Judge Richard Y. Lee, Case 2021-01192090 2022-08-22 Tentative Ruling

Judge: Richard Y. Lee, Case: 2021-01192090, Date: 2022-08-22 Tentative Ruling

Motion to Strike or Alternatively to Tax Costs

Plaintiff Frank Mueller’s Motion to Strike or Alternatively to Tax Costs is GRANTED in part and DENIED in part. The court orders that 1) Defendant Bienko shall recover $615.00 in filing fees, 2) $120.00 in additional filing fees shall be taxed, and 3) $4,530.75 in deposition costs shall be stricken.

Timeliness

Plaintiff was admittedly three days late in filing the motion to strike

or alternatively tax costs. The delay was a result of a calendaring error.

Under these circumstances, the court has the discretion to grant relief and allow the motion to go forward due to “excusable neglect.” (See Douglas v. Willis (1994) 27 Cal.App.4th 287, 290 [“Delay (or failure) to challenge a costs bill waives any objection to the costs claimed thereon. However, the court presumably has discretion to grant relief under [Civil Procedure Code section] 473 for ‘inadvertence’ or ‘excusable neglect’ to consider late-filed motions.”].)

In this case, Plaintiff was only a few days late in filing the motion and Defendant Elizabeth Bienko points to no undue prejudice caused by Plaintiff’s tardiness. The court will allow the motion to go forward on the merits.

Prevailing Party

Civil Procedure Code section 1032 (a)(4) defines a “prevailing party” for the purposes of awarding costs. One of the definitions is “a defendant in whose favor a dismissal is entered.” This applies to Defendant Elizabeth Bienko, who is a prevailing party in this case.

Apportionment of Costs

The court may not allocate costs based on an across-the-board reduction based on the number of defendants. “A prevailing party who is represented by the same counsel as a nonprevailing party may only recover those costs the prevailing party incurred and were reasonably necessary to the prevailing party's conduct of the litigation, not the other jointly represented parties’ conduct of the litigation. . . . Whether to award costs that were incurred by both the prevailing party and the nonprevailing party, and were reasonably necessary to the conduct of the litigation for both the prevailing and nonprevailing party, is left to the trial court's sound discretion based on the totality of the circumstances.” (Charton v. Harkey (2016) 247 Cal.App.4th 730, 744, emphasis added.)

The court of appeal has instructed that, “where a prevailing party incurs costs jointly with one or more parties who remain in the litigation, during the pendency of the litigation that party may recover only costs actually incurred by a party or in its behalf in prosecuting or defending the case.” (Fennessy v. Deleuw-Cather Corp. (1990) 218 Cal.App.3d 1192, 1196, emphasis added).

The costs reasonably necessary to Defendant Bienko’s conduct of the litigation was $615, consisting of a first appearance fee of $435 and filing fees of $60 each for the demurrer to the first amended complaint, the motion to strike the first amended complaint, and the motion to dismiss Defendant Bienko.

Defendant Bienko also claims filing fees of $60 each for the demurrer to the second amended complaint and the motion to strike the second amended complaint. However, the second amended complaint did not name Bienko as a defendant and these filing fees were not reasonably necessary for Defendant Bienko’s defense.

The remainder of the costs claimed by Defendant Bienko are deposition costs in the amount of $4,530.75.

On December 20, 2021, the Court granted Defendants’ Demurrer to Plaintiff’s First Amended Complaint and on January 6, 2022, Plaintiff filed his Second Amended Complaint, removing Elizabeth Bienko from the operative complaint. It was only after this, on January 18, 2022, that the deposition of Plaintiff was taken.

Thus, the deposition costs were not reasonably necessary to the prevailing party’s conduct of the litigation as Defendant Bienko had prevailed on the demurrer and been removed from the complaint prior to the taking of the deposition. Further, the deposition costs were not incurred during the pendency of the litigation involving Defendant Bienko.

Therefore, Defendant Bienko is entitled to recover $615.00 in filing fees, the court orders that filing fees in the amount of $120 shall be taxed, and the court strikes $4,530.75 in deposition costs.

Plaintiff shall give notice of this ruling.