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This case was last updated from Los Angeles County Superior Courts on 06/09/2019 at 04:21:42 (UTC).

CANYON CREST CONSERVANCY VS COUNTY OF LOS ANGELES ET AL

Case Summary

On 01/05/2017 CANYON CREST CONSERVANCY filed an Other - Writ Of Mandamus lawsuit against COUNTY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DEBRE K. WEINTRAUB. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7311

  • Filing Date:

    01/05/2017

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Other - Writ Of Mandamus

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DEBRE K. WEINTRAUB

 

Party Details

Plaintiffs and Petitioners

CANYON CREST CONSERVANCY

CONSERVANCY CANYON CREST

Defendants and Respondents

LOS ANGELES COUNTY OF

DOES 1 TO 10

COUNTY OF LOS ANGELES BOARD OF SUPERVISOR

COUNTY OF LOS ANGELES DEPARTMENT OF

Not Classified By Court

NATIONWIDE LEGAL LLC

TEST PARTY FOR TRUST CONVERSION

HOLLIFIELD JUDITH

THAETE PATRICIA ANN

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

TSAI MITCHELL M.

TSAI MITCHEL M.

Defendant Attorney

KUHN SCOTT

 

Court Documents

Minute Order

1/31/2018: Minute Order

Minute Order

4/2/2018: Minute Order

DECLARATION OF SCOTT KUHN IN SUPPORT OF COUNTY RESPONDENTS' OPPOSITION TO PETITIONER'S MOTION FOR ATTORNEYS' FEES

4/4/2018: DECLARATION OF SCOTT KUHN IN SUPPORT OF COUNTY RESPONDENTS' OPPOSITION TO PETITIONER'S MOTION FOR ATTORNEYS' FEES

DECLARATION OF STEPHEN KUHN IN SUPPORT OF COUNTY'S AND REAL PARTY'S OPPOSITION TO PETITIONER'S MOTION FOR ATTORNEYS' FEES

4/4/2018: DECLARATION OF STEPHEN KUHN IN SUPPORT OF COUNTY'S AND REAL PARTY'S OPPOSITION TO PETITIONER'S MOTION FOR ATTORNEYS' FEES

Minute Order

4/5/2018: Minute Order

SUPPLEMENTAL DECLARATION OF MITCHELL M. TSAI IN SUPPORT OF PETITIONER AND PLAINTIFF'S REPLY MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES AND COSTS

4/11/2018: SUPPLEMENTAL DECLARATION OF MITCHELL M. TSAI IN SUPPORT OF PETITIONER AND PLAINTIFF'S REPLY MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES AND COSTS

PETITIONER'S EVIDENTIARY OBJECTIONS TO RESPONDENT'S DECLARATIONS FILED IN OPPOTITION TO MOTION FOR ATTORNEYS FEES

4/11/2018: PETITIONER'S EVIDENTIARY OBJECTIONS TO RESPONDENT'S DECLARATIONS FILED IN OPPOTITION TO MOTION FOR ATTORNEYS FEES

COUNTY RESPONDENTS' AND REAL PARTY IN INTEREST'S OBJECTIONS AND EVIDENTIARY OBJECTIONS TO PETITIONER'S DECLARATIONS FILED IN SUPPORT OF PETITIONER'S REPLY MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT

4/13/2018: COUNTY RESPONDENTS' AND REAL PARTY IN INTEREST'S OBJECTIONS AND EVIDENTIARY OBJECTIONS TO PETITIONER'S DECLARATIONS FILED IN SUPPORT OF PETITIONER'S REPLY MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT

