MOTION FOR ATTORNEY’S FEES; MOTION TO TAX COSTS
August 14, 2026 Dept. 9 Civil Tentative Rulings
12. PC20210083 THOMAS STINSON VS DAVID WEINER, ET AL ATTORNEY’S FEES / TAX COSTS
ON THE COURT'S OWN MOTION DUE TO LACK OF JUDICIAL COVERAGE, THE COURT WILL HEAR THIS MATTER ON SEPTEMBER 11, 2026, AT 8:30 A.M. IN DEPARTMENT NINE. THERE WILL BE NO HEARING ON AUGUST 14, 2026. SHOULD A PARTY WISH TO REQUEST ORAL ARGUMENT, THE BELOW PROCEDURES REMAIN IN EFFECT.
Before the Court are two motions: 1) Plaintiff/Cross-Defendant’s, Thomas Stinson (“Plaintiff”), Motion for Attorneys Fee; and 2) Defendants/Cross-Complainant’s, David Weiner and Melode Weiner (“Defendants”), Motion to Tax Costs.
MOTION FOR ATTORNEY’S FEES
On May 29, 2026, Plaintiff filed a Motion for Attorneys Fee pursuant to Penal Code § 496(c). Pursuant to the Court’s ruling on May 7, 2026, Plaintiff prevailed on his claim for conversion committed by Defendant. Plaintiff argues that this Court’s finding that Defendant was liable for conversion is tantamount to a liability for theft. Plaintiff asserts there is no authority to support the position that the remedies available pursuant to Penal Code § 496(c) require an independent cause of action.
Defendants oppose Plaintiff’s request, as Plaintiff failed to separately plead Penal Code § 496 in the Complaint. Additionally, the elements of conversion and Penal Code § 496(a) are different. Defendant asserts that the evidence at trial showed that Defendant never had possession of the funds he had mistakenly earmarked for Plaintiff in his 2002 calculations. Lastly, Defendants argue the statute of limitations have expired.
To prevail in a claim for conversion, a plaintiff must establish: (1) the plaintiff's ownership or right to possession of personal property; (2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages.
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Penal Code § 496 provides, in part: (a) Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170... (c) Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney's fees.
August 14, 2026 Dept. 9 Civil Tentative Rulings
The elements required to show a violation of section 496(a) are simply that (i) property was stolen or obtained in a manner constituting theft, (ii) the defendant knew the property was so stolen or obtained, and (iii) the defendant received or had possession of the stolen property. Switzer v. Wood (2019) 35 Cal.App.5th 116, 126 [247 Cal.Rptr.3d 114, 121], as modified (May 10, 2019). Although similar, the elements of conversion and a violation of § 496(a) differ. This Court did not find the distinct elements of § 496(a) were met.
Under the American rule, as a general proposition each party must pay his own attorney fees. This concept is embodied in section 1021 of the Code of Civil Procedure, which provides that each party is to bear his own attorney fees unless a statute or the agreement of the parties provides otherwise. Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504 [198 Cal.Rptr. 551, 554, 674 P.2d 253, 256]. Wrongful possession of plaintiff's money does not warrant the imposition of attorney fees as damages.
Flyer's Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1158 [230 Cal.Rptr. 276, 281]. Section 3336 of the Civil Code, which sets out the measure of damages in conversion actions, does not expressly provide for attorneys' fees for the converting of property. It has long been held that such fees are not within the rule of damages provided for by that section [citations].” (Id. at p. 91, 29 Cal.Rptr. 346; accord, Viner v. Untrecht (1945) 26 Cal.2d 261, 272, 158 P.2d 3; W.R.
Bradshaw & Co. v. Eggers (1915) 27 Cal.App. 132, 148 P. 961; W. & P. Nicholls v. Mapes (1905) 1 Cal.App. 349, 82 P. 265.) Haines v. Parra (1987) 193 Cal.App.3d 1553, 1559 [239 Cal.Rptr. 178, 181].
Plaintiff’s request for attorney’s fees pursuant to Penal Code § 496(c) is denied.
MOTION TO TAX COSTS
This action was filed on February 26, 2021. On May 7, 2026, the Court ruled Plaintiff prevailed on his claim for conversion. On May 29, 2026, Plaintiff filed a Memorandum of Costs. Plaintiff’s Memorandum of Costs requests a total amount of $2,850.06, as follows: 1) $1,350.39 for filing and motion fees; 2) $150.00 for jury fees; 3) $50.00 for service of process; 4) $377.61 for witness fees; and 5) $922.06 for other.
