Judge: Walter P. Schwarm, Case: 30-2021-01202817, Date: 2022-08-02 Tentative Ruling
Plaintiff’s (Santa Ana Police Officers Association) Motion to Tax/Costs/Strike Memorandum of Costs Claimed Third Party Intervenor (Motion), filed on 1-20-22 under ROA No. 82, is GRANTED in part and DENIED in par as set forth below.
Code of Civil Procedure section 1032 states, “(a) As used in this section, unless the context clearly requires otherwise: [¶] (1) ‘Complaint’ includes a cross-complaint. [¶] (2) ‘Defendant’ includes a cross-defendant, a person against whom a complaint is filed, or a party who files an answer in intervention. [¶] (3) ‘Plaintiff’ includes a cross-complainant or a party who files a complaint in intervention. [¶] (4) ‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034. [¶] (b) 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. [¶] (c) Nothing in this section shall prohibit parties from stipulating to alternative procedures for awarding costs in the litigation pursuant to rules adopted under Section 1034.”
Ladas v. California State Automobile Association (Ladas) (1993) 19 Cal.App.4th 761, 773-774, states, “ ‘ [S]ection 1033.5, enacted in 1986, codified existing case law and set forth the items of costs which may or may not be recoverable in a civil action. [Citation.]’ [Citation.] An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’ [Citation.] [¶] 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 were not reasonable or necessary. 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. [Citations.] 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. [Citations.] However, because the right to costs is governed strictly by statute [citation] a court has no discretion to award costs not statutorily authorized. [Citations.]” (Italics in Ladas; See also, Jones v. Dumrichob (Jones) (1998) 63 Cal.App.4th 1258, 1265 and 1266.) “ ‘This means that the prevailing party is entitled to all of his costs unless another statute provides otherwise. [Citation.] Absent such statutory authority, the court has no discretion to deny costs to the prevailing party.’ [Citations.]” (Baker-Hoey v. Lockheed Martin Corp. (Baker-Hoey) (2003) 111 Cal.App.4th 592, 597.)
Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 856 (Benach), explains, “In Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774, 23 Cal.Rptr.2d 810 (Ladas), on which Benach primarily relies, the court held: ‘[i]f the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show they were not reasonable or necessary. 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. [Citations.]’ Benach interprets this language to mean his objection automatically shifted the burden to the Department to demonstrate its costs were reasonable and necessary. His reading of Ladas is incorrect. [¶] The objecting party made a similar mistake in Nelson. Our colleagues in Division Seven clarified the standard: ‘the mere filing of a motion to tax costs may be a “proper objection” to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. [Citation.] However, “[i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” [Citations.]’ [Citation.].”
On 1-5-22 under ROA No. 80, Intervenor (Ben Camacho), filed a Memorandum of Costs seeking $1,841.15 as costs. On 1-20-22, Plaintiff filed this Motion.
First, the Motion states, “Under Code of Civil Procedure §1032(a)(4), Intervenor is not the ‘prevailing party’ as he is not a defendant where neither plaintiff nor defendant obtained any relief nor is he a defendant as against those plaintiffs who do not recover any relief against that defendant as Plaintiff clearly obtained initial injunctive relief against Defendants.” (Motion; 4:17-20.)
Landmark Holding Group, Inc. v. Superior Court (1987) 193 Cal.App.3d 525, 528, states, “Moreover, the issuance of a TRO cannot be construed as constituting a ‘tentative ruling’ on the ultimate issue nor can the ex parte proceeding be deemed the ‘beginning’ of the hearing on the order to show cause re preliminary injunction because the factual issues have not been defined, submitted or decided in the ex parte TRO proceeding. Where the matter is assigned to a department, not to a judge, the fact that a particular judge usually sits in that department does not provide knowledge of the identity of the judge who will actually hear the matter. [Citation.] Because of the many transfers of judges from one department to another throughout the year, there is a distinct possibility that the hearing on the preliminary injunction will be by a judge other than the judge who conducted the TRO proceeding. [Citation.]”
