WVS SPE LLC v. Robert Azinian, et al.

DEFENDANT’S MOTION FOR ORDER STRIKING COSTS

 

MOVING PARTY: Defendant/Cross-Complainant Robert Azinian 

RESPONDING PARTY(S): Plaintiff/Cross-Defendant WVS SPE LLC

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS

Plaintiff WVS SPE, LLC (“Plaintiff”) brought the instant action against Defendants Lloyd Sugarman (“Sugarman”) and Robert Azinian (“Azinian”), asserting a single cause of action for breach of written guaranty.  Plaintiff alleges Defendants have failed to pay rent, costs, and expenses they personally guaranteed to be paid to Plaintiff for the lease of Ike’s Sandwich Place of Westwood, Inc.  

Subsequently, Defendant Sugarman filed a Cross-Complaint against Defendant Azinian for (1) breach of contract, (2) breach of fiduciary duty, (3) accounting, and (4) declaratory relief. Defendant Azinian also filed a Cross-Complaint, asserting a cause of action for (1) declaratory relief against both WVS and Sugarman, and for equitable indemnity against Sugarman only. 

On November 11, 2022, this court entered judgment in Plaintiff’s favor following Plaintiff’s successful motion for summary judgment on the Complaint. The judgment was affirmed on appeal. 

On July 31, 2024, Plaintiff filed a Memorandum of Costs After Judgment. Defendant now moves to tax or strike costs therein. Plaintiff opposed.

TENTATIVE RULING:

Defendant’s Motion to Strike or Tax is DENIED.  Plaintiff may file and serve an Amended Judgment consistent with this ruling.

Plaintiff is ordered to give notice.

DISCUSSION:

Motion to Tax

I. Legal Standard

In general, the prevailing party is entitled as a matter of right to recover costs for suit in any action or proceeding.  (Code Civ. Proc., §1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Allowable costs under Code of Civil Procedure section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount.  An item not specifically allowable under section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.)   In determining litigation success, Courts should “respect substance rather than form” and consider “the unique facts and circumstances of each case.” (Marina Pacifica Homeowners Assn. v. S. California Fin. Corp. (2018) 20 Cal. App. 5th 191, 206.) 

II. Analysis

In the Memorandum of Costs After Judgment, Plaintiff seeks postjudgment costs totaling $51,635.95. This sum reflects $49.70 for preparing and issuing an abstract of judgment, $1,013.75 for recording and indexing abstract of judgment, $258.12 for issuing writ of execution, $90.00 for levying officer fees, $47,036.50 for attorney’s fees, and $3,187.88 for other.

First, Defendant moves to strike costs pertaining to attorney’s fees. Defendant contends that Plaintiff has not demonstrated the reasonableness of the fees sought. 

The award of attorney’s fees in this case was based on contract and included in the judgment. “Attorney’s fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney’s fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.” (CCP § 685.040. 

In opposition, Plaintiff argues that the “bulk of the attorney fees claimed were incurred by out-of-state counsel enforcing the judgment and amended judgment in Rhode Island, where judgment debtor lives and owns collectible real and personal property.” (Opp. 5: 15-17.) The remainder were incurred to “enforce and collect the judgment and amended judgment” in California. (Opp. 6: 2.) Plaintiff has provided a declaration from Carson M. Shea, its out-of-state counsel, and Steven Karic, its in-state counsel, attesting to these facts. This includes billing records setting forth the hours and fees incurred.

Defendant has not filed a Reply addressing the reasonableness of the fees as set out in the opposition. "[I]t is the burden of the challenging party to point to the specific items challenged [within the moving party’s verified billing invoice], with a sufficient argument and citations to evidence.  General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.”  (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.) In that absence, the court finds the fees sought are reasonable and recoverable. 

Next, Defendant moves to strike the costs for “other,” arguing these costs are not recoverable under section 685.070(a). In opposition, Plaintiff demonstrates that the bulk of these costs were connected with Plaintiff’s attempts to enforce the judgment on Defendant’s property in Rhode Island. It also includes $1,031.25 in transcript and court reporter fees for the summary judgment hearing,” which was “belatedly billed and incurred after the judgment was entered.” (Opp. 2: 3-5.) Defendant has not filed a reply addressing these arguments. The court concludes these costs were reasonably necessary to the litigation and therefore recoverable. 

Accordingly, Defendant’s Motion to Strike or Tax is DENIED.

IT IS SO ORDERED.

Dated:   October 10, 2024 ___________________________________