NOTICE OF ENTRY OF DISMISSAL

4/17/2018: NOTICE OF ENTRY OF DISMISSAL

NOTICE OF ENTRY OF ORDER DENYING PLAINTIFF AND PETITIONER'S MOTION FOR ATTORNEYS' FEES

4/23/2018: NOTICE OF ENTRY OF ORDER DENYING PLAINTIFF AND PETITIONER'S MOTION FOR ATTORNEYS' FEES

NOTICE OF WITHDRAWAL OF MEMORANDUM OF COSTS

4/26/2018: NOTICE OF WITHDRAWAL OF MEMORANDUM OF COSTS

NOTICE OF APPEAL

5/30/2018: NOTICE OF APPEAL

NOTICE TO ATTORNEY GENERAL

1/18/2017: NOTICE TO ATTORNEY GENERAL

NOTICE OF JUDICIAL ASSIGNMENT

2/1/2017: NOTICE OF JUDICIAL ASSIGNMENT

DECLARATION OF MARIA MASIS IN SUPPORT OF RESPONDENTS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PETITIONER'S MOTION FOR PRELIMINARY INJUNCTION OR ADMINISTRATIVE STAY

4/26/2017: DECLARATION OF MARIA MASIS IN SUPPORT OF RESPONDENTS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PETITIONER'S MOTION FOR PRELIMINARY INJUNCTION OR ADMINISTRATIVE STAY

DECLARATION OF MITCHELL M. TSAI IN SUPPORT OF PETITIONER'S OPPOSITION MEMORANDUM TO RESPONDENTS' OBJECTIONS AND EVTDENTIARY OBJECTIONS

5/8/2017: DECLARATION OF MITCHELL M. TSAI IN SUPPORT OF PETITIONER'S OPPOSITION MEMORANDUM TO RESPONDENTS' OBJECTIONS AND EVTDENTIARY OBJECTIONS

PROPOSED ORDER (COVER SHEET)

5/24/2017: PROPOSED ORDER (COVER SHEET)

CIVIL BOND

6/7/2017: CIVIL BOND

74 More Documents Available

 

Docket Entries

  • 01/15/2019
  • Appeal Record Delivered; Filed by Clerk

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  • 01/14/2019
  • Appeal - Original Clerk's Transcript 11 - 20 Volumes Certified; Filed by Clerk

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  • 11/20/2018
  • Appeal - Clerk's Transcript Fee Paid

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  • 11/20/2018
  • Appeal - Clerk's Transcript Fee Paid

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  • 11/20/2018
  • Appeal - Clerk's Transcript Fee Paid

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  • 11/01/2018
  • Appeal - Notice of Fees Due for Clerk's Transcript on Appeal; Filed by Clerk

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  • 07/23/2018
  • Ntc to Reptr/Mon to Prep Transcrpt; Filed by Clerk

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  • 07/23/2018
  • NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL (UNLIMITED CIVIL)

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  • 06/08/2018
  • Notice of Designation of Record; Filed by Canyon Crest Conservancy (Plaintiff)

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  • 06/08/2018
  • APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL (UNLIMITED CIVIL CASE)

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183 More Docket Entries
  • 01/18/2017
  • at 08:30 AM in Department 1; Court Order (Court Order; Court makes order) -

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  • 01/18/2017
  • NOTICE TO ATTORNEY GENERAL

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  • 01/18/2017
  • Minute Order

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  • 01/18/2017
  • Minute order entered: 2017-01-18 00:00:00; Filed by Clerk

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  • 01/18/2017
  • Notice; Filed by Canyon Crest Conservancy (Plaintiff)

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  • 01/11/2017
  • Stipulation; Filed by Plaintiff/Petitioner

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  • 01/09/2017
  • REVISED SUMMONS

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  • 01/05/2017
  • ELECTION REGARDING ADMINISTRATIVE RECORD

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  • 01/05/2017
  • Petition; Filed by null

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  • 01/05/2017
  • VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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Tentative Rulings

Case Number: BS167311    Hearing Date: October 13, 2020    Dept: 82

Canyon Crest Conservancy,

v.

County of Los Angeles, et al.

Judge Mary Strobel

Hearing: October 13, 2020

BS167311

Tentative Decision on Motion to Strike or Tax Costs

Petitioner Canyon Crest Conservancy (“Petitioner”) moves to strike the memorandum of costs on appeal filed by Real Party in Interest Stephen Kuhn (“Kuhn” or “Real Party”), or alternatively to tax costs.

