On 10/14/2016 KYLE RICHARD KUNS filed a Property - Other Real Property lawsuit against DANIEL R PURINTON. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
KUNS DEBORAH ANN
KUNS KYLE RICHARD
NA NATIONWIDE MORTGAGE
PURINTON LEIGH A.
DOES 1 THROUGH 10
PURINTON DANIEL R.
WIDENER VANESSA H. ESQ.
COLLIAU MICHAEL T. ESQ.
9/24/2018: NOTICE OF ENTRY OF ORDER ON STIPULATION FOR AN ORDER PERMITTING PLAINTIFFS TO FILE A SECOND AMENDED COMPLAINT; NOTICE OF MINUTE ORDER
9/26/2018: SECOND AMENDED COMPLAINT FOR: (1) EASEMENT BY PRESCRIPTION; (2) EQUITABLE EASEMENT; (3) EASEMENT BY IMPLICATION; ETC.
9/26/2018: NOTICE OF RULING RE SEPTEMBER 5, 2018 HEARING; NOTICE OF CONTINUANCE OF TRIAL AND FINAL STATUS CONFERENCE
3/6/2019: Motion for Summary Adjudication
5/20/2019: Minute Order
11/30/2016: PROOF OF SERVICE SUMMONS
12/21/2016: ANSWER OF DEFENDANTS DANIEL FT PURINTON AND LEIGH A. PURINTON
1/24/2017: NOTICE OF RULING AT CASE MANAGEMENT CONFERENCE
1/25/2017: ANSWER TO VERIFIED CROSS-COMPLAINT FOR QUIET TITLE AND DECLARATORY RELIEF
2/14/2017: ANSWER OF DEFENDANT NA NATIONWIDE TO PLAINTIFFS' UNVERIFIED COMPLAINT
5/1/2017: Minute Order
5/12/2017: ANSWER OF DEFENDANT N A NATIONWIDE MORTGAGE TO PLAINTIFFS' FIRST AMENDED COMPLAINT
10/3/2017: SUBSTITUTION OF ATTORNEY
10/6/2017: SUBSTITUTION OF ATTORNEY
12/15/2017: SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF KYLE RICHARD KUNS AND DEBORAH ANN KUNS' MOTION FOR SUMMARY ADJUDICATION
at 09:00 AM in Department 61; Hearing on Motion for Summary Adjudication - Held - Motion DeniedRead MoreRead Less
Minute Order ( (Hearing on Motion for Summary Adjudication)); Filed by ClerkRead MoreRead Less
Notice of Ruling (Ruling Re Plaintiffs and Cross-Defendants Kyle Richard Kuns and Deborah Ann Kuns's Motion for Summary Adjudication); Filed by ClerkRead MoreRead Less
Certificate of Mailing for (Minute Order (Hearing on Motion for Summary Adjudication) of 05/20/2019); Filed by ClerkRead MoreRead Less
Order Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Daniel R. Purinton (Defendant); Leigh A. Purinton (Defendant); Na Nationwide Mortgage (Defendant)Read MoreRead Less
Reply (Brief ISO MSJ); Filed by Kyle Richard Kuns (Plaintiff); Deborah Ann Kuns (Plaintiff)Read MoreRead Less
Objection (Evidentiary to Declarations); Filed by Kyle Richard Kuns (Plaintiff); Deborah Ann Kuns (Plaintiff)Read MoreRead Less
Declaration (of Kenneth Hayden); Filed by Daniel R. Purinton (Defendant); Leigh A. Purinton (Defendant); Na Nationwide Mortgage (Defendant)Read MoreRead Less
Declaration ( of Rick (Frederick) R. Jones Jr. Submitted on Behalf of Defendants Re Plaintiffs Motion for Summary Adjudication); Filed by Daniel R. Purinton (Defendant); Leigh A. Purinton (Defendant); Na Nationwide Mortgage (Defendant)Read MoreRead Less
Declaration ( of Daniel R. Purinton in Opposition to Plaintiffs Motion for Summary Adjudication); Filed by Daniel R. Purinton (Defendant); Leigh A. Purinton (Defendant); Na Nationwide Mortgage (Defendant)Read MoreRead Less
OSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Proof of ServiceRead MoreRead Less
Proof of Service by Mail; Filed by Kyle Richard Kuns (Plaintiff); Deborah Ann Kuns (Plaintiff)Read MoreRead Less
Proof-Service/SummonsRead MoreRead Less
PROOF OF SERVICE SUMMONS & COMPLAINTRead MoreRead Less
COMPLAINT FOR: 1. EASEMENT BY PRESCRIPTION; ETCRead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Kyle Richard Kuns (Plaintiff); Deborah Ann Kuns (Plaintiff)Read MoreRead Less
Case Number: BC637291 Hearing Date: November 03, 2020 Dept: 61
Defendants Daniel R. Purinton and Leigh A. Purinton’s Motion to Strike or Tax Costs is GRANTED as to $4,225.07 in costs, leaving a total cost award of $26,663.27.
MOTION TO TAX COSTS
“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).” (California Rules of Court Rule 3.1700, subd. (b)(1).)
“Code of Civil Procedure section 1032, subdivision (b) , guarantees prevailing parties in civil litigation awards of the costs expended in the litigation: ‘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.’” (Williams v. Chino Valley Independent Fire Dist. (“Williams”) (2015) 61 Cal.4th 97, 100.).
