HARRY LOVELAND, ET AL. VS. SOL DEL CIELO, LLC, ET AL.

Tentative Rulings

Case Number: ****9123    Hearing Date: December 12, 2019    Dept: A

# 6. Harry Loveland, et al. v. Sol Del Cielo, LLC, et al.

Case No.: ****9123

Matter on calendar for: Motion to Tax Costs

Tentative ruling:

1. Background

   Plaintiffs Barry Loveland and Charlene Loveland own a single-family home at 11159 Louise Ave., Lynwood, CA. The neighboring property at 11165 Louise Ave., Lynwood, CA is being developed. Defendant M.L. Culkin Construction Company, Inc., is overseeing the development; defendant Sol Del Cielo, LLC, is the owner of the property. Defendant Abraham Sandoval is allegedly the sole member of Sol. The Second Amended Complaint (“SAC”) alleges:

1. Trespass to land;

2. Private Nuisance; and

3. Trespass to Timber

Plaintiffs appealed the Court’s ruling on the anti-SLAPP motion. Defendants prevailed on the appeal and were granted costs. Plaintiffs now move to tax Defendants’ costs, specifically a $675 item for a letter of credit/opinion in lieu of bond. An opposition has been filed, but as of December 9, 2019, no reply has been received.

As set forth below, the Court grants the motion to tax.

1. Standard

Code of Civil Procedure ; 1032(a)(b) states that a prevailing party is entitled as a matter of right to recover costs in any action or proceeding, unless a statute expressly states otherwise.

The memorandum of cost is a verified statement by the party, attorney, or agent that the costs are correct and were necessarily incurred in the case. (Cal. Rules of Court, Rule 3.1700(a)(1).) “If 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, and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) “[I]f the correctness of the memorandum is challenged either in whole or in part by the affidavit or other evidence of the contesting party, the burden is then on the party claiming the costs and disbursements to show that the items charged were for matters necessarily relevant and material to the issues involved in the action.” (Id. at 699.)

Per Code of Civil Procedure ; 1033.5(c) provides: “(1) Costs are allowable if incurred, whether or not paid. (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount. (4) Items not mention in this section . . . may be allowed . . . in the Court’s discretion.” (C.C.P., ; 1033.5(c)(4).)

1. Analysis

   Plaintiffs argue that a letter of credit may only be recovered as a cost when it is to satisfy an underlying outstanding judgment, citing Rostack Investments, Inc. v. Sabella (2019) 32 Cal.App.5th 70, 75–80. Because there was no underlying unpaid monetary judgment, Plaintiffs argue, Defendants were not required to file a letter of credit. Defendants argue the letter of credit was required by Sol’s financial institution one Sol notified it of the appeal. Although both parties interpret Rostack, the case does settle the issue as it involved a letter of credit to satisfy a judgment and did not explore whether the boundaries of California Rules of Court, Rule 8.278(d)(1), which governs recoverable costs on appeal.

   Additional guidance is found in the Supreme Court decision in Rossa v. D.L. Construction, Inc. (2012) 53 Cal.4th 387, 397, in which the Court found that interest payments incurred by obtaining a bond or letter of credit to stay enforcement of a judgment pending appeal was not recoverable. In reaching this determination, the Court states that cost provisions are strictly construed. (Id. at 395.) The Rossa Court’s analysis of the provisions strongly indicate that the bond or letter of credit must be required by the Court to stay the enforcement of a judgment. Accordingly, Sol’s letter of credit—required by a financial institution as a basis of Sol’s relationship with that institution—is not eligible for recovery.

2. Ruling

The motion to tax is granted. Counsel do not need to appear at tomorrow’s hearing, unless someone wishes to dispute the Court’s ruling.

Next dates: Future court dates have previously been set for January 2020.

Notice: Plaintiff to give notice.

Case Number: ****9123    Hearing Date: December 03, 2019    Dept: A

# 17. Harry Loveland, et al. v. Sol Del Cielo, LLC, et al.

Case No.: ****9123

Matter on calendar for: Motion for Leave to file Second Amended Complaint; FSC

Tentative ruling:

1. Background

   Plaintiffs Barry Loveland and Charlene Loveland own a single-family home at 11159 Louise Ave., Lynwood, CA. The neighboring property at 11165 Louise Ave., Lynwood, CA is being developed. Defendant M.L. Culkin Construction Company, Inc., is overseeing the development; defendant Sol Del Cielo, LLC, is the owner of the property. Defendant Abraham Sandoval is allegedly the sole member of Sol. The First Amended Complaint (“FAC”) alleges:

1. Trespass to land;

2. Private nuisance;

3. Trespass to timber; and

4. Conversion

Plaintiffs now move for leave to file a Second Amended Complaint (“SAC”). The motion is unopposed. Trial is currently set for December 9, 2019.

As set forth below, the Court grants the motion.

1. Standard

Code of Civil Procedure ;; 473(a)(1) and 576 provide courts with the authority to allow the amendment of pleadings upon a showing of good cause and the absence of prejudice. California Rules of Court, Rule 3.1324(b) requires that Plaintiff prepare a declaration specifying (i) the effect of the amendment, (ii) why the amendment is necessary, (iii) when the facts giving rise to the amended allegations were discovered, and (iv) why the request for amendment was not made earlier.

In ruling on a motion for leave to file a cross-complaint, the Court generally considers whether the non-moving parties would face prejudice. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486–488.) Examples of prejudice include: delay in trial date, increased costs of preparation, increased burden of discovery, etc. (Id.) “If discovery and investigation develop factual grounds justifying a timely amendment to a pleading, leave to amend must be liberally granted.” (Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) California judicial policy generally favors permitting amendment to pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Denial of leave to amend is appropriate where (1) the party seeking the amendment has been dilatory; and (2) the delay has prejudiced the opposing party. (Hirsa v. Superior Court (1981) 119 Cal.App.3rd 486, 490.)

1. Analysis

   Plaintiffs request leave to amend the FAC, primarily to remove Defendant Culkin Construction Company. Plaintiffs declare that discovery revealed that Culkin was not the entity responsible for construction on the site. Further, the amended Second Amended Complaint (“SAC”) contains updates reflecting that construction on the property has concluded. Plaintiffs have included a redline copy of the SAC that highlights the specific alternations.

   The SAC complaint contains the same substantive allegations, resulting in a lack of prejudice to Defendants from the amendment. In light of the judicial policy favoring amendment, the Court grants the motion.

2. Ruling

The motion for leave to amend the FAC is granted.

Next dates:

Notice: