Judge: Robert S. Draper, Case: BC469884, Date: 2022-10-12 Tentative Ruling

Case Number: BC469884    Hearing Date: October 12, 2022    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Defendants Perry Leonard Segal and Charon Solutions, Inc.’s Motion to Strike Costs is GRANTED.

FACTUAL BACKGROUND

This is an action for malicious prosecution. The Complaint alleges as follows. Plaintiff Peaches Nong Jensen (“Jensen”) owned Plaintiff Peachtree Financial Corporation (“Peachtree”), and Defendant Perry Leonard Segal (“Segal”) owned Defendant Charon Solutions, Inc. (“Charon”). (Compl. ¶ 18.) Peachtree and Charon in turn were 50% members of a company called P&P Holdings, LLC (“P&P). (Compl. ¶¶ 19-20).

Jensen owned real property on Cass Avenue in Woodland Hills (“Cass Property”). (Compl. ¶ 24.) Charon and Segal contend that they entered into an oral agreement with Jensen to split the lot of the property to allow P&P to build luxury residences on the split-off lot. (Compl. ¶ 25.)

In 2004, Jensen sued an entity or person named “Silver” for concealing various constructing defects in the Cass Property. (Compl. ¶ 31.) While the action was pending in December 2005, Charon gave notice of its withdrawal from P&P, and Segal and Charon demanded that Jensen pay them a sum of money, or they would intervene in the Silver action and seek damages against Jensen for her alleged actions in relation to the Cass property. (Compl. ¶ 33.)

Jensen did not agree to the terms, and Charon filed a motion to intervene in the Silver action in December 2005. (Compl. ¶ 35.) This motion was a sham, since the allegations rested on claims to ownership of the Cass property which were without merit, and because it was intended to vex and injure Plaintiffs for failing to accede to Charon and Segal’s demands. (Compl. ¶ 35.) The motion was denied in January 2006. (Compl. ¶ 36.)

Charon’s withdrawal from P&P became effective in March 2006. (Compl. ¶ 38.)

In December 2008, Charon filed claims against Jensen and Peachtree alleging fraud in relation to the purported oral contract on the Cass property. (Compl. ¶¶ 39, 46.) Charon was represented by Defendants Justin J. Shrenger (named here both individually and as a corporation of the same name, referred to collectively as “Shrenger”), and later by Defendants Marcin Lambirth LLP, Timothy Lambirth, John B. Marcin, Lisa Miller, Regina Ashkinadze, and Graham A. Bentley (collectively, “Marcin-Lamberth”). (Compl. ¶¶ 6-14, 39-42.) Defendants prosecuted the fraud claims against Jensen and Peachtree because they knew that their invalid contract claims were time-barred and precluded by the statute of frauds. (Compl. ¶ 46.) The action was terminated on the merits in favor of Peachtree and Jensen respectively in January and September of 2010. (Compl. ¶¶ 47-50.)

PROCEDURAL HISTORY

On September 19, 2011, Plaintiffs filed the Complaint alleging one cause of action for Malicious Prosecution.

On January 18, 202, this Court granted the anti-SLAPP motions of the Shrenger and Marcin-Lamberth defendants.

On March 28, 2012, this Court granted Charon and Segal’s anti-SLAPP rulings in favor of Shrenger, Marcin-Lamberth, Charon, and Segal.

On May 4, 2012, Segal and Charon filed a Cross-Complaint against Plaintiffs for malicious prosecution of a Cross-Complaint in the underlying December 2008 action.

On July 17, 2012, this Court granted Plaintiffs’ anti-SLAPP motion against the Cross-Complaint.

Charon and Segal filed a Notice of Appeal of the anti-SLAPP motion against the Cross-Complaint.

On March 5, 2014, a Remittitur was filed affirming the Court’s partial grant of Charon and Segal’s anti-SLAPP motion, and its grant of Plaintiffs’ anti-SLAPP motion against the Cross-Complaint.

On April 23, 2015, this Court denied Charon and Segal’s Motion for Summary Judgment or Adjudication.

On April 5, 2016, following trial, the jury entered a verdict in favor of Plaintiffs, and awarded them $1,000,000 in damages. On April 6, 2016, the jury awarded $250,000 respectively against both Segal and Charon. The Court entered judgment according to this verdict on April 21, 2016.

