Judge: Randall J. Sherman, Case: 2018-01008782, Date: 2022-11-18 Tentative Ruling

Defendant Velocity Commercial Capital, LLC’s Motion to Strike or Tax the Memorandum of Costs Filed by Plaintiff Premier Liberty Development, LLC is denied.

Defendant first argues that plaintiff is not entitled to costs because the court has not determined that plaintiff is the prevailing party.  However, CCP §1032(a)(4) provides, “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.”  Here, the court granted plaintiff summary adjudication as to plaintiff’s First Cause of Action for Declaratory Relief on October 1, 2021, concluding that plaintiff’s Deed of Trust was never legitimately reconveyed, and that as a result, plaintiff’s Deed of Trust had priority over defendant’s Deed of Trust.  The court entered Judgment on that ruling on July 8, 2022.  Defendant appealed from that Judgment on July 18, 2022.  This court therefore determines that plaintiff was the prevailing party in this action, and is entitled to costs of suit.  Whether plaintiff submitted a full credit bid during its non-judicial foreclosure proceedings does not change this conclusion.  Defendant also argues that plaintiff violated the “one action rule” when it filed this case, but defendant overlooks the fact that the court has entered Judgment in this case in plaintiff’s favor, notwithstanding defendant’s belated contention as to the “one action rule”.

Defendant argues that plaintiff actually incurred all of the claimed costs, except for a responsive pleading fee, in another case, Case No. 30-2022-01242639-CU-OR-CJC, Velocity vs. Premier, filed on January 26, 2022, not in this action.  Not only does defendant provide no evidence in support of this assertion, but to the contrary, the list of E-Filing and E-Service Fees on Attachment 14 of plaintiff’s Memorandum of Costs contains 36 cost items incurred between 2018 and 2021, before the 2022 case was filed, and the two 2022 costs were for matters which this court’s file shows to have been incurred in this case.  Thus, this court soundly rejects this argument.

Accordingly, defendant has not “properly objected” to plaintiff’s Memorandum of Costs such that the burden shifted to plaintiff to prove its costs.  Jones v. Dumrichob (1998) 63 Cal. App. 4th 1258, 1265.

Plaintiff is ordered to give notice of the ruling unless notice is waived.