Kevin Gillies v. John Vrtiak

Background

The operative second amended complaint (SAC) of Plaintiffs Kevin Gillies and Karen Gillies (collectively, the Gillies), individually and as the Trustees of, respectively, the Kevin Gillies Revocable Living Trust March 9, 2005, and the Karen W. Gillies Revocable Living Trust dated March 9, 2005 (collectively, Plaintiffs), arises from a slope failure or landslide that occurred on February 19 and 20, 2024, and which caused significant property damage to real property located at 2685 Memory Lane (the Gillies Property), where the Gillies reside. (SAC, P.P. 1, 16 & 18.)

The SAC alleges that the slope failure was caused by improper stormwater drainage from property located at 2665 Memory Lane, in Santa Barbara (the Marsh Property), where Richard Marsh and Kay Marsh (collectively, the Marsh Defendants) reside. (SAC, P.P. 2 & 19.)

A sump improvement on the Marsh Property constructed by the Marsh Defendants and designed by licensed architect John Vrtiak, failed to meet requirements of a soils report and Perc Test, was undersized, too shallow, and lacked adequate side wall coverage to prevent failure. (SAC, P.P. 3 & 20.) When the improvements failed, they caused a single concentrated and unnatural flow onto the Gillies Property. (SAC, P. 20.)

Plaintiffs filed their operative SAC against the Marsh Defendants, individually and as the Trustees of the Marsh Richard C & Kay Family Trust, and Defendant John Vrtiak on December 11, 2024, alleging four causes of action: (1) general negligence and diversion of surface water; (2) professional negligence (against Defendant Vrtiak only); (3) nuisance; and (4) premises liability. The SAC includes a request for declarative and injunctive relief.

On February 3, 2025, Vrtiak filed an answer to the SAC, generally denying its allegations and asserting nineteen affirmative defenses. On February 4, 2025, the Marsh Defendants, individually and as trustees of their trust, filed an answer to the SAC, and separately filed a cross-complaint against Plaintiffs for negligence, nuisance, and removal of lateral/subjacent support. Plaintiffs filed their answer to the cross-complaint of the Marsh Defendants on March 3, 2025.

Dismissals of the SAC as to the Marsh Defendants only, and of the cross-complaint of the Marsh Defendants, were entered on October 7, 2025. On November 20, 2025, the action proceeded to trial as to the remaining causes of action alleged against Vrtiak. That trial concluded on December 16, 2025, and the Court issued a proposed statement of decision on that date.

On December 31, Plaintiffs filed their objections to the Court's proposed statement of decision. On January 2, 2026, after considering Plaintiffs' objections to the proposed statement of decision, the Court entered its final statement of decision.

On January 30, 2026, the Court entered judgment in favor of Vrtiak and against Plaintiffs as to the SAC, and in favor of Vrtiak and against Plaintiffs as to Vrtiak's fifth affirmative defense for failure to comply with Code of Civil Procedure section 411.35. The judgment provides that Vrtiak is the prevailing party and shall have the right to file a motion to recover reasonable expenses and attorney's fees as authorized by Code of Civil Procedure section 411.35, with costs to be awarded and entered on the judgment following the filing and approval of a memorandum of costs pursuant to California Rules of Court, rule 3.1700.

On February 5, Vrtiak filed a notice of entry of the judgment, and separately filed a memorandum of costs (the cost memorandum) and a motion for an order awarding costs claimed in the cost memorandum, and attorney's fees pursuant to Code of Civil Procedure section 411.35 (the Fee Motion).

On February 9 and 13, 2026, Plaintiffs filed, respectively, a declaration and amended declaration for an automatic 30-day extension to strike, tax, or offset attorney's fees and costs claimed by Vrtiak.

On February 13, Plaintiff Kevin Gillies (Kevin) filed a motion pursuant to Code of Civil Procedure section 663, to amend or substitute the judgment with a proposed judgment (the Motion to Amend). (Note: To avoid confusion due to common familial surnames, the Court will refer to the Gillies, individually, by their first names. No disrespect is intended.) Vrtiak has filed an opposition to the Motion to Amend.

On March 23, 2026, Plaintiffs filed a motion to tax costs and strike fees claimed by Vrtiak (the Motion to Tax), and separately filed a motion for an order sanctioning defense counsel and offsetting costs (the Sanctions Motion). On that same date, Plaintiffs separately filed a declaration of Kevin's experience in this legal dispute, a declaration of Karen Gillies' (Karen) experience in this legal dispute, and a request for clarifications, ostensibly in support of the Motion to Tax and Sanctions Motion. Vrtiak has separately filed oppositions to the Motion to Tax, the Motion to Amend, and the Sanctions Motion.

Analysis

(1) Procedural Matters

"Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages. ... No reply or closing memorandum may exceed 10 pages." (Cal. Rules of Court, rule 3.1113(d).) The memorandum submitted by Plaintiffs in support of their Motion to Tax is 33 pages, and the memorandum submitted in support of the Sanctions Motion is 30 pages. (Motion to Tax at pdf pp. 6-38; Sanctions Motion at pdf pp. 7-36.) The Motion to Tax and Sanctions Motion each violate page limits set forth in California Rules of Court, rule 3.1113(d).

"A party may apply to the Court ex parte but with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum. The application must state reasons why the argument cannot be made within the stated limit." (Cal. Rules of Court, rule 3.1113(e).) Though Plaintiffs were required to apply to the Court for permission to file a longer memorandum before filing the Motion to Tax and Sanctions Motion, Plaintiffs failed to do so. In addition, wholly absent from those motions are any stated reasons why Plaintiffs could not make their arguments within the page limits set forth in California Rules of Court, rule 3.1113(d).

In the oppositions to the Motion to Tax and Sanctions Motion, Vrtiak requests that the Court exercise its discretion to disregard those motions as a late filed papers, based on the violation of page limits prescribed by Court rules. "A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper." (Cal. Rules of Court, rule 3.1113(g).) "A Court has broad discretion to accept or reject late-filed papers...." (Haydon v. Elegance at Dublin (2023) 97 Cal.App.5th 1280, 1289.)

Absent evidence or information showing that any substantial right of Vrtiak has been affected or prejudiced by the filing by Plaintiffs of an overlength memorandum in support of either the Motion to Tax or Sanctions Motion, the Court will exercise its discretion to consider Plaintiffs' overlength motions. The Court notes, however, "that mere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules ... must apply equally to parties represented by counsel and those who forgo attorney representation." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985 (Rappleyea).) Plaintiffs are reminded of their obligation to comply with Court rules.

