Kasner, et al v. Louie Atilano et al

Kasner, et al v. Louie Atilano et al Motion: Tax Costs Movant: Robert Kasner and The Kasner Family Limited Partnership (Plaintiff/Kasner) Respondent: Yvonne Atilano (Defendant)

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND On September 11, 2025, at the request of Defendant was dismissed with prejudice.

On March 10, 2026, following a bench trial, a Judgment was entered in favor of Plaintiffs on the Third (Fraud by Concealment), First (Breach of Contract), and Eighth (Unfair Business Competition) causes of action against Defendants Louie Atilano and Atilano, Inc.

The Court also determined that Defendants Nancy Herrera and RMA/Reality Masters & Associates prevailed on all causes of action asserted against them by Plaintiff.

On April 3, 2026, Defendant filed her Memorandum of Costs.

On April 17, 2026, Plaintiff filed their Motion to Tax Costs.

Defendant opposes.

ANALYSIS Except as otherwise stated, a prevailing party is entitled, as a matter of right, to recover costs in any action or proceeding. (Code Civ. Proc., § 1032, subd. (b).)

A “prevailing party” is defined as is relevant to this motion as, “a defendant in whose favor a dismissal is entered”. (Code Civ. Proc., § 1032, subd. (a)(4).)

California Rules of Court 3.1700 states in pertinent part: 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. (CRC 3.1700(a)(1)) (emphasis added)

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Defendant (Prevailing Party) On September 11, 2025, Defendant was dismissed from the case.

Defendant is a party in whose favor a dismissal was entered.

The “prevailing party” as defined by Code of Civil Procedure Section 3032 includes Yvonne Atilano.

Memorandum of Costs (Timeliness) There are two requirements in order to qualify as a “dismissal by the clerk under California Code of Civil Procedure Section 664.5”.

First, you must have a contested action or a proceeding in which the prevailing party is not represented by counsel. (CCP§664.5(a)).

Arguably this matter falls under “a contested action”, rather than a proceeding requiring a party to be unrepresented.

Second, you need the clerk of the court to serve notice of entry of judgment to all parties who have appeared. (CCP§664.5(b).

The record clearly shows that after Defendant was dismissed, a judgment was not filed with the court until April 3, 3026.

Prior to April 3, 2026, the register of action shows that the clerk never served the notice of entry of judgment.

Therefore, Defendant had 180 days from the entry of the Judgment to file her memorandum of costs.

The judgment was entered on March 10, 2026 and the memorandum of costs was filed on April 3, 2026.

The request for costs is timely.

Costs statutes are to be strictly construed. (Sequoia Vacuum Systems v. Stransky (1964) 229 Cal.App.2d 281, 289.)

Pursuant to Code of Civil Procedure section 1033.5, subdivision (c), an award of costs is allowable if they are (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.

Thus, even costs allowable as a matter of right may be disallowed if not reasonably necessary or may be reduced in amount to that which is reasonable. (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.)

If the items appearing on a cost bill appear to be proper charges, the party seeking to tax costs bears the burden of showing they are not reasonable or necessary.

If the items are properly objected to, however, then the party seeking costs bears that burden. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).)

The 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. (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal. App. 2d 678, 698-699.)

However, “[i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were

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necessarily incurred by the [party seeking costs], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” (Id. at p. 699.)

Apportionment of Costs “‘When a prevailing party has incurred costs jointly with one or more other parties who are not prevailing parties for purposes of an award of costs, the judge must apportion the costs between the parties [based on the reason the costs were incurred and whether they were reasonably necessary to the conduct of the litigation by the jointly represented party who prevailed].’” (Wakefield, supra, 145 Cal.App.4th at p. 986; see Ducoing Management, Inc. v. Superior Court (2015) 234 Cal.App.4th 306, 315 [183 Cal. Rptr. 3d 548] (Ducoing); Fennessy v. Deleuw-Cather Corp. (1990) 218 Cal.App.3d 1192, 1196–1197 [267 Cal. Rptr. 772] (Fennessy).) (Charton v. Harkey 247 Cal. App. 4th 730, 743-744)

When allocating the costs, “. . . the court must examine the reason each cost was incurred, whether the cost was reasonably necessary to the conduct of the litigation on behalf of the prevailing party, and the reasonableness of the cost.” (Charton citing to Nelson v. Anderson (1999) 72 Cal. App. 4th 111)

Item No. 1: Filing Fees Attorney McCall’s opposing declaration reduces the claim to $768.95.

The opposition attaches invoices in support of costs of the $435.00 for the first appearance filing fee charged to Yvonne.

However, the balance of the claimed costs is not sufficiently itemized as a charge belonging to Defendant.

Item No. 2 Jury Fees The register of actions shows that the jury fee of $150.00 was posted jointly for all three Defendants.

Defendant is entitled to recover one third of those fees or $50.00

Item No. 4 Deposition Fees Defendant presents invoices indicating $505.24 incurred for Louie Atilano’s transcript; $1,915.25 for Plaintiff Kasner’s deposition; and $662.78 for a transcript for the deposition of someone named William Exeter.

Defendant fails to justify these expenses or demonstrate that they were incurred for her defense rather than for that of her co-Defendants.

Further, Plaintiffs indicate they do not know William Exeter and Defendant’s papers do not explain.

Under these circumstances the costs are unjustified.

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Item No. 5 Service of Process The claims for $55 to serve the custodian of records for the City of Pomona and $105 to serve Natalie Brewer with unspecified papers are inadequately explained or supported.

Item No. 11 California Code of Civil Procedure 1033.5 states in pertinent part, “Transcripts of court proceedings ordered by the court. (CCP§1033.5(9)).

The Court did not order any transcripts of the proceedings.

The $2400 for transcripts shall be taxed.

Item No. 14 These claims include a series of fees of $22.89 (or $23.89 for the last entry) for filing various papers, but only the first was filed before September 11, 2025 when Defendant was dismissed.

RULING 1. Plaintiffs’ Motion to Tax Costs is -GRANTED IN PART AND DENIED IN PART.

The Court will tax a total of $6169.78, consisting of the following: a. Item 1: $333.95 b. Item 2: $100 c. Item 4: $3083027 d. Item 5: $160 e. Item 11: $2400 f. Item 14: $92.56

2. The Court awards Defendant litigation costs of $507.89.

3. Moving part to give notice.

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