U.S. BANK TRUST VS. MARIAM SHASHIKYAN, ET AL

Tentative Rulings

Case Number: ****6464    Hearing Date: November 09, 2020    Dept: W

U.S. BANK TRUST, N.A. V. SHASHIKYAN, ET AL.

MOtion to tax costs

Date of Hearing: November 9, 2020 Trial Date: N/A

Department: W Case No.: ****6464

Moving Party: Plaintiff U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust

Responding Party: Defendants Lan Tran, Bassam Mustafa, Ahlam Mustafa, and Nabil Abudayeh

BACKGROUND

Plaintiff U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust, holds a deed of trust secured by certain real property. Defendants Lan Tran, Bassam Mustafa, Ahlam Mustafa, and Nabil Abudayeh (collectively “Private Capital Investments” or “PCI Defendants”) are property owners or holders of some interest in the real property.

According to Plaintiff, an unauthorized Trustee’s Deed Upon Sale purporting to foreclose the Plaintiff’s interest was recorded in 2015. The grantee was Defendant AA Consulting & Management. In 2016, Defendant AA Consulting & Management recorded a Grant Deed in favor of Defendant Larisa Kirakosian. Defendant Kirakosian then recorded a deed of trust securing a loan in the amount of $760,000 in favor of PCI Defendants. On August 17, 2017, Defendant Kirakosian caused to be recorded a Grant Deed conveying her purported interest in the property to Defendant Mariam Shashikyan and her son, Defendant Tigran Shashikyan. Plaintiff brought the action to re-establish first priory lien status on the property.

On November 13, 2017, Plaintiff filed a Complaint against Mariam Shashikyan, Tigran Shashikyan, AA Consulting & Management, Inc., Ronald Marks, Linda C. Marks, 6552 Woodman LLC, Larisa Kirakosian, Lan Tran, Bassam Mustafa, Ahlam Mustafa, and Nabil Abudayeh alleging: (1) Declaratory Relief; (2) Cancellation of Instruments; (3) To Impress an Equitable Lien; and (4) Quiet Title.

On June 6, 2019, PCI Defendants filed a Cross-Complaint against Plaintiff alleging Common Law Implied Indemnity and Declaratory Relief. PCI Defendants filed a Request for Dismissal of the Cross-Complaint without prejudice on August 21, 2019.

All named defendants, other than the PCI Defendants, have either defaulted on Plaintiff’s complaint or stipulated that Plaintiff’s interest is superior.

The matter came to court trial on January 27-29, 2020. The court found that the TDUS recorded on November 4, 2015 is void ab initio and entered judgment in Defendant’s favor.

[Tentative] Ruling

Plaintiff’s Motion to Tax Costs is GRANTED in part.

DISCUSSION

Plaintiff moves this court to tax costs sought by Defendants Lan Tran, Bassam Mustafa, Ahlam Mustafa, and Nabil Abudayeh’s in their Memorandum of Costs on the grounds he following costs sought by Defendants, in whole or in part, are not otherwise recoverable under California Code of Civil Procedure Section 1033.5. Specifically, Plaintiff moves to tax the filing and motion fees by $268.31, court reporter fees by $3,427.88, and other fees by $1,112.65.

Plaintiff first requests that the court stay determination of cost recovery until the appeal is concluded to avoid unnecessary time and effort should Plaintiff succeed on appeal. After a final determination on appeal, Plaintiff contends this court can then determine, in a single memorandum of costs, the expenses the prevailing party properly may recover.

As a preliminary matter, Defendants did not object to Plaintiff’s request that the court stay determination of cost recovery until the pending appeal.

However, a stay only suspends enforcement of the appealed judgment or order and other superior court proceedings “upon the judgment or order appealed from or upon the matters embraced therein or affected thereby.” (CCP ;916(a).) The trial court retains jurisdiction to proceed upon any other matter embraced in the action and any ancillary or collateral matters not affected by the judgment or order on appeal. (Ibid.; see also, Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 191.) “[A]n appeal does not stay proceedings on ‘ancillary or collateral matters which do not affect the judgment [or order] on appeal’ even though the proceedings may render the appeal moot.” (Varian, supra, 35 Cal.4th at 191, citing Betz v. Pankow (1993) 16 Cal.App.4th 931, 938.)

