Liel Haviv Asnerian v. Zachary Phillips

(Van Nuys Courthouse West: Dept. 107) August 18, 2026 DEPARTMENT 107 LAW AND MOTION RULINGS

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES NORTHWEST DISTRICT | Liel Haviv Asnerian, Plaintiff, v. Zachary Phillips, Defendant. | Case Number Department 23VECV05577 107 | COURT'S [TENTATIVE] RULING RE: Motions for Reconsideration and to Tax Costs ¿ | [THE FOLLOWING IS A TENTATIVE RULING IN THE ABOVE CASE]: (1) Deny Motion for Reconsideration; (2) Grant Motion to Tax Costs, in part, and deny it, in part.

I. BACKGROUND

On December 19, 2021, Defendant Zachary Phillips ("Defendant") assaulted and battered Plaintiff Liel Haviv Asnerian ("Plaintiff"). (Complaint P. 3.) Plaintiff sustained injuries. (Complaint P. 4.)

On December 18, 2023, Plaintiff filed a complaint against Defendant and Does 1 to 50, alleging causes of action for: (1) assault & battery; (2) intentional infliction of emotional distress; (3) negligent hiring, training, supervision and retention of employee; (4) negligence; (5) false imprisonment; 6) violations of the Bane Civil Rights Act.

On January 27, 2026, Defendant filed a motion to compel further responses to Request for Production of Documents (Set Two) (the "Motion to Compel Further Responses").

On March 10, 2026, the court granted the Motion to Compel Further Responses and granted Defendant's request for sanctions in the reduced sum of $1,435.00. (03/10/26 Minute Order pp. 1, 6.) (This order contains a typographical error. It states "The Motion to Compel motion to compel production of documents to deposition subpoena for production of business records and request for monetary sanctions against Tarzana Dental Specialists; memorandum of points and authorities; declaration of Brent J. Kupfer filed by Zachary Phillips on 01/13/2026 is Granted." (03/10/26 Minute Order p. 6.) However, the order was discussing a motion filed 01/27/26. (03/10/26 Minute Order p. 1.))

On March 24, 2026, Plaintiff filed a motion for reconsideration (the "Motion for Reconsideration"). On June 12, 2026, Defendant filed an opposition. As of August 13, 2026, no reply has been filed.

On June 11, 2026, the court issued the court's findings of fact and statement of decision, which issued judgment in favor of Defendant and against Plaintiff. (Court's Findings of Fact and Statement of Decision p. 21.)

On June 15, 2026, Defendant filed a memorandum of costs (the "Memorandum"). On June 16, 2026, Plaintiff filed a motion to tax costs (the "Motion to Tax Costs"). On August 6, 2026, Defendant filed an opposition. As of August 13, 2026, no reply has been filed.

II. THE MOTION FOR RECONSIDERATION

The Opposition

Oppositions are due to be filed and served at least nine court days before the hearing. (Code Civ. Proc., Sec. 1005, subd. (b).) Defendant filed the opposition to the Motion for Reconsideration only seven court days before the original hearing date. Thus, it is untimely. "A trial court has broad discretion to accept or reject late-filed papers." (Jack v. Ring LLC (2023) 91 Cal.App.5th 1186, 1210, brackets removed.) The court will not consider the untimely opposition.

Legal Standard

"When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown." (Code Civ. Proc., Sec. 1008, subd. (a).)

"Section 1008, subdivision (a) requires that a motion for reconsideration be based on new or different facts, circumstances, or law. A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time." (New York Times Co. v. Superior Court (" New York Times ") (2005) 135 Cal.App.4th 206, 212.) "The burden under section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial." (Id. at pp. 212-213.)

Discussion

Plaintiff moves for an order reconsidering the court's granting the Motion to Compel Further Responses. (Motion p. 2.) Plaintiff argues Plaintiff's counsel mis-calendared the deadline to oppose the Motion to Compel Further Responses and was in trial when the Motion to Compel Further Responses was heard. (Motion p. 2.) Plaintiff also argues he cannot pay the sanctions. (Motion p. 5.)

