TENTATIVE RULING

Calendar: 8

Date:    10/21/2022         

Case No:      EC 062294 Trial Date:    None Set 

Case Name: MCW Fuels v. Westco Petroleum Distributors, et al. 

                                              MOTION FOR ATTORNEYS’ FEES

                                          MOTIONS TO STRIKE/TAX COSTS (3)

Moving Party: Plaintiff and Cross-defendants MCW Fuels, LLC and Aleksandr Blyumkin (Fees) 

Defendant and Cross-complainant Westco Petroleum Distributors, Inc. (Strike/Tax Costs)

Defendant/Cross-Complainant Kamal Bilal (Strike/Tax Costs) 

Responding Party: Defendants/Cross Complainants Westco Petroleum Distributors Inc. and Westco Petroleum Inc.  (Fees) 

Defendant/Cross-Complainant Kamal A. Bilal (Fees)   

Plaintiff and Cross-defendants MCW Fuels, LLC and Aleksandr Blyumkin (Tax Costs)

RELIEF REQUESTED:

Attorney Fees

Award of attorneys’ fees in the amount of $776, 917.50 and costs in the amount of $16,974.94, plus costs in the amount of $451.30 incurred in connection with the appeal, to be issued in favor of MCW Fuels, LLC and Aleksandr Blyumkin, against Westco Petroleum Distributors, Inc., Kamal Bilal, and Westco Petroleum, Inc. 

Strike/ Tax Costs 

Strike or in the Alternative, Tax, Costs sought in Memorandum of Costs on Appeal

Strike or in the Alternative, Tax, Costs sought in Memorandum of Costs 

SUMMARY OF FACTS:

Plaintiff MCW Fuels alleges that it is a master branded reseller of fuel for Conoco Phillips under a Master Branded Reseller Fuel Distribution Agreement (“BRFD”), and that defendant Westco Petroleum Distributors, Inc. (“Westco”) was also a master branded reseller of fuel under a Master BRFD with Conoco Phillips.  Antone Nino represented in 2012 that he was the sole shareholder and director of Westco, and that he owned Conoco Phillips branded gasoline stations in Los Angeles County.  (Nino is now deceased, and the named defendant is Jasmine Nino, his personal representative).

Plaintiff alleges that in June of 2012, plaintiff MCW entered into a written Master Agreement (the “Agreement”) with Westco and Nino, which involved the assignment of eight BRFDs from Westco to MCW (the “Assigned BRFD Agreements”) and eight BRFDs between Nino and MCW (the “Nino BRFD Agreements), under which MCW contracted to sell Conoco Phillips fuel to the subject eight gas stations owned exclusively by Nino.  During negotiations for the Agreement, Westco and Nino were represented by defendant attorney Kamal Bilal.  

Plaintiff alleges that the Agreement contained material representations and warranties which were not true, including that Nino was the sole shareholder of Westco and its sole owner with the authority to sign the contract, that Nino was the sole current owner and operator of the eight subject gasoline stations, that the gasoline stations were solvent and profitable, that no actions, suits, judgments or liens were pending against the gasoline stations.  Defendants also represented that the combined sale of monthly gasoline to the stations subject to the Nino BRFD Agreements, and the eight stations constituting the Assigned BRFD Agreements amounted to 2,100,000 gallons.  

The BRFD Agreements themselves also included some of these representations.

The Agreement required a two-phase closing. The first phase required MCW to pay $1 million for two Assigned BRFD Agreements, and for five Nino BRFD Agreements, which phase was completed on June 12, 2012, when the sum was paid to Westco.  The Agreement was modified in September of 2012, with the second phase to be completed on December 1, 2012.  On November 30, 2012, one of the gasoline stations subject to the Assigned BRFD Agreement was debranded and a lawsuit filed against Westco, and the parties agreed to modify the Agreement so that Westco would not sell the last six Assigned BRFD Agreements.   In May of 2013 new negotiations for phase two were commenced, but in June of 2013, Bilal for the first time revealed that Nino was not the sole owner of Westco, but that Bilal was a shareholder of Westco, entitled to 24% of any sum to be paid to Westco, and had a lien for legal services on the Assigned BRFD Agreements.  Shortly thereafter, Westco had transactions returned for insufficient funds, including a check to Conoco Phillips, and Westco’s supply of fuel was terminated by Conoco Phillips.   MCW agreed to take over fuel deliveries on a temporary basis to service five Westco customers.  

 

It has since been revealed that at the time the Agreement was signed the gasoline stations were actually owned by Westco Petroleum, Inc. (“WP,” not Westco Petroleum Distributors, Inc.,) which was an entity half owned by Bilal.  The stations were managed and operated by defendant AAA Gas, Inc., not Nino.  Plaintiff alleges that defendants’ plan was to cause MCW to believe that Nino was the sole owner, but since he was not, Bilal could later claim that the Agreement was not valid, and that defendants thereby sold MCW eight worthless, non-enforceable and invalid BRFD Agreements.  It is also alleged that Bilal has engaged in activity to withhold payments from several gasoline stations owed to MCW, threatened to debrand several stations, filed a lawsuit against plaintiff and the other defendants, seized control of Westco and WP and is attempting to force MCW to pay for the gasoline stations to which MCW agreed to deliver gas on a temporary basis.  The complaint alleges causes of action for fraud, negligent misrepresentation, breach of contract, indebitatus assumpsit, account stated and civil conspiracy.

Cross-complaints have been filed by defendants Westco and Bilal. The Bilal cross-complaint alleges that his co-defendant Nino secretly met with the principals of MCW, cross-defendants Sammy Dabbas and David Sutton, and MCW’s attorneys, cross-defendants Tiedt & Hurd, and John Tiedt, and entered into an amendment to the Master Agreement, concealing it from Bilal, and circumvented payment for the BRFD agreements by secretly transferring funds to Westco’s account, which were then immediately transferred out of the account.  It is also alleged that Nino mismanaged Westco and intentionally diverted corporate monies and corporate properties to his personal use and did not meet corporate financial obligations or discharge his duties in good faith in the best interests of the company.   It is alleged that the remaining cross-defendants aided and abetted and conspired with Nino in this misconduct.   Cross-defendant Nasrin Nino is alleged to have been married to Antone Nino and to have assisted him in all transactions related to Westco and WP. 

The cross-complaint by Westco Petroleum Distributors, Inc. (“WPD”) alleges that it was a branded reseller of fuel for Conoco Phillips under a Master BRFD License Agreement, and purchases gasoline from refineries and resells the gasoline to retail gas stations at a mark-up.   WPD alleges that it leased some of the stations serviced by WPD’s branded reseller fuel distribution contracts, and that WP, in which cross-defendants Nino and Nasrin were tenants in common, held a 76 % shareholder interest in WPD and that cross-defendant Bilal held a 24% interest in WPD and was also a 50 % shareholder in WP.   

WPD alleges that during the negotiations for the purchase of WPD by MCW, each cross-defendant knew that because of Bilal’s shareholder interest and status as a director of WPD and WP, the purchase of the contracts in the Master agreement could not be finalized without the consent and approval of both Bilal and Nino, but the parties did not want the sale to be delayed by alerting Conoco Phillips to the change in ownership of WPD by Bilal, and Bilal did not want to delay the sale or be the cause of it not going through, so acquiesced to the recital in the Master Agreement that Nino was the sole shareholder of WPD.  After the first phase transfer, it is alleged that Nino and Nasrin diverted customer deposits and payments from WPD customers which should have been deposited into WPD’s account to their own personal use.  WPD also alleges that Nino secretly met with the principals of MCW, cross-defendants Sammy Dabbas and David Sutton, and MCW’s attorneys, cross-defendants Tiedt & Hurd, and John Tiedt, and entered into an amendment to the Master Agreement, concealing it from Bilal, and circumvented payment for the BRFD agreements by secretly transferring funds to WPD’s account, which were then immediately transferred out of the account.  It is alleged that MCW then decided not to complete the second phase of the agreement, but thereafter, through further scheming, acquired the remaining branded reseller fuel contracts, and MCW commenced unauthorized servicing of the stations represented by the contract, placing WPD in a position of default on its payments to Phillips and of not being able to service its contracts. 

This matter was filed on April 18, 2014.  It has been deemed related to Case No. BC 590798, Sahih v. Westco Petroleum Distributors, Inc., which was filed on August 11, 2015. 

On July 22, 2016, the court issued an order staying this action and the related action, pending the resolution of certain matters then pending before the Honorable Terry A. Green in yet another case, Case No. BC 522207, Bilal v. Nino, et al.  (which was filed on September 23, 2013).  

On December 13, 2016, the court issued an order lifting the stay in this matter and the related case, after being informed that Judge Green had in the other case sustained a demurrer without leave to amend and would be entering judgment in that action against Bilal and in favor of all defendants.   

The file also shows that on May 23, 2017, the court issued an order finding these cases related to BC 646336, brought by Stan Boyett & Son, Inc., which was ordered transferred from Department 68.  

On September 26, 2017, the court conducted a Status Conference of the various cases, and counsel and the court conferred regarding Judge Green’s case then on appeal, BC 522207 (appeal case No. B280457), and entered an order staying the proceedings in all cases until the lifting of the stay or the lifting of the stay imposed by a concurrently entered stay until after final adjudication of the appeal of the Judge Green Ruling, except the order expressly states, “IT IS HEREBY ORDERED That the Stay or Proceedings shall expressly exclude the following matters: The litigation and adjudication of the issue of the validity or invalidity of the assignments of the 8 Branded Reseller Fuel Supply Contracts, to MCW Fuels (hereinafter the ‘Unstayed Matter.’).”  (Emphasis, underscoring, in original).   The order states, “IT IS HEREBY ORDERED That during the Stay of Proceeding, only discovery, law and motion, applications, and proceedings, which relate directly to the Unstayed Matter may be litigated, with all such litigation being conducted in EC 062294.”   

