HIRAM ASH VS ANNEDORE PICK ET AL

Tentative Rulings

Case Number: BC499614    Hearing Date: July 01, 2020    Dept: 17

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Plaintiff’s motion to tax costs is DENIED.

On January 22, 2013, Plaintiff Hiram Ash (Plaintiff) filed suit against Annedore Pick aka Anne Pick and Harold Pick (Defendants). On March 5, 2014, Plaintiffs filed a second amended complaint (SAC) alleging general negligence.

On August 23, 2016, a jury trial was held. The jury found in Defendant’s favor. On February 2, 2017, Plaintiff filed a notice of appeal. Defendant was the prevailing party on appeal, and the Court of Appeals issued a remittitur on January 6, 2020 specifying that Defendant was entitled to costs.

Plaintiff now moves to tax costs from Defendant’s memorandum of costs.

Legal Standard

California Rule of Court 8.278 provides:

(a) Award of costs

(1)  Except as provided in this rule, the party prevailing in the Court of Appeal in a civil case other than a juvenile case is entitled to costs on appeal.

(2)  The prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal. The prevailing party is the appellant if the court reverses the judgment in its entirety.

Discussion

California Rule of Court 8.278, subdivision (c) provides:

(1)

Plaintiff argues that Defendant’s memorandum of costs is void because it was not served on Plaintiff. Plaintiff represented himself in pro per on appeal, yet Defendant served his former counsel of record with the memorandum of costs.

In opposition, Defendant clarifies that in November 2019, Defendant’s counsel received a Notice of Attorney Representation from Robert Guevara, the attorney who represented Plaintiff in the trial court. (Albarian Decl., Exh. A.) Defendant served the cost bill on Mr. Guevara on January 8, 2020. However, after receiving notice of the instant motion, Defendant served Plaintiff directly with the appeals cost bill on January 28, 2020. (Albarian Decl., Exh. D.)

Pursuant to California Rule of Court 8.278, subdivision (c)(1), Defendant had 40 days after the remittitur was issued on January 6, 2020 to claim costs as the prevailing party on appeal. Defendant’s proofs of service show that Robert Guevara was served with notice of the cost bill on January 8, 2020, and Plaintiff was served on January 28, 2020. As a result, even putting aside the question of whether Robert Guevara represented Plaintiff at the time the remittitur was issued, Plaintiff was directly served within the 40-day period. Accordingly, Defendant did not fail to effect proper service of its memorandum of costs of appeal.

Based on the foregoing, Plaintiff’s motion to tax costs is denied.

It is so ordered.

Dated: July 1, 2020

Hon. Jon R. Takasugi

Superior Court Judge

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

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