Judge: Peter A. Hernandez, Case: KC070438, Date: 2023-05-24 Tentative Ruling

Case Number: KC070438    Hearing Date: May 24, 2023    Dept: K

1.         The hearing on Defendants Elecnor Belco Electric, Inc.’s and Roger Devito’s Motion for Award of Expenses of Proof of Facts Against Plaintiff Lincoln Pacific Builders, Inc. is CONTINUED TO July 12, 2023 at 9:30 a.m.

2.         Plaintiff Lincoln Pacific Builders, Inc.’s Motion to Tax Costs is DENIED as MOOT in part (i.e., as to Root) and otherwise DENIED (i.e., as to Elecnor and Devito).

Background[1]  

Plaintiff Lincoln Pacific Builders, Inc. (“Lincoln”) alleges as follows: On December 18, 2014, Elecnor Belco Electric, Inc. (“Belco”) filed a cross-complaint against Lincoln. Lincoln was granted summary judgment on the cross-complaint and subsequently prevailed on appeal. Ben Root (“Root”) and Roger Devito (“Devito”) are the attorneys who handled Belco’s cross-complaint.

On July 5, 2018, Lincoln filed a complaint, asserting a cause of action against Belco, Root, Devito and Does 1-10 for:

1.                  Malicious Prosecution

On January 29, 2021, Plaintiff filed an “Amendment to Complaint,” wherein Don Rassiger was named in lieu of Doe 1.

On March 22, 2021, the court granted Root’s Motion for Summary Judgment and Belco and Devito’s Motion for Summary Judgment. On March 29, 2021, an “Order Granting Defendants Elecnor Belco Electric, Inc.’s and Roger Devito’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication” and “Judgment Re: Defendant Ben Root’s Motion for Summary Judgment Pursuant to Code of Civil Procedure Section 437c” were filed.

On May 20, 2021, Plaintiff filed a “Notice of Appeal.”

On January 4, 2023, amended judgment was entered for Belco and Devito.

On February 9, 2023, the Court of Appeal opinion was filed (affirmed).

1.         Motion Re: Award of Expenses

Legal Standard

“If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees.” (Code Civ. Proc., § 2033.420, subd. (a).)

“The court shall make this order unless it finds any of the following: (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. (2) The admission sought was of no substantial importance. (3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter. (4) There was other good reason for the failure to admit.” (Code Civ. Proc., § 2033.420, subd. (b).)

Discussion

Belco and Devito move the court, per Code of Civil Procedure § 2033.420, for an award of expenses, in the amount of $148,692.93 (including reasonable attorney’s fees), of proof of facts that Lincoln failed to admit.

At the outset, the court notes that Lincoln has technically failed to file an opposition to the instant motion, electing instead to file a “Motion to Tax Costs” which does not challenge any of the costs that Belco and Devito claim in their Memorandum of Costs, but instead focuses solely on the expenses of proof that Belco and Devito seek in their “Motion for Award of Expenses of Proof of Facts.” Under the circumstances, the court, in its discretion, elects to treat pages 6-24 of the “Memorandum of Points and Authorities” in Lincoln’s “Motion to Tax Costs” as its opposition to the instant motion; in doing so, however, the court will continue the hearing on the instant motion in order to afford Belco and Devito the opportunity to file a reply brief addressed to same.

The hearing is continued to July 12, 2023 at 9:30 a.m. Belco and Devito are to file and serve their reply brief, if any, no later than nine court days prior to the continued hearing date.

2.         Motion to Tax Costs

Legal Standard

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 quotations 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.)

Discussion

Lincoln moves the court for an order, pursuant to California Rules of Court Rule 3.1700, taxing costs set forth in the Elecnor’s, Root’s and Devito’s memorandum of costs, as follows: (1) Striking the entire cost and fee request submitted by Root per the Stipulation between Root and Lincoln; (2) Striking recovery of attorney fees; and (3) Disallowing recovery of expert witness fees.

Lincoln’s motion is denied as moot in part (i.e., as it pertains to Root’s Memorandum of Costs filed April 6, 2021) and denied in part (i.e., as it pertains to Elecnor’s and Devito’s separate Memorandum of Costs filed April 6, 2021).

On April 19, 2021, a “Stipulation Re: Waiver of Costs Following Judgment in Favor of Defendant Bennett W. Root, Jr; Order” was filed, wherein the court ordered that the request for costs from the signed judgment in Root’s favor be stricken and that the memorandum of costs submitted by Root on April 6, 2021 be disregarded; as such, the motion is moot as it pertains to Root.

The motion is otherwise denied as it pertains to Belco and Devito. Again, as set forth above, Lincoln’s motion does not challenge any of the costs that Belco and Devito claim in their Memorandum of Costs; instead, it focuses solely on the expenses of proof that Belco and Devito seek in their “Motion for Award of Expenses of Proof of Facts.”