CHARLES CROSS VS TYLER MORGAN COOPER ET AL

Tentative Rulings

Case Number: NC059949    Hearing Date: December 07, 2020    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Monday – December 7, 2020

Department B Calendar No. 12

PROCEEDINGS

Charles Cross v. Tyler Cooper, et al.

NC059949

1. Charles Cross, et al.’s Motion to Tax Costs

   TENTATIVE RULING

   Plaintiffs Charles Cross, Justin Nunes, and JAG Automotive LLC’s (collectively “Plaintiffs”) Motion to Tax Costs is granted, in part.

   “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. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” Cal. Rules of Court, Rule 3.1700(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(b)(2).

   “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 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. 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.” Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (internal citation omitted).

   Plaintiffs filed their Complaint on March 4, 2015. Plaintiffs alleged the following facts: Defendant used fraud, illegality, and misleading advertising to induce them to purchase a 1973 Austin Mini vehicle which allegedly only had 1173 original miles, and which allegedly was used on the 2003 film “The Italian Job.” In fact, it was not used on the film and the miles far exceeded of that represented. Plaintiff set forth causes of action for: 1. Fraud; 2. Breach of Contract; 3. Violations of UCL; 4. Violations of False Advertising; 5. Violations of the CLRA.

   The trial ended on October 4, 2017 when the parties came to a settlement on the record. After Defendant failed to make the required payments, judgment was entered in favor of

   Plaintiffs in the sum of $95,000.00. Post-judgment motions filed by Defendant were denied. Defendant filed an appeal. The Court of Appeal reversed, in part, with instructions. The Court of Appeal stated that Defendant had no basis for relieving him of his settlement obligations and that the Court did not err in denying all post-trial motions. However, the Court of Appeal stated that the Judgment did not reflect the October 4, 2017 settlement and, thus, needed to be revised. The action was remanded back to the trial court on that ground and Defendant was ordered costs on appeal. Defendant filed his memorandum of costs on October 9, 2020.

   First, Plaintiffs’ request to strike the entire memorandum based on untimeliness is denied. Plaintiffs cite to California Rules of Court, Rule 8.891(c)(1) which provides 30 days after issuance of the remittitur to file a memorandum of costs. However, Rule 8.891 applies to cases brought in the Superior Court Appellate Division. However, here, the case was an unlimited civil matter and the appeal was brought in the Court of Appeal, Second Appellate District. Therefore, Cal. Rules of Court, rule 8.278 applies. Under, Rule 8.278(c)(1), “within 40 days after issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs.” Here, Defendant timely served and filed the memorandum within 40 days of the issuance of the remittitur.

   Item 1: Filing Fees

   “A party may recover only the following costs, if reasonable: (A) Filing fees[.]” Cal. Rules of Court, 8.278(d)(1)(A). In the memorandum of costs, Defendant sought $2,108.27 in filing fees. However, after the filing of the motion to tax costs, which has placed the costs at issue, Defendant has now adequately demonstrated filing fees in the amount of $1,771.00. (Decl., Hannah F. Jones, ¶¶ 6-7.) Thus, the motion to tax costs as to filing fees is granted in part, and the amount of filing fees is reduced from $2,108.27 to $1,771.00.

   Item 4: Printing and Copying of Briefs

   “A party may recover only the following costs, if reasonable: The cost to print and reproduce any brief, including any petition for rehearing or review, answer, or reply[.]” Cal. Rules of Court, 8.278(d)(1)(D). Plaintiff seeks to strike $75.50 based on the contention that documents were submitted electronically. However, Defendant has adequately demonstrated that these costs were reasonably incurred because Defendant was required to serve printed version of these documents upon Plaintiffs. (Decl., Hannah F. Jones, ¶ 8.) The motion to tax costs as to printing and copying fees is denied.

   Item 6: Transmitting, filing, and serving of record, briefs, and other papers

   “A party may recover only the following costs, if reasonable: The cost to notarize, serve, mail, and file the record, briefs, and other papers” Cal. Rules of Court, Rule 8.278(d)(1)(D). In the Memorandum of Costs on Appeal, Defendant claimed $14.67 in the section labeled “transmitting, filing, and serving of record, briefs, and other papers.” However, Defendant has adequately explained that some of the costs set forth in filing fees should have been memorialized under Item 6. The amount under this Section was actually $257.94. (Decl., Hannah F. Jones, ¶ 9.) These costs were reasonable and necessary and a mere clerical error in documenting where in the memorandum of costs that these costs should be reflected is not a basis for striking these costs.

   Thus, based on the facts noted above, the memorandum of costs now reflects that the total amount of costs recoverable is $2,104.44. Therefore, the total amount of costs taxed from the initial memorandum of costs, which sought costs in the amount of $2,198.44, is $94.00.

   The Court makes no ruling at this time to the parties’ respective arguments regarding attorneys’ fees as an element of costs as a motion for attorneys’ fees is currently scheduled for March 15, 2021.

   Defendant is ordered to give notice of this ruling.