On May 13, 2019, defendant and cross-complainant Westco Petroleum, Inc. (“WPI”) filed a request for dismissal of without prejudice of the cross-complaint filed by WPI only (“NOT WESTCO PETROLEUM DISTRIBUTORS, INC.”)  The dismissal was entered as requested the same date.  

On October 4, 2019, the court heard reciprocal motions brought by MCW Fuels and WPD for summary adjudication at the invitation of the court, which were considered by the court only, to the extent they pertained to the preliminary issue of the validity or invalidity of the assignments of the Branded Reseller Fuel Supply Contracts to MCW Fuels.  

The motion brought by MCW was granted and the trial court found that the assignments of the Branded Reseller Fuel Supply Contracts to MCW Fuels were valid.  The reciprocal motion seeking to establish the assignments were not valid was denied and deemed moot.   

The court’s order states: 

“The court has considered only the following issues in connection with the motion, pursuant to the court’s September 26, 2017 order:

The validity or invalidity of the assignments of the 8 Branded Reseller Fuel Supply Contracts, to MCW Fuels, Inc.

Motion is GRANTED in favor of MCW Fuels, Inc. (“MCW”). The court finds that the assignments of the 8 Branded Reseller Fuel Supply Contracts to MCW were valid. The court DENIES Westco Petroleum, Inc. (“WPD”)’s Motion and also finds that it is MOOT in light of the court’s ruling granting MCW’s motion.

As an initial matter, the court notes that WPD concedes that it is not disputing the validity of the assignment to MCW of three of the eight BRFD contracts. WPD’s papers accordingly indicate that the remaining issue to be determined is the validity of the assignment of the following five BRFD contracts, as follows:

1. Angels Gas & Mart contract

2. Pronto Fuel contract

3. RPG Petroleum, Inc. contract

4. Ultra Oil and Jesus Nieto contract

5. Virsa, Inc./Umar Kahn contract.

The court grants MCW’s motion independently, alternatively and cumulatively on the following grounds:…”

The court then set forth in detail nine grounds for granting the motion.  The minute order concludes, “Based on the above Court’s Ruling, Trial Phase One is eliminated.”  The court then set a status conference regarding the results from the court’s ruling on the motions for summary adjudication for October 24, 2019. 

On October 24, 2019, the court filed and signed an order finding that “the Phase 1 Trial is eliminated, having been resolved through the rulings issued on October 4, 2019,” that the MCW Motion is “GRANTED,” that the WPD Motion is “moot,” and that the “assignments of all eight (8) Branded Reseller Distribution (“BRFD”) contracts to MCW were valid.”  

On December 10, 2019, the court entered an order stating, “WHEREAS the Court has considered the stipulations of the parties hereto, and good cause appearing,” the court ordered: “pursuant to the Court’s order on summary judgment entered on October 4, 2020, that the clerk shall enter” 

1) the dismissal of cross-defendants MCW, Blyumkin, Stan Boyett & Son and Phillips 66 from the SACC of Westco Petroleum Distributors, with prejudice.

2) the dismissal of cross-defendants MCW, Blyumkin, Stan Boyett &Co, and Phillips 66 from the TACC of Kamal Bilal with prejudice 

3)  the dismissal of the FACC of Westco Petroleum Distributors in the related action Sahih v. Westco Petroleum Distributors (BC 590798) in its entirety with prejudice. 

The ruling of October 4, 2019 was appealed, and a notice of appeal was filed by WPD on January 24, 2020, indicating that WPD appeals from the judgment after order granting a summary judgment motion.  

On December 21, 2021, MCW and Blyumkin filed a Request for Dismissal, requesting that the clerk dismiss the complaint without prejudice, as specified, “Dismiss Defendants Westco Petroleum Distributors, Inc. and Kamal Bilal ONLY (from the First Amended Complaint of MCW Fuels, LLC).”  The dismissal was entered as requested the same date.    

On April 15, 2022, the court of appeal filed its opinion in this matter, and on June 17, 2022, the remittitur was received by the trial court. 

The court of appeal’s opinion states, “Affirmed; purported appeal treated as petition for writ of mandate, petition denied.”  [Opinion, p. 1].  

The opinion’s Disposition states:

“The December 10, 2019 order dismissing cross-defendant Aleksandr Blyumkin from Westco Petroleum Distributors, Inc.’s second amended cross-complaint based on the court having granted MCW Fuels, LLC’s motion for summary adjudication on October 4, 2019, entered on October 24, 2019, is affirmed. Treating as a petition for writ of mandate Westco Petroleum Distributors, Inc.’s appeal from that same order dismissing cross-defendants MCW Fuels, LLC, Stan Boyett & Son, Inc., and Phillips 66 Company from its second amended cross-complaint, the petition is denied.”

[Opinion, p. 46]. 

The court of appeal’s Disposition also states: “Respondents MCW Fuels, Aleksandr Blyumkin, and Stan Boyett & Son, Inc. are to recover their costs on appeal.  Phillips 66 Company did not participate in this appeal.”  [Opinion, p. 46]. 

   

The remittitur also states, “Respondents MCW Fuels, Aleksandr Blyumkin, and Stan Boyett & Son, Inc. are to recover their costs on appeal.” 

The court of appeal in its opinion indicated that the trial court’s order of dismissal following entry of its order granting MCW’s motion for summary adjudication was an appealable order as to Blyumkin, but not as to MCW, Boyett and Phillips.  The court of appeal noted that “The order of dismissal resolved all issues in the matter between Westco and Blyumkin, who has no claim pending against Westco.”  [Opinion, p. 19].  The court of appeal also determined:

“But, at the time the order of dismissal was entered, MCW’s FAC still was pending against Westco, as were Boyett’s and Phillips’s separate cross-complaints. The order of dismissal, therefore, was not a final appealable order as to them.”

[Opinion, p. 19]. 

Following supplemental briefing on the issue, and at the request of Westco, the court of appeal exercised its discretion to treat the appeal as to cross-defendants MCW, Boyett and Phillips as a petition for writ of mandate.   

On September 19, 2022, the trial court heard a status conference in this matter, in which the court ordered that remittitur having been filed on June 17, 2022, the stay in this case was lifted. 

Plaintiff and cross-defendant MCW and cross-defendant Blyumkin now seek their attorney’s fees and costs for litigating this matter.   

Defendants and cross-complainants seek to strike or tax costs sought by plaintiff in Memorandum of Costs pertaining to this trial court action, and also to strike or tax items sought in the Memorandum of Costs on Appeal. 

ANALYSIS:

Motion for Attorney’s Fees

Plaintiff and cross-defendants MCW Fuels, LLC and Aleksandr Blyumkin seek attorney’s fees for prosecuting this action and defending the cross actions and the appeal, arguing that such fees are recoverable pursuant to contract.  

In general, under CCP § 1021

 “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties...”

Under CPC section 1032(b), “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”  Section 1033.5 (a) provides that an allowable cost under §1032 includes attorney’s fees, when authorized by contract, statute or law.  CCP § 1033.5 (a)(10).    

Where there is an agreement for attorney’s fees, Civil Code 1717 provides: 

“(a) In an action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs. ...Reasonable attorney’s fees shall be fixed by the court, and shall be an element of the costs of suit.”

CCP § 1032 defines “prevailing party”:

“(4) “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 relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.  When any party recovers other than monetary relief and in situations other than as specified, the “prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides...”

The moving papers appear to argue that moving parties are parties in whose favor a dismissal was entered in connection with the complaint and cross-actions, so they are prevailing parties for the purposes of attorneys’ fees. 

As argued in the oppositions, moving parties sidestep a critical fact in connection with this matter.  First, the operative complaint in this matter was voluntarily dismissed by MCW by a request for dismissal filed by moving parties.  On December 21, 2021, while the appeal was pending, counsel for MCW and Blyumkin filed a Request for Dismissal, requesting that the clerk dismiss the complaint without prejudice, as specified, “Dismiss Defendants Westco Petroleum Distributors, Inc. and Kamal Bilal ONLY (from the First Amended Complaint of MCW Fuels, LLC).”  The dismissal was entered as requested the same date.    

This matter as to the complaint is therefore governed by Civil Code section 1717(b)(2), which provides, in pertinent part:

“Where an action has been voluntarily dismissed or dismissed pursuant to settlement of the case, there shall be no prevailing party for purposes of this section.”

Moving parties are accordingly not entitled to fees for the contract claim here in connection with the complaint.  

As to the cross-complaints, the oppositions argue that it is not clear that the dismissals of those claims were not also voluntary dismissals.  The oppositions indicate that the order relied upon by the moving parties here, the order of December 10, 2019, was entered by the court after the parties had stipulated that such dismissals be entered, that order stating, “WHEREAS the Court has considered the stipulations of the parties hereto, and good cause appearing,…” 

The court then ordered that dismissals be entered of MCW and Blyumkin, among others, from the Westco Petroleum Distributors SACC, the Kamal Bilal TACC, and the FACC in the related Sahih action. 

