:
EVENT TIME:
CENTRAL COURTHOUSE TENTATIVE RULINGS - November 14, 2023
11/15/2023 10:30:00 AM 503 COUNTY OF SAN DIEGO
JUDICIAL OFFICER:Olga Alvarez
CASE NO.:
CASE CATEGORY:
EVENT TYPE:
CASE TITLE: CASE TYPE:
Probate Trust Proceedings Motion Hearing (Probate) 37-2017-00021885-PR-TR-CTL IN THE MATTER OF THE FRED C. SPROUL, SR. AND SEVILLA C. SPROUL LIVING TRUST DATED APRIL 14, 1979, AS AMENDED [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 07/27/2023
Pursuant to Superior Court of San Diego County, Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The Motion to Strike, or in the Alternative, Tax Costs filed by Jason Kelly (ROA 760) is GRANTED.
I. Background This case concerns the Fred C. Sproul, Sr. and Sevilla C. Sproul Living Trust Dated April 14, 1979, as amended.
On August 27, 2018, Kristen Kelly Lawson, David Sproul, and Sherri Sproul Brunzell (collectively 'Petitioners') filed a Second Amended Petition (1) For Determination of Validity of Agreements Executed After Settlors' Death; (2) To Disapprove Former Trustee's Accounting; (3) To Compel Final Trust Accounting; (4) For Surcharge; (5) For Return of Trust Property; (6) To Deny Compensation to Trustee; (7) To Deny Payment of Trustee's Attorney's Fees; (8) To Shift Attorney's Fees and Costs to Trustee; (9) For Set-Off; (10) For Double Damages; (11) For Punitive Damages; (12) For All Orders the Court Deems Proper ('SAP'). (ROA 125.) The SAP seeks relief against various parties, including Jason Sproul Kelley ('Respondent'), regarding the administration of the Trust.
Trial on the SAP was held on December 10, 2021, and March 4, 2022. (ROA 592, 640.) The SAP was granted in part and denied in part as, with the Court denying most of the prayers for relief. (Id.) However, the Court awarded $30,983.80 jointly and severally against Respondent and the estate of Beverly Kelly as a surcharge for breach of trust. (ROA 640.) On November 3, 2022, Respondent filed a motion seeking $46,570.73 in attorney's fees from Petitioners, as the prevailing party on the SAP. (ROA 716.) The Court denied the motion as untimely and for failure to show that Respondent was the prevailing party pursuant to CCP § 1032. (ROA 753, Minute Order filed Mar. 27, 2023.) On July 19, 2023, Petitioner David Sproul ('Petitioner') filed a memorandum of costs. (ROA 758.) On July 27, 2023, Respondent filed the instant motion to strike, or alternatively tax, Petitioner's costs.
(ROA 760.) Calendar No.: Event ID: TENTATIVE RULINGS
3003383 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE FRED C.
SPROUL, SR. AND SEVILLA C. 37-2017-00021885-PR-TR-CTL On October 16, 2023, Petitioner filed an objection to the motion. (ROA 763.) On November 7, 2023, Respondent filed a response to Petitioner's objection. (ROA 765.) II. Discussion Respondent moves to strike Petitioner's request for costs on the grounds that the request is untimely, and that Petitioner was not the prevailing party pursuant to CCP § 1032. Respondent contends that to the extent that the Court determines that the request is timely, and Petitioners are the prevailing party, the Court should tax costs that are unsubstantiated, unreasonable, unnecessary, or prohibited.
Respondent argues he is the prevailing party in the proceedings, and the memorandum of costs is untimely pursuant to CRC 3.1700(a)(1), which imposes deadlines to file the memorandum of costs.
Respondent further argues the memorandum of costs omits crucial information necessary for the Court to determine whether the costs are recoverable.
Petitioner opposes the motion on the ground that the judgment entered on March 4, 2022, is not the final judgment because trial in the related case (identified in the opposition papers merely as the Beverly Kelly Trust ['BKT'] matter without citation to a case number) did not conclude until March 23, 2023.
(ROA 763, Oppo., at p. 1.) A. Timeliness '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 by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. 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 the case.' (Cal. Rules of Court, rule 3.1700(a)(1).) Here, although Petitioner argues that final judgment was not entered until March 23, 2023, that judgment was not entered in this case but in a related case. Judgment was entered in this case, after trial on the merits of the Petition (ROA 125), on March 4, 2022. The memorandum of costs, which was filed on July 19, 2023 (ROA 758) is therefore, untimely under CRC 3.1700.
Petitioner relies on Eldridge v. Burns (1978) 76 Cal.App.3d 396, 404-405, which held that the purchaser was entitled to appeal from the judgment, although it was labeled an interlocutory judgment, because there was nothing further in the nature of judicial action by the trial court essential to a final determination of the asserted rights of the respective parties. Under Eldridge, the judgment entered on March 4, 2022, would be considered an appealable order, as it was a final determination of the rights of the parties, notwithstanding any issues that may have remained outstanding in the BKT matter.
Indeed, Petitioner is seeking costs based on the March 4, 2022, order, and not on any final orders in the BKT matter. Thus, the Court is not persuaded that the order entered on March 4, 2022, was not a final judgment, and that the clock under CRC 3.1700 did not began to run on March 4, 2022. This ruling is consistent with the Court's previous findings and ruling with respect to Respondent's motion for attorney's fees (ROA 716), which the Court denied based on untimeliness, among other grounds.
B. Entitlement to Costs The Court denied Respondent's attorney's fee motion (ROA 716), finding that the motion was untimely because judgment had been entered on March 4, 2022, and Respondent had not shown that he was the prevailing party pursuant to CCP § 1032. (ROA 753.) The Court observed that '[t]he only authority for attorney fees stated in the motion is Code of Civil Procedure section 1032. As shown above, section Calendar No.: Event ID: TENTATIVE RULINGS
3003383 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE FRED C.
SPROUL, SR. AND SEVILLA C. 37-2017-00021885-PR-TR-CTL 1032 is not sufficient by itself to authorize an award of attorney fees. Section 1032 only authorizes attorney fees when based on contract, statute, or law, and Respondent has not identified any contract, statute, or law to support his request. The motion is therefore denied on this ground as well.' (Id.) Thus, to be clear, the Court found that Respondent had not established he was the prevailing party. This finding is not the equivalent of a finding that Respondent was not the prevailing, or conversely, that Petitioner was the prevailing party.
Petitioner seeks costs for (1) service of process, (2) attachment expenses, (3) court reporter fees, (4) models, enlargements, and photocopies of exhibits, and (5) fees for electronic filing or service, which are allowable as costs pursuant to CCP § 1032. (CCP § 1033.5(a).) Here, as a threshold matter, Petitioner has not shown that he is the prevailing party pursuant to CCP § 1032 and thus, entitled to costs under CCP § 1033.5. Petitioner did not move for costs, and the Court has not made any findings that Petitioner is the prevailing party and entitled to costs. As such, there is no statutory basis for the costs claimed.
Therefore, the motion to strike is GRANTED. Petitioner's memorandum of costs (ROA 758) is stricken.
Counsel for Respondent is directed to serve notice of ruling in accordance with the provisions of CCP § 1019.5(a).
IT IS SO ORDERED.
Calendar No.: Event ID: TENTATIVE RULINGS
3003383