Plaintiff's counsel appeared at the hearing on the Motion to Compel Further Responses. (03/10/26 Minute Order p. 1.) Nothing before the court suggests Plaintiff's counsel's mis-calendaring the deadline, Plaintiff's counsel's being engaged in trial, or Plaintiff's financial condition constitutes new or different facts or circumstances such that Plaintiff could not, with reasonable diligence, have produced such information at an earlier time. (New York Times, supra, 135 Cal.App.4th at pp. 212-213.)

III. THE MOTION TO TAX COSTS

The Opposition

Oppositions are due to be filed and served at least nine court days before the hearing. (Code Civ. Proc., Sec. 1005, subd. (b).) Defendant filed the opposition to the Motion to Tax costs only eight court days before the hearing. "A trial court has broad discretion to accept or reject late-filed papers." (Jack v. Ring LLC, supra, 91 Cal.App.5th at p. 1210, brackets removed.) The court will exercise its discretion and consider the untimely opposition.

Legal Standard

" 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 section 1032, subdivision (a)(4) defines "[p]revailing party" as: [T]he 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.

Costs recoverable under section 1032 must be: (1) "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation"; and (2) "reasonable in amount." (Code Civ. Proc., Sec. 1033.5, subd. (c)(2), (3).)

"'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 they were 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.'" (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) "[T]he mere filing of a motion to tax costs may be a 'proper objection' to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. [Citation] However, 'if the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the objecting party.' [Citations]" (Id., brackets removed.)

"The court's first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. [Citation] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. [Citation]" (Id.)

"'If the items in a cost memorandum appear proper, the verified memorandum is prima facie evidence the expenses were necessarily incurred by the' prevailing party. [Citation.] To controvert this evidence, the burden is on the objecting party to present evidence showing the contrary. [Citation.]" (Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, 1115, original italics.)

Discussion

Plaintiff disputes the entire Memorandum filed with the court on June 15, 2026. (Motion p. 2.) First, Plaintiff argues the court has the power to apportion costs. (Motion pp. 4-6.) The cases cited by Plaintiff appear to approve apportioning costs between multiple defendants. Here, the only named parties are Plaintiff and Defendant. There are no multiple defendants or plaintiffs to apportion costs between.

Second, Plaintiff argues that Defendant proceeded in bad faith and therefore should not be awarded costs. (Motion p. 6.) Plaintiff presents no evidence or persuasive argument that Defendant defended this matter in bad faith. Moreover, the court issued judgment in Defendant's favor and against Plaintiff. (Court's Findings of Fact and Statement of Decision p. 21.) This contradicts Plaintiff's argument that Defendant defended this matter in bad faith.

Third, Plaintiff argues Defendant was late in filing the Memorandum. (Motion p. 6.) California Rules of Court, rule 3.1700(a)(1) states: 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. Defendant filed the Memorandum the same date the later-vacated judgment was entered in this matter. (Judgment filed 06/15/26; 06/24/25 Minute Order p. 1.) Defendant timely filed the Memorandum.

Fourth, Plaintiff argues the court should tax costs because Plaintiff is indigent and cannot afford to pay them. (Motion p. 6.) In Nelson v. Anderson, supra, 72 Cal.App.4th at p. 129, the Court of Appeal stated: We made the observation in Santantonio that Code of Civil Procedure section 998 gives the trial court discretion to consider a party's ability to pay costs, when considering costs recoverable under that section.[Citation.] There is no language in section 998 which would transfer the discretion of that section to a motion to tax costs recoverable by the prevailing party under sections 1032 and 1033.5, and unrelated to section 998. The court denies Plaintiff's request to tax costs because of Plaintiff's inability to pay them.

