Case Number: BC477869 Hearing Date: March 16, 2018 Dept: 46

Case Number: BC477869
PEGGY MURPHY ET AL VS PETER SPENNATO JR DDS ET AL

Filing Date: 01/27/2012
Case Type: Fraud (no contract)

03/16/2018
Motion to Strike Memorandum of Costs

TENTATIVE RULING

Motion to strike the Memorandum of Costs is DENIED. Defendants filed a Memorandum of Costs on 4/23/2018 as an attachment to a Declaration filed 4/23/2018. The Memorandum of Costs does not apportion the costs as against multiple plaintiffs, but the code does not require this. As Memorandum of Costs was timely filed, it is not stricken.

The following costs are taxed: First Appearance fee by DDS, Inc. and motion fee regarding DDS, Inc. motion for summary judgment, totaling the sum of $935. The motion to tax costs is otherwise denied. Total costs recoverable, as allocated below, are $15,551.35.

The court apportions the costs among the Plaintiffs pursuant to CCP §§1032(a)(4); 1034.

The following costs are apportioned 50% each to Plaintiff Murphy and 50% to Plaintiff Peterson: First Appearance and MSJ fees as to W. 8th Street, Painless Properties, Candace Spennato, Deposition of DDS, Inc., Deposition of Painless Properties, Deposition of W. 8th Street. The following costs are apportioned 33.33% each to Plaintiff Murphy and co-Plaintiffs: First Appearance Fee of Candace Spennato, Depositions of Candace Spennato, Peter Spennato, Plaintiffs, and other filing fees. Of the total costs of the $15,551.35, the sum of $5,178.18 is allocated solely to Murphy.

The following costs are apportioned 50% each to Plaintiff Peterson and 50% to Plaintiff Murphey: First Appearance and MSJ fees as to W. 8th Street, Painless Properties, Candace Spennato, Deposition of DDS, Inc., Deposition of Painless Properties, Deposition of W. 8th Street. The following costs are apportioned 33.33% each to Plaintiff Peterson and co-Plaintiffs: First Appearance Fee of Candace Spennato, Depositions of Candace Spennato, Peter Spennato, Plaintiffs, and other filing fees. The following cost is allocated solely to Plaintiff Peterson: Deposition of Ortho and MSJ fee regarding Ortho. Of the total costs of the $15,551.35, the sum of $6,481.93 is allocated solely to Murphy.

The following costs are apportioned 33.33% each to Plaintiff Jukes and co-Plaintiffs: First Appearance Fee of Candace Spennato, Depositions of Candace Spennato, Peter Spennato, Plaintiffs, and other filing fees. The following costs are allocated solely to Jukes: MSJ fee for MSJ by Candace Spennato; Deposition fee of BALCILIC and Subpoena fee as to BALCILIC. Jukes is allocated the reduced amount of 1/5 of exhibit costs. Of the total costs of the $15,551.35, the sum of $3,891.24 is allocated solely to Murphy.

DISCUSSION

Defendant DDS, Inc. remains a party, so its first appearance fee of $435 and the Motion for Summary Judgment filing fee of $500 is taxed from the Memorandum of Costs. There is no opposition to taxing of these specific items.

There are causes of action pending against Peter Spennato by both Plaintiffs, so he is not a prevailing party in the litigation under CCP §1032(a)(4). Therefore the first appearance fee as to Peter Spennato in the amount of $35 is taxed. Candace Spennato was a prevailing party on the motion for summary judgement jointly filed with Peter Spennato. The $500 costs are apportioned 50/50 to Peter and Candace and therefore are taxed in the amount of $250.

A prevailing party is entitled to recover only the costs actually incurred by that party or on that party’s behalf in prosecuting or defendant the action. CCP §1033.5(c)(1). When a prevailing party has incurred costs jointly with one or more other parties who are not prevailing parties for purposes of an award of costs, the court must apportion the costs between the parties. CCP §§1032(a)(4); 1034.

Plaintiff Jukes argues that certain costs for first appearance fees and motion fees are claimed in the Memorandum of Costs that pertain to claims brought by Murphey and Peterson. However, Jukes does not identify those costs. Therefore the request to tax costs in the amount of $4,240 is denied.

Costs in the amount of $935 are taxed as to Plaintiff Murphy because Ortho & Pedeo is not a prevailing party against Murphy. Those costs however, are recoverable against co-defendants.

Plaintiff’s motion to tax deposition costs is denied. The costs are apportioned.

Regarding the service of process fees for service and deposition of BACELIC, the motion to tax costs is denied. The costs are apportioned to Juckes as they were incurred in connection with her claim alone.

Relative to the costs of photocopies of exhibits, the motion to tax is denied. However, the costs are apportioned as follows: $71.31 to Murphey, $71.31 to Peterson, and $28.53 to Juckes.