Case Number: BC663994 Hearing Date: March 28, 2018 Dept: 53

aura systems, inc. VS. j.b. moving & delivery, et al., BC663994, march 28, 2018

[tentative] order re: plaintiff’s motion to strike memorandum of costs

Plaintiff AURA SYSTEMS, INC.’s Motion to Strike Memorandum of Costs is DENIED.

Background

Plaintiff Aura Systems, Inc. (“Plaintiff”) initiated the instant action on June 5, 2017 against Defendant J.B. Moving & Delivery (“JB Moving”). Plaintiff’s Complaint asserts causes of action for breach of oral contract, breach of covenant of good faith and fair dealing, restitution for unjust enrichment, claim and delivery, and conversion (the “Complaint”). Plaintiff alleges that JB Moving is wrongfully withholding possession of certain personal property belonging to Plaintiff.

On or about June 22, 2017, Plaintiff received a Final Notice of Sale that its goodS were to be sold at auction to satisfy a warehouseman’s lien. (Davis Decl., Ex. B.) The sale was to be held on behalf of JB Transporters (“JB Transporters”). (Davis Decl., Ex. B.) On or about July 13, 2017, Plaintiff obtained a temporary restraining order preventing JB Moving from selling Plaintiff’s property. (Davis Decl., Ex. C.) Shortly thereafter, Plaintiff was informed by Jacob Binstok, the president of JB Moving, that he was acting as an agent of JB Transporters at the time of the transaction with Plaintiff, not JB Moving. JB Transporters was a dba for Shelley Scholnick (“Scholnick”). Thereafter, on July 20, 2017, Plaintiff filed a Doe Amendment naming Scholnick as Doe 1.

On or about July 25, 2017, a temporary restraining order was issued to prevent Scholnick from selling Plaintiff’s property. (Davis Decl., Ex. D.) On August 24, 2017, an order for writ of possession was issued ordering JB Moving or whomever else might possess Plaintiff’s property to transfer possession of the property to Plaintiff. (Davis Decl., Ex. E.) To date, Plaintiff has still not regained possession of its property.

On December 6, 2017, Plaintiff dismissed Scholnick from this action without prejudice so that it could proceed with default judgment against JB Moving. On December 14, 2017, Scholnick filed her memorandum of costs, seeking $705 for filing and motion fees and jury fees. Plaintiff now moves to strike the memorandum of costs on grounds that Scholnick is not a prevailing party entitled to costs. Scholnick opposes.

DISCUSSION

As a general rule, the “prevailing party” is entitled as a matter of right to recover costs of suit in any action or proceeding. (Code Civ. Proc., § 1032(b).) “Prevailing party” includes “a defendant in whose favor a dismissal is entered.” (Code Civ. Proc. § 1032(a)(4).) Here, there can be no dispute that Scholnick is a party in whose favor a dismissal was entered. Accordingly, Scholnick is entitled to costs as a matter of right.

Plaintiff argues that because Scholnick did not obtain any recovery of any kind against Plaintiff, she cannot be a prevailing party. Plaintiff further argues that because Plaintiff has obtained relief in the form of both a temporary restraining order and a writ of possession against Scholnick (although she is not named directly in the writ of possession), the Court should exercise its discretion to not allow costs to Scholnick. However, Plaintiff does not submit any legal authority to support overlooking the express language of Code of Civil Procedure section 1032. (See Crib Retaining Walls, Inc. v. NBS/Lowry, Inc. (1996) 47 Cal.App.4th 886, 890 [“…one should not read into the statute allowing costs a restriction which has not been placed there”].) There is no exception in section 1032 for dismissals that come about after a plaintiff has obtained some form of equitable relief, and the Court declines to read such an exception into the statute.

CONCLUSION

For the above reasons, Plaintiff’s Motion to Strike Memorandum of Costs is DENIED.

Scholnick is ordered to provide notice of this ruling.

DATED: March 28, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court