Judge Upinder S. Kalra, Case Number: 23STCV14729, Date: 2023-10-31 Tentative Ruling

Judge: Upinder S. Kalra, Case: 23STCV14729, Date: 2023-10-31 Tentative Ruling

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Case Number: 23STCV14729 Hearing Date: February 7, 2024 Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE: February 7, 2024

CASE NAME: Kwon Whan Cook v. Yun Ja Kim, et al.

CASE NO.: 23STCV14729

MOTION TO STRIKE MEMORANDUM OF COSTS, OR IN THE ALTERNATIVE, TO TAX COSTS

MOVING PARTY: Defendant Yun Ja Kim

RESPONDING PARTY(S): Plaintiff Kwon Whan Cook through his Guardian ad Litem Scott Cook

REQUESTED RELIEF:

1. An Order striking the October 31, 2023 Memorandum of Costs in its Entirety; or

2. An Order striking item 8, item 9, item 11, and item 16 from the October 31, 2023 Memorandum of Costs.

TENTATIVE RULING:

1. Motion to Tax Costs is GRANTED in part;

2. Plaintiff is awarded $28.84 to be paid within 30 days of this order.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On June 26, 2023, Plaintiff Kwon Whan Cook (Plaintiff) filed a Complaint against Defendants Yun Ja Kim, Soo Kyung Lee a/k/a Soon Lee, Shannon Sung a/k/a Eun Young Sung, Hye Jung Kyung Kang, Family-In-Love LLC, Ellen Kawashiri, David Kang, Ryan Chun, Wells Fargo Bank, N.A., and Silver Hill Funding, LLC.

On July 12, 2023, Plaintiff applied to appoint a Guardian ad Litem, which the court granted.

On August 25, 2023, Defendant Yu Ja Kim (Defendant Kim) filed a Motion to Expunge Lis Pendens and for Award of Attorney’s Fees and Costs, which the court DENIED on October 31, 2023.

On October 13, 2023, Plaintiff filed a Notice of Related Case.

On October 16, 2023, Plaintiff filed a First Amended Complaint (FAC) with twelve causes of action for:

1. Quiet Title;

2. Cancellation of Written Instrument;

3. Financial Elder Abuse;

4. Physical Elder Abuse;

5. Cancellation of Instrument Based Upon Fraud In Factum;

6. Rescission Based Upon Undue Influence;

7. Rescission Based Upon Unilateral Mistake;

8. Breach of Fiduciary Duties;

9. Aiding and Abetting Breach of Fiduciary Duties;

10. Official Notary Misconduct;

11. Notary Misconduct Based On Conflict of Interest; and

12. Ejectment.

According to the FAC, there are two properties at issue. The first is a commercial property located at 8440 South Broadway, Los Angeles, California 90003 (the Broadway Property). The second property is a commercial property located at 1308 S. Van Ness Ave., Los Angeles, California 90019 (the Van Ness Property). Plaintiff and Defendant Kim married on December 28, 2012 in a confidential marriage. (FAC ¶ 21.) Plaintiff alleges capacity issues due to extended opoid use and dementia. (FAC ¶¶ 23-29, 35.) Plaintiff alleges that Defendant Kim forged a deed purporting to transfer the Broadway Property from Plaintiff’s separate property to their community property and then solely to herself. (FAC ¶¶ 30, 35(h), 35(m).) Plaintiff alleges that all defendants intended to purchase the Van Ness Property through their ownership of the Broadway Property. (FAC ¶ 39.) Plaintiff also alleges a series of notary fraud.

On October 31, 2023, Plaintiff timely filed a Memorandum of Costs.

On November 7, 2023, Defendant Yun Ja Kim filed an Answer.

On November 9, 2023, Defendant Yun Ja Kim filed a Motion for Reconsideration which the court DENIED.

On November 14, 2023, Defendant Yun Ja Kim timely filed the instant Motion to Strike Memorandum of Costs, or in the Alternative, to Tax Costs.

On December 12, 2023, Plaintiff filed a Memorandum of Costs After Judgment and a Writ of Execution. The Writ of Execution was rejected by the Clerk.

On January 23, 2024, Plaintiff filed an opposition to the pending motion to tax costs. On January 25, 2024, Defendant Yun Ja Kim filed a reply. On January 29, 2024, Defendant Yun Ja Kim filed a sur-reply.

LEGAL STANDARD:

“ ‘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).)

ANALYSIS:

Moving Defendant contends that there is no judgment entered in this case, Plaintiff is not a prevailing party, and Plaintiff is not entitled to an award of court costs at this time. Alternatively, Moving Defendant contends that some of the items in the Memorandum of Costs are excessive, not justified, and not used to defend the motion to expunge the lis pendens. Plaintiff argues that he is the prevailing party and the requested costs are authorized by statute. Plaintiff additionally argues that some of the costs were actually incurred by the government, such as the reporter and transcript fees, or that the court should award costs in its discretion under CCP 405.38.

CCP § 405.38 provides: “The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney's fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney's fees and costs unjust.” (see also Kirkeby v. Sup. Ct. (Fascenelli) (2004) 33 Cal.4th 642, 651; Castro v. Sup. Ct. (California Savings) (2004) 116 Cal.App.4th 1010, 1018.) Because CCP § 405.38 does not define “prevailing party” for purposes of an attorney fees award, courts decide the issue based on which party succeeded on a practical level and award fees to the party who realized its litigation objectives. (Castro, supra, at pp. 1018-1019.)

Here, the court previously awarded $3,500.00 to Plaintiff for attorney’s fees in opposing the motion to expunge the lis pendens. (October 31, 2023 Final Ruling.) At that time, the court found that Defendant Kim did not have standing to bring the motion to expunge the lis pendens because she did not have an interest in the Van Ness Property at the time she filed the motion. (Ibid.) The court considered this in reducing Plaintiff’s attorneys’ fees request from $22,700.00 to $3,635.00 because four volumes of exhibits and over 50 hours to prepare was unnecessary and unreasonable. (Ibid.) With this in mind, Plaintiff’s request for witness fees, transcripts, reporter fees, and medical records are equally unnecessary and unreasonable because they were not needed to successfully oppose the motion to expunge the lis pendens. Additionally, Defendant Kim’s argument that Plaintiff, with a valid fee waiver, cannot recover electronic filing fees is well taken. However, Plaintiff’s parking and driving fee is reasonable.

Accordingly, the court GRANTS Defendant Kim’s motion to tax costs in part.

CONCLUSION:

For the foregoing reasons, the Court decides the pending motion as follows:

1.Motion to Tax Costs is GRANTED in part;

2. Plaintiff is awarded $28.84 to be paid within 30 days of this order.

Responding party is to give notice.

IT IS SO ORDERED.

Dated: February 7, 2024 __________________________________ Upinder S. Kalra

Judge of the Superior Court