The opposition argues that WPD requested voluntarily the dismissal of all causes of action against MCW, Blumkin, Boyette, and Philips from its cross-complaints in order to facilitate an appeal, and that MCW had admitted in its own status report before that order was entered, filed on December 9, 2019, that the court’s order on the summary adjudication motion, “should help bring the parties much closer to a resolution by agreement.”  That report by MCW confirms that MCW’s complaint was not fully resolved at that point, and would need to be amended, and also states that, “As reflected in the pleadings filed by Westco,” the SACC of Westco should be dismissed as to all parties other than the estate of Antone Nino, and that in correspondence with counsel, Westco “confirmed” that Blyumkin should also be dismissed from the SACC.   [Status Report of MCW Fuels, LLC and A.  Blyumkin, filed 12/9/19, p. 1].  

 

The opposition submits the declaration of Kamal Bilal, in which Bilal states, “Pursuant to stipulation, Bilal voluntarily dismissed his cross-claims,” and that “Pursuant to stipulation, WPD voluntarily dismissed its cross-claims.”  [Bilal Decl., para. 17, 18].  

WPD and Bilal in opposition argue that these dismissals were entered based on the various agreements of the parties concerning the effects of the court’s ruling on the summary judgment motion, and the requests of WPD and Bilal, so were voluntary dismissals, eliminating any entitlement to fees on the contractual causes of action included in those cross-complaints.  

The court has considered the Status reports submitted by the parties prior to the December 10, 2019 order being signed, and the revisions to that order, as well as the court’s own recollection of events.  The court has also noted that the motion for summary adjudication brought by WPD was brought by WPD as cross-complainant, requesting summary adjudication in favor of “cross-complainant WPD” and against MCW.  [See Superseding Motion for Summary Adjudication filed on 5/22/2019, p. 22].   

It appears from the written Joint Status report submitted to the court prior to the December 10, 2019 order being entered that WPD and Bilal conceded that the dismissals followed directly from the court’s ruling on the motion for summary judgment, as they stated, “The October 4, 2019 ruling necessitates the dismissal of MCW, Boyett, and Phillips 66 from WPD’s SAXC,” and also from Bilal’s third amended cross-complaint. [See Joint Status Report of Defendants/Cross-Complainants Westco Petroleum Distributors, Inc. and Kamal A. Bilal, filed December 3, 2019, p. 2].   The court accepted this representation as accurate, and entered the dismissals, accordingly, striking from the form of order submitted language that the dismissals were entered pursuant to stipulation, and that they were without prejudice.  The order clearly states, in three places, that the dismissals shall be entered “pursuant to the Court’s order on summary judgment entered on October 4, 2020,” and that the dismissals are “with prejudice.”  [Order, entered 12/10/2019, p. 2]. 

The court accordingly does not find that the dismissals entered on December 10, 2019 were voluntary dismissals, so that those dismissals are not subject to Civil Code section 1717(b)(2). 

Instead, the dismissals of the cross-complaints are subject to Civil Code 1717(a), as quoted above, which provides, in pertinent part, that “(a) In an action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract…shall be entitled to reasonable attorney’s fees in addition to other costs.”

CCP § 1032 (4), also set forth above, defines “prevailing party” to include “a defendant in whose favor a dismissal is entered.”  

The moving papers do not show clearly the existence of an attorney’s fees provision in connection with the cross-complaints, as the reference is to the Master Agreement and various other agreements by reference to declarations dated, for example, in 2019, without attaching copies of those declarations, or directing the court to where they can be located in the voluminous case file.  

At best, the Complaint and FAC submitted with the Request for Judicial Notice include as Exhibits the Master Agreement, which is between Westco Petroleum Distributors, Inc., Antone Nino, and MCW Fuels, Inc.  (not including Bilal or Blyumkin), and provides:

“Should any provision of this Agreement require interpretation or enforcement, the prevailing party will be entitled to reasonable attorney fees, costs.”  

[RFJN, Exs. 1, 2, Ex. 1, Master Agreement, para. 16, p. 11].   

There is no showing that cross-defendant Blyumkin entered into an agreement which included an attorney’s fees clause, and so it is not established that Blyumkin is a party entitled to recover attorney’s fees in this matter, and the motion is denied as to cross-defendant Blyumkin.

However, Cross-defendant MCW, as a party to an agreement with an attorney’s fees provision, in whose favor a dismissal was entered, was a prevailing party with respect to the dismissals entered in its favor on the cross-complaints.  

In sum, MCW is not entitled to fees on the contractual claims in the complaint but is entitled to such fees for the contractual claims included in the cross-complaints.  

Moving parties argue that all of the claims encompassed by all pleadings arose out of the 2012 Master Agreement, containing the above attorney’s fees provision, so that all claims, including those for torts, are encompassed by the attorney’s fees provision, and moving parties are entitled to all attorney’s fees incurred in this action. 

The court will consider this argument in connection with the non-contract claims asserted by the complaint.  Such an analysis will also apply to determine the breadth of the provision in connection with the cross-complaints.   

The California Supreme Court decision in Santisas v. Goodwin (1998) 17 Cal.4th 599 set forth the circumstances under which fees for non-contract causes of action could be awarded despite a voluntary dismissal.  Santisas involved an action which had been dismissed with prejudice, in which the court found that a party so dismissed was entitled to costs.  With respect to fees, however, the court found that such fees were recoverable only where there was a valid agreement for their recovery.   The Court reviewed the legislature’s amendment to Civil Code section 1717 to add subdivision (b)(2) in 1981, and the policies underlying the section and its concern to preserve mutuality, and made a rather literal and strict interpretation of the statute:

“Accordingly, we construe subdivision (b)(2) of section 1717, which provides that "[w]here an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section," as overriding or nullifying conflicting contractual provisions, such as provisions expressly allowing recovery of attorney fees in the event of voluntary dismissal or defining "prevailing party" as including parties in whose favor a dismissal has been entered. When a plaintiff files a complaint containing causes of action within the scope of section 1717 (that is, causes of action sounding in contract and based on a contract containing an attorney fee provision), and the plaintiff thereafter voluntarily dismisses the action, section 1717 bars the defendant from recovering attorney fees incurred in defending those causes of action, even though the contract on its own terms authorizes recovery of those fees. 

This bar, however, applies only to causes of action that are based on the contract and are therefore within the scope of section 1717. If the voluntarily dismissed action also asserts causes of action that do not sound in contract, those causes of action are not covered by section 1717, and the attorney fee provision, depending upon its wording, may afford the defendant a contractual right, not affected by section 1717, to recover attorney fees incurred in litigating those causes of action.”

Santisas, at 617, italics in original. 

The Santisas Court went on to hold in that case:

 “The seller defendants do not contend that their claim for attorney fees has a

legal basis that is both independent of the cost statutes and grounded in a  

statute or other noncontractual source of law. What they do contend is

that recovery of the attorney fees they incurred in this litigation is a

contractually based right, arising from an express provision of the real

estate purchase agreement. We must determine, therefore, whether it has been

established that the parties entered into a valid and enforceable real estate

purchase agreement that contains an attorney fee provision and, if so, whether  

this provision entitles the seller defendants to recover their

attorney fees following the voluntary dismissal of plaintiffs' action. 

Santisas, at 606-607.

The contractual provision in Santisas provided for “recovery of attorney fees in any litigation arising out of the execution of the agreement or a sale of the property.”   Santisas, at 607.   

The Court accordingly held that fees arising out of the contract claims were barred by the Civil Code, but fees incurred in connection with the non-contract claims, could be recovered by a prevailing party in such a case and under such an Agreement:

“As set forth above, we conclude that contractual attorney fee provisions are generally enforceable in voluntary pretrial dismissal cases except as barred by section 1717. Applying this rule to the facts presented here, we further conclude that the seller defendants are entitled under the attorney fee provision of the purchase agreement to recover as costs the amount they incurred in attorney fees to defend the tort claims asserted against them in this action, and that section 1717 does not bar recovery of these fees. But we also conclude that section 1717 does bar the recovery of attorney fees incurred in the defense of the breach of contract claim.”

Santisas, at 622-623.

The case of  Xuereb v. Marcus & Milechamp, Inc. (1992)  3 Cal.App.4th 1338, relied upon in the moving papers here, was cited with approval in Santisas, as follows:

“If a contractual attorney fee provision is phrased broadly enough, as this one is, it may support an award of attorney fees to the prevailing party in an action alleging both contract and tort claims: "[P]arties may validly agree that the prevailing party will be awarded attorney fees incurred in any litigation between themselves, whether such litigation sounds in tort or in contract." ( Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal. App. 4th 1338, 1341 [5 Cal. Rptr. 2d 154].)”

Santisas, as 608.

In Xuereb, the court of appeal reversed the trial court order denying contractual attorneys’ fees where a plaintiff had sued real estate brokers for negligence, breach of fiduciary duty, concealment and misrepresentation.  The breach of contract claim was never submitted to the jury.  Following a jury verdict in favor of defendants, the trial court denied attorneys’ fees since the claims were not for breach of contract.  

The court of appeal determined that the language of the provision there, which provided for recover by the prevailing party in any “lawsuit or other legal proceeding to which this agreement gives rise,” was broad enough to encompass the tort claims:  

“In our opinion, this litigation may be viewed as having arisen from the Purchase Agreement, even under respondents' narrower interpretation of the subject provision. The terms of the Purchase Agreement and the addenda thereto provided that various structural and pest control inspections were to take place after the signing of the Purchase Agreement and before the close of escrow. The whole basis of respondents' claims against appellants, as set forth in the complaint, was that appellants had failed to conduct a competent and diligent inspection of the property, and that they handled the transaction negligently. It is clear that but for the Purchase Agreement by which the allegedly defective property was sold to respondents, the dispute between the parties would not have arisen. Certainly, but for the execution of the Purchase Agreement and the subsequent close of escrow, respondents would have had no basis on which to claim detrimental reliance or damages, as alleged in their lawsuit. 

