Motion to Tax Costs
9 Pham vs. TENTATIVE RULING: Trident Pacific Real Estate For the reasons set forth below, Defendants/Appellants Trident Real Group, Inc. Estate Group, Inc. and Gregg Williams’s motion to tax costs on appeal is GRANTED as set forth below. Plaintiff/Respondent Nam Pham’s Memorandum of Costs on Appeal (ROA 209) is taxed in the total amount of $4,300.00. Pham shall be awarded total costs in the amount of $502.20.
A prevailing party is usually entitled as a matter of right to recover costs in any action or proceeding. (Civ. Proc. Code § 1032, subd. (b).) If the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. (Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-74.)
The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557; see also Wagner Farms, 145 Cal.App.4th at 777-78.) If the claimed items are not expressly allowed by statute and are objected to by a motion to strike or tax costs, the burden of proof is on the party claiming them as costs to show that the charges were reasonable and necessary. (Foothill-De Anza Comm.
College Dist., 158 Cal.App.4th at 29.) Whether a cost item was reasonably necessary to the litigation is a question of fact for the court to determine. (Id. at 29-30.)
Defendants argue that Pham cannot recover the $4,300 claimed in section 9 of the memorandum of costs. In that section, Pham seeks recovery of costs for $3,500 in legal fees and $800 in travel and hotel fees.
Code of Civil Procedure section 1021 does not itself create a right to recover attorney’s fees, but instead merely recognizes that fees may be recoverable where separately authorized by contract, statute, or law. (See Segal v. ASICS America Corp., 12 Cal. 5th 651; Scott Co. v. Blount, Inc., 20 Cal. 4th 1103; Carver v. Chevron U.S.A., Inc., 97 Cal. App. 4th 132). Consistent with Code of Civil Procedure section 1033.5, subdivision (a)(10), attorney’s fees are recoverable only where expressly permitted by law.
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Here, in Pham’s opposition, Pham admits that “Plaintiff identifies no contractual provision, statutory authority, or other applicable basis entitling recovery of these claimed appellate consultation fees.” (Opposition, 5:16-17). As such, without identifying the contractual or statutory authority to recover legal fees, Pham has not met his burden of justifying recovery of this cost.
Further, Pham contends that the $800 in travel and hotel costs should be recoverable under the court’s discretionary power. However, Pham has not provided any evidentiary support to establish that these costs were actually incurred.
For these reasons, the motion is granted and Pham’s costs on appeal are taxed by $4,300.
Pham shall be awarded total costs in the amount of $502.20.
Defendants/Appellants to give notice.
10 Rincon vs. TENTATIVE RULING: Ameriestate Legal Plan, Motion to Be Relieved As Counsel of Record Inc. Lawrence Borys and Anna Novruzyan move to be relieved as counsel of record for Defendant AmeriEstate Legal Plan, Inc. The motion is GRANTED. The order relieving counsel will be effective upon the filing of a proof of service of the executed order upon all parties.
In Paradise v. Nowlin (1948) 86 Cal.App.2d 897, the court explained that: “A corporation is not a natural person. It is an artificial entity created by law and as such it can neither practice law nor appear or act in person. Out of court it must act in its affairs through its agents and representatives and in matters in court it can act only through licensed attorneys. A corporation cannot appear in court by an officer who is not an attorney and it cannot appear in propria persona. (Citations omitted.)” (Id. at 898; see also Iannaccone v. Law (2nd Cir. 1998) 142 F.3d 553, 559 (holding that administrator of estate may not appear pro se on behalf of estate).)
Nevertheless, the ban on corporate self-representation does not prevent a court from granting a motion to withdraw as attorney of record even if it leaves the corporation without representation. (Ferruzzo v. Superior Court (1980) 104 Cal.App.3d 501, 504 [“An attorney may be allowed to withdraw without offending the rule against corporate self-representation”].) “Such an order puts pressure on the corporation to obtain new counsel or risk forfeiting important