Judge Upinder S. Kalra, Case Number: 21STCV23729, Date: 2024-11-13 Tentative Ruling

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MOVING PARTY: Plaintiffs Yoon Ha Kang, Young Ae Kang, and Jinny Hyun Jin Kang

1. An Order striking or taxing $23,327.67 in costs from Plaintiffs’ memorandum of costs.

On June 28, 2021, Plaintiffs Yoo Ha Kang, Young Ae Kang, and Jinny Hyun Jin Kang (“Plaintiffs”) filed a complaint against Defendants Kelly Nam (“Nam” or “Defendant”) and all persons unknown, claiming legal or equitable right, title, estate, lien, or interest in the property described in the Complaint adverse to Plaintiffs’ title or any cloud upon Plaintiffs’ title, and Does 1 through 20. (“Defendants”). The complaint alleged four causes of action: (1) Quiet Title (Prescriptive Easement, (2) Declaratory and Injunctive Relief, (3) Private Nuisance, and (4) Trespass and Ejectment. The complaint alleges that the Plaintiffs have used shared driveway, an easement, since 2014, as the Plaintiffs’ property has a narrow driveway that could lead to car damage. The Defendants then sent a letter to the Plaintiffs stating that they were trespassing when using the driveway.

On August 26, 2021, Defendant filed a Motion to Strike, which was GRANTED, with leave to amend.

On February 3, 2023, Plaintiffs filed a Motion to Strike, which the court DENIED.

On April 11, 2023, Plaintiffs filed an ex parte application seeking an order re contempt due to Nam’s violating a Preliminary Injunction Order, which the court GRANTED in part, setting a contempt hearing.

On June 14, 2023, after concluding a contempt hearing, the court found that Christopher (Chris) Nam and Jenny Nam were agents of Kelly Nam, had knowledge of the Preliminary Injunction Order, and had the ability to comply with the order. Accordingly, the court found Chris Name and Jenny Nam guilty of contempt.

On May 3, 2024, the court entered a Third Amendment Judgment after trial in favor of Plaintiffs.

On May 24, 2024, Defendant timely filed the instant motion to tax costs. On October 30, 2024, Plaintiffs filed an opposition. Any reply was due on or before November 4, 2024. As of November 6, 2024, the court has not received a reply.

“ ‘The right to recover any of the costs of a civil action “is determined entirely by statute.” ’ [Citation.] “ ‘[I]n the absence of an authorizing statute, no costs can be recovered by either party.” ’ [Citation.] ‘Section 1032 governs the award of costs of trial court litigation.’ [Citation.]” (Charton v. Harkey (2016) 247 Cal.App.4th 730, 737.)¿¿

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) (Emphasis added.) Code of Civil Procedure section 1032, subdivision (a) defines a “prevailing party” as “[1] the party with a net monetary recovery, [2] a defendant in whose favor dismissal is entered, [3] a defendant where neither plaintiff nor defendant obtains any relief, and [4] a defendant as against those plaintiffs who do not recover any relief against that defendant.”¿¿

Costs are allowable if incurred, whether or not paid. (Code Civ. Proc., § 1033.5, subd. (c)(1).) Costs must also be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and must be reasonable in amount. (Code Civ. Proc., § 1033.5, subd. (c)(2)-(3).)¿¿

A prevailing party claiming costs must file and serve a memorandum of costs either (1) within 15 days after the date of service of a notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5, (2) 15 days after the service of written notice of entry of judgment or dismissal, or (3) within 180 days after entry of judgment, whichever is first. (Cal. Rules of Court, rule 3.1700, subd. (a).)¿¿

Any motion to strike or tax costs must be served and filed 15 days after service of the memorandum, plus an additional 5 days if served by mail or 2 days if served electronically. (Cal. Rules of Court, rule 3.1700, subd. (b)(1).) “Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” (Cal. Rules of Court, rule 3.1700, subd. (b)(2).)¿

Defendant contends the claimed costs are excessive and lack proper documentation. Plaintiffs reduced their request to $24,691.38 and contend their costs are reasonable.[1]