In any case, we must apply the rule that words in a contract are to be understood in their usual sense. ( Civ. Code, § 1644.)  In our opinion, appellants' interpretation more fairly reflects the ordinary and usual sense of the phrase "gives rise to," which the parties agreed to in the Purchase Agreement.  In ordinary popular speech, as well as in legal opinions, it is common to use the phrase "arises from" or "arises out of" in a far more general, transactional sense than is suggested by phrases such as "derives from" or "proximately caused by."

Xuereb, at 1344-1345.

Here, the court has already determined that the Master Agreement and other agreements validly assigned the various leases and is binding on the parties thereto. The question remains whether the attorney’s fees provision is sufficiently broad to give rise to an agreement for the payment of fees other than those incurred in connection with the breach of contract claims. 

Again, the parties agree that the provision included in the applicable contracts provides that, “Should any provision of this Agreement require interpretation or enforcement, the prevailing party will be entitled to reasonable attorney fees, costs.”   Although not provided with the moving papers, it appears from the assignments submitted with the summary judgment motions that the assignments include a provision stating:

“If the terms and conditions of this Agreement are in dispute and require enforcement or interpretation by arbitration or litigation, the prevailing party will be entitled to reasonable attorney fees, costs and other relief as the court or arbitrator deems just and proper.”  

The provisions are accordingly not broad provisions including words such as “arising from” or reference to “any” action or litigation, but appear narrow, pertaining only to claims requiring interpretation or enforcement of the Agreement in question. 

The oppositions argue that the language of the provision is narrow, and similar to language in which the courts of appeal have rejected the application of an attorney’s fees provision to tort claims.  The cases cited in opposition were addressed in Khan v. Shin (2016) 7 Cal.App.5th 49, which noted that in contrast to the broad fee provisions including language such as the “arising out of” language in Santisas, or “giving rise to a lawsuit,” in Xuereb, there is another line of cases:

“On the other side of the ledger are cases involving narrower contracts. Rather than using broad phrases, such as “arising from,” these cases typically interpret provisions referring to the award of fees in an action to “enforce” the agreement at issue. For example, where an agreement allowed for the recovery of fees in “ ‘an action or proceeding to enforce the terms hereof or declare rights hereunder,’ ” it was interpreted as excluding tort claims (Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 702–703, 708–709, 75 Cal.Rptr.2d 376 (Exxess); see id. at pp. 703, 708-709), as was a provision stating that fees could be awarded if “ ‘legal action or arbitration is necessary to enforce the terms of this Agreement....’ ” (Loube v. Loube (1998) 64 Cal.App.4th 421, 429, 74 Cal.Rptr.2d 906.) Likewise, the language, “ ‘[i]n the event action is brought to enforce the terms of this [Release], the prevailing party shall be paid his reasonable attorney[ ] fees’ ” was also interpreted as applying only to contract claims and not to torts. (Gil v. Mansano (2004) 121 Cal.App.4th 739, 742, 17 Cal.Rptr.3d 420.)”

Khan, at 60. 

The phrase here “Should any provision of this Agreement require interpretation or enforcement,” appears to be within the category of narrow provisions.  The court accordingly finds that the provision is not sufficiently broad to encompass non-contractual claims. 

Accordingly, cross-defendant MCW is not entitled to fees for any aspect of this litigation in connection with the complaint, and in connection with the cross-complaint is entitled only to fees incurred in pursuing claims requiring the “interpretation or enforcement” of the Agreement which is being interpreted or enforced.    

To the extent the moving papers seek fees to be awarded against Bilal, the moving papers appear to concede that it cannot be shown that Bilal was in fact a party to any agreement which included an attorney’s fees provision.  The papers instead appear to seek that the court in equity find that Bilal controlled the lawsuit, or issue an order that Bilal be treated as a judgment debtor in this matter based on an alter ego argument.   This latter relief is not sought in the notice of motion, giving rise to due process concerns.  The alter ego showing is also not supported by clear admissible evidence.  The requests for fees against Bilal will be denied.   

 

The motion makes no effort to break down the fees which were incurred (1) by MCW, as opposed to in the defense of Blyumkin; (2) in connection with the complaint, as opposed to the cross-complaints; or (3) in connection with the tort claims, as opposed to in connection with the contract claims.  The court of appeal in Khan, for example, found that the matter was appropriately remanded to address the issue of allocating the fees between the contractual and non-contractual causes of action.  Khan, at 63.   This court cannot conduct the appropriate allocation of fees between the moving parties, between the complaint and the cross-complaints, and also has insufficient information to allocate the fees between the contract causes of action and the non-contract causes of action.  The court recognizes that since the issuance of the stay in this matter to focus on the validity of the assignments, the fees should have been limited to the contractual issues but cannot confirm this on the showing submitted with the moving papers. 

The court is also concerned that the showing in support of the fees claimed, while breaking down certain tasks, does not indicate the hours claimed to accomplish those tasks, making it difficult for this court to determine if the hours were reasonably spent, or for the parties in opposition to review the charges and challenge them appropriately. 

The moving papers request $776,917.50 in attorney’s fees, broken down for the matters other than the appeal as 1,201.50 hours of attorney time at $550 per hour and 381.55 hours of paralegal time at $250 per hour.  [Hacohen Decl., paras. 3-5, 12, 13].  The request is based on a declaration of counsel, in which counsel lists 21 tasks by category, but does not specify the hours spent on those tasks, which is insufficient to determine an appropriate lodestar.  [Hacohen Decl., para. 11].  The categorization of work by tasks without reference to dates also makes it difficult to identify duplication.  

The California Supreme Court in PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084 established the standard for evaluating the appropriate amount of attorney’s fees to be awarded:  

 

“[T]he fee setting inquiry in California ordinarily begins with the "lodestar," i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. "California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award."   Margolin v. Regional Planning Com.  (1982) 134 Cal. App. 3d 999, 1004 1005 [185 Cal. Rptr. 145].) The reasonable hourly rate is that prevailing in the community for similar work.  Id. at p. 1004; Shaffer v. Superior Court (1995) 33 Cal. App. 4th 993, 1002 [39 Cal. Rptr. 2d 506].) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Serrano v. Priest, supra, 20 Cal. 3d at p. 49.) Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary. (Id. at p. 48, fn. 23.)

...After the trial court has performed the calculations of the lodestar, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure

PLCM, at 1095. 

The court cannot perform these functions without detailed information concerning specific tasks and subject matter, as well as the exact hours spent on such tasks, and the dates various tasks were performed.  The court notes that the declaration of Jeffrey Lewis concerning the fees incurred in connection with the appeal includes billing records which include details which are more helpful to the court in connection with a fee award evaluation.  [See Lewis Decl., Ex. 1].  However, the court is concerned that there are heavy redactions in the billing records which do not appear necessary or likely to reveal attorney work product, and also impede the court’s ability to evaluate the fees.  

The motion for attorney’s fees accordingly is continued for further briefing on the issues of allocation between the complaint and cross-complaints, allocation between the defense of MCW and the defense of Blyumkin, and allocation between the contractual and tort claims, and for further evidence supporting the amount of fees claimed. 

To the extent the motion seeks that the court include an award of costs in connection with the motion, these costs must be sought through the statutory provisions governing the filing of memorandum of costs.  The court notes that the moving parties have filed and served memoranda of costs, and the entitlement to costs will be addressed through that procedure.   

To the extent the opposition argues that the motion was not timely filed, the court recognizes that a stay of this matter, with the limited exception of the disputed issue, was in effect during all relevant time periods, being lifted on September 19, 2022, after the filing of this motion, but permitting statutory time for opposition to be filed and the hearing conducted on sufficient notice.  The motion is not denied as untimely pursued by either moving party.  

Strike/Tax Costs

Costs on Appeal

Defendant/Cross-complainant Westco and Defendant/Cross-complainant Bilal have each filed a motion to strike or tax costs on appeal.  The motion by Bilal is set to be heard on   October 28, 2022, and will not be considered this date. 

The motion by Westco is addressed to the Memorandum of Costs on Appeal filed by defendants MCW Fuels, LLC and Aleksandr Blyumkin filed on July 27, 2022.  

CRC Rule 8.278, pertaining to an award of costs on appeal, provides in pertinent part:

“(1) Except as provided in this rule, the party prevailing in the Court of Appeal in a civil case other than a juvenile case is entitled to costs on appeal.

(2) The prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal. The prevailing party is the appellant if the court reverses the judgment in its entirety.

(3) If the Court of Appeal reverses the judgment in part or modifies it, or if there is more than one notice of appeal, the opinion must specify the award or denial of costs.”

Here, the court of appeal opinion in the disposition specified, “Respondents MCW Fuels, Aleksandr Blyumkin, and Stan Boyett & Son, Inc. are to recover their costs on appeal.  Phillips 66 Company did not participate in this appeal.”  [Opinion, p. 46].

There is no dispute that respondents here were prevailing parties, entitled to recoverable costs on appeal.   Westco argues that the memorandum of costs is untimely, but, as discussed above, this matter was subject to a stay ordered by this court which was not lifted until September 19, 2022, and the pre-stay filings will be considered timely by this court.   Moreover, the Memorandum of Costs was filed and served on July 27, 2022.  

