Timanus vs. Melrose Recovery LLC.

Serve and Prosecute. Plaintiffs are ordered to appear and ordered to file a Proof of Service re Summons and Complaint on all unserved defendant(s) at least 10 court days before the hearing. If Plaintiffs fail to do so, the court will dismiss the action against any unserved defendant at the hearing unless Plaintiffs appear and show good cause otherwise. (See Cal. Rules of Court, rule 3.110(f); Orange County Superior Court Local Rule 381.)

The OSC re Sanctions/Dismissal will be the same date, time and place as the new CMC.

Plaintiffs to give notice.

2. Status Conference

In light of the ruling on the motion to set aside, the court takes the Status Conference re Default Judgment OFF- CALENDAR.

As previously mentioned, the Complaint treats all of the defendants together. As such, the court will not proceed with a default judgment against the remaining defaulted defendants until trial or when all of the named defendants have been defaulted or dismissed.

Plaintiffs to give notice.

7 Timanus vs. Motion to Tax Costs Melrose Recovery LLC. The court DENIES Plaintiff TRINA TIMANUS’ motion to strike or tax the memorandum of costs filed by counsel for Defendants WALTER YBARRA (Ybarra) and RESTORATIONS HEALTH CARE LLC (Restoration).

As against Defendant Ybarra, Plaintiff is clearly the prevailing party. A jury determined found that Ybarra owes Plaintiff $603,292.00 on the Second Amended Complaint.

Restoration however is also a prevailing party on the Second Amended Complaint, as the jury found in its favor, resulting in a judgment that Plaintiff recover nothing from Restoration.

On 6/3/26, counsel for both Defendants Ybarra and Restorations filed a memorandum of costs (ROA 465), claiming the following:

Item 1 - Filing and motion fees: $906.20 Item 4 - Deposition costs: $4,758.80 Item 5 - Service of process: $1,270.60 Item 14 - Fees for electronic filing or service: $132.12

A prevailing party is usually entitled as a matter of right to recover costs in any action or proceeding. (Code Civ. Proc., § 1032(b).) If the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. (Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-74.)

Code of Civil Procedure section 1032(a)(4) defines “prevailing party” as:

the 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.

(Code Civ. Proc., § 1032.)

“[T]he trial court in its discretion determines the prevailing party, comparing the relief sought with that obtained, along with the parties' litigation objectives as disclosed by their pleadings, briefs, and other such sources. Thus, the trial court determines whether the party succeeded at a practical level by realizing its litigation objectives and the action yielded the primary relief sought in the case.” (Friends of Spring Street v. Nevada City (2019) 33 Cal.App.5th 1092, 1104 [internal quotation and citation omitted].) “If neither party achieves a complete victory on all the contract claims, it is within the discretion of the trial court to determine which party prevailed on the contract or whether, on balance, neither party prevailed sufficiently to justify an award of attorney fees.” (Scott Co. of California v. Blount, Inc. (1999) 20 Cal.4th 1103, 1109.)

Fields Law Group represented both Defendants Ybarra and Restorations. On Plaintiff’s Second Amended Complaint, Plaintiff was a prevailing party against Ybarra. But Restorations was also a prevailing party because it is “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.” (Code Civ. Proc., § 1032(a)(4).) As such, Restorations is entitled to costs.

In her reply, Plaintiff cites to Wakefield v. Bohlin (2006) 145 Cal.App.4th 963, which involved the issue of apportionment of costs between husband and wife seller defendants, one of whom was found liable for plaintiff buyer’s negligent misrepresentation claim. The appellate court held that the wife defendant was “not entitled to costs as a matter of right because of her unity of interest with [the husband]” and that “[a]ny cost award in her favor is discretionary with the trial court and subject to apportionment.” (Id. at 989.)

The prior version of Code of Civil Procedure section 1032 contained language supporting the concept that where jointly represented codefendants presented a unified defense and fewer than all codefendants prevailed, the court had discretion to deny costs to the prevailing codefendants. However, this language was omitted when section 1032 was repealed and replaced in 1986.

Consequently, courts disagree on whether this “unity of interest” concept remains viable. (See Charton v. Harkey (2016) 247 Cal.App.4th 730, 741-743, [“unity of interest” concept did not survive 1986 repeal/replacement]; compare Wakefield v. Bohlin (2006) 145 Cal.App.4th 963, 984-987 [contra].)

The Court of Appeal in Charton stated,

“The 1986 repeal and reenactment of section 1032 ... eliminated any basis to apply the unity of interest exception found in the repealed version. Consequently, we conclude the Legislature intended to eliminate the unity of interest exception as a basis for denying costs to a prevailing defendant who otherwise is entitled to recover costs as a matter of right.”

(Charton, 146 Cal.App.4th at 741-742.) There is apparently no published appellate opinion that disapproves or overrules Charton, and this court agrees with Charton such that Restorations is entitled to recover its costs.

Thus, where coparties jointly incurred costs and fewer than all coparties prevail at the conclusion of trial, the court must apportion costs between the parties based on the reason the costs were incurred and whether the costs were reasonably necessary to the prevailing coparties’ conduct of the litigation. The court cannot simply divide the total costs jointly incurred by all coparties by the number of prevailing coparties. (Charton v. Harkey (2016) 247 Cal.App.4th 730, 743.)

In its opposing papers, Defendants filed a declaration from counsel (MATTHEW R. SEIFEN) clarifying that, “The Memorandum of Costs (Summary and Worksheet) seeks recovery of Restorations’ costs in connection with this matter and does not include the costs of Defendant/Cross- Complainant Walter Ybarra.” (Seifen Decl., ¶ 2.)

In its reply papers, Plaintiff does not show or explain how any claimed costs was note borne specifically by Restoration or how any cost was not reasonably necessary to Restoration’s conduct in this litigation. Instead, Plaintiff asserts that differentiating costs between defendants is

impossible because they share an identical unity of interest, and Plaintiff therefore requests the court grant the motion under the court’s “broad equitable discretion to find that all defendant litigations costs were completely intertwined”. (Repl. Br. at p. 2, lines 5-14.)

The court however disagrees that differentiating costs is impossible. For example, the first matter listed in the Cost Memorandum Worksheet is for $448.50 to answer the Second Amended Complaint. According to the court file, defendants separately answered the Second Amended Complaint. (See ROAs 129 and 136.) The amount requested does not represent fees that would be incurred by more than one defendant.

As Defendant Restoration notes in its opposing papers, “Plaintiff has not sought to contest or tax any of the specific items included in [the Cost Memorandum].” (Opp’n Br. at p. 3, lines 10-12.)

Accordingly, the court DENIES the motion.

Defendants to give notice.

10 Manolelis vs. P’s Motion to Compel Further Staffpay, Inc RFPs (Set One) D’s Motion to Compel Further Responses to Form Interrogatories (Set One); and RFPs (Set One)

1. Plaintiff’s Motion (re RFPs)

The court DENIES Plaintiff COLLEEN RUGGIERO MANOLELIS moves to compel Defendant STAFFPAY, LLC to serve further responses to Plaintiff’s Requests for the Production of Documents (Set One) (“RFP”), Nos. 9-11.

RFPs 9-11 seek “All communications, including but not limited to emails, text messages, and written correspondence” between Defendant, on the one hand, and on the other hand, (1) Decedent Theo Manolelis

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