17-CIV-01605 ENABLEDWARE, LLC, et al. vs. JACK TURNER, et al.

ENABLEDWARE, LLC SAMIRA AMATO

JACK TURNER john simonson

Motion to tax costs

TENTATIVE RULING:

The Motion of Plaintiff Enabledware, LLC (“Plaintiff”) to Tax Costs is GRANTED IN PART, as follows:

The Memorandum of Costs filed by Defendants Jack Turner, Envision Media, Inc. (a California corporation), Envision Media Inc. (a Nevada corporation), Jeanne Tabatabai aka Jeanne Tuner, and Nicky Hartman (collectively “Defendants”) seeks a total of $30,743.00 in costs, consisting of $3,476.00 for filing and motion fees and $27,267.00 in attorney’s fees.

Plaintiff seeks to tax the $3,476.00 for filing and motion fees. Filing and motion fees are expressly permitted under C.C.P. section 1033.5(a)(1) though. Defendants establish that they incurred filing and motion fees of $2,265.00. The remaining $1,211.00 apparently consists of messenger fees, and should have been requested as discretionary costs. The court, in exercising its discretion, GRANTS Plaintiff’s motion to tax the remaining $1,211.00 because Defendants failed to properly identify them in the Memorandum of Costs. (See Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 70 [usually omission of an item from a cost memo may be regarded as a waiver of the prevailing party’s claim to that item].)

Plaintiff also seeks to tax the entire $27,267.00 in attorney’s fees, which is GRANTED. Defendants fail to establish that they are authorized to recover such fees by contract, statute or law in this action. The cases cited to by Defendants support that such fees may be recoverable in a family law action, but do not support that they may recover such fees in the civil action. (See Askew v. Askew (1994) 22 Cal.App.4th 942, 965; Neal v. Sup. Ct. (2001) 90 Cal.App.4th 22.) Further, Burkle v. Burkle (2007) 144 Cal.App.4th 387, involved an award of fees as sanctions, and has no applicability here.

Since the court finds that these costs are not recoverable, these costs are taxed with respect to all plaintiffs. (See C.C.P. § 1032(a)(4) [the court has authority to apportion costs between the parties on the same or adverse sides].)

Defendants’ request for judicial notice is GRANTED. (See Evid. Code § 452(d).)