Judge: Virginia Keeny, Case: 22VECV00712, Date: 2023-02-24 Tentative Ruling

Case Number: 22VECV00712    Hearing Date: February 24, 2023    Dept: W

USB LEASING LT V. BENJAMIN GABAYAN, et al.

plaintiff’s motion to strike memorandum of costs

Date of Hearing:        February 24, 2023                             Trial Date:       None set.  

Department:              W                                                        Case No.:        22VECV00712

Moving Party:            Plaintiff USB Leasing LT

Responding Party:     Defendant Benjamin Gabayan

BACKGROUND

This action arises from Defendants’ alleged repair and storage of a 2019 Range Rover (“the vehicle”). Plaintiff claims to be the lienholder and legal owner of the vehicle. Plaintiff alleges Defendants have been in possession of the vehicle since January 2022. On April 22, 2022, Plaintiff called Star Motors to negotiate for the release of the Vehicle and learned that the Vehicle was still located at Star Motors’s body shop location. Plaintiff then briefly chronicles its efforts to contact “Defendants’ employee … who handles impounds” and how Star Motors has not provided any invoices or authorizations to substantiate any costs related to the release of the Vehicle despite Plaintiff’s demand for them.

Plaintiff has sued Benjamin Gabayan, and individual, and B&F Paradise, Inc. d/b/a Star Motors (“Star Motors”). Plaintiff alleges Star Motors operates as an alter ego to Gabayan for the purposes of its complaint. Plaintiff filed a First Amended Complaint on October 28, 2022 alleging seven causes of action against the defendants: for (1) claim and delivery; (2) violation of Civil Code section 3068; (3) violation of Vehicle Code section 10652.5; (4) violation of Civil Code section 3071; (5) violation of Vehicle Code section 22651.07; (6) conversion; and (7) declaratory relief (as to only the corporate defendant). Plaintiff did not name Benjamin Gabayan in the First Amended Complaint.

[Tentative] Ruling

Plaintiff’s Motion to Strike Memorandum of Costs is DENIED.

ANALYSIS

Plaintiff USB Leasing LT moves to strike Defendant Benjamin Gabayan’s Memorandum of Costs filed November 2, 2022 on the grounds his request is not ripe and is not supported by law.

“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing 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. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (CRC Rule 3.1700(a)(1).)“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, the period is extended as provided in Code of Civil Procedure section 1013.” (CRC Rule 3.1700(b)(1)).)

Plaintiff argues in this case, the clerk has not entered a dismissal or judgment and therefore, Defendant Gabayan is not a prevailing party. The court disagrees. As noted by Mr. Gabayan, the operative first amended complaint operates as a dismissal in favor of him. (See Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1142 holding “It has long been the rule that an amended complaint that omits defendants named in the original complaint operates as a dismissal as to them.”) Because Plaintiff’s first amended complaint effectively dismissed Mr. Gabayan, Mr. Gabayan may be deemed a prevailing party entitled to certain costs. Plaintiff did not need to also request dismissal of Mr. Gabayan by the clerk as Code of Civil Procedure section 581 “is neither exclusive nor mandatory.” (Ibid.)

Code of Civil Procedure section 1032(a)(4) provides that a “prevailing party” includes a defendant in whose favor a dismissal is entered. Because Mr. Gabayan has been dismissed from the proceeding, he is deemed the prevailing party. The court notes this is not an action based on Civil Code section 1717 and therefore, the fact that this may be a voluntary dismissal does not preclude the finding that Mr. Gabayan is a prevailing party. (“Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of [Civil Code section 1717].” (Civ. Code, § 1717(b)(2); see Shapira v. Lifetech Resources, LLC (2018) 22 Cal.App.5th 429, 441 (“A trial court lacks discretion to award fees under section 1717(b)(2) where a case has been voluntarily dismissed.”); see also Santisas v. Goodin (1998) 17 Cal.4th 599, 615.)  

Plaintiff also argues the costs in this case up to this point were shared by all defendants listed on the original complaint and Defendant Gabayan has not submitted any proof he solely bared the costs for this case.

In reply, Mr. Gabayan argues all services rendered in this matter were billed half to Mr. Gabayan and half to Star Motors, except for the demurrer, motion to strike and instant memorandum of costs. Counsel for Mr. Gabayan breaks down what work was done on the demurrer and motion to strike for Mr. Gabayan and what was done for Star Motors, claiming he spent 8.25 hours defending solely Mr. Gabayan in this matter. (Omrani Decl. ¶¶6-8.)

The court finds Mr. Gabayan is entitled to the maximum $1,750 attorney fees each for Civil Code section 3068 and Vehicle Code 10652.5. Each provide that “the prevailing party shall be entitled to reasonable attorney's fees, not to exceed one thousand seven hundred fifty dollars ($1,750). The recovery of those fees is in addition to any other right, remedy, or cause of action of that party.” (See Civ. Code §3068(c); Veh. Code §10652.5(c).)

Accordingly, Plaintiff’s Motion to Strike Memorandum of Costs is DENIED.