Judge: Robert S. Draper, Case: 18STCV05586, Date: 2022-12-08 Tentative Ruling

Case Number: 18STCV05586    Hearing Date: December 8, 2022    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Plaintiff the People of the State of California’s Motion to Strike Costs is GRANTED. The $435 fee for Defendant’s Opposition to the Motion for Summary Adjudication is ordered stricken from the Memorandum of Costs.

FACTUAL BACKGROUND

This is an action for violations of unfair competition law and false advertising law. The Complaint alleges as follows. Plaintiff is the People of the State of California, by and through the Attorney General of California. Plaintiff alleges that the Defendants have engaged in an unlawful telemarketing scam involving more than 400 consumers and $2.2 million. (Compl. ¶ 2.) Plaintiff alleges that the Defendants operated under the name American Advocate Services and National Advisory Network since April 2015 and have advertised, marketed, offered for sale, and sold purported investment recovery services. (Compl. ¶¶ 30-31.) Defendants engaged in a scheme to swindle investors who lost money in previous telemarketing transactions by enticing them to engage Defendants to recover on their lost investments. (Compl. ¶ 31.) Defendants marketed and sold their services to consumers who were vulnerable to fraud, including those over age 65, although they knew recovery was not possible. (Compl. ¶¶ 33-34.) Defendants required consumers to pay upfront fees of $750 to $69,750 before commencing services. (Compl. ¶ 44.)

PROCEDURAL HISTORY

On November 19, 2018, Plaintiff filed the Complaint alleging five causes of action:

1.    Violations of the False Advertising Law;

2.    Violations of Unfair Competition Law/Telephonic Sellers Law;

3.    Violations of the Unfair Competition Law/Unauthorized Practice of Law;

4.    Violations of the Unfair Competition Law/Aiding and Abetting the Unauthorized Practice of Law; and,

5.    Business & Professions Code section 6412.

On July 23, 2022, following a bench trial, the Court issued a tentative judgment in Defendant Peter Bumerts’ (“Bumerts”).

On September 29, 2022, the Court entered Judgment in Bumerts’ favor on both causes of action in which he was named.

On October 4, 2022, Bumerts filed the Memorandum of Costs.

On October 11, 2022, Plaintiff filed the instant Motion to Strike Costs.

No Opposition has been filed.

DISCUSSION

     I.         Motion to Tax Costs

Pursuant to California Rules of Court (“CRC”) rule 8.493(a)(1)(A), “the prevailing party in an original proceeding is entitled to costs if the court resolves the proceeding by written opinion after issuing an alternative writ, an order to show cause, or a peremptory writ in the first instance.”

Recoverable fees include, if reasonable, the cost of filing fees; the amount the party paid for any portion of the record; the cost to produce additional evidence on appeal; and the cost to notarize, serve, mail and file the record, briefs, and other papers. (CRC rules 8.278(d)(1)(a-e).)

If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Id.) 

A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred. (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.) A party seeking to tax costs must provide evidence to rebut this prima facie showing. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred. (Id.) 

Here, Plaintiff moves to strike a $435 filing fee incurred by Bumerts for filing his Opposition to Plaintiff’s Motion for Summary Judgment. Plaintiff notes that, according to the Los Angeles Superior Court’s Fee Schedule, there is no fee for filing an opposition to a motion for summary judgment. (Connolly Decl., Ex. A.)

Plaintiff’s Counsel states that when she contacted Defendant’s Counsel about the fee, Defendant’s Counsel stated that he was surprised when he was charged the filing fee, that he contacted the Clerk’s to confirm the fee, then Defendant’s Counsel paid the fee. (Connolly Decl. ¶ 3; Ex. B.) Plaintiff’s Counsel followed up by contacting the court clerk, who told Plaintiff’s Counsel that the fee was erroneous and should not have been charged. (Connolly Decl. 4.) However, the clerk informed Plaintiff’s Counsel that Defendant would have to request a refund, and that Plaintiff’s Counsel could not. (Ibid.) When Plaintiff’s Counsel informed Defendant’s Counsel that Defendant had to request a refund from the clerk, Defendant’s Counsel informed Plaintiff’s Counsel that Defendant would not remove the charge from the Memorandum of Costs. (Ibid.)

As the filling fee was erroneously applied, as Defendant may seek reimbursement from the clerk, and as no Opposition has been filed to the instant motion, Plaintiff’s Motion to Strike the $435 filing fee from Defendant’s Memorandum of Costs is GRANTED.

DATED:  December 8, 2022

______________________________

Hon. Robert S. Draper

Judge of the Superior Court