Judicial Notice

Petitioner’s RJN Exhibit A – Granted.

Procedural History

On January 5, 2017, Petitioner filed a verified petition for writ of mandate and complaint for declaratory and injunctive relief. On April 17, 2017, Petitioners filed a first amended verified petition for writ of mandate and complaint for declaratory and injunctive relief (“FAP”). Also on April 17, 2017, Petitioner filed a noticed motion for preliminary injunction or administrative stay.

On May 9, 2017, after a hearing, the court issued a written ruling granting Petitioner’s motion to stay pursuant to CCP section 1094.5(g).

On or about December 14, 2017, Real Party requested that Respondent vacate the Project approvals. On or about February 27, 2018, the County Board of Supervisors vacated the approvals.

On March 15, 2018, Petitioner filed its motion for attorney’s fees pursuant to CCP section 1021.5, which sought $289,844 in fees against Respondent County of Los Angeles and also against Real Party.

On April 2, 2018, the court entered Petitioner’s request for dismissal of the action.

On April 17, 2018, the court denied Petitioner’s motion for attorney’s fees. Petitioner appealed the court’s order.

On February 19, 2020, the Court of Appeal issued an unpublished decision affirming the court’s denial of the fee motion. On March 12, 2020, the Court of Appeal entered an order certifying the opinion for publication.

On March 26, 2020, Real Party filed a memorandum of costs on appeal.

On April 10, 2020, Petitioner filed the instant motion to strike or tax costs.

On May 26, 2020, the Court of Appeal filed the remittitur. The caption to the remittitur refers to Stephen Kuhn as “Real Party in Interest and Respondent.” The remittitur states that “Respondents are awarded their costs on appeal.”

Court has received an opposition and reply.

On September 23, 2020, Real Party filed a supplemental declaration in opposition to the motion to tax/strike costs. On September 29, 2020, the court continued the hearing on the motion to October 13, 2020, so Petitioner could file a response to Real Party’s declaration.

On October 6, 2020, Petitioner filed a sur-reply to Real Party’s supplemental declaration.

Analysis

Petitioner’s Motion to Strike the Memorandum of Costs on Appeal as “Improper and Premature”

In the opening brief, Petitioner argued that “Real Party’s Memorandum of Costs on Appeal was filed prematurely since the Court of Appeal has yet to remit this Matter back to the Superior Court.” (Mot. 4.) This argument is moot because the Court of Appeal filed the remittitur on May 26, 2020.

In reply, Petitioner makes a new argument that Real Party failed to file a memorandum of costs “within 40 days after issuance of the remitter” and therefore “waived” costs. (Reply 2-3, citing CRC Rule 8.278(c) and Davis Lumber Co. v. Hubbell (1955) 137 Cal.App.2d 148, 150.) The cited authorities do not support this proposition. Further, “time limitations pertaining to a memorandum of costs are not jurisdictional (cites omitted) Haley v. Casa Del Rey Homeowners Assn. (2007), 153 Cal. App. 4th 863, 880. Petitioner shows no prejudice from the prematurely filed memorandum of costs.

Petitioner also argues that “Real Party does not fall within the definition of ‘prevailing party’ on appeal since the Real party was not a Respondent in this Matter, merely participating as a real party in interest.” (Mot. 5.) Petitioner contends that “the Court of Appeal’s February 19, 2020 Opinion awarded costs only to Respondents.” (Mot. 5.) These arguments are not persuasive. While Kuhn was a real party in interest in the trial court proceedings, Petitioner expressly sought attorney’s fees against Kuhn. Accordingly, when Petitioner appealed the court’s denial of that motion and when Kuhn responded to the appeal, Kuhn was a respondent on appeal. (See CRC Rule 8.10 [defining “respondent” as the “adverse party”].) Kuhn participated in the appeal and filed a responsive brief. (See Kuhn Decl. ¶¶ 4-7, Exh. D, Exh. E.) Furthermore, Rule 8.278(a)(2) states that the prevailing party “is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal.” Here, the Court of Appeal affirmed the court’s judgment without modification. Thus, Kuhn is entitled to costs on appeal.

