Case Number: BC665381 Hearing Date: April 11, 2018 Dept: 40

MOVING PARTIES: Defendants / Cross-Complainants Charlotte Heller, Kathi Studden, and Lauren Salomon

OPPOSITION: None Submitted

Plaintiff Matthew Zarcal sues defendants Charlotte Heller, Kathi Studdon, and Lauren Solomon for damages based on allegations that they failed to pay him overtime and minimum wages, made homophobic remarks, and published false statements that plaintiff physically abused, stole money from, and flirted with Heller. Zarcal worked as Heller and her late husband’s live-in caretaker.

On June 16, 2017, plaintiff filed a complaint asserting 11 causes of action, including Labor Code violations, defamation, wrongful termination, and related claims.

On September 5, 2017, defendants filed a cross-complaint and on September 11, 2017, the operative first amended cross-complaint against plaintiff for (1) elder abuse, (2) financial elder abuse, (3) breach of fiduciary duty, and (4) intentional infliction of emotional distress, alleging incidents of mistreatment of Heller.

On January 17, 2018, the Court overruled Zarcal’s demurrer to the cross-complaint and denied his motion to strike. The Court did, however, sustain the demurrer without leave as to Studden and Salomon’s cross-claims based on their concession that they lacked standing.

On February 22, 2018, Zarcal filed a costs memorandum.

Motion To Strike or Tax Costs

On March 14, 2017, Heller, Studden, and Solomon filed this unopposed motion to strike or tax costs.

Standard: Generally, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. CCP § 1032(b).

“‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.” CCP § 1032(a)(4).

The losing party may dispute any or all of the items in the prevailing party’s memorandum of costs by a motion to strike or tax costs. CRC, rule 3.1700(b). Technically, a motion to strike challenges the entire costs bill whereas a motion to tax challenges particular items or amounts.

Verification of the memorandum of costs by the prevailing party’s attorney establishes a prima facie showing that the claimed costs are proper. Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267. “There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum.” Ibid. To overcome this prima facie showing, the objecting party must introduce evidence to support his claim that the costs are not reasonably necessary. The objecting party may do this by way of declaration; but mere conclusory assertions are insufficient to rebut a prima facie showing by the prevailing party. Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.

Timeliness: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” CRC, rule 3.1700(a)(1).

Here, the January 17, 2018 minute order states that it was served by mail on January 19, 2018. Assuming five days are to be added for mail service, 20 days later was February 8, 2018. Zarcal filed his costs memorandum on February 22, 2018.

Zarcal’s “statement of … support” filed February 26, 2018, states that the minute order was mailed to counsel’s former address. Counsel filed a notice of change of firm address on January 2, 2018. Counsel states that he received the minute order on February 2, 2018.

As cross-complainants argue, even accepting February 2, 2018 as the date triggering the 15- or 20-day deadline, the memorandum would be untimely.

Therefore, the costs memorandum shall be struck in its entirety.

Although the Court need not reach cross-complainants’ other contentions, it notes that Civil Code section 1717’s non-prevailing party provision applies to contract actions where dismissal was obtained by settlement. Civ. Code § 1717(b)(2). Neither condition exists here.

Conclusion: The motion is GRANTED.

Motion to Compel Initial Response to RFPs

The motion is moot. There is no dispute that Zarcal served a response. It consists mostly of objections. If defendants are dissatisfied with the response and/or desire something further in response, their remedy is to meet and confer then, if unsuccessful, file a motion to compel a further response.

On January 17, 2018, the Court ordered the parties to tab exhibits. CRC, rule 3.1110(f). Zarcal violated this order. This violation makes the imposition of a sanction on defendants unjust. Defendants are not entitled to a sanction because their motion is unsuccessful.

Conclusion: The motion is DENIED and there are no sanctions

Defendants and cross-complainants to give notice.