(2) Plaintiffs' Motion to Amend

The Court finds it useful to first determine the Motion to Amend, which is made pursuant to Code of Civil Procedure section 663. The grounds for that motion include that Vrtiak's filing of a proposed judgment and notice of entry of judgment was untimely, that the proposed judgment did not include or reflect Plaintiffs' objections, and that the proposed judgment misrepresented the content of the Court's statement of decision, among other grounds.

Code of Civil Procedure section 663 provides: "A judgment or decree, when based upon a decision by the Court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same Court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: "1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. "2. A judgment or decree not consistent with or not supported by the special verdict." (Code Civ. Proc., Sec. 663, subds. (1), (2).)

"Section 663 'is designed to enable speedy rectification of a judgment rendered upon erroneous application of the law to facts which have been found by the Court or jury or which are otherwise uncontroverted.' [Citation.] A section 663 motion is properly 'made whenever the trial judge draws an incorrect legal conclusion or renders an erroneous judgment upon the facts found by it to exist.' [Citations.]" (Machado v. Myers (2019) 39 Cal.App.5th 779, 799.) "In ruling on a motion to vacate the judgment the Court cannot ' "in any way change any finding of fact." ' [Citation.]" (Glen Hill Farm, LLC v. California Horse Racing Bd. (2010) 189 Cal.App.4th 1296, 1302.)

Noted above, the Court considered Plaintiffs' objections to the Court's proposed statement of decision, and found that its proposed statement of decision "accurately reflects the Court's conclusions." (Stmt. of Decision, p. 2 at ll. 13-15.) The Motion to Amend effectively reasserts the arguments advanced in Plaintiffs' objections, which the Court has already considered. The Motion to Amend also fails to show that the judgment was rendered upon an erroneous application of the law to any uncontroverted fact.

Furthermore, the Court may not change its findings of fact, which are set forth in the statement of decision. To the extent Plaintiffs effectively request that the Court reweigh the evidence presented by the parties at trial, and enter a new and different judgment, the Court also "may not review the sufficiency of the evidence to support the judgment." (Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153.) For these and all further reasons discussed above, the Court will deny the Motion to Amend.

(3) The Cost Memorandum and Motion to Tax

"Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (Code Civ. Proc., Sec. 1032, subd. (b).) "[Code of Civil Procedure] [s]ection 1032 is the fundamental authority for awarding costs in civil actions. It establishes the general rule that '[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.' [Citation.]" (Scott Co. of California v.

Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Unless otherwise provided by statute, "the Court has no discretion to deny costs to the prevailing party." (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 128-129 (Nelson).) The record reflects, without reasonable dispute, that Vrtiak is the prevailing party in this action, and is entitled as a matter of right to recover costs.

"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. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case." (Cal. Rules of Court, rule 3.1700(a)(1); see also Neeble-Diamond v. Hotel California By the Sea, LLC (2024) 99 Cal.App.5th 551, 556 ["The established procedure for recovering the costs allowed under section 1032 is to file a cost memorandum, supported by a verified statement of counsel."].)

The proof of service attached to the cost memorandum is signed under penalty of perjury by Cecilia Ramirez, who is ostensibly employed by Vrtiak's counsel, and states that the cost memorandum was served on Plaintiffs by e-mail and mail at the Gillies Property, on February 5, 2026, which is the same day the cost memorandum was filed with the Court. (Cost Memorandum at pdf p. 42.) The proof of service attached to the notice of entry of judgment filed by Vrtiak on February 5, 2026, is also signed under penalty of perjury by Cecilia Ramirez, and states that notice was served on Plaintiffs by mail on that date.

In addition, the cost memorandum is verified by a statement of Vrtiak's counsel, Thomas G. Thornton (attorney Thornton), stating: "To the best of my knowledge, the items of costs are correct and were necessarily incurred in this case." (Cost Memorandum at p. 1.) For all reasons discussed above, and absent a reasonable dispute by Plaintiffs, the record also reflects that the cost memorandum was timely filed by Vrtiak and served on Plaintiffs, and complies with California Rules of Court, rule 3.1700.

"A 'verified memorandum of costs is prima facie evidence of the propriety' of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary. [Citation.]" (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486 (Adams).) "The Court's first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face." (Nelson, supra, 72 Cal.App.4th at p. 131.)

Code of Civil Procedure section 1033.5, subdivision (a), sets forth items categorically allowable as costs, if incurred. (Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 667 (Segal).) Subdivision (b) of section 1033.5 sets forth items which are not allowable as costs, "except when expressly authorized by law[.]" (Code Civ. Proc., Sec. 1033.5, subd. (b).) Costs which are not mentioned in section 1033.5 and claimed under subdivision (c)(4), are allowable in the Court's discretion. (Code Civ. Proc., Sec. 1033.5, subd. (c)(4); Segal, supra, 12 Cal.5th at p. 667.) "Costs are allowable . . . whether or not paid...", must be "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation", and "reasonable in amount." (Code Civ. Proc., Sec. 1033.5, subd. (c)(1)-(3).)

The costs claimed in the cost memorandum total $38,912.43, and consist of: (item 1) filing and motion fees of $435; (item 4) deposition costs in the amount of $18,828; (item 13) models, enlargements, and photocopies of exhibits in the amount of $456; (item 14) fees for electronic filing or service in the amount of $130.93; and (item 15) "other" costs which total $19,062.50. (Cost Memorandum at p. 1; Worksheet, P.P. 1, 4 & 13-15.)

Pursuant to Code of Civil Procedure section 1033.5, filing, motion, and jury fees; costs incurred to take and transcribe necessary depositions; and costs for models, enlargements, and photocopies of exhibits if those materials were "reasonably helpful to aid the trier of fact", are expressly allowable as costs under section 1032. (Code Civ. Proc., Sec. 1033.5, subd. (a)(1), (3) & (13).) For these reasons, the costs claimed by Vrtiak in items 1, 4, and 13 of the cost memorandum appear proper. In addition, the amounts claimed for those items of costs do not appear unreasonable on their face.

In addition, if the Court requires the electronic filing or service of documents, fees for such electronic filing or service "through an electronic filing service provider" are expressly allowable as costs. (Code Civ. Proc., Sec. 1033.5, subd. (a)(14).) Information contained in the cost memorandum shows that item 14 includes fees to electronically file documents with the Court. (Cost Memorandum at p. 3 & attachment 14.) As the Court requires electronic filing, the electronic filing fees claimed as costs in item 14 also appear proper. Information appearing in the cost memorandum also suggests that the amount of those electronic filing fees is reasonable.

The "other" costs claimed in item 15 of the cost memorandum include fees incurred by Vrtiak in connection with a subpoena to the Santa Barbara County Flood District, which total $15. (Cost Memorandum, attachment 15 at pdf pp. 38 & 41.) Information appearing in documents attached to the cost memorandum suggests those fees were incurred "as an incident to prevailing in the action at trial." (Ibid.; Code Civ. Proc., Sec. 1033.5, subd. (a)(16).) For these reasons, that fee appears allowable as a cost, and reasonable in amount.

