Judge: Stephen P. Pfahler, Case: 19CHCV00768, Date: 2022-08-02 Tentative Ruling

Case Number: 19CHCV00768    Hearing Date: August 2, 2022    Dept: F49

Dept. F-49

Date: 8-2-22

Case #19CHCV00768

Trial Date: N/A

TAX COSTS

MOVING PARTY: Defendant, Malcom Kirakosian

RESPONDING PARTY: Plaintiff, K.G. Mullen, Inc.

RELIEF REQUESTED

Motion for Attorney Fees

SUMMARY OF ACTION

On September 24, 2019, Plaintiff K.G Mullen, Inc. filed a complaint against Malcolm Kirakosian for Breach of Contract, Foreclosure of Mechanic’s Lien, Quantum Meruit and Valebant, Account Stated, and Open Book Account. On February 24, 2020, Malcolm Kirakosian filed a cross-complaint against K.G. McMullen for Breach of Contract, Negligence, and Disgorgement of Construction Funds.

On January 5, 2022, the court issued a statement of decision. The statement finds in favor of Plaintiff on the breach of contract, foreclosure of mechanic’s lien, and quantum meruit and valebant causes of action, but found in favor of defendant on the common count causes of action. On the cross-complaint, the court found in favor of Cross-Defendant. The court awarded $39,685.45 in damages to Plaintiff, plus prejudgment interest.

On May 26, 2022, the court awarded $16,750 in attorney fees. The court entered judgment on June 1, 2022, including the awarded attorney fees, plus costs.

RULING: Off-Calendar/Moot.

Defendant Malcom Kirakosian moves to tax costs. Defendant moves to tax costs on grounds that Plaintiff K.G. McMullen, Inc. failed to file a memorandum of costs, and item 16 lacks statutory support. Plaintiff first states that a memorandum of costs was filed, and maintains all costs are statutorily recoverable. Defendant in reply reiterates the lack of statutory support for item 16.

“A prevailing party who claims costs must 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.” (Cal. Rules of Court, rule 3.1700(a).)

The court electronic filing system shows no filed memorandum of costs. While Plaintiff represents the filing of a memorandum of costs in opposition, noticeably absent from the argument is any actual indication of a filing date. The copy of the memorandum of costs submitted with the motion lacks any filing stamped date. The court therefore assumes this was the served copy rather than any filed copy.

Because no memorandum of costs appears on file, Plaintiff cannot recover costs. The court therefore cannot rule on the subject motion to tax non-existent costs. The motion is therefore moot and taken off-calendar.

Nevertheless, the court docket also shows no notice of service of entry of the June 1, 2022 Judgment, thereby still allowing Plaintiff to actually file a memorandum of costs with the court. The proposed judgment itself shows a April 21, 2022 proof of service, but barring proof of service of entry of the actual judgment, Plaintiff may still use this window to actually file a memorandum of costs with the court.

Defendant may file a statutorily timely (renewed) motion to tax upon actual filing of the memorandum of costs.

Defendant to give notice.