Under CRC Rule 8.278(c)(1): 

“(c) Procedure for claiming or opposing costs

 (1) 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.”

The remittitur was filed and served on June 17, 2022.   July 27, 2022 was within forty days of the June 17, 2022 date.  The memorandum was not untimely and will not be stricken on this ground.  

Westco seeks to tax the costs which respondents have claimed as improper or unreasonable. 

Where a cost item does not appear proper and necessary on its face, the burden of proof is on the claimant to show the cost is appropriate.  Murphy v. F.D. Cornell Co., (1930) 110 Cal. App. 452, 454.   If the items appear to be proper charges, the burden is on the party seeking to tax costs to show they were not reasonable or necessary.   Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.  Where items are properly objected to as not reasonable or necessary, however, they are put in issue and the burden of proof is on the party claiming them as costs.  Id.  The trial court’s determination on a motion to tax or strike costs will be reversed only for an abuse of discretion.   Santantonio v. Westinghouse Broadcasting Co. (1994, 2nd Dist.) 25 Cal.App.4th 102, 121.   

Item 1— Filing and motion fees

CRC Rule 8.278(d) lists the recoverable costs on appeal, which include, under subdivision (1)(D):

“(D) The costs to notarize, serve, mail, and file the record, briefs, and other papers…”

Respondents seek to recover $390 in this item as set forth in the memorandum of costs.  Respondents have not submitted a worksheet breaking down the costs.  The motion objects that without specific itemization and proof showing these costs were incurred, they are improper and must be taxed.   

The opposition filed by MCW and Blyumkin appears to misunderstand the burden on a motion to strike or tax costs, and merely argues that the court may take judicial notice of the cost to file a brief in the court of appeal.  No request for judicial notice of such a fact is included with the opposition papers.  Nevertheless, the court finds that the cost appears appropriate on its face, and the $390 appears to be equivalent to one filing fee in the court of appeal.  The motion to tax this item accordingly is denied. 

Item 4—Printing and copying of briefs

Under CRC Rule 8.278 (d) (1)(E), recoverable costs include:

“The cost to print and reproduce any brief, including any petition for rehearing or review, answer, or reply…” 

The Memorandum of costs seeks $8.80 for this item.  The motion argues that this is an “odd” dollar amount, and it is not clear if this is meant to be the sum of $8.80 in US currency or some other amount.  The motion argues that without more information, WPD has no way of knowing what the item means or whether the charge is reasonable and incurred. 

The opposition does not address this argument and does not explain what the cost is intended to be or to cover.  No invoices are provided.  It is not clear that printed briefs are required to be submitted with the wide use of electronic filing.  Respondents accordingly have failed to meet their burden of showing this cost was incurred, was reasonable, or is a proper charge.  The motion will accordingly be granted.  The item is stricken, and the costs reduced to -0-.

Item 6—Transmitting, filing, and serving of record, briefs, and other papers 

 Under CRC Rule 8.278 (d)(1)(D), recoverable costs on appeal include:

“(D) The costs to notarize, serve, mail, and file the record, briefs, and other papers…”

The Memorandum seeks $52.50 for this item. 

The motion again argues that this is an “odd” dollar amount, and it is unclear without explanation whether the cost is reasonable and necessary. 

The opposition seems to suggest that the court can take judicial notice of the TrueFiling electronic filing system, and its costs for service and filing of pleadings, and the filing of MCW’s respondent’s brief and other pleadings before the court of appeal based upon the court of appeal’s docket.  No separate request for judicial notice has been filed.

Under Evidence Code § 453, the trial court “shall” take judicial notice of any matter specified in Section 452, “if a party requests it and:” (1) gives each adverse party “sufficient notice of the request,”  “to enable such adverse party to prepare to meet the request” and; (2) “Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” CCP § 453 (a),(b).  

  CRC Rule 3.1113(l) provides, with respect to a memorandum filed in support of a motion:

“(l) Requests for judicial notice Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).”

There has been no separate document filed requesting judicial notice here.

The court also has not been furnished with sufficient information to enable it to take judicial notice of a matter.  This court has no information before it concerning the practices of the court of appeal with respect to filing or service fees and does not have before it the court of appeal docket.   There are no invoices submitted in support of this item, and no evidence or argument, for example, that three briefs were filed at the customary rate of $12 per brief.  Respondents accordingly have failed to meet their burden of showing this cost was incurred, was reasonable, or is a proper charge.  The motion will accordingly be granted.  The item is stricken, and the costs are reduced to -0-.

Item 16— Other 

Respondents seek to recover in this item “Attorneys’ Fees” in the sum of $20,705. 

With respect to attorneys’ fees as costs, CRC Rule 27 states: “Unless the court orders otherwise, an award of costs neither includes attorney fees on appeal nor precludes a party from seeking them under rule 870.2.”   Under Rule 870.2, a motion for fees must be made “within 40 days after the clerk sends notice of issuance of the remittitur.”  There does not appear to be any authorization under statute to seek contractual attorney’s fees by way of memorandum of costs.  The opposition points to no such legal authority but indicates that the motion to strike or tax will be mooted by the motion for attorney’s fees filed and set to be heard this date.  

The motion to tax this cost accordingly is granted. 

Costs sought in the sum of $20,705 are stricken in their entirety, and the costs awarded will be -0-. 

The Total Costs Awarded against moving party will be $390.00, awarded against Westco Petroleum Distributors, Inc. and in favor of respondents MCW and Blyumkin.  (Cost claimed of $21,156.30, less $8.80, less $52.50, less $20,705= $390.00). 

Costs in Superior Court Action

Motion of Kamal A. Bilal

Motion of Westco

Cross-complainant Kamal A. Bilal and defendant and cross-defendant Westco have filed similar motions to strike the costs sought against them, evidently jointly. 

Both motions first argue that the Memorandum of Costs was not timely served, as the order dismissing the moving parties from Bilal’s cross-complaint and the Westco cross-complaints was entered on December 10, 2019.   

In general, CRC Rule 3.1700 (a) (1) provides:

“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing 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.”  

Under subdivision (b)(3), the parties may agree in writing to extend the time for serving and filing the cost memorandum.  “In the absence of an agreement, the court may extend the time for serving and filing the cost memorandum...for a period not to exceed 30 days.”

There was a notice of entry of judgment or order served by the attorney for MCS and Blyumkin on the court on December 10, 2019.   The argument is that fifteen days from the December 10, 2019 date ran nearly two years ago, and no costs accordingly can be claimed at this late date.   The memorandum of costs was filed on July 27, 2022.

However, this matter has been subject to a stay issued by the trial court, and at the time the order was entered, the stay remained in place, the operative complaint was still pending, cross-complaints remained pending against other parties, and the stay was intended to prevent other litigation in the matter from going forward while the focused issue on appeal was resolved.  While the stay on appeal would not have necessarily stayed efforts to recover costs in the trial court proceedings, this matter was subject to a separate stay issued by the trial court, which stayed the further pursuit of litigation in the trial court.   The stay was lifted on September 19, 2022, so the time did not begin to run until that date, at which time the memorandum of costs was already on file. The court does not strike the memorandum of costs as untimely under the circumstances.  

The opposition to the motion argues that the motion to tax is untimely, as it was filed one day beyond the 15-day period within which a motion to tax must be filed under CRC Rule 3.1700(b)(1), on August 16, 2022.   As argued in the reply, this argument is based on an argument that the memorandum of costs was electronically served, when the proof of service shows service only by mail only.  Permitting an additional five days by mail, as opposed to two days for electronic service, renders the motion timely on its face.  In any case, again, as noted above, the stay in this matter was lifted on September 19, 2022, at which point time deadlines began to run.  The court likewise does not disregard the motions challenging the costs as untimely.   

Both motions then argue that moving parties were not prevailing parties in this matter, as they did not prevail on the complaint, which they voluntarily dismissed, and the court should determine the prevailing party and apportion costs. 

Under CCP §1032 (b), “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 (a) (4) defines “prevailing party”:

“(4) ‘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 relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.  If any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.”

(Emphasis added). 

This posture is not a situation under the statute which is “other than as specified,” as it is expressly specified in the statute that a party in whose favor a dismissal is entered is a prevailing party, which is the case here.  The opposition points out that Blyumpin, in particular, was involved in this matter only as a cross-defendant, named as a cross defendant in the Bilal cross-complaint as Roe 1 on March 17, 2016, and in Westco’s case as Roe 1 on December 16, 2016, and sought no affirmative relief, so his dismissal is a favorable outcome.  The opposition also argues that MCW, beyond the dismissals, obtained its litigation objectives by defeating all of the claims by Bilal and Westco in prevailing on summary judgment and mooting the cross-motion for summary adjudication.   It would appear that by any analysis, the moving parties were the prevailing parties on the cross-complaints.  

However, it would appear that Bilal and Westco would be entitled to strike or tax costs which were incurred in connection with the complaint, on which the moving parties were not prevailing parties, as the complaint was voluntarily dismissed, so that moving parties are only the prevailing parties as to Bilal and Westco on the cross-complaints which were respectively dismissed against them. 

This situation would appear to warrant allocation of the fees between the complaint and cross-complaints, and against each of the cross-complainants.   

