Judge Peter A. Hernandez, Case 19PSCV00178 2022-11-16 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

Plaintiff Derek Siri’s Motion to Tax Defendant County of Los Angeles’ Memorandum of Costs is DENIED in full.

Plaintiff Derek Siri (“Plaintiff”) alleges as follows: On February 16, 2018, Plaintiff was injured during an altercation with Dwayne Cooper aka Duane Cooper (“Cooper”), a Fire Inspector for the Los Angeles County Fire Department (“LACFD”), after he discovered Cooper engaged in sexual conduct with Plaintiff’s wife. Plaintiff thereafter went to LACFD Station #32 in Azusa to file a complaint against Cooper, but John Doe Fire Captain ended up making a false police report in which he blamed Plaintiff for the disturbance.

On March 11, 2020, Plaintiff filed a Second Amended Complaint (“SAC”), asserting causes of action against Cooper, County of Los Angeles (“County”), LACFD, John Doe Fire Captain and Does 1-50 for:

On November 24, 2020, the court sustained County’s demurrer to the Second through Fourth, Seventh and Eighth Causes of Action, without leave to amend; the court also sustained Cooper’s demurrer to the Second, Third, Seventh, and Eighth Causes of Action, without leave to amend.

On January 4, 2021, an “Order Re: Stipulation Concerning Stricken Language of Nonconsensual Actions in Plaintiff’s Second Amended Complaint” was filed. On January 6, 2021, a “Court Order Re: Stricken Language in the Second Amended Complaint” was filed, wherein portions of Paragraphs 19, 46, 49 and 52 were stricken from the SAC.

On June 30, 2022, the “Order Granting Defendant Los Angeles County’s Motion for Summary Judgment” was filed. On July 25, 2022, “Judgment on Defendant County of Los Angeles’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication” was filed.

On August 4, 2022, County filed (and served via mail and email) a “Notice of Entry of Judgment.”

In general, the “prevailing party” is “entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) The phrase “prevailing party” includes “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Code Civ. Proc., § 1032, subd. (a)(4).)

Code of Civil Procedure § 1034, subdivision (a) states that “[p]rejudgment costs . . . shall be claimed and contested in accordance with rules adopted by the Judicial Council.” A prevailing party claiming costs must serve and file a memorandum of costs. (California Rules of Court (“CRC”) rule 3.1700, subd. (a)(1).) “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.” (Id.) The contesting party may dispute any or all of the items in the prevailing party’s memorandum of costs by a motion to strike or tax costs. (CRC rule 3.1700, subd. (b).)

“If items on their face appear to be proper charges, 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. On the other hand, if items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. However, whether a cost item was reasonably necessary is still a question of fact to be decided by the trial court. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266 [internal quotation marks and citations omitted].) “Initial verification will suffice to establish the reasonable necessity of the costs claimed. There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted.” (Id. at 1267.)

Plaintiff moves the court for an order striking or taxing County’s entire memorandum of costs and the following items: (1) filing and motion fees; (2) jury fees; (4) deposition costs; (5) service of process; (8) witness fees; and (13) interpreter fees.

At the outset, the court rejects Plaintiff’s contention that the memorandum of costs was prematurely filed. “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.” (CRC Rule 3.1700, subd. (a)(1).) As to the one final judgment rule, “[t]he rule requiring dismissal does not apply when the case involves multiple parties and a judgment is entered which leaves no issue to be determined as to one party.” (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 437.)

On August 4, 2022, County filed (and served via mail and email) a “Notice of Entry of Judgment.” On August 9, 2022, County filed its Memorandum of Costs.

The court next addresses each of the categories challenged by Plaintiff as follows:

Filing fees are allowable as costs pursuant to Code of Civil Procedure § 1033.5, subdivision (a)(1).

County’s Memorandum of Costs seeks $3,332.72 in filing and motion fees (i.e., Item No. 1). Plaintiff seeks to strike this cost in its entirety, on the purported basis that, since every submission of County states that it is exempt from fees under Government Code § 6103, County cannot recover what it did not pay.

This argument is rejected. In Guillemin v. Stein (2002) 104 Cal.App.4th 156, the Third District Court of Appeal ruled that a prevailing public entity can recover filing fees as costs even though it was exempted under Government Code § 6103 from paying such fees,” noting “section 6103.5[1] considers the filing fees to be an existing debt that simply remains unpaid. Filing fees are therefore costs incurred but not paid, which are recoverable under the general costs statute.