Defendant objects to the $8,540.08 in deposition costs as excessive because it is unclear if they incorporate other costs reasonably incurred. Plaintiffs provide the deposition invoices in support of these costs. The party seeking to tax deposition costs bears the burden of proof that the deposition was unnecessary. (Silver v. Gold (1989) 211 Cal.App.3d 17, 26.) Here, Defendant did not meet their burden that the depositions were unnecessary. In fact, Plaintiffs took Defendant’s deposition, and Defendant’s parents’ depositions. (Schorr Decl.¶¶ 8-12, Exhibit A.) Defendants’ parents required Korean interpretation services to be deposed. (Id.) As such, these costs are reasonable.

Defendant objects to the $659.20 in service of process costs because Plaintiffs did not detail how the subpoenas were served. Defendant contends that fees and costs related to postage for sending mail or documents is prohibited. Plaintiffs argue they incurred $741.60 in service of process costs, detail those costs, and provide invoices in support. Upon reviewing the evidence provided by Plaintiff, the costs are reasonable.

Defendant objects to the $8,715.57 in court reporter fees because Plaintiffs did not support this claim. Moreover, Defendant argues that the parties agreed to split the court reporter costs for trial and did not agree that the prevailing party would recover those fees. Plaintiffs argue that Defendant hired the court reporter and seek reimbursement only to the extent Defendant requests contribution from Plaintiffs for the trial court reporter fees. Additionally, Plaintiffs note that agreeing to share a court reporter for trial reduced total costs by half since no agreement would necessitate hiring two court reporters for trial.

When parties have an unambiguous agreement to share costs and do not separately state that those costs are recoverable by the prevailing party, then “such a provision will not be read into the agreement” by the court. (Anthony v. Xiaobin Li (2020) 47 Cal.App.5th 816, 824.)

Here, the parties have an unambiguous agreement to split the cost for the court reporter for trial. (Kim Decl. ¶ 2, Exhibit A.) The agreement does not state that those fees are recoverable by the prevailing party.

Defendant objects to the $4,437.00 in interpreter fees because it is unclear if they were incurred for deposition or due to being deemed an indigent person. Defendant also argues Plaintiffs seek recovery for trial dates where trial did not occur. Plaintiffs argue the court has discretion to award them under CCP § 1033.5(c)(4) and seeks to modify the amount requested to $10,523.00 with supporting invoices.

“Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” (CCP § 1033.5(c)(4).)

Here, the interpreter costs are reasonable. First, it is undisputed that Plaintiffs required Korean interpreters to testify at trial. (See, e.g., Kim Decl., Exhibit A [confirming each party would order their own interpreters].) Second, Plaintiffs hired Korean interpreters for two interpreters during trial to ensure quality of interpretation and to prevent fatigue. (Schorr Decl. ¶ 19.) Plaintiffs provided the invoices supporting the costs. (Scholl Decl. ¶ 20, Exhibit C.)

Defendant objects to the $975.82 in “other fees” because they are for “messenger fees” that do not have statutory support. Plaintiffs argue the court can exercise its discretion to award these costs pursuant to CCP § 1033.5(c)(4) which consist of courtesy copy delivery, binder retrieval, document retrieval, and recording the lis pendens. Plaintiffs request a reduced amount of $875.18.

The court has reviewed the invoices provided by Plaintiffs and exercises its discretion to allow some, but not all, of the requested costs. First, this court does not require courtesy copy delivery. The court therefore strikes $319.50 of those costs. Second, document retrieval of trial binders by a court runner is convenient, not necessary. The court therefore strike $103.00 of those costs. In total, the court strikes $320.80 of these costs.

Accordingly, the court GRANTS the motion to tax costs in part as to this item.

4.The court Awards the remaining costs of: $15,655.01 payable within 30 days of this order.

[1] While there is no supporting authority provided by Plaintiffs for this amendment, the court will allow it because they seek a total cost award that is less than the original costs sought.