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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Barry Schoer Family Trust v. Parker Family Trust/Survivor's Trust, et al.

Case No: 18CV03381
Hearing Date: Mon Jan 13, 2020 9:30

Nature of Proceedings: Moton Order Striking and/or Taxing Cost Bill Submitted

 

 

 

Barry Schoer Family Trust v. Park Family Trust etc. (Judge Sterne)

Case No. 18CV03381

           

Hearing Date: January 13, 2020                                                     

 

HEARING:              Motion of Defendant to Strike or Tax Costs

 

ATTORNEYS:       

For Plaintiff Barry Schoer Family Trust and Cross-Defendants Barry Schoer, Barry Schoer Family Trust, Olivia Schoer, and Olivia Schoer Family Trust: Rafael Gonzalez, Nathan E. Klouda, Mullen & Henzell L.L.P.

For Defendant and Cross-Complainant Cholice J. Parker, individually and as trustee of the Parker Family Trust/ Survivor’s Trust: Robert B. Locke

 

TENTATIVE RULING:

 

The motion of defendant and cross-complainant Cholice J. Parker, individually and as trustee of the Parker Family Trust/ Survivor’s Trust, to strike or to tax costs is denied. The court affirms the costs claimed by plaintiff and cross-defendants against Parker in the total amount of $3,909.35.

 

 

Background:

 

On August 27, 2019, following the conclusion of a bench trial, the court found in favor of plaintiff Barry Schoer Family Trust and against defendant Cholice J. Parker, individually and as trustee of the Parker Family Trust/ Survivor’s Trust (collectively, Parker) and awarded damages in the total amount of $10,000.00. The court further made orders regarding the replacement of the damaged tree at issue. The court also denied the relief requested in the cross-complaint of Parker against plaintiff and others.

 

On November 19, 2019, judgment was entered consistent with the court’s ruling at the conclusion of trial. The judgment identifies the plaintiffs and cross-defendants (collectively, Schoer) as prevailing parties for purposes of costs.

 

On December 6, 2019, Schoer filed a memorandum of costs claiming ordinary costs in the total amount of $3,909.35.

 

On December 11, 2019, Parker filed this motion to strike or to tax costs. (Note: The motion fails to include the title of the document in the footer in violation of California Rules of Court, rule 2.110.) The motion is opposed by Schoer.

 

Analysis:

 

“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.” (Code Civ. Proc., § 1032, subd. (b).) The court has already determined that Schoer is the prevailing party under section 1032.

 

Parker first argues that the memorandum of costs should be stricken because the judgment could have been entered in a limited jurisdiction case but was brought as an unlimited jurisdiction case. “Costs or any portion of claimed costs shall be as determined by the court in its discretion in a case other than a limited civil case in accordance with Section 1034 where the prevailing party recovers a judgment that could have been rendered in a limited civil case.” (Code Civ. Proc., § 1033, subd. (a).)

 

“An action or special proceeding shall be treated as a limited civil case if all of the following conditions are satisfied, and, notwithstanding any statute that classifies an action or special proceeding as a limited civil case, an action or special proceeding shall not be treated as a limited civil case unless all of the following conditions are satisfied:

            “(a) The amount in controversy does not exceed twenty-five thousand dollars ($25,000). As used in this section, ‘amount in controversy’ means the amount of the demand, or the recovery sought, or the value of the property, or the amount of the lien, that is in controversy in the action, exclusive of attorneys' fees, interest, and costs.

            “(b) The relief sought is a type that may be granted in a limited civil case.

            “(c) The relief sought, whether in the complaint, a cross-complaint, or otherwise, is exclusively of a type described in one or more statutes that classify an action or special proceeding as a limited civil case or that provide that an action or special proceeding is within the original jurisdiction of the municipal court ….” (Code Civ. Proc., § 85.)

 

“The following cases in equity are limited civil cases:

            “(1) A case to try title to personal property when the amount involved is not more than twenty-five thousand dollars ($25,000).

            “(2) A case when equity is pleaded as a defensive matter in any case that is otherwise a limited civil case.

            “(3) A case to vacate a judgment or order of the court obtained in a limited civil case through extrinsic fraud, mistake, inadvertence, or excusable neglect.” (Code Civ. Proc., § 86, subd. (b).)

 

“A civil action or proceeding other than a limited civil case may be referred to as an unlimited civil case.” (Code Civ. Proc., § 88.)

 

“[T]he purpose of Code of Civil Procedure section 1033 (formerly section 1032, subdivision (2)) is ‘to discourage plaintiffs from “over filing” their cases’ and thereby ‘wast[ing] judicial resources.’ Accordingly, the trial court may properly award costs to a plaintiff who recovers less than the jurisdictional amount for an unlimited civil case when he or she reasonably and in good faith initiated the action believing that the ultimate recovery would exceed the jurisdictional limit.” (Carter v. Cohen (2010) 188 Cal.App.4th 1038, 1053.)

 

On this point, the parties largely argue about whether the complaint could reasonably have been filed as a limited jurisdiction action based on the amount of the court’s monetary award. Schoer argues that the damages reasonably sought exceeded the limited jurisdictional amount, notwithstanding the court’s lower award. The court implicitly found in its rulings, and now expressly finds, that Schoer reasonably and in good faith initiated the action believing that the ultimate recovery would exceed the jurisdictional limit.

 

Additionally, and more simply, the complaint sought equitable relief not available in a limited jurisdiction case. “A suit for an injunction is a case in equity.” (St. James Church of Christ Holiness v. Superior Court (1955) 135 Cal.App.2d 352, 359.) Courts in limited jurisdiction cases (as in the former municipal court) have jurisdiction to issue temporary restraining orders and preliminary injunctions, but have no jurisdiction to issue final and permanent injunctions. (Id. at p. 362.) Here, Schoer not only sought permanent injunctive relief, but was awarded such relief in the form of the court’s orders not to replace the tree at its current location and to require the removal of the stump. Code of Civil Procedure section 1033, subdivision (a), does not apply to limit Schoer’s right to ordinary costs pursuant to section 1032.

 

Parker next argues that the items claimed as costs appear to be excessive or not allowable as costs.

 

“If items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. ‘On the other hand, if items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.’ [Citation.] However, whether a cost item was reasonably necessary is still a question of fact to be decided by the trial court.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) “The normal procedure to challenge individual items is by a motion to tax costs. [Citation.] Defendant’s mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of its counsel are insufficient to rebut the prima facie showing.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.)

 

The only basis for asserting that the costs are improper is counsel’s argument: “The Defendant further contends that the items claimed (without the submission of any conforming invoices) appear to be excessive. For instance, it is unclear as to what motion fees or filing fees total to $1,354.45 as claimed, or why the original and one copy of the deposition would amount to $1,405.70. Additionally, it is believed that the court reporter fees of $1,108 include transcripts of court proceedings not ordered by the court and of which are not allowable as costs.” (Motion, p. 4.) No declaration is provided in support of the motion. No reply was filed to the opposition providing more detail.

 

The four items of costs claimed all appear as proper charges: filing and motion fees (Code Civ. Proc., § 1033.5, subd. (a)(1)); deposition costs (id., subd. (a)(3)); court report fees as established by statute (id., subd. (a)(11)); and, fees for electronic filing (id., subd. (a)(14)). Parker fails to meet the burden to show that these costs were not reasonable or necessary. Accordingly, Parker’s motion to strike or to tax costs will be denied.

 

 
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