Information appearing in the cost memorandum also shows that item 15 includes mediation fees charged by Judge Elinor Reiner (retired) ostensibly for a mediation with the parties and their counsel on May 23, 2025, of which twenty-five percent were billed to Vrtiak. (Cost Memorandum at p. 3, P. 15; attachment 15 at pdf pp. 38-40.) Code of Civil Procedure section 1033.5 does not expressly allow or disallow the fees of a mediator. (Code Civ. Proc., Sec. 1033.5, subds. (a), (b).) Therefore, those fees "fall within the 'discretionary category,' subdivision (c)--that is, they are allowable if in the Court's discretion they were 'reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.'" (Sanford v.

Rasnick (2016) 246 Cal.App.4th 1121, 1132.) For these reasons, the mediation fees claimed in item 15 of the cost memorandum are allowable as costs in the Court's discretion, provided they were reasonably necessary to the conduct of the litigation, and are not unreasonable in amount.

Item 15 of the cost memorandum also includes expert fees pursuant to Code of Civil Procedure section 998, which provides that "costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section." (Cost Memorandum at p. 3, P. 8 & attachment 8b(5); Code Civ. Proc., Sec. 998, subd. (a); see also Covert v. FCA USA, LLC (2022) 73 Cal.App.5th 821, 832 [Code of Civil Procedure section 998 "modifies the general cost recovery provisions of" section 1032].) Under Code of Civil Procedure section 998, any party may, "[n]ot less than 10 days prior to commencement of trial ... serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time." (Code Civ. Proc., Sec. 998, subd. (b).)

The statute further provides, in relevant part: "If an offer made by a Defendant is not accepted and the Plaintiff fails to obtain a more favorable judgment or award, the Plaintiff shall not recover their postoffer costs and shall pay the Defendant's costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the Court ..., in its discretion, may require the Plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial ..., or during trial ..., of the case by the Defendant." (Code Civ. Proc., Sec. 998, subd. (c)(1).)

"A prevailing party who has made a reasonable and good faith pretrial offer pursuant to section 998 is entitled to specified costs, and may be awarded a reasonable sum to cover the costs of the services of expert witnesses. [Citations.] Moreover, even though section 998, subdivision (d) limits a Plaintiff's ability to recover expert witness fees to those incurred after the settlement offer was refused, section 998, subdivision (c) contains no such limitation, and gives the trial Court discretion to award a prevailing Defendant the costs of expert witnesses whether incurred before or after the settlement offer." (Adams, supra, 199 Cal.App.4th at pp. 1482-1483; see also Bank of San Pedro v.

Superior Court (1992) 3 Cal.4th 797, 803, superseded on other grounds by statute as stated in Quiles v. Parent (2017) 10 Cal.App.5th 130, 144 ["an award of expert witness fees is always within the trial Court's discretion"].)

To the extent the expert fees included as "other" costs in item 15 of the cost memorandum are claimed pursuant to Code of Civil Procedure section 998, those expert fees are not expressly disallowed under section 1033.5, and may be awarded in the Court's discretion, if appropriate, provided the sum of those fees is reasonable. For these and all further reasons discussed above, the cost memorandum is prima facie evidence of the propriety of the listed items, which, on their face, appear to constitute proper charges.

"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 were [sic] not reasonable or necessary. On the other hand, 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." (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).) "The adverse party may challenge the ... cost bill ...by a motion to strike the cost bill from the files." (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 261.)

"Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(3)." (California Rules of Court, rule 3.1700(b)(1).) "[California Rules of Court], [r]ule 3.1700(b)(1) is clear that a party resisting a memorandum of costs must file a motion to strike or tax costs within 15 days of the filing of the memorandum of costs." (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 260.)

The Motion to Tax seeks an order taxing certain items of cost claimed in the cost memorandum as further discussed herein. (See, e.g., Notice of Motion to Tax at p. 2, ll. 8-13.) In their opposition to that motion, Vrtiak asserts that motion was not filed within 15 days of electronic service of that memorandum, and was late-served on Vrtiak by electronic means on March 24, 2026. (Opp. Motion to Tax at p. 5.) For these reasons, Vrtiak contends, the Motion to Tax is untimely as to any request to tax any items of costs claimed in the cost memorandum, and should be denied.

Though Vrtiak asserts that Plaintiffs were required to file the Motion to Tax within 15 days of electronic service of the cost memorandum, the Court's records reflect that on January 20, 2026, Plaintiffs filed substitutions of attorney substituting each of the Gillies, as self-represented parties, for Plaintiffs' former legal representative. Vrtiak offers no evidence or information to dispute that Plaintiffs were unrepresented parties as of February 5, 2026, the date Vrtiak electronically served the cost memorandum on Plaintiffs.

Though electronic service is generally authorized under Code of Civil Procedure section 1010.6, subdivision (a), an unrepresented party may be served by electronic means only if that party expressly consents to receive electronic service, which may be given by "[s]erving a notice on all parties and filing the notice with the Court..." or by " [m]anifesting affirmative consent through electronic means with the Court or the Court's electronic filing service provider, and concurrently providing the party's electronic address with that consent for the purpose of receiving electronic service.

The act of electronic filing shall not be construed as express consent." (Code Civ. Proc., Sec. 1010.6, subd. (c)(1)-(3).) Vrtiak fails to explain why the present record reflects that Plaintiffs gave their express consent to receive electronic service of the cost memorandum. The Court is also unaware of any such express consent by Plaintiffs.

Though it appears, for the reasons discussed above, that electronic service of the cost memorandum on Plaintiffs is not proper under the circumstances present here, the present record also shows that the cost memorandum was mailed to the Gillies Property, addressed to Plaintiffs, on February 5, 2026. "In case of service by mail, ... any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of Court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California...." (Code Civ. Proc., Sec. 1013, subd. (a).)

For all reasons discussed above, to the extent the Motion to Tax filed on March 23, 2026, seeks an order taxing any of the items of costs claimed in the cost memorandum, that motion was not filed within the time prescribed in California Rules of Court, rule 3.1700, or Code of Civil Procedure section 1013, and is untimely. " 'Delay (or failure) to challenge a costs bill waives any objection to the costs claimed thereon.' [Citation.]" (Douglas v. Willis (1994) 27 Cal.App.4th 287, 290 (Douglas).)