The opposition argues that the costs are due jointly and severally because Bilal is inextricably linked to Westco and is the beneficiary of this dispute.  The argument is again based on case law under which the court may add a party as an additional judgment debtor under an alter ego theory.  There is no authority cited under which such relief can be granted based on an opposition to a motion to tax costs, and the opposition submits no evidence to support the argument that Bilal treated the corporation as his alter ego.  The court again declines to deem Bilal an additional judgment debtor on the posture and showing now before the court. 

The allocation issues will be addressed in connection with the individual costs claimed in Fennessy v. DeLeuw-Cather Corp. (1990) 218 Cal.App.3d 1192, the court of appeal noted that it was sufficient challenge to a memorandum of costs to file a motion asserting that the costs were not incurred as against the moving party, but were incurred in connection with other parties, which shifts the burden to the party claiming costs to prove that the costs were actually incurred by the claimant in defending against the litigation in which claimant prevailed.  Fennessy, at 1197.  

The motions both challenge the recoverability of each of the claimed costs in the memorandum of costs.  Under CCP § 1033.5(c)(2), “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.”  Subdivision (3) requires: “Allowable costs shall be reasonable in amount.”

Where a cost item does not appear proper and necessary on its face, the burden of proof is on the claimant to show the cost is appropriate.  Murphy v. F.D. Cornell Co., (1930) 110 Cal. App. 452, 454.   If the items appear to be proper charges, the burden is on the party seeking to tax costs to show they were not reasonable or necessary.   Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.  Where items are properly objected to as not reasonable or necessary, however, they are put in issue and the burden of proof is on the party claiming them as costs.  Id.  The trial court’s determination on a motion to tax or strike costs will be reversed only for an abuse of discretion.   Santantonio v. Westinghouse Broadcasting Co. (1994, 2nd Dist.) 25 Cal.App.4th 102, 121.   

Item 1—Filing and Motion Fees 

CCP § 1033.5(a) lists allowable costs, which include, “(1) Filing, motion, and jury fees.”

The memo of costs seeks $870 for filing and motion fees.  There is no worksheet submitted with the memorandum of costs, or specification of what was filed or required a motion, so that it can be determined if the cost item is proper and necessary.  

Both motions argue that without a specification of what was filed or on whose behalf it was filed, and an itemization, it is not possible to determine if these costs were reasonably necessary and material to the issues litigated.  

MCW and Blyumkin have filed a joint opposition to the two motions to strike or tax costs, in which they indicate that the $870 claimed represents two first appearance fees, of $435 each, for a total of $870.  The opposition also indicates that MCW incurred an additional $500 filing fee for MSW’s motion for summary judgment, and other filing fees which are not included in the cost memorandum. 

There are no invoices submitted or other proof of payment of fees.  The declaration submitted does not set forth facts addressing the individual costs claimed.  In any case, it would appear that any first appearance fee by MCW was paid in connection with the filing of its complaint, not in connection with the defense of the cross-complaints, so that cost appears improper on its face, shifting the burden to the party claiming costs to justify it.  The opposition has not met this burden.   The court accordingly taxes the costs sought by $435.   It would appear that the first appearance fee sought for Blyumkin was likely incurred in response to the service of the Balil cross-complaint, in which Blyumkin was first named in this lawsuit.  The cost appears recoverable, and is awarded, in favor of Blyumkin only. 

Item 2 – Jury Fees 

As noted above, CCP § 1033.5(a) lists allowable costs, which include, “(1) Filing, motion, and jury fees.”

The memorandum seeks $150 in jury fees.  The motions inquire whether jury fees were necessary and incurred. 

The opposition indicates that MCW posted its jury fees in the amount of $150 on May 8, 2017.  The opposition does not include a declaration to this effect, or an invoice or other proof of payment.  It would also appear that this fee could be recovered by a party which posted such fees by that party seeking a refund of those fees, if it is determined that a jury trial is not to be pursued in this matter.  The opposition has failed to sufficiently support these costs, and the motions is granted. The costs sought of $150 will be stricken in full and the costs for this item reduced to -0-.

Item 5—Service of Process 

The memorandum of costs seeks $95 for service of process. 

CCP section 1033.5(a)(4) specifies that allowable costs include: 

"(4) Service of process by a public officer, registered process server, or other means, as follows:

(A)  When service is by a public officer, the recoverable cost is the fee authorized by law at the time of service.

B)  If service is by a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code, the recoverable cost is the amount actually incurred in effecting service, including, but not limited to, a stakeout or other means employed in locating the person to be served, unless such charges are successfully challenged by a party to the action."

The cost memorandum does not attach a worksheet, so it is not clear whether these service costs were incurred in defense of the cross-complaints or were necessary solely to assist in the prosecution of the complaint, on which claimants were not prevailing parties.  It is also not clear whether the charges were otherwise appropriate service costs or appropriate in amount.  Under this circumstance, the item does not appear necessary or proper on its face, and the burden has shifted to MCW and Blyumkin to establish these are appropriate costs. 

The opposition argues that MCW incurred process server fees of $95.00 for service of process of a subpoena for production of documents on a third-party witness.   No evidence is offered in support of this argument.  No invoice is attached, and no explanation is made with respect to what third party witness was subpoenaed, what information was necessary to obtain from that witness, and for what purpose, whether in prosecution of the complaint or defense of the cross-complaint.   MCW has accordingly failed to meet its burden here, and the motion is granted, and the costs claimed stricken in their entirety.  The costs claimed of $95 are reduced to -0-.

Item 10—Attorney fees

The memorandum seeks $756,212.50 in attorney’s fees. 

Under CRC Rule 3.1702(a), generally, “claims for statutory attorney’s fees and claims for attorney’s fees provided for in a contract,” must be claimed by “notice of motion.”   Under CRC Rule 3.1702(e), only fees fixed without a court determination may be claimed in a memorandum of costs:

“(e)   If a party is entitled to statutory or contractual attorney’s fees that are fixed without the necessity of a court determination, the fees must be claimed in the memorandum of costs.” 

This is not a case where the fees are fixed or without the necessity of a court determination with respect to their reasonableness.  The costs are improper on their face.  

The opposition argues that attorney’s fees as costs are sought as set forth in the motion set for hearing this same date, apparently conceding that the necessary showing is not made here but is before the court on the separate motion.  The opposition also argues that the lack of a memorandum of costs does not preclude a party from filing a motion for attorney’s fees.  The opposition to this item appears to be simply a waste of time. 

The parties claiming these costs have failed to meet their burden to show the costs are properly sought in this fashion, and the motion is granted, and the item is stricken in its entirety, with costs reduced to -0-. 

Item 12—Models, enlargements, and photocopies of exhibits

CCP 1033.5(a)(13) provides “Models, the enlargement of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to the trier of fact.”  

CCP §1033.5 (b) specifies that certain items are not allowable as costs unless expressly authorized by law, including "Investigation expenses in preparing the case for trial" and "…photocopying charges, except for exhibits." §1033.5(b)(2), (3). 

The memorandum of costs seeks models, enlargements, and photocopies of exhibits in the sum of $5,490.74. 

The motions to strike or tax these costs argue that there was no trial in this case, and no judge or jury ever served as the trier of fact, and that the costs were not reasonably helpful to aid any trier of fact in this action.  

The opposition argues that MCW incurred these costs for photocopying various critical  documents, pleadings, exhibits and demonstrative binders, providing to the court a binder/model of operative pleadings and related exhibits, and that the papers and documents involved in the summary judgment that disposed of the dispute spanned more than 700 pages, each of which were filed with the court, with courtesy copies being delivered to the department, all of which had to be duplicated for service on at least 8 sets of attorneys in this action.   The opposition argues that the summary judgment documents cost more than $1,500 (10 sets of more than 700 pages of documents) and that MCW also served countless notice of rulings, and additional reproduction and demonstratives.  

No invoices, or description of the subject matter of the documents or models is submitted.  The declaration of counsel does not attest that such costs were necessarily incurred or in what amount or at what price per page of documents.   There is no argument or evidence directed to how the photocopied documents were reasonably helpful to the trier of fact.

Westco in the reply points out that based upon the claimed charge of $1,500 for 700 pages for the MSJ, for which 10 copies were prepared (7000 pages), MCW paid $2.14 per page ($1,500 divided by 7000).   Westco indicates that the exhibits to MCW’s MSJ total 199 pages, and at $.214 cents per page, would equal $42.58, which is the amount which is properly awarded for this item.

The court has confirmed that the file shows that the Declarations in Support of MCW’s motion for summary judgment/adjudication filed on May 24, 2019, which submitted the declarations and exhibits in support of that motion, was 199 pages long, including the proof of service, and there were not in fact 700 pages of exhibits, as claimed.  

The court also recognizes that MCW’s MSJ/A was supported by a Request for Judicial Notice, attaching copies of various pleadings in this matter, which were also likely helpful the court as trier of fact in determining the motion on its merits.   That document is 221 pages long, including proof of service.  It would appear to the court that the costs which appear appropriate on their face would be the 199 pages, plus 221 pages, which it is not seriously disputed were photocopied for ten copies; one to the court, courtesy copies to the department, and copies for eight sets of counsel.   This would equal 420 pages times 10, or 4,200 pages at the per page copying cost of $.214, for total copying costs of $89.88.  The court also recognizes that there has been no indication of how these costs were incurred solely in connection with the defense against the cross-complaints, as opposed to in connection with establishing the claims in the operative complaint, upon which MCW did not prevail.   The court has considered the pleadings and finds that the appropriate allotment to the defense of the cross-complaints would be one-half of the costs claimed, or $44.94.   