On 6-1-21, the court issued a temporary restraining order against Defendants (City of Santa Ana, Santa Ana Police Department, and David Valentin.) (6-1-21 Minute Order.) On 6-1-21, Intervenor was not a party to this action and the temporary restraining order did not apply to Intervenor. The court notes that it dissolved the temporary restraining order on 6-17-21 under ROA No. 65. Under Landmark, the issuance of a temporary restraining order is not a ruling on the ultimate issues. Plaintiff was ultimately unsuccessful in seeking the relief it sought, a preliminary injunction, based on the court’s 6-17-21 Minute Order under ROA No. 65. Since the issuance of a temporary restraining order is not a ruling on the ultimate issues, the court finds that Plaintiff did not obtain non-monetary relief based on the issuance of the temporary restraining order.
More importantly, the court finds that Intervenor is the prevailing party because Intervenor was a defendant in whose favor a dismissal was entered. Based on the court’s 6-17-21 Minute Order under ROA No. 63, the court granted intervention and Intervenor filed an Answer in Intervention on 6-23-21 under ROA No. 71. Code of Civil Procedure section 1032, subdivision (a)(2), deems a party who files an answer in intervention as a defendant. Code of Civil Procedure section 1032, subdivision (a)(4), deems a defendant in whose favor a dismissal is entered as the prevailing party. On 8-23-21 under ROA No. 75, Plaintiff filed a Request for Dismissal of Plaintiff’s Complaint without prejudice. Therefore, the court finds that Intervenor is the prevailing party because Intervenor received a dismissal.
Second, the Motion assert that the Memorandum of Costs is untimely. (Motion; 4:26-5:4.) California Rules of Court, rule 3.1700(a)(1), states, “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service 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.”
The Proof of Service attached to the request for dismissal shows that service occurred on 8-23-21. It is unclear whether the Request for Dismissal served by Plaintiff was the document entered by the court on 8-23-21 under ROA No. 75, or the document that Plaintiff filed with the court for entry. The declaration from Plaintiff’s attorney clarifies that Plaintiff did not serve Intervenor with the document entered by the court under ROA No. 75. (7-8-22 Glave Decl.) Plaintiff contends, “. . . that the serving of the request for dismissal became effective upon its presentation to the parties, whether or not Plaintiff served the executed copy of [sic] the other parties. This would make the triggering notice effective on August 23, 2021.” (Plaintiff’s Supplemental Brief, filed on 7-8-22 under ROA No. 95.)
California Rules of Court, rule 3.1390, states, “A party that requests dismissal of an action must serve on all parties and file notice of entry of the dismissal.” Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 425-426, provides, “A request for entry of voluntary dismissal under Code of Civil Procedure section 581 is made by submitting Judicial Council Forms, form 982(a)(5) to the clerk. The clerk enters the dismissal in the clerk's register. (Code Civ. Proc., § 581d.) The party requesting dismissal is required to serve and file notice of entry of dismissal. (Cal. Rules of Court, rule 383; see Judicial Council Forms, form 982(a)(5.1).) If notice of entry of dismissal is served, a dismissed defendant claiming costs must serve and file a memorandum of costs within 15 days after ‘the date of service of written notice of entry of . . . dismissal.’ (Cal. Rules of Court, rule 870(a).) ‘The time provisions relating to the filing of a memorandum of costs, while not jurisdictional, are mandatory.’ [Citation.] [¶] Here, Sanabria voluntarily dismissed his complaint against the Embreys. The clerk entered the dismissal in the clerk's register, terminating the action as to the Embreys. Written notice of entry of dismissal was served by Sanabria on December 1, 1999. The Embreys' memorandum of costs, filed May 19, 2000, was untimely. The trial court therefore erred in awarding the Embreys costs.” (Footnote 2 omitted.)