Though for all reasons discussed above, Plaintiffs have failed to timely file and serve the Motion to Tax, the declarations filed by Plaintiffs on February 9 and 13, 2026, and described above, appear to seek a 30 day extension of time to file that motion. For example, those declarations assert an entitlement to an automatic 30 day extension of time under Code of Civil Procedure section 435.5, which provides that if the parties are unable to meet and confer at least 5 days before the date a motion to strike pursuant to Code of Civil Procedure section 435 et seq., must be filed, the moving party shall be granted an automatic 30 day extension of time to file such a motion. (See Feb. 9 Dec. at p. 1 & P.P. 22, 24 & 27; Feb. 13 Dec. [same]; Code Civ. Proc., Sec. 435.5, subd. (a)(2).)

Though Code of Civil Procedure section 435.5 governs motions to strike the whole or part of a pleading and not motions to strike or tax costs brought pursuant to California Rules of Court, rule 3.1700 (see Code Civ. Proc., Sec. 435, subd. (b)(1), & Sec. 435.5, subd. (a)), and the declarations filed by Plaintiffs on February 9 and 13 are not procedurally appropriate as a motion (see Code Civ. Proc., Sec. 1003, Sec. 1005.5 & Sec. 1010), California Rules of Court, rule 3.1700, provides that "in the absence of an agreement, the Court may extend the times for serving and filing ... the notice of motion to strike or tax costs for a period not to exceed 30 days." (Cal. Rules of Court, rule 3.1700(b)(3).)

The declarations filed by Plaintiffs are made under penalty of perjury, state that Plaintiffs requested from Vrtiak a 30 day extension to file a motion to tax costs, and that Vrtiak would not agree to that requested extension. (Feb. 9 Dec., P.P. 25-26; Feb. 13 Dec, P.P. 26-28.) The grounds for a 30 day extension of time asserted by Plaintiffs include that the cost memorandum is not "simple"; that Plaintiffs could not review the judgment or notice of entry of judgment by their deadline to meet and confer with Vrtiak; and that Plaintiffs timely requested an extension of time to file their motion. (Feb. 9 Dec., P.P. 4, 9, 18, 23 & 25-27; Feb. 13 Dec., P.P. 4, 9, 16, 19, 21, 23 & 25-28.)

The declarations of Plaintiffs described above, indicate or suggest to the Court, that Plaintiffs were mistaken as to the statutes and rules governing the filing of the Motion to Tax, including in regard to whether Plaintiffs were required to meet and confer with Vrtiak before filing that motion, and that the late filing of the Motion to Tax was or may have been inadvertent. The Court further notes that Vrtiak has filed a substantive opposition to the Motion to Tax, which suggests that Vrtiak did not suffer prejudice as a result of any failure by Plaintiffs' to timely file that motion.

For all reasons discussed above, and notwithstanding the procedural and other deficiencies described herein, the Court will deem the declarations filed by Plaintiffs on February 9 and 13, to request an extension of time to file and serve a motion to strike or tax costs under California Rules of Court, rule 3.1700(b)(3). In addition, though the Court also notes that "generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial Courts, and would be unfair to the other parties to litigation[]" (Rappleyea, supra, 8 Cal.4th at pp. 984-985 [also noting that Defendants' self-representation was "ill-advised"]), the Court will, in the interests of justice, exercise its discretion to consider the late-filed Motion to Tax. (Douglas, supra, 27 Cal.App.4th at p. 290 [discussing Court's discretionary power to grant relief based on inadvertence or mistake].)

Plaintiffs are reminded of their obligation to comply with statutory deadlines.

The Motion to Tax requests that the Court tax only the mediation and expert witness fees included as "other" costs under item 15. (Notice of Motion to Tax at p. 2, ll. 8-13; Memorandum at p. 6, P. 1.) The Motion to Tax does not advance any reasoned argument showing why the costs claimed in items 1, 4, 13, and 14 of the cost memorandum are not allowable, not reasonable in amount, or not reasonably necessary to the conduct of this litigation. For all reasons discussed above, the Motion to Tax fails to properly object to the costs claimed in items 1, 4, 13, and 14, or to put those costs in issue.

Therefore, the Court will allow, and confirm an award of, the following items of costs claimed in the cost memorandum: (item 1) filing and motion fees in the amount of $435; (item 4) deposition costs in the amount of $18, 828; (item 13) models, enlargements, and photocopies of exhibits in the amount of $456; and (item 14) fees for electronic filing or service in the amount of $130.93. The same reasoning and analysis apply to the fees incurred by Vrtiak in connection with a subpoena to the Santa Barbara County Flood District, and claimed as "other" costs in item 15 of the cost memorandum. For the same reasons discussed above, the Court will allow, and confirm an award of, "other" costs in the amount of $15.

As to the expert witness fees at issue, Plaintiffs contend that the offer made by Vrtiak under Code of Civil Procedure section 998 (the 998 Offer) was based on Vrtiak's desire to vindicate himself, and to stay below the architectural reporting limit. Plaintiffs also assert that they considered statements made to their counsel by Vrtiak's counsel, that if Plaintiffs did not accept the 998 Offer, Vrtiak's counsel would be " 'out to get you'" (motion to tax at p. 7, P. 22), as an attempt to intimidate Plaintiffs and not as a valid offer to settle this case.

Plaintiffs state that multiple experts, including the County's head grading inspector, opined that the mudslides at issue in these proceedings were caused by an oversaturation of soils originating from the Marsh Property. Plaintiffs contend that they reviewed plans drawn by Vrtiak, identified a "sump" for roof drainage below a guest house at the Marsh Property and directly above the mudslide area, and that Vrtiak had sole control of the design of excess surface water sumps on the Marsh Property which were washed away after the failure at issue. Plaintiffs further contend that, though Plaintiffs notified Vrtiak and the Marsh Defendants of their discovery, Vrtiak did not reply to Plaintiffs, and neither Vrtiak nor his expert could find the sumps. According to Plaintiffs, the Marsh Defendants also did not state any details about the sump.

Plaintiffs also state that they contacted JM Construction, which had been reorganized due to its owner being incapacitated by Alzheimer's disease, and were referred to a lawyer who informed Plaintiffs that JM Construction would not have done any of the grading work or sump installation. That lawyer also informed Plaintiffs that the design for the disposal of excess surface water onto adjoining property was a "very serious issue." (Memorandum at p. 10, P. 56.) Plaintiffs consulted with several architects and lawyers, each of whom rendered opinions that the primary issue was oversaturation of soils created by excess surface water being directed from the Marsh Defendants' guest house onto Plaintiffs' property.

Plaintiffs contend that the Marsh Defendants' counsel denied access to the Marsh Property for testing by Plaintiffs' experts. Because Plaintiffs believed that the Marsh Defendants were attempting to run out the 10 year statute of limitations, Plaintiffs filed their complaint. Plaintiffs also note that neither Vrtiak nor the Marsh Defendants filed a cross-complaint against JM Construction.