The remaining costs claimed, for other purported photocopies or notices, are not proper and the opposition has failed to meet its burden of showing that they are proper charges, and they accordingly are not awarded as claimed. 

 The costs claimed of $5,490.74 will be taxed by $5,445.80 and reduced to $44.94.

Item 14—Fees for electronic filing or service

The memorandum seeks $3,292.20 for this item. 

CCP section 1033.5(a)(14) provides that allowable costs include:

“Fees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.”

The motions argue that the court has not ordered electronic filing or service through an electronic filing service, and that parties did not have an agreement for electronic service.  The motions argue that without a court order, if MCW/Blyumkin incurred such costs, such costs were incurred for their convenience and benefit and should be stricken as unreasonable and unnecessary. 

The opposition argues that for several years the Los Angeles Superior Court has required and mandated electronic filing, so that it is not optional, but required, and that even if it were optional, the costs are recoverable.  The opposition argues that MCW has served many notices of ruling, notices of continuances and minute orders entered by the court, documents, pleadings, stipulations and motions, each of which was subject to a mandatory electronic filing fee. 

This argument is not supported by any evidence, as the declaration does not address these matters, and there are no invoices, court orders or other documents submitted to show that there was in fact a court order requiring electronic filing, when such a requirement was implemented, that the documents purportedly filed and served by this means were in fact so filed and served, or were filed and served during the period when electronic service was required.  There is also no evidence submitted of what the various charges would have been going back to 2016.  The opposition continues to misconstrue the cost claimants’ burden on this motion, and claimants failed to submit any showing to support that burden.   The motion accordingly is granted, and the costs claimed will be stricken in their entirety and reduced to -0-. 

Item 15 – Fees for hosting electronic documents

The memorandum seeks $450.74 for this item. 

CCP section 1033.5(a)(14) provides that allowable costs include:

“Fees for the hosting of electronic documents if a court requires or orders a party to have documents hosted by an electronic filing service provider. This paragraph shall become inoperative on January 1, 2022.”

The motions argue that electronic hosting requires a court order, and that there has been no such order for hosting records in this case.  The costs accordingly do not appear proper charges on their face, shifting the burden to the claimants to show they are proper.  

The opposition argues that these costs were incurred in connection with the production and hosting/preservation of documents produced by Wells Fargo Bank in response to a subpoena to Wells Fargo Bank.  No declaration supporting this argument is submitted, no court order is submitted, no subpoena or response to the subpoena, and the arguments remains unsupported by evidence.  MCW and Blyumkin accordingly have failed to meet their burden to support these costs and the motion is granted.  The costs will be stricken in their entirety and reduced to -0-. 

Item 16—Other

The memorandum seeks $6,626.26 for this item.  There is no worksheet submitted, and no designation on the memorandum what these costs represent, and why they would be recoverable. 

CCP §1033.5(a)(16) provides that allowable costs include:

“Any other item that is required to be awarded to the prevailing party pursuant to statute as an incident to prevailing in the action at trial or on appeal.” 

CCP§ 1033.5(c)(4) provides that “Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”  

The motions argue that the request includes no description of the claimed costs which would permit the court to find them reasonable and necessary to the litigation. 

The costs do not appear proper on their face, shifting the burden to claimants to show that they are proper costs. 

The opposition argues that the costs are for retrieving documents from the LA Superior Court which were imaged by the LASC, for obtaining records from the California Secretary of State, for delivering courtesy copies to the department, for attending mediation, for postage and UPS and other appropriate expenditures.    

Again, the opposition is not supported by a declaration addressing these costs or explaining their necessity or reasonableness, or documents such as invoices showing they were even incurred.   

As argued in the reply, to the extent the argument is that documents from LASC were retrieved and imaged, it is not disclosed what documents were retrieved or the itemized costs of such retrieval, or what documents were delivered to the court, and that ordinarily postage and delivery costs are not allowable costs.   

Postage and delivery fees are ordinarily not considered allowable costs under CCP section 1033.5(b)(3), which excludes "[p]ostage," as an allowable cost.  See Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.  Moreover, to the extent the opposition vaguely references costs to attend mediation, it is held that such costs should be limited to court ordered mediation.  See Gibson v. Bobroff (1996) 49 Cal.App.4th 1202, 1211.  There is no court order here submitted showing that the parties were ordered to a court-ordered mediation. 

 MCW and Blyumkin have failed to meet their burden on these costs, and the motion is granted, and the costs claimed stricken in their entirety, and the costs reduced to -0-.  

RULING: 

Motion for an Award of Contractual and Statutory Attorneys’ Fees (and Costs) is DENIED in part and GRANTED in part.  

The Court finds that the operative complaint in this matter was voluntarily dismissed, so that the issue of the recovery of attorneys’ fees is governed by Civil Code section 1717(b), in which it is expressly stated:

"(2) Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section."

The Court further finds that this action also involved noncontract claims, in effect, causes of action for fraud, negligent misrepresentation and breach of fiduciary duties, and pursuant to Santisas v. Goodwin (1998) 17 Cal.4th 599, the Court has undertaken to determine whether it has been established that the parties entered into a valid and enforceable agreement that contains an attorney fee provision and, if so, whether the provision entitles moving parties to recover their attorney fees following the voluntary dismissal of the complaint.  The Court finds that the agreements at issue include attorney’s fees provisions but cannot find that the provisions entitle moving parties to recover fees following voluntary dismissal, as the provision are not sufficiently broad to encompass the non-contractual claims.

The Court also finds that the moving papers have failed to establish that attorney’s fees would be recoverable by cross-defendant Aleksandr Blyumkin, so the motion brought by that party is DENIED. 

As to the fees incurred to defend the cross-complaints, the Court finds that cross-defendant  MCW Fuels, Inc. is the prevailing party in connection with the Second Amended Cross-Complaint of Westco Petroleum Distributors, Inc. and the First Amended Cross-Complaint of Westco Petroleum Distributors, Inc. in the related action, LASC Case Number BC590798 (Sahih v. Westco Petroleum Distributors, Inc.), entitled to reasonable attorney’s fees,  with respect only to litigating the interpretation of any provision of the Agreement giving rise to the action.

 

The Court further finds that the moving papers have failed to establish that any agreement between the moving parties and Kamal A. Bilal provides for an award of attorney’s fees against that party.  

Request for order nevertheless ordering that Bilal is responsible for fees and costs is DENIED. 

The Court is unable, based on the papers submitted, to fix the amount of reasonable attorney’s fees to be awarded to cross-defendant MCW, and the motion is accordingly continued for further evidence and briefing to be submitted by the moving parties concerning the issues of allocation between the complaint and cross-complaints, allocation between the defense of MCW and the defense of Blyumkin, and allocation between the contractual and tort claims, and for further evidence supporting the amount of fees claimed, which must provide the court with detailed information concerning specific tasks performed and subject matter, as well as the dates work was performed, and exact hours spent on such tasks.   The hearing is continued to December 2, 2022. 

Supplemental briefing, opposition, and reply to be timely filed and served according to code in connection with the new hearing date.   

Evidentiary Objections of Westco Petroleum Distributors, Inc. to Motion for an Award of Contractual and Statutory Attorneys’ Fees (and Costs):

Objections Nos. 1-10 are OVERRULED. 

Objections Nos. 11-13 are SUSTAINED.  

Defendant/Cross-Complainant Westco Petroleum Distributors, Inc.’s Motion to Strike or, in the Alternative, to Tax Costs on Appeal is GRANTED IN PART and DENIED in part.   

The Court finds that respondents MCW Fuels and Aleksandr Blyumkin are parties entitled to costs on appeal according to the specification in the disposition of the opinion on appeal that “Respondents MCW Fuels, Aleksandr Blyumkin, and Stan Boyett & Son, Inc. are to recover their costs on appeal.” [Opinion, p. 46].

Item 1— Filing and motion fees

Motion is DENIED.  

The court finds that the cost appears appropriate on its face, appearing to be the equivalent of one filing fee in the court of appeal. 

Costs sought of $390 are awarded in full in the sum of $390.00 

Item 4—Printing and copying of briefs

The Memorandum of costs seeks $8.8 for this item, which does not appear regular on its face, shifting the burden to respondents to support this item.  The opposition does not address this item or submit evidence supporting that this cost was incurred and was reasonable and necessary. 

Costs sought of $8.80 are stricken and the costs reduced to -0-.

Item 6—Transmitting, filing, and serving of record, briefs, and other papers 

The Memorandum of costs seeks $52.50 for this item, which does not appear regular on its face, shifting the burden to respondents to support this item.  The opposition does not submit evidence supporting that this cost was incurred and was reasonable and necessary.  There has been no separate request for judicial notice submitted by respondents, and no materials have been furnished sufficient for the court to determine that this is a proper cost.  

Costs sought of $52.50 are stricken and the costs reduced to -0-.

Item 16— Other 

Respondents seek to recover in this item “Attorneys’ Fees” in the sum of $20,705. Such fees must be sought in a timely noticed motion under CRC Rule 870.2. 

Costs sought in the sum of $20,705 are stricken in their entirety, and the costs reduced to -0-.

Total Costs Awarded= (Cost claimed of $21,156.30, less $8.80, less $52.50, less $20,705) $390.00. 

Defendant/Cross-Complainant Westco Petroleum Distributors, Inc.’s Motion to Strike or, in the Alternative, to Tax Costs is GRANTED in part.    