Here, Plaintiff concedes that Plaintiff did not serve Intervenor with the entry of dismissal as required by California Rules of Court, 3.1590. Plaintiff has not provided evidence that the court clerk served Intervenor with the entry of dismissal. Since Intervenor filed the Memorandum of Costs within 180 days of 8-23-21, the court finds that Intervenor timely filed the Memorandum of Costs.
As to Item No. 1, Intervenor’s request for $495.00 as filing and motion fees, Intervenor’s attorney states, “By mistake, I checked the box indicating that Attachment 1g, containing information about additional filing and motion fees, would be included with the verified Memorandum of Cost. Attachment 1g was not necessary as the Worksheet portion of the Memorandum of Costs clearly states that the filing fees incurred were for Mr. Camacho’s answer in intervention and his ex parte application for leave to intervene.” (Aviles Decl., ¶ 8; Italics in declaration.) Based on this explanation, the court DENIES the motion as to Item No. 1.
As to Item No. 11, Intervenor’s request for court reporter fees, Code of Civil Procedure section 1033.5, subdivision (a)(11), allows the recovery of costs for “Court reporter fees as established by statute.” Government Code section 68086, subdivision (d)(2), states, “That if an official court reporter is not available, a party may arrange for, at the party's expense, the presence of a certified shorthand reporter to serve as an official pro tempore reporter. At the arranging party’s request, the court shall appoint the certified shorthand reporter to be present in the courtroom . . . The fees and charges of the certified shorthand reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law.” Government Code section 68086, subdivision (d)(2), provides statutory authority for the award of court reports fees as required by Code of Civil Procedure section 1033.5, subdivision (a)(11).
Code of Civil Procedure section 1033.5, subdivision (b), provides, “The following items are not allowable as costs, except when expressly authorized by law:. . . . [¶] (5) “Transcripts of court proceedings not ordered by the court.”
Here, the court strikes the amounts of $204.75 and $99.75 for the 6-16-21 and 6-17-21 transcripts contained in the invoice for the court reporter. (Aviles Decl., ¶ 10 and Exhibit I.) Intervenor has not shown that the court ordered these transcripts. Therefore, the court GRANTS the Motion as to Item No. 11 in the amount of $304.50.
As to Item No. 14, Intervenor’s request for fees for electronic service, Code of Civil Procedure section 1033.5, subdivision (a)(14), allows the recovery of costs for “Fees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.” The court DENIES the Motion as to Item No. 15 because the Intervenor has provided evidence as to the amount of the fees requested in Item No. 14. (Aviles Decl., ¶ 12 and Exhibits D, E, and I.)
As to Item No. 16, Intervenor’s request for other fees, Code of Civil Procedure section 1033.5, subdivision (c)(4) states, “An award of costs shall be subject to the following: [¶] . . . (4) Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.” Based on the declaration of Intervenor’s counsel, it appears that Intervenor is attempting to recovery fees for appearing by way of court call. (Aviles Decl., ¶ 13, and Exhibits L and M.) The court finds that the Court Call fees for the appearance of Intervenor’s Counsel was reasonably necessary to the litigation because Court Call facilitate the appearance by Intervenor’s Counsel. The court finds that the Court Call fee associated with the court reporter was reasonably necessary to the litigation by providing a record of the proceedings.
The court does not find that the fee in the amount of $52.50 was reasonably necessary to the conduct of the litigation because Intervenor incurred this fee for the purpose of providing a courtesy copy of the ex parte application. While the court appreciates the courtesy, the courtesy copy was not reasonably necessary to the conduct of the litigation. Therefore, the court GRANTS the Motion as to Item No. 16 and strikes $52.50.
In summary, the court GRANTS in part and DENIES in part Plaintiff’s (Santa Ana Police Officers Association) Motion to Tax/Costs/Strike Memorandum of Costs Claimed Third Party Intervenor filed on 1-20-22 under ROA No. 82, as set forth above.
Intervenor is to give notice.