Plaintiffs concede that they participated in a mediation with Vrtiak, the Marsh Defendants, and counsel for JM Construction in May of 2025. According to Plaintiffs, Judge Reiner did not convey any proposal from Vrtiak during that meeting and, instead, conveyed to Plaintiffs that the Marsh Defendants requested further conceptual plans for a joint remediation of both properties. Plaintiffs assert that Vrtiak did not make any written offer prior to September 2025, when Plaintiffs asked Vrtiak to waive costs and fees "in order to place the offer to both parties." (Memorandum at p. 13, P. 88.) As that request was rejected, Plaintiffs made a separate offer to Vrtiak on September 11, 2025, to settle all claims for $49,999 based on facts known to Plaintiffs at that time.

Plaintiffs further assert that on September 18, 2026, their counsel informed them of a final counteroffer from Vrtiak in the amount of $4,999, based on Vrtiak's desire to stay below reporting limits. The Court understands that final counteroffer to refer to the 998 Offer at issue, which Plaintiffs do not appear to dispute expired or was withdrawn on October 22, 2025. (Memorandum at p. 14, P. 105.)

Plaintiffs contend that the primary issue in these proceedings was whether the excess surface water directed by Vrtiak's plan onto Plaintiffs' property met the duty of care, showed a design flaw, or was due to a subsequent modification "in the field" by the Marsh Defendants and JM Construction. (Memorandum at p. 14, P. 106.) Plaintiffs also contend that, apart from statements made by Vrtiak during a deposition, no factual evidence was offered to show that the sump was not built as designed by Vrtiak. Plaintiffs also assert that evidence in regard to whether Vrtiak's design was replaced by the contractor was not known Plaintiffs, and that any claim by Vrtiak that the sump design was altered lacked details sufficient to show any material change.

Plaintiffs also claim that they were not advised before trial of any information known by the Marsh Defendants that was different from what Vrtiak said, or that would lead to a defense verdict, and that Defendant Richard Marsh was not made available for deposition. According to Plaintiffs, those circumstances denied them the opportunity to discover, prior to trial, that Vrtiak's sump design was altered.

Plaintiffs state that they instructed their counsel not to respond to the 998 Offer because that offer represented 2 percent of the $250,000 in estimated costs to remediate the hillside, after deducting the settlement contribution of the Marsh Defendants, and 10 percent of Plaintiffs' offer to settle this case. For these reasons, Plaintiffs assert, they considered the 998 Offer to be unreasonable. Plaintiffs further assert that the 998 Offer was not made in good faith or with any expectation of acceptance, was made solely as a strategic legal maneuver to claim fees should Vrtiak prevail, and is invalid.

Considering that the cost memorandum generally references the 998 Offer without including any substantive information about that offer, Plaintiffs have, for present purposes, met their burden to properly object to, and put in issue, the expert fees claimed as costs in item 15 of the cost memorandum. The burden is now on Vrtiak to show why the Court should exercise its discretion to allow those fees as costs. (Ladas, supra, 19 Cal.App.4th at p. 774.)

Information appearing in the Fee Motion, the opposition of Vrtiak to the Motion to Tax, and the declarations of Vrtiak's counsel submitted in support of those motions shows, without dispute, that the 998 Offer was made on September 23, 2025, approximately two months prior to trial, and that Plaintiffs did not respond to that offer. A copy of the 998 Offer is attached to the declaration of Vrtiak's counsel, Gisele M. Goetz (attorney Goetz), filed in support of the Fee Motion. (Goetz Dec., P. 3 & exhibit 4.)

Attorney Goetz asserts that the initial failure by Plaintiffs to timely file a certificate of merit, and Plaintiffs' subsequent efforts to file a conforming certificate which contained what attorney Goetz describes as irregularities, called into question the merits of the claims alleged against Vrtiak in the SAC. (Goetz Dec. [Fee Motion], P. 5.) In addition, Vrtiak was adamant that Plaintiffs' allegations in regard to certain design features were not applicable to the actual requirements of the drainage design at the time in question. (Goetz Dec., P. 6.)

Together, these issues suggested to attorney Goetz that Plaintiffs had not consulted an appropriate expert, notwithstanding the certificate of merit that Plaintiffs eventually filed in this case. (Ibid.) Attorney Goetz also states that Vrtiak's position, which was later validated by defense expert Howard Wittausch, was not an element of Plaintiffs' expert's opinion. (Ibid.)

The present record also shows, without reasonable dispute, that the parties engaged in written discovery, and exchanged documentary evidence. (Goetz Dec., P. 7.) Attorney Goetz asserts that discovery included statements by Defendant Richard Marsh that Vrtiak's design was not implemented by the general contractor, a matter which Plaintiffs' own documentary evidence indicated was known to Plaintiffs. (Ibid.) Because Plaintiffs' complaint was filed more than 10 years after the last design work by Vrtiak, the running of the statute of limitations was also contested. (Goetz Dec., P. 8.)

Attorney Goetz further explains that Vrtiak, an architect for 50 years, was concerned about the perceived stain on his reputation, and was adamant in his defense on the merits. (Goetz Dec., P. 10.) According to attorney Goetz, in September 2025, Plaintiffs seemed to be looking for a settlement in a range that the Defendants, acting together, were prepared to offer, though Plaintiffs advised they would consider separate offers only. (Goetz Dec., P. 11.) Vrtiak made an independent offer which Plaintiffs declined, and made the 998 Offer as a final effort to avoid trial. (Goetz Dec., P.P. 11-12.) Because the 998 Offer was not accepted by Plaintiffs, the parties moved forward with expert depositions. (Goetz Dec., P. 14.)

"The purpose of [Code of Civil Procedure] section 998 is to encourage the settlement of litigation without trial. [A] good faith requirement must be read into section 998 in order to effectuate the purpose of the statute. Good faith in turn requires that the settlement offer be 'realistically reasonable under the circumstances of the particular case.' [Citation.] The offer must therefore 'carry with it some reasonable prospect of acceptance. [Citation.]' [Citation.] On one hand, a party having no expectation that his offer will be accepted 'will not be allowed to benefit from a no-risk offer made for the sole purpose of later recovering large expert witness fees.' [Citations.] One the other hand, section 998 punishes a party who refuses a reasonable settlement offer, and subsequently fails to receive a more favorable judgment at trial.

"A prevailing party who has made a reasonable and good faith pretrial offer pursuant to section 998 is entitled to specified costs, and may be awarded a reasonable sum to cover the costs of the services of expert witnesses. [Citations.] Moreover, even though section 998, subdivision (d) limits a Plaintiff's ability to recover expert witness fees to those incurred after the settlement offer was refused, section 998, subdivision (c) contains no such limitation, and gives the trial Court discretion to award a prevailing Defendant the costs of expert witnesses whether incurred before or after the settlement offer." (Adams, supra, 199 Cal.App.4th at pp. 1482-1483 & fn. 10.)