The court disagrees with Petitioner’s assertion that the Court of Appeal only awarded costs to the County Respondents. The remittitur must specify the costs award. (See CRC Rule 8.278(b).) The caption to the remittitur refers to Stephen Kuhn as “Real Party in Interest and Respondent.” (emphasis added.) The remittitur controls with respect to the award of costs. (See CRC Rule 8.278(b).) The remittitur states that “Respondents are awarded their costs on appeal.” To the extent the Court of Appeal referred to Kuhn only as “real party” in the opinion, the Court appears to have done so for clarity and to differentiate Kuhn from the County Respondents. There is no indication from the Court of Appeal’s reasoning that it found only the County Respondents to be the prevailing parties.

Petitioner’s motion to strike the cost memorandum is DENIED.

Motion to Tax Costs

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

CRC, Rule 8.278(d) prescribes the recoverable costs for an appeal:

(1)  A party may recover only the following costs, if reasonable:

(A)  Filing fees;

(B)  The amount the party paid for any portion of the record, whether an original or a copy or both. The cost to copy parts of a prior record under rule 8.147(b)(2) is not recoverable unless the Court of Appeal ordered the copying;

(C)  The cost to produce additional evidence on appeal;

(D)  The costs to notarize, serve, mail, and file the record, briefs, and other papers;

(E)  The cost to print and reproduce any brief, including any petition for rehearing or review, answer, or reply;

(F)  The cost to procure a surety bond, including the premium, the cost to obtain a letter of credit as collateral, and the fees and net interest expenses incurred to borrow funds to provide security for the bond or to obtain a letter of credit, unless the trial court determines the bond was unnecessary; and

(G)  The fees and net interest expenses incurred to borrow funds to deposit with the superior court in lieu of a bond or undertaking, unless the trial court determines the deposit was unnecessary.

Item 1 – Filing Fees; Item 6 – Transmitting, Filing, and Serving of Record, Briefs, and Other Papers

Petitioner objects to $22.20 of the $412.20 in filing fees requested by Real Party on the grounds it exceeds the $390 charged by the Court of Appeal. (Mot. 6 and Exh. B [Court of Appeal filing fees].) Petitioner also objects to $147 in costs for “transmitting, filing, and serving of record, briefs, and other papers” claiming this amount is not explained or reasonable. (Mot. 7; Reply 6-7.)

Rule 8.278(d)(1)(D) permits recovery of costs to “serve…and file…briefs, and other papers.” The Real Party used TrueFiling for this purpose. (Kuhn Decl. ¶ 7.) He declares that Petitioner and County Respondents also used TrueFiling, which Petitioner does not dispute or rebut. (Reply 5, 6-7.) Petitioner submits no evidence that the use of TrueFiling is uncommon or unreasonable. Except as stated below, the court finds that these filing costs were reasonable.

Real Party submits evidence that he incurred $147 in TrueFiling fees for filing 9 documents, and $22.20 in TrueFiling fees for his first appellate filing. (Kuhn Decl. ¶ 7.) Real Party apparently filed 3 of the 9 documents twice, resulting in 12 TrueFiling fees (not including the $22.20 surcharge added to the $390 Court of Appeal first filing fee.) For reasons unexplained by Real Party, two of the 12 document filing fees are for $21 each, while the remainder are for $10.50 each. Real Party indicates that he was required to re-file three documents, twice as a result of his own “preventable error.” (Ibid.) Because Real Party admits to preventable error for two documents and does not explain the $21 filing costs for 8/23/19 and 8/26/19, the court reduces the filing costs by $42 ($21 x 2).

Real Party also claims to have filed two documents after the remittitur was filed. (Kuhn Decl. ¶ 7.) Those costs are not reflected in the cost memorandum and are not recoverable.

The court taxes item 6 by $42. The court does not tax item 1.

