CLAUDE AVADIS ROSTAMIAN vs BEVERLY LOUISE DEBIASO, et al.

For information about Judge DeNoce including his case management and trial rules, please visit: www.DeNoce.com

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Tentative Decision:

Motion to Tax Costs; Request for Relief from Late Filing. (CCP § 473(b).)

The court intends to grant in part and deny in part Defendant Jean Ann Malkhasian’s Motion to Tax Costs and Request for Relief from Late Filing pursuant to CCP section 473(b).

Timeliness of Motion

Plaintiff argues that “Defendant’s motion is untimely, and she has not shown the mistake, surprise, or excusable neglect that section 473(b) requires.” Here, the memorandum of costs was served on Defendant by mail to Defendant’s address in New Zealand. Accordingly, Defendant was required to notice her motion by March 12, 2026, 35 days later. Because

2023CUOR014545: CLAUDE AVADIS ROSTAMIAN vs BEVERLY LOUISE DEBIASO, et al.

Defendant served notice of her on April 20, 2026, her motion is therefore untimely. (Cal. Rules of Court, rule 3.1700, subd. (b)(1), Code Civ. Proc., § 1013, subd. (a).)

“The court may, upon any terms as may be just, relieve a party or the party’s legal representative from a judgment, dismissal, order, or other proceeding taken against the party through the party’s mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc.. § 473, subd. (b).) Here, Defendant admits she received the memorandum of costs and that it arrived in an enveloped postmarked February 5, 2026. (Malkhasian Decl., ¶ 2 and Exh. 1.) Defendant asserts that she left for Los Angeles on March 6, 2026, and offers evidence of her reservation. (Id., ¶ 4 and Exh. 2.)

Plaintiff offers no evidence to refute Plaintiff’s presence in Los Angeles during the asserted time period, and the Court’s April 3, 2026, minute order shows that Defendant was present in court on April 3, 2026, the date of the hearing on motion. Defendant asserts that she did not receive “actual notice” until April 9, 2026. (Id., ¶ 6.) She filed her motion eleven days later. On these facts, the Court exercises its discretion to grant relief under section 473(b).

Costs

“In ruling upon a motion to tax costs, the trial court's first determination is whether the statute expressly allows the particular item and whether it appears proper on its face. If so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.” (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.) “Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.” (Ibid.) “Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)

1. Deposition Costs

Costs for the taking, video recording, and transcribing of necessary depositions are allowable. (Code Civ. Proc., § 1033.5, subd. (a)(3)(A).) The $2,846.92 cost for Defendant’s deposition is supported by an invoice. (Rostmain Decl., ¶ 6 and Exh. 5.) Defendant has not shown that the amount is unreasonable or that the invoice includes nonrecoverable items. Hence, the cost is allowed.

The $1,418 cost for the Gigi Nommensen deposition is also supported by an invoice. (Id., ¶ 9 and Exh. 8.) Defendant’s argument that she paid for her own transcript copy does not defeat Plaintiff’s right, as prevailing party, to recover deposition costs he incurred. The fact that both sides paid for different copies or charges associated with the same deposition does not make Plaintiff’s cost unreasonable. This cost is allowed as well.

Finally, the $775 certificate of non-appearance is also supported by an invoice. (Id., ¶ 7 and Exh. 6.) . Plaintiff has shown that this charge relates to a noticed deposition date on which the witness did not appear, separate from the later deposition that proceeded. Defendant’s arguments concerning an earlier 2024 email exchange do not establish that the 2025 non-appearance charge was improper or unreasonable. Consequently, the Court allows this cost, as well.

2023CUOR014545: CLAUDE AVADIS ROSTAMIAN vs BEVERLY LOUISE DEBIASO, et al.

In sum, the Court allows the claimed deposition costs of $5,039.92.

2. Service of Process Costs

“Allowable costs include service of process.” (Lowry v. Port San Luis Harbor Dist. (2020) 56 Cal.App.5th 211, 222 [citing Code Civ. Proc., § 1033.5, subd. (a)(4)].) Plaintiff concedes that the amount requested was in New Zealand dollars instead of U.S. dollars and offers to accept a corrected amount. (Rostamian Decl., ¶ 10 and Exh. 9.) The Court accepts Plaintiff’s correction reducing that item from $258.75 to $158.29.

The Court also allows the remaining service costs. Defendant has not shown that the service expenses were unreasonable or that they should be apportioned away from her. The judgment was entered in Plaintiff’s favor in this action, and the service expenses were incurred in prosecuting the action. The $100 database/locate charge related to service is sufficiently connected to effecting service and is allowed as part of the service cost. Accordingly, the Court approves total service costs in the corrected amount of $1,012.04.

3. Transcripts of Court Proceedings

Transcripts of court proceedings are allowable as costs if ordered by the Court. (Code Civ. Proc., § 1033.5, subd. (a)(9); id., § 1033.5, subd. (b)(5) [disallowing such transcripts if not ordered by the court].) Plaintiff’s own cost worksheet describes the transcripts as “not ordered by the court” (Mem. of Costs at p. 4) and concedes in his opposition that the transcripts were ordered for purposes of preparing written closing argument. Although the Court may have ordered such written closing arguments, such an order cannot reasonably be interpreted as an order allowing transcripts of proceedings. Thus, because the transcript costs are expressly disallowed unless ordered by the Court, the Court will not allow them as discretionary costs under section 1033.5, subdivision (c)(4). Consequent, the Court taxes the requested $2,766.96.

4. Lodging

Plaintiff seeks $619.49 in attorney lodging expenses: $124.29 for his counsel’s lodging to attend Plaintiff’s deposition, and $495.20 for his counsel’s lodging during trial. The $124.29 deposition-related lodging cost is allowed. Travel expenses to attend depositions are expressly recoverable as deposition costs. (Code Civ. Proc., § 1033.5, subd. (a)(3).)

Plaintiff has not shown that trial lodging for his out-of-town counsel is an item expressly allowable by statute or that it necessary, rather than convenient, to the conduct of the litigation. The fact that Plaintiff chose counsel from San Diego County does not, by itself, make his counsel’s trial hotel expense a recoverable cost against Defendant. The Court therefore taxes $495.20.

Conclusion

In sum, the Court grants Defendant’s request for relief under Code of Civil Procedure section 473(b). The Court also grants in part and denies in part Defendant’s motion to tax costs.

2023CUOR014545: CLAUDE AVADIS ROSTAMIAN vs BEVERLY LOUISE DEBIASO, et al.

Plaintiff’s corrected request is $9,873.41. The Court taxes $495.20 for trial lodging and $2,766.96 for trial transcripts, for a total reduction of $3,262.16. This results in total allowable costs of $6,611.25, which amount the Clerk of Court is ordered to add forthwith to the judgment entered in this matter.

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