The Court has reviewed the 998 Offer, the correspondence regarding that offer, and has carefully considered the points and arguments raised by Plaintiffs and by Vrtiak in their respective moving and opposing papers. Considering those points and the available evidence and information, the Court finds that, under the totality of the circumstances present here, the 998 Offer was made in good faith, was not made solely for the purpose of recovering expert witness fees or to avoid reporting requirements, and carried a reasonable prospect of acceptance.

Further, "[w]here, as here, the offeror obtains a judgment more favorable than its offer, the judgment constitutes prima facie evidence showing the offer was reasonable and the offeror is eligible for costs as specified in section 998. The burden is therefore properly on Plaintiff, as offeree, to prove otherwise." (Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 117-118 [holding that, though the Plaintiff in that case sought to recover $900,000 in damages, Defendant's offer under section 998 for $100,000 was reasonable considering that Defendant secured a verdict of no liability at trial].) As the judgment obtained by Vrtiak is more favorable than the 998 Offer, that judgment is prima facie evidence that the 998 Offer was reasonable, such that Vrtiak may recover the expert fees claimed as costs under item 15 of the cost memorandum.

For all reasons discussed above, the Motion to Tax fails to show why the 998 Offer was not made in good faith, or is unreasonable, or why the fees of any expert are unreasonable in amount. As Plaintiffs have failed to meet their burden, and for all further reasons discussed above, the Court will deny the Motion to Tax as to the expert fees claimed as costs in item 15 of the cost memorandum, and will exercise its discretion to allow those fees, in the amount of $18,222.50.

As to the mediation fees also claimed as costs in item 15, Plaintiffs contend that, though they spent considerable time and effort to present acceptable remediation plans, Vrtiak had no real desire to settle, did not offer anything during the parties' unsuccessful mediation, and instead preferred to go to trial to vindicate himself. For these reasons, Plaintiffs contend, the mediation fees were not reasonably necessary to the conduct of this litigation and should be disallowed.

Vrtiak contends that mediation in the spring of 2025 was reasonable and necessary because the pleadings were settled, and Vrtiak wanted to resolve this dispute before incurring the costs of trial. Vrtiak also asserts that mediation was reasonably necessary to the conduct of this litigation in order to impart the frailties of Plaintiffs' case to Plaintiffs, and to encourage the early dismissal of Vrtiak from the action. Though the parties' mediation efforts were unsuccessful, Vrtiak asserts that they engaged in the mediation in good faith. The parties do not appear to dispute that they agreed to split the mediation fees charged by Judge Reiner.

Considering that Vrtiak was successful in obtaining a favorable judgment, the Court is also not persuaded that the mediation fees billed to Vrtiak were merely convenient or beneficial to the preparation of this litigation. Instead, the available evidence and information indicates or suggests that mediation was reasonably necessary to the conduct of this litigation in regard to Vrtiak's attempts to obtain a dismissal from the action before trial, in light of the matters further discussed above. The Motion to Tax also fails to explain why the mediation fees charged to Vrtiak are unreasonable in amount.

For all reasons discussed above, the Motion to Tax fails to show why the mediation fees claimed as "other" costs in item 15 of the cost memorandum are not reasonably necessary to this litigation, or reasonable in amount. For these reasons, and because Plaintiffs have failed to meet their burden to show why those mediation fees are not proper or should be disallowed, the Court will deny the Motion to Tax as to those fees. Further, the Court will exercise its discretion to allow mediation fees as costs in the amount of $825, which represents the 25 percent share billed by Judge Reiner to Vrtiak.

(4) The Fee Motion

The Fee Motion requests an order awarding to Vrtiak attorney's fees incurred through January 15, 2026, pursuant to Code of Civil Procedure section 411.35, which total $264,787.50. The Fee Motion also seeks an additional $2,500 in anticipated attorney's fees to reply to any opposition that may be filed by Plaintiffs, and to appear at the hearing.

Code of Civil Procedure section 1033.5 allows attorney's fees as an item of costs "when authorized by ... [P.] [s]tatute." (Code Civ. Proc., Sec. 1033.5, subd. (a)(10)(B).) Relevant here, Code of Civil Procedure section 411.35 provides: "Upon the favorable conclusion of the litigation with respect to any party for whom a certificate of merit was filed or for whom a certificate of merit should have been filed pursuant to this section, the trial Court may, upon the motion of a party or upon the Court's own motion, verify compliance with this section.... If the trial judge finds there has been a failure to comply with this section, the Court may order a party, a party's attorney, or both, to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of the failure to comply with this section." (Code Civ. Proc., Sec. 411.35, subd. (h).)

Code of Civil Procedure section 411.35 requires that "[i]n every action, ... arising out of the professional negligence of a person holding a valid architect's certificate issued pursuant to Chapter 3 (commencing with Section 5500) of Division 3 of the Business and Professions Code, ... on or before the date of service of the complaint ... on any Defendant ..., the attorney for the Plaintiff ... shall file and serve the certificate specified by subdivision (b)." (Code Civ. Proc., Sec. 411.35, subd. (a).)

The Court's statement of decision includes a finding that "no valid certificate of merit was filed until November 4, 2024[]", when Plaintiffs filed their first amended complaint. (Statement of Decision at p. 28, P. 121; see also p. 17, P. 5.) Noted above, the judgment provides that Vrtiak is the prevailing party as to the fifth affirmative defense for failure to comply with the certificate of merit provisions of Code of Civil Procedure section 411.35, and that Vrtiak has the right to file a motion to recover attorney's fees as authorized under subdivision (h) of section 411.35. For these and all further reasons discussed above, the Fee Motion is sufficient to show that attorney's fees incurred as a result of Plaintiffs' failure to comply with section 411.35, are allowable as costs under Code of Civil Procedure section 1033.5, subdivision (a)(10)(B).

"[T]he fee setting inquiry in California ordinarily begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. 'California Courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.' [Citation.] The reasonable hourly rate is that prevailing in the community for similar work. [Citations.] The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. [Citation.] Such an approach anchors the trial Court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary." (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.)

"[T]he predicate of any attorney fee award, whether based on a percentage-of-the-benefit or a lodestar calculation, is the necessity and usefulness of the conduct for which compensation is sought." (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 846, italics omitted.) The Court generally begins its analysis by reviewing the attorney's time records which, if verified, are "entitled to credence in the absence of a clear indication the records are erroneous[.]" (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396 (Horsford); see also Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 562-563 [if fee request is supported by sufficient declarations and documentation, a challenge to the fee request requires similar proof].)