Item 2 – Preparation of the Original and Copies of Clerk’s Transcript or Appendix

Petitioner objects to the entire $328.95 Real Party seeks for “preparation of the original and copies of clerk’s transcript or appendix.” Petitioner contends that these costs are unreasonable because “Petitioner elected to and paid for preparation of the clerk’s transcript in this Matter and would have been prepared to lend its copy to Real Party or Respondents had Petitioner received a request to do so under CRC 8.153.” (Mot. 6.)

Rule 8.278(d)(1)(D) permits recovery of reasonable costs in the “amount the party paid for any portion of the record, whether an original or copy or both.” Rule 8.153 authorizes a party, which has not purchased its own copy of the record, to request to borrow another party’s copy. The borrowing party must return the record when it serves its brief. Rule 8.153 does not mandate that any party request to borrow the record. It was reasonable for Real Party to obtain his own copy of the record.

Real Party submits evidence that the Clerk’s Transcript totaled 3,655 pages. (Kuhn Decl. ¶ 7; see also Oppo. 2, fn. 5.) The $328.95 claimed by Real Party appears to be a reasonable amount for copying and preparing the record (less than $.10 per page.)

In reply, Petitioner points out that the receipts submitted by Real Party total $40.92. (Reply 5.) In his declaration, Real Party stated: “Exhibit F, attached hereto, is a true and correct copy of all receipts and credit card charges for printing and filing, which I pasted from my email receipts and exported from my credit card account. I actually incurred these costs in printing one copy of each brief (totaling 341 pages), one copy of the Clerk’s Transcript (totaling 3,655 pages), and in making the filings attributed herein.” (Kuhn Decl. ¶ 7 [emphasis added].) Exhibit F, to which Real Party refers to in paragraph 7, only shows $40.92 in copying costs.

However, in his supplemental declaration filed September 23, 2020, Real Party explained that he “inadvertently failed to include all receipt copies when I assembled my exhibits in opposition.” (Suppl. Kuhn Decl. ¶ 2.) Real Party explains that he “was trying to assemble these exhibits while providing care for infant twins during Covid and working full time.” (Ibid.)

Real Party further declares under penalty of perjury: “I copied the Clerk’s Transcript by taking the County’s dozens of volumes, as delivered by the clerk of the Court, delaminating the adhesive binder, and chopping the remnant adhesive so they would pass through a copy machine. In my initial attempt at copying, two volumes had been left behind, and I also discovered some pages had been stuck together and had not been copied. I returned to make these copies, in the amount of $35.23. Exhibit A, attached hereto, is a true and correct copy of a copying receipt for the bulk of the Clerk’s Transcript, in the amount of $291.26.” (Suppl. Kuhn Decl. ¶ 2, Exh. A.) The $35.23 receipt was included with Real Party’s original declaration. (Kuhn Decl. Exh F.)

In the sur-reply, Petitioner points out that Real Party’s supplemental declaration and attached receipts show that copying costs for the transcript total $326.49, not the $328.95 Real Party claimed in the memorandum of costs. (Sur-Reply 2.) Because the memorandum of costs was also executed under penalty of perjury, Petitioner asserts that the entire amount claimed in Item 2 must be “false.” The court disagrees. Real Party’s declarations and attached receipts substantiate copying costs for the transcripts in the amount of $326.49. Accordingly, Item 2 must be taxed only by the difference from $328.95, or $2.46.

The court taxes item 2 by $2.46, to $326.49.

Item 4 – Printing and Copying of Briefs

Petitioner objects to the $40.92 that Real Party claims for printing and copying briefs. Petitioner contends that this amount is unreasonable because Real Party filed his briefs electronically and was served electronically. (Mot. 6.) Real Party submits sufficient evidence that he reasonably incurred $40.92 for copies of the briefs so that he could transcribe notes in the margins and bring copies to oral argument. (Oppo. 4; Kuhn Decl. ¶ 7; Suppl. Kuhn Decl. ¶ 4, Exh. B.)

