Judge: Virginia Keeny, Case: 21VECV00960, Date: 2022-09-20 Tentative Ruling

Case Number: 21VECV00960    Hearing Date: September 20, 2022    Dept: W

CatherinE rocheron, et al V. moshe gabay, et al

motion to tax costs

Date of Hearing:          September 20, 2022               Trial Date:        N/A (MSJ 3/23/23)

Department:               W                                             Case No.:          21VECV00960 

Complaint Filed:          July 30, 2021

Moving Party:             Plaintiffs James Cruce, Robert Borsuk, Ivar Brogger, Brian Berger, James                                        Cruce [sic], and Richard Guy

Responding Party:       Defendants Moshe Gabay, et al.

BACKGROUND 

On July 30, 2021, Plaintiffs Catherine Rocheron, Guillaume Rocheron, James Cruce, Ruth Holzman, and Robert Borsuk filed their original complaint and against Defendants Moshe Gabay, Orit Gabay, and Does 1-20 alleging three counts for (1) Breach of Recorded Declaration of Restrictions, (2) Injunctive Relief, and (3) Declaratory Relief. (Compl., p. 1).

This matter arises out of an alleged breach of restrictive covenant relating to real property owned by Defendants Moshe Gabay and Orit Gabay. The matters at issue include homeowners within Tract 13564 who seek to enjoin the construction of the home being built, they allege, in violation of Tract’s Declaration of Deed of Restrictions. Specifically, plaintiffs assert these restrictions mandate that all garages be detached and that each home in Tract 13564 may not exceed one and one-half stories in height.

On January 20, 2022, this Court denied plaintiffs’ motion for preliminary injunction and the clerk served notice of that judgment on January 21, 2022.   

On February 10, 2022, this Court overruled Defendants Michael Shabtai and Ztsophit Zusman Shabtai’s Demurrer.  

On February 22, 2022, plaintiffs Holzman and the two Rocheron plaintiffs dismissed their complaint against defendants. 

On March 30, 2022, Defendants Moshe Gabay and Orit Gabay filed an Answer.

On August 18, 2022 this Court granted Plaintiffs’ Motion to Consolidate Cases 21VECV00960 (hereinafter “Rocheron”) and Case 21VECV01006 (hereinafter “Brogger”).

Also on August 18, 2022, Defendants Moshe Gabay and Orit Gabay (hereinafter “Defendants”) filed a Memorandum of Costs, seeking $1219.55 in costs.   

On August 26, 2022, Plaintiffs Ivan Brogger, Brian Bergan, and James Cruce, et al. (hereinafter “Plaintiffs”) filed this instant Motion to Tax Costs.

[TENTATIVE] RULING 

 Plaintiffs’ Motion to Tax Costs in its entirety, is DENIED.

LEGAL STANDARD 

Generally, a prevailing party will be entitled to recover its costs.  (Code Civ. Proc., § 1032, subd. (b).)  Most costs are obtained by filing a memorandum of costs or incorporated into the judgment.  (Lucky United Props. Inc. v. Lee (2010) 185 Cal.App.4th 125, 137.)  A party challenging the amounts claimed may file a motion to tax costs, which must be served and filed 15 days after service of the cost memorandum.  (Cal. Rules of Court., rule 3.1700(b)(1), 8.278(c)(2).)  “Unless objection is made to the entire cost memorandum, the motion . . . 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(b)(2).) 

“In ruling upon a motion to tax costs, the trial court's first determination is whether the statute expressly allows the particular item and whether it appears proper on its face.  If so, the burden is on the objecting party to show the costs to be unnecessary or unreasonable.”  (FoothillDe Anza Cmty. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 2930.)  “Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court.”  (Ladas v. Cal. State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)   

ANALYSIS 

I. Plaintiffs’ Motion to Tax Costs is Untimely.

As an initial matter, the court notes that the filing of the Memorandum of Costs was timely: because the clerk never gave notice of the entry of the dismissals, the time to file the memorandum of costs did  not run until 180 days after February 23, 2022. 

Defendants filed their Memorandum of Costs on August 18, 2022 and Proof of Service was effectuated on Attorneys for Plaintiffs’ Tomas M. Ware, Esq. and Margaret Jaramilla Phe, Esq. by First-Class Mail on the same date at the attorneys’ places of business. (POS, filed 8/18/2022).  From August 18, 2022, “ [a] party challenging the amounts claimed may file a motion to tax costs, which must be served and filed 15 days after service of the cost memorandum.”  (Cal. Rules of Court., rule 3.1700(b)(1), 8.278(c)(2).) Plaintiffs filed their Motion to Tax Costs on August 26, 2022, 6 Court days after the effectuation of service. Therefore, Plaintiff’s motion was filed in a timely manner. 

Despite filing the motion to tax in a timely manner, defendants failed to serve the motion in a timely manner.  Because they set the hearing date for September 20, 2022, the motion would have to have been personally served on August 26.  Defendants instead email and mail served the motion, which required that the motion to be served by August 24 at the latest. 

The court agrees that the moving papers were not timely served.  Because they were served by email, they should have been served by August 24, 2022.  Instead, they were email served (and mail served) on August 26.  Accordingly, the motion to tax costs is denied as untimely. 

CONCLUSION 

Accordingly, the Plaintiffs’ Motion to strike the entire memorandum of costs or to tax is DENIED.