Further, "[t]he value of legal services performed in a case is a matter in which the trial Court has its own expertise. [Citation.] The trial Court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. [Citation.] The trial Court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case." (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624.) "The magnitude of what constitutes a reasonable award of attorney fees is ... a matter committed to the discretion of the trial Court." (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 263.)

The Court must exercise its discretion so as to fully compensate the attorney for the services provided to the client, which may also include fees incurred to pursue a claim for attorney's fees. (Horsford, supra, 132 Cal.App.4th at pp. 395-396; Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 580.) Further, "[t]he Court may rely on its own knowledge and familiarity with the legal market in setting a reasonable hourly rate." (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.)

In support of the Fee Motion, attorney Goetz states that their firm acted as Vrtiak's counsel from October 3, 2024. (Goetz Dec., P. 2.) Attorney Thornton, who did the majority of the pre-trial work, was responsible for implementing efforts to resolve this matter, which were overseen by attorney Goetz. (Ibid.) Attached to attorney Goetz's declaration are detailed time entries for the services of Hollister & Brace, a rate list for all legal personnel, and a rate list for reimbursement of expenses. (Ibid. & exhibits 1-3.)

Attorney Goetz's hourly rate is $450, and attorney Thornton's hourly rate is $350. Goetz Dec., P. 2.) Attorney Goetz has 40 years of litigation experience, and attorney Thornton has 12 years of litigation experience. (Goetz Dec., P. 39.) Counsel allocated tasks based on the level of experience and range of billing rates, which reflect a blended hourly rate of approximately $383. (Ibid.)

Attorney Goetz's declaration includes a description of the hours expended by counsel for Vrtiak in this litigation. (Goetz Dec., P.P. 25-37.) Attorney Goetz asserts that the invoices were discounted or reduced where necessary or appropriate. (Goetz Dec., P. 40.) Attorney Thornton's declaration also includes a description of the hours they expended on behalf of Vrtiak in this litigation. (Thornton Dec., P.P. 2-14.)

As a threshold matter, though Code of Civil Procedure section 411.35 authorizes the Court to order a party to pay attorney's fees incurred by another party as a result of a failure to comply with that section, the Fee Motion fails to explain, with reasoned argument, why any attorney's fees incurred after November 4, 2024, the date the Court determined Plaintiffs filed a valid certificate of merit, were incurred as a result of any failure by Plaintiffs to comply with section 411.35, or why the Court may order Plaintiffs to pay any attorney's fees incurred by Vrtiak after that date. For these reasons, the Fee Motion fails to show why attorney's fees incurred after November 4, 2024, were incurred as a result of any failure by Plaintiffs to comply with section 411.35.

The Court has reviewed the statements of account which include sufficiently detailed descriptions of the services rendered to Vrtiak by each timekeeper at Hollister & Brace who performed work in this matter from October 3 through November 4, 2024, the date Plaintiffs filed a valid certificate of merit. Those statements show that the work performed by Vrtiak's counsel includes, among other things, review of the pleadings and other documents filed in this case; drafting of a demurrer and motion to strike; corresponding with the Gillies regarding purported pleading deficiencies; and review of an amended complaint. (Goetz Dec., exhibit 1 at pp. 1-2.)

Based on the Court's familiarity with the legal market and information provided by Vrtiak's counsel regarding their litigation experience, the Court also finds the hourly rates charged by Vrtiak's counsel and described above, to be reasonable for the Santa Barbara area. (In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 587-588 [trial Court may rely on its own experience and knowledge, when provided with pertinent facts, to determine reasonable value of attorney's services].) For all reasons discussed above, the Fee Motion shows that from October 3, through November 4, 2024, Vrtiak incurred attorney's fees in the amount of $8,482.50, as a result of Plaintiffs' failure to file a valid certificate of merit. (Goetz Dec., exhibit 1 at pp. 1-2.)

Those attorney's fees include 6.25 hours of attorney Goetz's time at the reasonable hourly rate of $450, and 16.2 hours of attorney Thornton's time at the reasonable hourly rate of $350. (Ibid. & exhibit 2.)

The Motion to Tax includes a request for an order striking attorney's fees claimed by Vrtiak. (Motion to Tax at p. 2.) Vrtiak does not appear to contend that the Motion to Tax is untimely to the extent that motion effectively opposes the Fee Motion. (See Code Civ. Proc., Sec. 1005, subd. (c).) As grounds for their request to strike attorney's fees claimed in the Fee Motion, Plaintiffs assert that the failure of Vrtiak to include attorney's fees in the cost memorandum renders those fees suspect or not allowable.

Relevant here, California Rules of Court, rule 3.1702 "applies in civil cases to claims for statutory attorney's fees...." (Cal. Rules of Court, rule 3.1702(a).) That rule provides that if a party is entitled to statutory attorney's fees "that are fixed without the necessity of a Court determination, the fees must be claimed in the memorandum of costs." (Cal. Rules of Court, rule 3.1702(e).) "Subdivisions (b) and (c) apply when the Court determines entitlement to the fees, the amount of the fees, or both, whether the Court makes that determination because the statute ... refers to 'reasonable' fees, because it requires a determination of the prevailing party, or for other reasons." (Cal. Rules of Court, rule 3.1702(a).)

"[C]osts such as ... attorney fees that require a Court determination, may not be 'immediately enter [ed]' by the clerk, and instead necessitate a decision by the trial Court, exercising its discretion. In short, there would be no point in requiring a party to include in its memorandum of costs those cost items which are awarded in the discretion of the Court and thus cannot be entered by the clerk of the Court under rule 3.1700." (Anthony v. City of Los Angeles (2008) 166 Cal.App.4th 1011, 1016, original italics.)

Statutory attorney's fees to be determined by the Court, such as those sought by the Fee Motion, "are to be claimed 'only' by noticed motion, not by the mere filing of a memorandum of costs." (Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1725.) Because Code of Civil Procedure section 411.35 permits the Court to order a party to pay "reasonable" attorney's fees (Code Civ. Proc., Sec. 411.35, subd. (h)), the statute requires the Court to determine any entitlement to such fees. For these and all further reasons discussed above, Vrtiak is not required to, and may not, claim in the cost memorandum, attorney's fees as costs under section 411.35.

Plaintiffs also contend that the request for attorney's fees is improper because they were not required to file a certificate of merit before serving their complaint, because Plaintiffs ultimately complied with that section, and because the certificate of merit filed by Plaintiffs was sufficient. Though the Fee Motion does not show a basis to recover attorney's fees incurred after the date Plaintiffs filed a valid certificate of merit, the arguments advanced in the Motion to Tax do not explain why any attorney's fees incurred prior to November 4, 2024, were not incurred as a result of Plaintiffs' failure to comply with section 411.35 prior to that date.