Legal Principles
A prevailing party is entitled to recover its costs. (Code Civ. Proc., § 1032, subd. (b).) Code of Civil Procedure section 1033.5 creates three categories of costs—allowed, prohibited, and discretionary. (Rozanova v. Uribe (2021) 68 Cal.App.5th 392, 402 [question presented was which category covered the claimed item].) First, Code of Civil Procedure section 1033.5, subdivision (a) lists the items specifically allowed as recoverable costs. Second, Code of Civil Procedure section 1033.5, subdivision (b) lists items that “are not allowable as costs, except when expressly
August 14, 2026 Dept. 9 Civil Tentative Rulings
authorized by law[.]” (Ibid.) Third, Code of Civil Procedure section 1033.5, subdivision (c)(4) provides that an item neither specifically allowable under subdivision (a) nor explicitly prohibited under subdivision (b) may be allowed or denied in the discretion of the court if certain requirements are satisfied. (Id., subd. (c)(4).) In particular, the item must be (1) “incurred, whether or not paid;” (2) “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation;” and (3) “reasonable in amount.” (Id., subd. (c).) “ ‘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.” [Citation.]
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.’ ” (Rozanova, supra, 68 Cal.App.5th at p. 399; see Berkeley Cement, Inc. v. Regents of University of Cal. (2019) 30 Cal.App.5th 1133, 1139.)
Discussion
Defendants object to the “witness fees” (#8) in the amount of $377.61 and “other” (#15) in the amount of $922.06. In regards to witness fees, Defendant concedes that witness fees are allowable; however, the witness fees in the worksheet says $0. As for the “other” expenses, Defendant argues those are not specified by Code of Civil Procedure § 1033.5 as an allowable cost and it is not specified to be able to tell if it is a listed allowable cost. In opposition, Plaintiff provided invoices which purportedly substantiate the “other” costs.
1. Witness Fees
Plaintiff did not address witness fees in his opposition. In review of the invoices provided by Plaintiff, the Court did not find any specific costs identified for witness fees; however, the Court found the following costs substantiate Plaintiff’s request for $377.61: 1. Records subpoena of Garibaldi Ranch from Fidelity National Title Company in the amount of $111.04 2. Records subpoena of Garibaldi Ranch from American River Conservancy in the amount of $129.89 3. Records subpoena of Garibaldi Ranch from Placer Title Company in the amount of $136.68 The identified records subpoenas purport to be charges for the production of business records pursuant to a subpoena duces tecum, not witness fees pursuant to Government Code § 68093. Defendant’s motion to tax these costs is granted. //
August 14, 2026 Dept. 9 Civil Tentative Rulings
2. “Other” Costs
It is unclear from the invoices provided which expenses substantiate the “other” costs. The invoices include expenses for prohibited items, such as postage, telephone, and photocopying charges, as well as fees that may be included as costs in a different category, such as filing fees. The Court finds that Plaintiff has not met his burden in showing the “other” charges are reasonable and necessary. Defendant’s motion to tax these costs is granted.
TENTATIVE RULING #12: PLAINTIFF’S REQUEST FOR ATTORNEY’S FEES PURSUANT TO PENAL CODE § 496(C) IS DENIED. DEFENDANT’S MOTION TO TAX COSTS IS GRANTED.
NO HEARING ON THIS MATTER WILL BE HELD UNLESS A REQUEST FOR ORAL ARGUMENT IS TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY TELEPHONE TO THE COURT AT (530) 621-6551 BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; LOCAL RULE 8.05.07; SEE ALSO LEWIS V. SUPERIOR COURT, 19 CAL.4TH 1232, 1247 (1999).
NOTICE TO ALL PARTIES OF A REQUEST FOR ORAL ARGUMENT AND THE GROUNDS UPON WHICH ARGUMENT IS BEING REQUESTED MUST BE MADE BY TELEPHONE OR IN PERSON BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; EL DORADO COUNTY LOCAL RULE 8.05.07. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED PRIOR TO OR AT THE HEARING.
LONG CAUSE HEARINGS MUST BE REQUESTED BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED AND THE PARTIES ARE TO PROVIDE THE COURT WITH THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M. LONG CAUSE ORAL ARGUMENT REQUESTS WILL BE SET FOR HEARING ON ONE OF THE THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M. THE COURT WILL ADVISE THE PARTIES OF THE LONG CAUSE HEARING DATE AND TIME BY 5:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. PARTIES MAY PERSONALLY APPEAR AT THE HEARING.
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