“If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) Although individual cost items are ordinarily challenged by a motion to tax costs, no cost-item is effectively put in issue by “mere statements” claiming them to be unreasonable. (Ibid.) However, where “it cannot be determined from the face of the cost bill whether the items are proper,” “the mere filing of a motion to tax costs may be a ‘proper objection’ to an item.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, 132.)
Defendants move to tax a variety of costs listed in Plaintiffs’ memorandum. These are: (1) filing fees for summary adjudication motions that Plaintiffs first abandoned, then lost; (2) various deposition costs for witnesses who did not testify or whose testimony did not concern the prescriptive easement claim upon which Plaintiffs prevailed; (3) service fees for people who were not parties in this action; (4) witness fees made unclear by typo; (5) exhibit fees greater than stated on a previous invoice; (5) electronic service fees not required or ordered by the court. (Motion at pp. 8–10.)
The court first notes that Plaintiffs expressly prevailed on the first and fourth causes of action for prescriptive easement and declaratory relief, and that the second and third causes of action for easements by equity and implication were dismissed against Defendants, not on their merits, but for being moot in light of Plaintiffs’ success on the other claims. (8/11/2020 Judgment.) Additionally, the fifth and sixth causes of action were dismissed after Defendants stipulated (and Daniel Purinton testified) that they claimed no interest in the trash enclosure subject to those claims. (Opposition Exh. 4.) Thus, Plaintiffs are the prevailing party, having attained their litigation objectives, and Defendants are not the prevailing party on any theory. (See Friends of Spring Street v. Nevada City (2019) 33 Cal.App.5th 1092, 1104.)
The court agrees with Defendants that the two $500 filing fees associated with Plaintiffs’ motions for summary adjudication were not reasonably necessary to the conduct of the litigation, as said motions was brought on grounds not ultimately the basis for Plaintiffs’ relief and was in any event denied. Thus $1,000 will be taxed from the costs award.
As to deposition costs, the court agrees with Plaintiffs that many of the depositions of persons who did not testify at trial were reasonably necessary to the litigation. Plaintiffs persuasively argue that the deposition of Nationwide N.A.’s person most knowledgeable (PMK) was necessary because Nationwide had net yet stipulated to be bound by any judgment; that the Los Angeles Department of Building Safety Custodian of Records Beatrice Jones was necessary because Defendants at that time had not yet stipulated to the authenticity of records; and the deposition of Plaintiff’s surveyor, Thomas McDermott, was necessary because Defendants had not stipulated to the survey. (Opposition at pp. 12–13.) These items therefore will not be taxed.
The depositions of others who did testify at trial were likewise reasonably necessary, and are not made otherwise merely because the court awarded Plaintiffs relief on other grounds. As Plaintiffs point out, Victor Cuevas’s testimony was designed to establish the present and past requirements for access on the properties at issue, as relevant to Plaintiffs’ claim for easement by implication. (Opposition at p.13.) The same is true of the testimony of the parties’ respective appraisers, who testified concerning potential diminution in value to Defendants’ property if an easement was awarded on an equitable basis. (Opposition at p. 13.) And David Neagley and Fredrick Jones testified concerning the burden placed on the Kuns’ property if they were made to construct a new driveway. (Opposition at p. 13.) These amounts will not be taxed.
Defendants next argue that various service of process fees must be taxed because they were not made upon parties, and “service of process” means only service of a summons. (Motion at p. 9, citing In re Jennifer O. (2010) 184 Cal.App.4th 539, 549.) Yet Defendants’ authority does not purport to interpret the term “service of process” for the purposes of a cost award under Code of Civil Procedure § 1033.5, but rather the same term under the Hague Service Convention. (Jennifer O., supra, 184 Cal.App.4th at p. 549.) Other cases have awarded service of process costs based on costs of service upon witnesses. (See Doe v. Los Angeles County Dept. of Children and Family Services (2019) 37 Cal.App.5th 675, 694.)
Defendants are correct that the costs sought for ordinary witness fees are ill-written, and Plaintiffs explain that the electronic Memorandum of Costs form that they used replaced a certain digit with the letter “t”. (Opposition at p. 14.) But despite the error in the totals column, the costs sought are calculable by the amounts entered in the prior boxes, leading to a total witness fee calculation of $561. Although Defendants also object to the fees for Patricia Hayden, who did not testify at trial, Plaintiffs persuasively argue that she and her husband Ken Hayden were the prior owners of Defendants’ property, and she would have testified if Plaintiffs judged her testimony not been cumulative of her husband’s. (Opposition at pp. 14–15.)
Plaintiffs agree, however, that they were previously reimbursed for $3,225.07 for exhibit expenses. (Opposition at p. 15.) Thus, they agree the reduced amount of exhibit expenses should be $1,198.80, a deduction of $3,225.07.
As to the final item for $238.05 for electronic filing and service, Plaintiffs correctly note that electronic filing became mandatory for all civil cases in Los Angeles County Superior Court on January 2, 2019. (Opposition at p. 15.)
Accordngly, the motion to tax costs is GRANTED as to $4,225.07 in costs, leaving a total cost award of $26,663.27.
Plaintiffs to give notice.