On June 10, 2016, this Court denied Segal and Charon’s Motion for New Trial.

Charon and Segal filed a Notice of Appeal from Judgement on July 7, 2016.

A remittitur was filed on March 26, 2018, affirming all findings of liability, while remanding the matter for new trial on compensatory damages (based on the Court’s order allowing overly-redacted attorneys’ fee bills), and ordering that, if compensatory damages at the new trial exceed $25,000, affirming the punitive damages award.

On April 23, 2018, this matter was transferred from Department 48 to the instant Department 78.

This Court on March 20, 2019, granted in part Charon and Segal’s Motion to Compel Further Responses to Deposition Questions.

On June 21, 2019, this Court granted Charon’s Motions to Compel Further Responses to Requests for Admission, Set Four, Form Interrogatory No. 17.1, and Requests for Production, Set Five.

On September 8, 2021, trial began.

On September 16, 2021, the Jury reached a verdict finding that Segal and Charon’s malicious prosecution of the Declaratory Relief and Unjust Enrichment causes of action in the underlying action were a substantial factor in causing harm to Jensen.

On January 6, 2022, Defendants filed a Motion for New Trial.

On February 14, 2022, this Court denied that Motion.

On March 24, 2022, Defendants filed a Notice of Appeal.

On August 8, 2022, Defendants filed the instant Motion to Tax Costs.

On August 9, 2022, Defendants filed a Corrected Motion to Tax Costs.

On October 3, 2022, Jensen filed an Opposition.

No Reply 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, Defendants argue that Jensen’s Memorandum of Costs is untimely under California Rules of Court rule 3.1700(a)(1), which requires that the prevailing party claiming costs “serve and file a memorandum of costs within 15 days after the date of service 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.”

Defendants note that Jensen’s Memorandum of Costs was filed on July 25, 2022, 181 days after judgment was entered. Additionally, Defendants argue that the delayed filing is prejudicial to Defendants, as the matter is currently on appeal, and to perfect a stay of enforcement pending appeal, Defendants must post bond equal to 1.5 to two times the amount of judgment, which would be greatly increased by the costs proposed in Jensen’s Memorandum of Costs.

On Opposition, Jensen makes two arguments. First, she argues that Defendants’ Notice of Motion mistakenly states that Defendants move to strike costs based on the untimely filing of Jensen’s Memorandum of Points and Authorities rather than her Memorandum of Costs. Jensen argues that, as the notice of motion misstates Defendants’ arguments, Defendants failed to argue that the untimely Memorandum of Costs warrants striking.

However, as both the Notice of Motion and the Motion itself repeatedly refer to the untimely Memorandum of Costs, Jensen had ample notice of the grounds on which Defendants moved, and no prejudice was caused by the single error.

Next, Jensen argues that under rule 3.170(a)(1), Jensen was required to file the Memorandum of Costs within fifteen days after service of the Notice of Judgment, or 180 days after the Entry of Judgment, whichever comes first. Jensen contends that as no notice of ruling was filed, 180 days is the correct calculation, and under that calculation Jensen’s Memorandum of Costs was timely, as the 180^th day fell on a Saturday.

However, under rule 3.170(a)(1), the service of notice is effectuated under Code of Civil Procedure section 664.5, which requires that “the party submitting an order or judgment for entry shall prepare and serve, a copy of the notice of entry of judgment to all parties who have appeared in the action or proceeding and shall file with the court the original notice of entry of judgment together with the proof of service.”

Here, the Court notes that on February 4, 2022, Jensen filed a Notice of Ruling as to the entry of judgment, along with a Proof of Service indicating that she served Defendants with said notice on February 3, 2022. Therefore, a timely memorandum of costs was to be filed fifteen days following that date, not 180 days after entry of judgment.

As Jensen’s Memorandum of Costs is untimely, and as Defendants have demonstrated prejudice resulting from this untimeliness, Defendants’ Motion to Strike Costs is GRANTED.

DATED:  October 12, 2022   

______________________________

Hon. Robert S. Draper

Judge of the Superior Court