The Court finds that cross-defendants MCW Fuels, Inc. and A. Blyumkin are the prevailing parties in this matter on the cross-complaints from which they were dismissed only, entitled to recover costs in connection with the defense against those cross-complaints pursuant to CCP §1032 (a) (4) and (b). 

Item 1—Filing and Motion Fees 

Motion is GRANTED in part. 

The motion seeks $870 for filing and motion fees but fails to specify what was filed or required a motion fee.  MCW and Blyumkin in opposition indicate that the figure represents two first appearance fees, with no evidence or invoices.  The court nevertheless awards a first appearance fee in the sum of $435 in favor of Blyumkin and against Balil only, based on the representations in the opposition, and the circumstance that MCW’s first appearance fee claimed was incurred in pursuit of the complaint, on which MCW is not a prevailing party. 

Costs claimed of $870 are taxed by $435, and reduced to $435.00, to be awarded in favor of Blyumkin against Balil only.  

Item 2 – Jury Fees 

Motion is GRANTED. 

The opposition has failed to show that these fees were incurred, and it would appear that if they are not necessary, the depositing party can recover them. 

Costs sought in the sum of $150 are stricken in full, and the costs are reduced to -0-

Item 5—Service of Process 

Motion is GRANTED. 

The costs do not appear proper charges on their face, shifting the burden to the party claiming costs to support this item.  The opposition does not submit evidence supporting that this cost was incurred and was reasonable and necessary, so this burden has not been met. 

Costs sought of $95 are stricken in full, and the costs reduced to -0-.

Item 10—Attorney fees

Motion is GRANTED.  

The fees as sought require a court determination and may only be claimed by a noticed motion.  CRC Rule 3.1702, subdivisions (a) and (e).

Costs sought in the sum of $756,212.50 are stricken in full, and the costs reduced to -0-.

Item 12—Models, enlargements, and photocopies of exhibits

Motion is GRANTED in part.  

The Court finds that the costs sought of $5,490.74 must be reduced to reflect the cost to photocopy exhibits which were reasonably helpful to the trier of fact.  The opposition submits no affirmative evidence justifying any of these costs, including a declaration or invoices.  The Court nevertheless recognizes that it was provided with exhibits in support of MCW’s motion for summary judgment or adjudication, including 199 pages of declarations and exhibits in support of the motion and 221 pages in connection with a request for judicial notice.  Using the figures relied upon in the opposition, the costs which appear the 199 pages, plus 221 pages, which it is not seriously disputed were photocopied for ten copies, one to the court, courtesy copies, and copies for eight sets of counsel.   This would equal 420 pages times 10, or 4,200 pages at the per page copying cost of $.214, for total copying costs of $89.88.  The court also recognizes that there has been no indication of how these costs were incurred solely in connection with the defense against the cross-complaints, as opposed to in connection with establishing the claims in the operative complaint, upon which MCW did not prevail.   The court has considered the pleadings and finds that the appropriate allotment to the defense of the cross-complaints would be one-half of the costs claimed, or $44.94.  

Costs claimed of $5,490.74 are taxed and reduced by $5,445.80, to costs in the sum of $44.94, which costs are to be awarded in favor of MCW only and against Westco only. 

Item 14—Fees for electronic filing or service

Motion is GRANTED. 

The fees sought of $3,292.20 do not appear to be proper charges, shifting the burden to the parties claiming costs to show that they are properly claimed.  The opposition does not submit evidence supporting that these costs were incurred with respect to any particular documents which were filed and served in this matter, were required by court order to be electronically filed or served, or that the costs were reasonable and necessary.  

Costs sought of $3,292.20 are stricken in full and reduced to -0-.

Item 15 – Fees for hosting electronic documents

Motion is GRANTED.   

The costs claimed do not appear proper, shifting the burden to the parties claiming costs to show they were incurred and properly claimed.  The opposition does not submit any evidence in support of these costs, and specifically does not submit evidence that a court required or ordered a party to have documents hosted by an electronic filing service provider, as required under CCP section 1033.5(a)(14).

Costs claimed of $450.74 are stricken in full and reduced to -0-.

Item 16—Other

Motion is GRANTED. 

The costs claimed do not appear proper, shifting the burden to the parties claiming costs to show they were incurred and properly claimed.  The opposition does not submit any evidence in support of these claimed costs and appears to concede that the costs include improperly pursued costs such as postage charges, delivery fees which would be considered a substitute for postage, as well as costs of attending a mediation which was evidently not court ordered.  

Costs claimed of $6,626.26 are stricken in full and reduced to -0-.

Total Costs Awarded= (Cost claimed of $773,187.44, less $435.00, less $150.00, less $95.00, less $756,212.50, less $5,445.80, less $3,292.20, less $450.74, less $6,626.26)  $479.94). 

Defendant/Cross-Complainant Kamal A. Bilal’s Motion to Strike or, in the Alternative, To Tax Costs is GRANTED. 

The Court finds that cross-defendants MCW Fuels, Inc. and A. Blyumkin are the prevailing parties in this matter on the cross-complaints from which they were dismissed only, entitled to recover costs in connection with the defense against those cross-complaints pursuant to CCP §1032 (a) (4) and (b). 

Item 1—Filing and Motion Fees 

Motion is GRANTED in part. 

The motion seeks $870 for filing and motion fees but fails to specify what was filed or required a motion fee.  MCW and Blyumkin in opposition indicate that the figure represents two first appearance fees, with no evidence or invoices.  The court nevertheless awards a first appearance fee in the sum of $435 in favor of Blyumkin and against Balil only, based on the representations in the opposition, and the circumstance that MCW’s first appearance fee claimed was incurred in pursuit of the complaint, on which MCW is not a prevailing party. 

Costs claimed of $870 are taxed by $435, and reduced to $435.00, to be awarded in favor of Blyumkin against Balil only.  

Item 2 – Jury Fees 

Motion is GRANTED. 

The opposition has failed to show that these fees were incurred, and it would appear that if they are not necessary, the depositing party can recover them. 

Costs sought in the sum of $150 are stricken in full, and the costs are reduced to -0-.

Item 5—Service of Process 

Motion is GRANTED. 

The costs do not appear proper charges on their face, shifting the burden to the party claiming costs to support this item.  The opposition does not submit evidence supporting that this cost was incurred and was reasonable and necessary, so this burden has not been met. 

Costs sought of $95 are stricken in full, and the costs reduced to -0-.

Item 10—Attorney fees

Motion is GRANTED.  

The fees as sought require a court determination and may only be claimed by a noticed motion.  CRC Rule 3.1702, subdivisions (a) and (e).

Costs sought in the sum of $756,212.50 are stricken in full, and the costs reduced to -0-.

Item 12—Models, enlargements, and photocopies of exhibits

Motion is GRANTED in part.  

The Court finds that the costs sought of $5,490.74 must be reduced to reflect the cost to photocopy exhibits which were reasonably helpful to the trier of fact.  The opposition submits no affirmative evidence justifying any of these costs, including a declaration or invoices.  The Court nevertheless recognizes that it was provided with exhibits in support of MCW’s motion for summary judgment or adjudication, including 199 pages of declarations and exhibits in support of the motion and 221 pages in connection with a request for judicial notice.  Using the figures relied upon by the MCW in the opposition, the costs which appear the 199 pages, plus 221 pages, which it is not seriously disputed were photocopied for ten copies, one to the court, courtesy copies, and copies for eight sets of counsel.   This would equal 420 pages times 10, or 4,200 pages at the per page copying cost of $.214, for total copying costs of $89.88.  The court also recognizes that there has been no indication of how these costs were incurred solely in connection with the defense against the cross-complaints, as opposed to in connection with establishing the claims in the operative complaint, upon which MCW did not prevail.   The court has considered the pleadings and finds that the appropriate allotment to the defense of the cross-complaints would be one-half of the costs claimed, or $44.94.  

Costs claimed of $5,490.74 are taxed and reduced by $5,445.80, to costs in the sum of $44.94, which costs are to be awarded in favor of MCW only and against Westco only. 

Item 14—Fees for electronic filing or service

Motion is GRANTED. 

The fees sought of $3,292.20 do not appear to be proper charges, shifting the burden to the parties claiming costs to show that they are properly claimed.  The opposition does not submit evidence supporting that these costs were incurred with respect to any particular documents which were filed and served in this matter, were required by court order to be electronically filed or served, or that the costs were reasonable and necessary.  

Costs sought of $3,292.20 are stricken in full and reduced to -0-.

Item 15 – Fees for hosting electronic documents

Motion is GRANTED.   

The costs claimed do not appear proper, shifting the burden to the parties claiming costs to show they were incurred and properly claimed.  The opposition does not submit any evidence in support of these costs, and specifically does not submit evidence that a court required or ordered a party to have documents hosted by an electronic filing service provider, as required under CCP section 1033.5(a)(14).

Costs claimed of $450.74 are stricken in full, and reduced to -0-

Item 16—Other

Motion is GRANTED. 

The costs claimed do not appear proper, shifting the burden to the parties claiming costs to show they were incurred and properly claimed.  The opposition does not submit any evidence in support of these claimed costs and appears to concede that the costs include improperly pursued costs such as postage charges, delivery fees which would be considered a substitute for postage, as well as costs of attending a mediation which was evidently not court ordered.  

Costs claimed of $6,626.26 are stricken in full, and reduced to -0-

Total Costs Awarded= (Cost claimed of $773,187.44, less $435.00, less $150.00, less $95.00, less $756,212.50, less $5,445.80, less $3,292.20, less $450.74, less $6,626.26) $479.94. 

GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.