The remaining arguments advanced in the Motion to Tax, including in regard to whether attorney's fees are recoverable under Code of Civil Procedure section 998 or whether Vrtiak filed a motion for an undertaking under Code of Civil Procedure section 597, are not persuasive. The Motion to Tax also fails to show why any attorney's fees incurred before November 4, 2024, are not reasonable, necessary, or useful.

For all reasons discussed above, the present record reflects that, between October 3 and November 4, 2024, Vrtiak incurred attorney's fees as a result of the failure of Plaintiffs to comply with Code of Civil Procedure section 411.35, in the amount of $8,482.50. For these reasons, the Court will grant the Fee Motion, in part, and order Plaintiffs to pay to Vrtiak, attorney's fees in that amount, which the Court finds represents a reasonable award. For all reasons discussed above, the Court will deny the Fee Motion as to any request for attorney's fees incurred after November 4, 2024. In addition, the Fee Motion is moot as to any request for an award of costs claimed in the cost memorandum, and will be otherwise denied on that basis.

(5) The Sanctions Motion

In support of the request for an award of sanctions against Vrtiak or their counsel, the Sanctions Motion raises the same or effectively the same grounds and arguments raised and advanced by Plaintiffs in support of their Motion to Amend and Motion to Tax. The same reasoning and analysis apply as to those arguments.

The Sanctions Motion further asserts that the defense has made malicious personal attacks against Plaintiffs which showed a conscious and willful disregard for Plaintiffs' rights; that those attacks were intended to undermine the credibility and testimony of Kevin, and that the attacks violate Business and Professions Code section 6068 and the Rules of Professional Conduct, rule 3.1, 3.3, and 3.4, and constitute bad faith conduct. The Sanctions Motion further asserts that the defense withheld critical information regarding whether Vrtiak's design was changed. For these reasons, Plaintiffs request that the Court impose sanctions against Vrtiak and their counsel. (See Motion at pp. 24-31 & exhibit B.)

"A trial Court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay." (Code Civ. Proc., Sec. 128.5, subd. (a).) For purposes of Code of Civil Procedure section 128.5, "'[a]ctions or tactics' include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading." (Code Civ. Proc., Sec. 128.5, subd. (b)(1).) "'Frivolous' means totally and completely without merit or for the sole purpose of harassing an opposing party." (Code Civ. Proc., Sec. 128.5, subd. (b)(2).)

A motion for sanctions "shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay." (Code Civ. Proc., Sec. 128.5, subd. (f)(1)(A).) The Court may order a party to pay fees and expenses for sanctionable actions or tactics only "after notice and a reasonable opportunity to respond[.]" (Code Civ. Proc., Sec. 128.5, subd. (f)(1); see also Levy v. Blum (2001) 92 Cal.App.4th 625, 635 (Levy) ["[s]ection 128.5 requires notice and an opportunity to be heard before the imposition of sanctions, and the Court must issue a written order reciting in detail the conduct justifying sanctions"].) Furthermore, the notice of the Sanctions Motion "must specify the authority relied upon and must advise of the specific grounds and conduct on which sanctions are to be based." (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178.)

Wholly absent from the notice and the Sanctions motion is any clear description of the conduct on which any sanctions are based, or any notice sufficient to satisfy statutory or due process requirements. For example, the motion is presented in a narrative fashion without connecting the specific actions or tactics to any request for sanctions, and without explaining whether or to what extent those actions or tactics include "the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected...." (Code Civ.

Proc., Sec. 128.5, subd. (f)(1)(B).) For these reasons, the Court is unable to fashion an order that states appropriate grounds for any sanctions requested by Plaintiffs. (See West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 707 [it is error for trial Court to fail to state grounds for sanctions].) Furthermore, as neither Vrtiak nor the Court can determine the specific conduct Plaintiffs contend is sanctionable, the Sanctions Motion fails to provide sufficient notice or an opportunity to be heard.

"Whether an action is frivolous is governed by an objective standard: any reasonable attorney would agree it is totally and completely without merit. [Citations.] There must also be a showing of an improper purpose, i.e., subjective bad faith on the part of the attorney or party to be sanctioned." (Levy, supra, 92 Cal.App.4th at p. 635; accord, In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 135.) Plaintiffs have also failed to meet their burden to show what, if any, claims or conduct by Vrtiak were frivolous or undertaken for an improper purpose.

In addition, apart from asserting general and conclusory arguments, the Sanctions Motion also presents no information or evidence sufficient demonstrate why there exists a lack of evidentiary support for the defenses asserted by Vrtiak. By way of example, any alleged delay or purported disinterest by Vrtiak in settling the action does not, alone, compel a finding that Vrtiak's sole intent was to harass Plaintiffs. For all reasons discussed above, the Sanctions Motion fails to show that an award of sanctions under Code of Civil Procedure section 128.5, is warranted or appropriate.

Code of Civil Procedure section 128.7 also permits a Court to, "after notice and a reasonable opportunity to respond," impose sanctions against a party or attorney that violates subdivision (b) of that section. (Code Civ. Proc., Sec.128.7, subd. (c).) "A Court has broad discretion to impose sanctions if the moving party satisfies the elements of the sanctions statute." (Peake v. Underwood (2014) 227 Cal.App.4th 428, 441 (Peake).) The Sanctions Motion also fails to explain what specific claims or conduct by Vrtiak were purportedly frivolous, also considering that Vrtiak secured a favorable judgment after trial. (See, e.g., Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1120 (Kumar); Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189 (Bucur) [discussing factually frivolous claims].)

Furthermore, "[i]n either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. [Citation.] A claim is objectively unreasonable if 'any reasonable attorney would agree that [it] is totally and completely without merit.' [Citation.]" (Peake, supra, 227 Cal.App.4th at p. 440.) The Sanctions Motion also fails to show why any reasonable attorney would agree that any claim or defense asserted by Vrtiak was completely without merit.

As Code of Civil Procedure section 128.7 applies only in limited circumstances, the burden of avoiding sanctions under section 128.7 is light. (Kumar, supra, 71 Cal.App.5th at p. 1126.) Furthermore, "the application of section 128.7 must not 'conflict with the primary duty of an attorney to represent his or her client zealously,' through innovative but sensible advocacy." (Bucur, supra, 244 Cal.App.4th at p. 190 [citation omitted].) Accordingly, section 128.7 is utilized only rarely, and only when the action is "clearly frivolous, legally unreasonable or without legal foundation, or brought for an improper purpose", even if the claim is arguably frivolous. (Kumar, supra, 71 Cal.App.5th at p. 1121 citing Operating Engineers Pension Trust v.

A-C Co. (9th Cir. 1988) 859 F.2d 1336, 1344 and Peake, supra, 227 Cal.App.4th at p. 448.)