In the sur-reply, Petitioner contends that Item 4 should be taxed to $0 because Real Party’s supplemental declaration suggests that Real Party actually incurred $43.38 in copying briefs. (Sur-Reply 3.) Although Real Party cannot claim costs for Item 4 not specified in the memorandum of costs, any error in requesting less than allowable costs for Item 4 does not show the amount requested is false. Real Party’s declarations and attached receipts substantiate the costs claimed for Item 4 of $40.92.

The motion is DENIED as to Item 4.

Conclusion

The motion to strike is DENIED.

The motion to tax costs is GRANTED IN PART and DENIED IN PART. The court taxes item 6 by $42 and Item 2 by $2.46, resulting in a total reduction of $44.46. The motion to tax is DENIED in all other respects.

Case Number: BS167311    Hearing Date: September 29, 2020    Dept: 82

Canyon Crest Conservancy,

v.

County of Los Angeles, et al.

Judge Mary Strobel

Hearing: September 29, 2020

BS167311

Tentative Decision on Motion to Strike or Tax Costs

Petitioner Canyon Crest Conservancy (“Petitioner”) moves to strike the memorandum of costs on appeal filed by Real Party in Interest Stephen Kuhn (“Kuhn” or “Real Party”), or alternatively to tax costs.

Judicial Notice

Petitioner’s RJN Exhibit A – Granted.

Procedural History

On January 5, 2017, Petitioner filed a verified petition for writ of mandate and complaint for declaratory and injunctive relief. On April 17, 2017, Petitioners filed a first amended verified petition for writ of mandate and complaint for declaratory and injunctive relief (“FAP”). Also on April 17, 2017, Petitioner filed a noticed motion for preliminary injunction or administrative stay.

On May 9, 2017, after a hearing, the court issued a written ruling granting Petitioner’s motion to stay pursuant to CCP section 1094.5(g).

On or about December 14, 2017, Real Party requested that Respondent vacate the Project approvals. On or about February 27, 2018, the County Board of Supervisors vacated the approvals.

On March 15, 2018, Petitioner filed its motion for attorney’s fees pursuant to CCP section 1021.5, which sought $289,844 in fees against Respondent County of Los Angeles and also against Real Party.

On April 2, 2018, the court entered Petitioner’s request for dismissal of the action.

On April 17, 2018, the court denied Petitioner’s motion for attorney’s fees. Petitioner appealed the court’s order.

On February 19, 2020, the Court of Appeal issued an unpublished decision affirming the court’s denial of the fee motion. On March 12, 2020, the Court of Appeal entered an order certifying the opinion for publication.

On March 26, 2020, Real Party filed a memorandum of costs on appeal.

On April 10, 2020, Petitioner filed the instant motion to strike or tax costs.

On May 26, 2020, the Court of Appeal filed the remittitur. The caption to the remittitur refers to Stephen Kuhn as “Real Party in Interest and Respondent.” The remittitur states that “Respondents are awarded their costs on appeal.”

Court has received an opposition and reply.

Analysis

Petitioner’s Motion to Strike the Memorandum of Costs on Appeal as “Improper and Premature”

In the opening brief, Petitioner argued that “Real Party’s Memorandum of Costs on Appeal was filed prematurely since the Court of Appeal has yet to remit this Matter back to the Superior Court.” (Mot. 4.) This argument is moot because the Court of Appeal filed the remittitur on May 26, 2020.

In reply, Petitioner makes a new argument that Real Party failed to file a memorandum of costs “within 40 days after issuance of the remitter” and therefore “waived” costs. (Reply 2-3, citing CRC Rule 8.278(c) and Davis Lumber Co. v. Hubbell (1955) 137 Cal.App.2d 148, 150.) The cited authorities do not support this proposition. Further, “time limitations pertaining to a memorandum of costs are not jurisdictional (cites omitted) Haley v. Casa Del Rey Homeowners Assn. (2007), 153 Cal. App. 4th 863, 880. Petitioner shows no prejudice from the prematurely filed memorandum of costs.

