Judge Theresa M. Traber, Case BC605281 2023-05-05 Tentative Ruling

Judge: Theresa M. Traber, Case: BC605281, Date: 2023-05-05 Tentative Ruling

Case Number: BC605281 Hearing Date: May 5, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: April 21, 2022 JUDGMENT: February 6, 2023

CASE: Albert Barrios, et al. v. Joel Leebove, et al.

CASE NO.: BC605281

MOTION TO TAX COSTS

MOVING PARTY: Plaintiff Albert Barrios, an individual, on behalf of other stakeholders, and derivatively on behalf of 123 Los Robles, LLC

RESPONDING PARTY(S): Defendant Joel Leebove

CASE HISTORY:

12/23/15: Complaint filed.
07/08/16: First Amended Complaint filed.
09/01/16: Second Amended Complaint filed.
02/06/23: Judgment entered for Defendants.

STATEMENT OF FACTS

Plaintiff alleged that Defendants breached their fiduciary duties to a limited liability company by giving an easement to an entity Defendants owned which benefited Defendants.

Plaintiff moves to tax select costs identified in Defendant Leebove’s memorandum of costs.

TENTATIVE RULING:

Plaintiff’s Motion to Tax Costs is GRANTED IN PART with respect to Item 1b ($60 in arbitration costs) and Item 16(1) ($10,000 in Referee’s fees) and otherwise DENIED.

DISCUSSION:

Plaintiff moves to tax select costs identified in Defendant Leebove’s Memorandum of Costs.

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.) Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.) A defendant who is dismissed from the action is the “prevailing party.” (Code Civ. Proc. §1032(a)(4).) This is so whether the dismissal is voluntary or involuntary. (Santisas, 17 Cal.4th at 606.)

Allowable costs under 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). 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, 773-774.) 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. (Ibid.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Ibid.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.) Discretion is abused only when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.)

Timeliness of Motion

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail or email, the period is extended as provided in Code of Civil Procedure section 1013.” (Cal. Rules of Court, rule 3.1700(b)(1).) Here, Defendants served the memorandum of costs by electronic service on February 13, 2023. (Memorandum of Costs POS.) 15 days plus two court days places the deadline for this motion on March 2, 2023, the date this motion was served and filed. The motion is therefore timely.

Specificity of Challenged Costs

Plaintiff does not specifically identify in the Notice of Motion which costs he seeks to challenge. Instead, Plaintiff has filed a “Chart of Challenged Costs” which identifies these costs with specificity and in the order and number they are identified with in the memorandum of costs, pursuant to California Rule of Court 3.1700(b). The Court therefore finds that Plaintiff has substantially complied with Rule of Court 3.1700(b).

Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of (1) the Parties’ February 16, 2017 stipulation to judicial reference in this action; and (2) the Referee’s April 6, 2018 Statement of Decision. Plaintiff’s first document is of extremely poor image quality, to the point that this copy of the document is not legible. However, both of these documents are already on file with the Court. Accordingly, Plaintiff’s requests are GRANTED pursuant to Evidence Code section 452(d) (court records).

Plaintiff’s Evidentiary Objections

Plaintiff objects to the Declaration of Joel Leebove in support of the Opposition. Plaintiff cites no authority requiring the Court to rule on these objections in the context of a motion to tax costs, as opposed to, for example, a motion for summary judgment. (See Code Civ. Proc. § 437c(q).) The Court therefore declines to rule on Plaintiff’s evidentiary objections. To the extent this evidence is relevant, the Court will consider these objections in weighing the evidence.

Defendants’ Late Opposition

Plaintiff objects to late service of the opposition. Defendant Leebove filed and served his Opposition to this motion by email on April 25, 2023, eight court days before the date the motion was scheduled to be heard. Any opposition must be served nine court days before the date of the hearing, plus two court days if served electronically. (Code Civ. Proc. §§ 1005(b); 1010.6.) The opposition was therefore not timely served. However, as Plaintiff was able to file and serve a reply brief, the Court finds that this defect in service is not prejudicial. The Court will therefore consider the opposition on its merits.

Challenged Costs

Plaintiff moves to tax the entire memorandum of costs as not verified, or, alternatively, to tax $60 in arbitration costs (Item 1b), $7,914 in reporter’s fees (Item 11), $10,000 in judicial reference fees for Judge Younger (Item 16(1)) and $2,883 in mediation fees for Judge Zebrowski (Item 16(2).)

Plaintiff’s first challenge is to the entirety of the memorandum of costs on the basis that it is not verified, in violation of Rule of Court 3.1700(a). This contention is disproved by a cursory review of the Memorandum, filed on Form MC-010, which expressly contains the required verification, verbatim, and is signed by Edwin C. Schreiber, attorney for Defendant Leebove. (Memorandum p. 1.) This challenge is therefore improper.

Plaintiff next challenges a fee request for $60 in arbitration costs under Item 1b. Defendant concedes that this entry was made in error. Accordingly, the Court orders that this item be stricken.

Plaintiff does not challenge Item 11 in his motion or notice of motion, instead only arguing in the Chart of Challenged Costs that the Memorandum of Costs does not identify what proceedings were transcribed by First Legal, that “Regal Solutions” transcribed the trial testimony, and that “none of the deposition testimony was transcribed by First Legal.” However, Plaintiff offers no evidence of these contentions from which the Court could conclude that the objection was proper, thereby putting the claimed costs in issue. This challenge is therefore improper.

Plaintiff next challenges Item 16(1) concerning $10,000 in judicial reference fees. As Plaintiff correctly states, the parties stipulated on February 16, 2017 that fees for judicial reference would be paid by 123 Los Robles, subject to reallocation by the referee. (RJN Exh. 1.) The April 6, 2018 Statement of Decision by the Referee, subsequently set aside by this Court, did not address the allocation of fees. (RJN Exh. 2; see also April 30, 2021 Ruling.) Plaintiff objects to these costs as improper, as, pursuant to the stipulation, they were incurred by 123 Los Robles, not Defendant Leebove. In opposition, Defendant contends that 123 Los Robles had no funds to pay the fee, and therefore he (and Chraghchian) advanced the fees in its place. (Declaration of Joel Leebove ISO Opp.) Unlike the reporter fees, for which Defendant provided invoices, Defendant provides no records of any kind showing either that 123 Los Robles could not afford the fees, or that he personally incurred $10,000 in costs. (See Leebove Decl. Exh. A.) Defendant has therefore not carried his burden to justify these costs.

Plaintiff’s final challenge is to Item 16(2) concerning $2,833 in costs for mediation with Judge Zebrowski. Plaintiff contends that the parties agreed to split the mediation fees on a pro rata basis. (Declaration of Bruce Altschuld ISO Mot. ¶ 1.) Plaintiff also argues—without any supporting authority whatsoever—that the recoverability of mediation fees was solely within the jurisdiction of the Referee to determine. (Id. ¶ 2.) Neither argument is persuasive. Plaintiff offers no authority to support the latter position, and no evidence beyond one sentence from Plaintiff’s counsel that any agreement concerning the mediation fees was ever reached, such as by written or electronic correspondence or a stipulation signed by the parties. Plaintiff has therefore failed to justify this objection.

CONCLUSION:

Accordingly, Plaintiff’s Motion to Tax Costs is GRANTED IN PART with respect to Item 1b ($60 in arbitration costs) and Item 16(1) ($10,000 in Referee’s fees) and otherwise DENIED.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: May 5, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.