Case Number: 12CS3883    Hearing Date: August 11, 2014    Dept: 77

1. Defendants Clay Burnett and Clay Burnett Group’s Motion for Award of Costs is GRANTED IN PART. CCP § 1032. The Court notes that neither the moving party nor the Plaintiff have filed a copy of the memorandum of costs at issue, and it is not in the Court file. So the Court has come to its decision based on information in the briefs.

Upon entry of plaintiff’s dismissal, defendant may have various rights. Normally, defendant is entitled to recover court costs incurred up to the date of the dismissal. See CCP § 1032 and Catello v. I.T.T. General Controls (1984) 152 CA3d 1009, 1012. However, when an action is voluntarily dismissed or dismissed pursuant to settlement, there is no prevailing party entitled to CC § 1717 attorneys’ fees. See CC § 1717(b)(2) and Santisas v. Goodin (1998) 17 C4th 599, 617. Therefore, this motion is granted in part. Specifically, defendants are not entitled to their attorneys’ fees as this action was voluntarily dismissed. Accordingly, defendants are only entitled to their motion fees costs, or $602.50.

Defendant to give notice for both motions.

2. Plaintiff Koi Design LLC’s Motion to Tax Costs is GRANTED IN PART. CC § 1717 and CCP § 1033.5. If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. Ladas v. California State Automobile Assoc. (1993) 19 Cal.App.4th 761, 773-774. However, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. Here, this motion is granted in part. As noted in the previous ruling, when an action is voluntarily dismissed or dismissed pursuant to settlement, there is no prevailing party entitled to CC § 1717 attorneys’ fees. See CC § 1717(b)(2) and Santisas v. Goodin (1998) 17 C4th 599, 617. Accordingly, defendants are not entitled to attorneys’ fees as an item of costs. Therefore, item 10 of the cost memo in the amount of $15,635 is hereby stricken. As to item one, filing and motion fees in the amount of $602.50, that item of cost is proper. The Court finds that this item of cost has not been properly objected to by plaintiff, as there is no explanation or basis for the objection stated. Normally, defendant is entitled to recover court costs incurred up to the date of the dismissal. See CCP § 1032 and Catello v. I.T.T. General Controls (1984) 152 CA3d 1009, 1012. Accordingly, defendants are awarded their costs in the amount of $602.50.

Defendant to give notice.