Petitioner also argues that “Real Party does not fall within the definition of ‘prevailing party’ on appeal since the Real party was not a Respondent in this Matter, merely participating as a real party in interest.” (Mot. 5.) Petitioner contends that “the Court of Appeal’s February 19, 2020 Opinion awarded costs only to Respondents.” (Mot. 5.) These arguments are not persuasive. While Kuhn was a real party in interest in the trial court proceedings, Petitioner expressly sought attorney’s fees against Kuhn. Accordingly, when Petitioner appealed the court’s denial of that motion and when Kuhn responded to the appeal, Kuhn was a respondent on appeal. (See CRC Rule 8.10 [defining “respondent” as the “adverse party”].) Kuhn participated in the appeal and filed a responsive brief. (See Kuhn Decl. ¶¶ 4-7, Exh. D, Exh. E.) Furthermore, Rule 8.278(a)(2) states that the prevailing party “is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal.” Here, the Court of Appeal affirmed the court’s judgment without modification. Thus, Kuhn is entitled to costs on appeal.

The court disagrees with Petitioner’s assertion that the Court of Appeal only awarded costs to the County Respondents. The remittitur must specify the costs award. (See CRC Rule 8.278(b).) The caption to the remittitur refers to Stephen Kuhn as “Real Party in Interest and Respondent.” (emphasis added.) The remittitur controls with respect to the award of costs. (See CRC Rule 8.278(b).) The remittitur states that “Respondents are awarded their costs on appeal.” To the extent the Court of Appeal referred to Kuhn only as “real party” in the opinion, the Court appears to have done so for clarity and to differentiate Kuhn from the County Respondents. There is no indication from the Court of Appeal’s reasoning that it found only the County Respondents to be the prevailing parties.

Petitioner’s motion to strike the cost memorandum is DENIED.

Motion to Tax Costs

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

CRC, Rule 8.278(d) prescribes the recoverable costs for an appeal:

(1)  A party may recover only the following costs, if reasonable:

(A)  Filing fees;

(B)  The amount the party paid for any portion of the record, whether an original or a copy or both. The cost to copy parts of a prior record under rule 8.147(b)(2) is not recoverable unless the Court of Appeal ordered the copying;

(C)  The cost to produce additional evidence on appeal;

(D)  The costs to notarize, serve, mail, and file the record, briefs, and other papers;

(E)  The cost to print and reproduce any brief, including any petition for rehearing or review, answer, or reply;

(F)  The cost to procure a surety bond, including the premium, the cost to obtain a letter of credit as collateral, and the fees and net interest expenses incurred to borrow funds to provide security for the bond or to obtain a letter of credit, unless the trial court determines the bond was unnecessary; and

(G)  The fees and net interest expenses incurred to borrow funds to deposit with the superior court in lieu of a bond or undertaking, unless the trial court determines the deposit was unnecessary.

Item 1 – Filing Fees; Item 6 – Transmitting, Filing, and Serving of Record, Briefs, and Other Papers

Petitioner objects to $22.20 of the $412.20 in filing fees requested by Real Party on the grounds it exceeds the $390 charged by the Court of Appeal. (Mot. 6 and Exh. B [Court of Appeal filing fees].) Petitioner also objects to $147 in costs for “transmitting, filing, and serving of record, briefs, and other papers” claiming this amount is not explained or reasonable. (Mot. 7; Reply 6-7.)

Rule 8.278(d)(1)(D) permits recovery of costs to “serve…and file…briefs, and other papers.” The Real Party used TrueFiling for this purpose. (Kuhn Decl. ¶ 7.) He declares that Petitioner and County Respondents also used TrueFiling, which Petitioner does not dispute or rebut. (Reply 5, 6-7.) Petitioner submits no evidence that the use of TrueFiling is uncommon or unreasonable. Except as stated below, the court finds that these filing costs were reasonable.

