Judge: Andrew E. Cooper, Case: 19STCV27772, Date: 2023-05-23 Tentative Ruling

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Case Number: 19STCV27772    Hearing Date: May 23, 2023    Dept: F51

MOTION TO STRIKE/TAX COSTS

Motion filed: 3/2/23

MOVING PARTY: Plaintiff Oganes Semirdzhyan (“Plaintiff”) 

RESPONDING PARTY: Defendants Priscilla Stephanie Dominguez; and Maria Del Carmen Dominguez (collectively, “Defendants”) 

NOTICE: ok¿¿¿ 

RELIEF REQUESTED: An order striking and/or taxing the expert fee and electronic filing service provider fee from Defendants’ 1/3/23 Memorandum of Costs. 

TENTATIVE RULING: The motion is denied. Defendants’ request for judicial notice is granted.

BACKGROUND¿ 

On 10/31/22, the jury trial commenced, and on 11/4/22, the jury returned its verdict as to the sole issue of Plaintiff’s damages. The jury awarded Plaintiff $0 for past economic and non-economic damages, and the judgment was entered on 12/5/22. On 1/3/23, Defendants filed and served their Memorandum of Costs (Summary).

On 3/1/23, the Court denied Plaintiff’s motion for judgment notwithstanding the verdict. On 3/2/23, Plaintiff filed the instant motion. On 5/10/23, Defendants filed their opposition. On 5/16/23, Plaintiff filed his reply.

ANALYSIS

A prevailing party is entitled as a matter of right to recover costs of suit in any action or proceeding. (Code Civ. Proc. § 1032, subd. (b).) Costs recoverable under Section 1032 are restricted to those that are both reasonable in amount and reasonably necessary to the conduct of the litigation. (Code Civ. Proc. § 1033.5, subd. (c)(2)– (3).)

“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after … 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 Ct., rule 3.1700(a)(1).)

Timeliness

“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 electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (Cal. Rules of Ct., rule 3.1700(b)(1).) However, “the party claiming costs and the party contesting costs may agree to extend the time for serving and filing the cost memorandum and a motion to strike or tax costs. This agreement must be confirmed in writing, specify the extended date for service, and be filed with the clerk. In the absence of an agreement, the court may extend the times for serving and filing the cost memorandum or the notice of motion to strike or tax costs for a period not to exceed 30 days.” (Id. at subd. (b)(3).)

Here, Defendants filed and electronically served their memorandum of costs on 1/3/23, and absent a stipulation by the parties, the deadline for Plaintiff to file a motion to strike and/or tax costs was 1/20/23. As Plaintiff filed the instant motion on 3/2/23, Defendants argue that it is therefore untimely brought, as it was filed 42 days after the statutory deadline.

Plaintiff argues in reply that the motion is not untimely, as Plaintiff filed his motion for new trial/judgment notwithstanding the verdict on 1/3/23, and “as soon as Plaintiff’s motions for JNOV and new trial were heard on March 1, 2023, Plaintiff filed the current Motion to strike or tax costs the next day.” (Pl.’s Reply, 2:5–7.) The Court agrees and finds that the instant motion is not untimely given the previous challenge to the jury’s verdict.

Burden of Proof

If the charges listed on a submitted memorandum of costs appear to be proper charges on their face, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. (Ladas v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774–776.)

As a preliminary matter, Plaintiff challenges Defendants’ memorandum of costs by arguing that Defendants did not sufficiently provide supporting documentation. “With only a single line entry listing an amount for each, Plaintiff and the Court cannot say with any certainty whether Defendants are requesting reasonable or unreasonable amounts or whether the charges at issue were necessary to the conduct of the litigation.” (Pl.’s Mot. 5:4–7.)

Defendants argue in opposition that “here, Defendants’ memorandum of costs is verified by a statement of their attorneys of record that to the best of his knowledge the items of cost are correct and were necessarily incurred in the case.” (Defs.’ Opp. 5:23–25.) “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.” (Id. at 5:20–23, citing Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.)

The Court agrees and finds no primary requirement that Defendants attach supporting documentation to their memorandum of costs upon submission when the memorandum has been verified by the representing attorney. Accordingly, the Court finds that Defendants have satisfied their primary burden of verifying the costs submitted in their memorandum of costs as required by rule 3.1700(a)(1) of the California Rules of Court.

Reasonableness and Necessity

A cost award may consist only if allowable costs which are “reasonable in amount” and “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc. § 1033.5, subd. (c)(2)– (3).)