As such, the motion to tax costs associated with the memorandum of costs is wholly separate and unaffected by the appeal. As such, the court reviews the motion to tax costs on the merits.

First, the court notes the parties do not dispute Defendant is prevailing party. The parties do dispute, however, whether some of the fees sought are recoverable.

Filing Fees

Plaintiff contends only $1,760.00 of the $2,028.31 costs claimed in Item 1 is allowable. Plaintiff argues the remaining $268.31 fees Defendants claimed to have incurred were not reasonable or necessary to the conduct of the litigation and should be taxed. These include: 3/13/18 Stipulation and Order to Set Aside Default of Defendants; 6/20/18 and 11/8/16 Commissions (for depositions which never took place); 3/25/19 Motion for Leave to File Cross-Complaint (for a Cross-Complaint which Defendants voluntarily dismissed shortly after filing); 9/24/19 Ex Parte Application for an Order Striking Plaintiff’s MSJ (which was unsuccessful and brought on ex parte basis solely for convenience of Defendants—who could have raised their issue in MSJ opposition papers for no fee); and unknown, unspecified Post-Trial and Judgment Fees (there is no LASC fee required for submission and lodging of a judgment with the Court).

Plaintiff claims the Stip and Order was only a courtesy to avoid a motion to vacate default, which would not have been necessary had defendants appeared. The court disagrees. In order to successfully litigate the case, the parties agreed to the stip and order. Next, Plaintiff claims Defendants presented no evidence that any of the depositions went forward regarding the Commissions for depositions. However, the LASC Clerk had to issue the commission for a document demand subpoena in Arizona on the Northern Trust Bank of Arizona and the attorney declares, under penalty of perjury, he Document Demand Subpoenas issued to Northern Trust Bank of Arizona in Arizona and documents produced. (Slome Decl. ¶3.)

Plaintiffs also argue the Motion to for Leave to File a Cross Complaint was unnecessary because Defendants eventually dismissed their cross-complaint. Simply because the party dismissed their cross complaint afterwards does not render the motion unreasonable or unnecessary. The court had found the Motion was compulsory because it was against the Plaintiff and arose from the same set of transactions and facts as the complaint. As for Defendant’s ex parte application, although unsuccessful, does not mean it was unreasonably necessary. Again, simply because a motion or ex parte application is not granted does not mean it was unreasonable.

As for the oppositions to the post trial motions, Plaintiff contends there is no LASC scheduled filing fee for filing an opposition with the Court. The court taxes the opposition fees of $51.27.

Court Reporter Fees

Defendants have claimed $4,927.88 pursuant to this category. Plaintiff argues Defendant improperly included in this amount the purchase of transcripts as well as expedited fees, production, and shipping fees.

Court reporter fees established by statute are expressly allowed by statute. (CCP ; 1033.5(a)(11).) The costs appear proper on their face. (Memo. of Costs, Exh. 2.) Thus, the burden begins with Plaintiff to show the costs are unnecessary or unreasonable.

Plaintiff claims trial took place on three days, the parties collectively incurred court reporter per diem fees of $1,000.00 per day (3 full days), which the parties split, leaving Defendants responsible for paying $1,500.00 for court reporter fees that would be recoverable under Item 11.

Defendant argues as Plaintiff also requested that a court reporter transcribe the trial, including ordering expedited daily transcripts, it is undisputed that the court reporter fees requested by Investor Defendants were “reasonably necessary to the conduct of the litigation” and recoverable under section 1033.5. However, court reporter transcripts are not recoverable. (Chaaban v. Wet Seal, Inc. (2012) 203 Cal. App. 4th 49, 58.)

Based on the foregoing, the court taxes the request for court reporter fees by $3,427.88.

Other

Defendants seek to recover $1,112.65 in court reporter fees from two (2) motion hearings. Plaintiff seeks to tax the amount in its entirety on the grounds they were not incurred at trial and no statute authorizes such costs.

In opposition, Defendant argues it is well-established that even costs “not specifically allowable” under Section 1033.5(a) are still recoverable “if reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1558.) Defendant also argues Plaintiff’s counsel also requested to have a court reporter at the Ex Parte Hearing on the Motion for Summary Judgment (September 11, 20219) and the Summary Judgment Hearing (December 16, 2019). Defendant, however, does not demonstrate the court reporter fees were ordered by the court or established by statute.

Based on the foregoing, the court taxes the request for other fees by $1,112.65.