Real Party submits evidence that he incurred $147 in TrueFiling fees for filing 9 documents, and $22.20 in TrueFiling fees for his first appellate filing. (Kuhn Decl. ¶ 7.) Real Party apparently filed 3 of the 9 documents twice, resulting in 12 TrueFiling fees (not including the $22.20 surcharge added to the $390 Court of Appeal first filing fee.) For reasons unexplained by Real Party, two of the 12 document filing fees are for $21 each, while the remainder are for $10.50 each. Real Party indicates that he was required to re-file three documents, twice as a result of his own “preventable error.” (Ibid.) Because Real Party admits to preventable error for two documents and does not explain the $21 filing costs for 8/23/19 and 8/26/19, the court reduces the filing costs by $42 ($21 x 2).

Real Party also claims to have filed two documents after the remittitur was filed. (Kuhn Decl. ¶ 7.) Those costs are not reflected in the cost memorandum and are not recoverable.

The court taxes item 6 by $42. The court does not tax item 1.

Item 2 – Preparation of the Original and Copies of Clerk’s Transcript or Appendix

Petitioner objects to the entire $328.95 Real Party seeks for “preparation of the original and copies of clerk’s transcript or appendix.” Petitioner contends that these costs are unreasonable because “Petitioner elected to and paid for preparation of the clerk’s transcript in this Matter and would have been prepared to lend its copy to Real Party or Respondents had Petitioner received a request to do so under CRC 8.153.” (Mot. 6.)

Rule 8.278(d)(1)(D) permits recovery of reasonable costs in the “amount the party paid for any portion of the record, whether an original or copy or both.” Rule 8.153 authorizes a party, which has not purchased its own copy of the record, to request to borrow another party’s copy. The borrowing party must return the record when it serves its brief. Rule 8.153 does not mandate that any party request to borrow the record. It was reasonable for Real Party to obtain his own copy of the record.

Real Party submits evidence that the Clerk’s Transcript totaled 3,655 pages. (Kuhn Decl. ¶ 7; see also Oppo. 2, fn. 5.) The $328.95 claimed by Real Party appears to be a reasonable amount for copying and preparing the record (less than $.10 per page.)

However, in reply, Petitioner points out that the receipts submitted by Real Party total $40.92. (Reply 5.) In his declaration, Real Party stated: “Exhibit F, attached hereto, is a true and correct copy of all receipts and credit card charges for printing and filing, which I pasted from my email receipts and exported from my credit card account. I actually incurred these costs in printing one copy of each brief (totaling 341 pages), one copy of the Clerk’s Transcript (totaling 3,655 pages), and in making the filings attributed herein.” (Kuhn Decl. ¶ 7 [emphasis added].) Exhibit F, to which Real Party refers to in paragraph 7, only shows $40.92 in copying costs. Thus, in the declaration, Real Party appears to admit that he incurred no more than $40.92 in copying costs. Real Party may respond to this argument at the hearing.[1]

Subject to argument at the hearing, the court concludes that, based on statements made in his declaration and Exhibit F thereto, Real Party has not sufficiently substantiated the $328.95 in copying costs for the record. It appears Real Party did not incur any copying costs for the record.

The court taxes item 2 by $328.95.

Item 4 – Printing and Copying of Briefs

Petitioner objects to the $40.92 that Real Party claims for printing and copying briefs. Petitioner contends that this amount is unreasonable because Real Party filed his briefs electronically and was served electronically. (Mot. 6.) Real Party submits sufficient evidence that he reasonably incurred $40.92 for copies of the briefs so that he could transcribe notes in the margins and bring copies to oral argument. (Oppo. 4; Kuhn Decl. ¶ 7.)

The motion is DENIED as to Item 4.

Conclusion

The motion to strike is DENIED.

The motion to tax costs is GRANTED IN PART and DENIED IN PART. Subject to argument on the issues outlined above, the court taxes the cost bill by $370.95 ($42+ $328.95).


[1] As noted by Petitioner, Kuhn also states that he “expended his own labor copying the County’s” record, but he does not claim to have actually incurred any copying costs for use of a copy machine. (See Oppo. 3.)

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