Fifth, Plaintiff argues the court should tax costs because "there is no receipts attached showing that these costs were actually incurred" and "Defendant must provide documents that support its costs, e.g., front and back of all cancelled checks and any other documentation that reflects that Defendant in fact paid these costs." (Motion p. 6.) Plaintiff cites Jones v. Dumrichob (" Jones ") (1998) 63 Cal.App.4th 1258, 1267. (Motion p. 6.) In Jones, the Court of Appeal stated: Section 1034, subdivision (a) requires that prejudgment costs must be "claimed and contested in accordance with rules adopted by the Judicial Council."

Accordingly, rule 870(a)(1) relating to prejudgment costs states in pertinent part: "The memorandum of costs shall 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." Initial verification will suffice to establish the reasonable necessity of the costs claimed. There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum.

Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted. [Citation.] Once this occurs, the issue becomes whether the required documentation must be of evidentiary quality. Rule 870(a)(1) does not specify the type of documentation required. (Id. at p. 1267.) A party's "mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of its counsel are insufficient to rebut the prima facie showing." (Rappenecker v.

Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.)

The Memorandum identifies six categories of costs: (1) filing and motion fees; (2) deposition costs; (3) service of process; (4) court reporter fees as established by statute; (5) models, enlargements, and photocopies of exhibits; and (6) fees for electronic filing or service. Code of Civil Procedure section 1033.5, subdivision (a) states: The following items are allowable as costs under Section 1032: (1) Filing, motion, and jury fees. [P.] . . . [P.] (3)(A) Taking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed. [P.] . . . [P.] (4) Service of process by a public officer, registered process server, or other means, as follows: (A) When service is by a public officer, the recoverable cost is the fee authorized by law at the time of service. (B) If service is by a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code, the recoverable cost is the amount actually incurred in effecting service, including, but not limited to, a stakeout or other means employed in locating the person to be served, unless those charges are successfully challenged by a party to the action. (C) When service is by publication, the recoverable cost is the sum actually incurred in effecting service. (D) When service is by a means other than that set forth in subparagraph (A), (B), or (C), the recoverable cost is the lesser of the sum actually incurred, or the amount allowed to a public officer in this state for that service, except that the court may allow the sum actually incurred in effecting service upon application pursuant to paragraph (4) of subdivision (c). [P.] . . . [P.] (11) Court reporter fees as established by statute. [P.] . . . [P.] (13) Models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact. (14) Fees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.

The costs identified in the Memorandum appear to be proper charges, to the Memorandum is prima facie evidence the costs were necessarily incurred by Defendant, and the burden is on Plaintiff to show the items are not properly chargeable or are unreasonable. (Nelson v. Anderson, supra, 72 Cal.App.4th at p. 131.)

Plaintiff's memorandum of points and authorities says nothing more than the statement that Defendant must provide documentation to support the requested costs. (Motion p. 6.) Plaintiff's counsel's attached declaration provides no more information or evidence to rebut the prima facie showing by the Memorandum that the costs were reasonably necessary.

In opposition, Defendant's counsel's declaration states some of the costs identified in the Memorandum are inaccurate or mislabeled. (Green Declaration P.P. 2-3.) The court will grant the Motion to Tax Costs to the extent Defendant has conceded the costs are inaccurate. Defendant's counsel's declaration also identifies additional costs, bringing the total sum of actual costs to $19,551.14. (Green Declaration P. 3.) The court will not grant costs exceeding what is identified in the Memorandum. The court strikes $701.73 in fees for electronic filing of service because Defendant's counsel's declaration concedes Defendant's actual costs in this category was $0.00.

IV. CONCLUSION

For the foregoing reasons, the Motion for Reconsideration is denied. The Motion to Tax Costs is granted, in part. The court strikes $701.73 in fees for electronic filing or service. This leaves $15,401.52 in costs to be paid by Plaintiff.

Dated: August 18, 2026 _______- ___________________________ Hon. Eric Harmon Judge of the Superior Court

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