1.      Expert Fee

Expert witness fees are generally only recoverable if the expert was ordered by the Court. (Code Civ. Proc. § 1033.5, subd. (a)(8).) However, expert witness fees may be recoverable under Code of Civil Procedure section 998. The statute promotes the extension and acceptance of reasonable pretrial offers to compromise by providing a strong financial disincentive to a party who fails to achieve a better result than that party could have achieved by accepting his or her opponent's settlement offer. (Code Civ. Proc. § 998.) If a statutory offer of compromise was rejected before trial, and the offeree fails to obtain a “more favorable” judgment or award, costs otherwise allowable under CCP § 1032 are withheld or augmented.

If a plaintiff rejects a defendant's Section 998 offer and fails to obtain a “more favorable” judgment at trial, the court may order the plaintiff to pay reasonable post-offer expert witness fees incurred by the defendant in preparing for and/or during trial (or arbitration) of the case. (Code Civ. Proc. § 998, subd. (c)(1).) The expert witness fee recovery under Section 998 is limited to the “reasonable and customary hourly or daily fee for the actual time consumed in the examination of that witness by any party attending the action or proceeding.” (Gov. Code § 68092.5, subd. (a); Michelson v. Camp (1999) 72 Cal.App.4th 955, 975.)

Here, it appears that Defendants tendered a Section 998 offer to Plaintiff on 6/1/22, which Plaintiff ultimately rejected. The jury returned a verdict for Defendants and awarded Plaintiff $0 in monetary damages. Defendants now seek to recover $3,575.00 in expert fees for the work conducted by Michael J. Stahl, D.C. (1/3/23 Mem. of Costs, ¶ 8b.)

Plaintiff argues that Dr. Stahl must have billed costs prior to Defendants’ Section 998 offer of compromise, which was tendered on 6/1/22, and therefore those pre-offer costs are not recoverable. (Pl.’s Mot. 4:5–7.) Plaintiff appears to challenge the truth of the asserted charges, and disputes whether the expert witness could feasibly have provided no pre-offer services at cost while also having been designated as an expert deemed familiar with the case on 3/12/21.

In opposition, Defendants proffer an invoice from the subject expert witness, which reflects that the work he conducted for Defendants was performed after 10/18/22. (Ex. B to Decl. of William A. Brenner.) The invoice reflects Dr. Stahl’s charges, which encompass (1) 2.55 total hours spent on conference calls regarding the case; (2) 1.55 total hours spent reviewing records; and (3) 10 total hours of travel to and attendance at the trial over the span of two days; billed at an hourly rate of $250 per hour. (Ibid.)

The Court notes that Plaintiff has not challenged the reasonableness of the Dr. Stahl’s rate, nor the validity or authenticity of the invoice, and only disputes the veracity of the dates listed on the invoice. This argument alone is insufficient to meet Plaintiff’s burden to show that the costs were not reasonable nor necessary. Accordingly, the Court denies Plaintiff’s motion to strike and/or tax Defendants’ expert fees.

2.      Filing/Service Fees

Code of Civil Procedure section 1033.5 allows for the recovery of costs incurred for “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.” (Code. Civ. Proc. § 1033.5, subd. (a)(14).) Here, Defendants seek to recover $340.88 for such fees. (1/3/23 Mem. of Costs, ¶ 8b.)

Plaintiff argues that the amount of electronic filing fees is unreasonable because “there is no reason why the defense counsel or their firm could not file or serve documents electrically [sic] or issue subpoenas without an assistance of a third party. Hiring [a] third party to provide these services were not reasonably necessary for the litigation of this matter and is quintessential example of mere convenience.” (Pl.’s Mot. 6:11–14.)

In opposition, Defendants proffer the invoices from ACE Attorney Service, the third party electronic filing service provider, as well as cost statements from their attorney’s law firm, showing various case filings billed and paid for. (Exs. C and D to Brenner Decl.) Such documents include motions in limine and notices of non-oppositions thereto. (Ibid.)

Plaintiff again appears to place the burden on Defendants to show that these fees are “reasonably necessary.” As previously discussed, the burden is on the party seeking to tax facially valid costs to show they were not reasonable or necessary. (Ladas, 19 Cal.App.4th at 774–776.) For example, the party seeking to tax costs has the burden of establishing that claimed costs for courier and messenger services, incurred for filing documents with the court and complying with document demands, were excessive. (Id. at 776.)

The Court finds that Plaintiff has not met this burden, as he has not substantively challenged any of the individual filing fees as excessive, only that “the remainder of electronic filing fee was just merely convenience for the defense firm to have a third-party file document [sic] on their behalf.” (Pl.’s Reply 3:7–8.) Accordingly, the Court denies Plaintiff’s motion to strike and/or tax Defendants’ electronic service/filing costs.

CONCLUSION

The motion is denied.