Moreover, section 6103.5 specifically prescribes the inclusion of these fees as costs in a judgment; therefore a trial court does not have any discretion to tax them.” (Id. at 164 [emphasis in original].)

Further, the costs itemized under Item No. 1 appear on their face to be proper; as such, Plaintiff has the burden to show that they were not reasonable or necessary. Plaintiff has not met his burden. Regardless, County’s counsel has attached supporting invoices as Exhibit A to his declaration filed concurrently with the opposition. (Sharaby Decl., ¶ 3, Exh. A.) The motion is denied in this regard.

Jury fees are allowable as costs pursuant to Code of Civil Procedure § 1033.5, subdivision (a)(1).

County’s Memorandum of Costs seeks $150.00 in jury fees (i.e., Item No. 2). The cost set forth under Item No. 2 appears on its face to be proper; as such, Plaintiff has the burden to show that it was not reasonable or necessary. Plaintiff has not met his burden. At any rate, County’s counsel has attached a supporting invoice (i.e., page 39 of Exhibit A) to his declaration filed concurrently with the opposition. (Sharaby Decl., ¶ 3, Exh. A.) The motion is denied in this regard.

The “[t]aking, video recording, and transcribing necessary depositions,” as well as “[t]ravel expenses to attend depositions,” are allowable as costs pursuant to Code of Civil Procedure § 1033.5, subdivision (a)(3)(A) and (C). County’s Memorandum of Costs seeks $4,295.25 in deposition costs (i.e., Item No. 4). The costs itemized under Item No. 4 appear on their face to be proper; as such, Plaintiff has the burden to show that they were not reasonable or necessary. Plaintiff has not met his burden. Regardless, County’s counsel has attached supporting invoices as Exhibit B to his declaration filed concurrently with the opposition. (Sharaby Decl., ¶ 5, Exh. B.) The motion is denied in this regard.

Costs for “service of process by a public officer, registered process servicer, or other means” are allowable pursuant to Code of Civil Procedure § 1033.5, subdivision (a)(4). The term “service of process” appears to include service of subpoenas. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.)

County’s Memorandum of Costs seeks $2,442.61 in service of process costs (i.e., Item No. 5). The costs itemized under Item No. 5 appear on their face to be proper; as such, Plaintiff has the burden to show that they were not reasonable or necessary. Plaintiff has not met his burden. At any rate, County’s counsel has attached supporting invoices as Exhibit C to his declaration filed concurrently with the opposition. (Sharaby Decl., ¶ 6, Exh. C.) The motion is denied in this regard.

“Ordinary witness fees pursuant to Section 68093 of the Government Code” are allowable as costs pursuant to Code of Civil Procedure § 1033.5, subdivision (a)(7). County’s Memorandum of Costs seeks $2,442.61 in witness fees (i.e., Item No. 8). The cost set forth under Item No. 8 appears on its face to be proper; as such, Plaintiff has the burden to show that it was not reasonable or necessary. Plaintiff has not met his burden. At any rate, County’s counsel has attached a copy of the check issued to Nary Sivilary for $41.04 as Exhibit D to his declaration filed concurrently with the opposition. (Sharaby Decl., ¶ 7, Exh. C.) The motion is denied in this regard.

“Fees of a certified or registered interpreter for the deposition of a party or witness who does not proficiently speak or understand the English language” are allowable as costs pursuant to Code of Civil Procedure § 1033.5, subdivision (a)(3)(B).

County seeks $1,770.00 in interpreter fees (i.e.., Item No. 13.) The costs itemized under Item No. 13 appear on their face to be proper; as such, Plaintiff has the burden to show that they were not reasonable or necessary. Plaintiff has not met his burden. Regardless, County’s counsel has attached supporting invoices as Exhibit E to his declaration filed concurrently with the opposition. (Sharaby Decl., ¶ 5, Exh. E.) The motion is denied in this regard.

[1] Section 6103.5 provides, in relevant part, as follows: “(a) Whenever a judgment is recovered by a public agency named in Section 6103,. . . in any action or proceeding . . ., which under the provisions of Section 6103 no fee for any . . . filing . . . has been paid, . . . the clerk entering the judgment shall include as a part of the judgment the amount of the filing fee . . . which would have been paid but for Section 6103, designating it as such. . . (b) When an amount equal to the clerk’s fees . . . is collected upon a judgment pursuant to subdivision (a), those amounts shall be due and payable to the clerk . . .”