Judge: Anne Hwang, Case: 21STCV05930, Date: 2023-11-29 Tentative Ruling

Case Number: 21STCV05930    Hearing Date: November 29, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On February 16, 2021, Plaintiff Rodrigo Castillo (Plaintiff) filed a complaint against Defendants Steve Fein and Sheila Fein (Defendants) for alleged injuries he sustained while trimming a tree on their property.

On April 7, 2021, Defendants filed an answer.

On June 21, 2023, the Court granted Defendants’ motion for summary judgment. Judgment for Defendants was entered on August 8, 2023.

On August 10, 2023, Defendants filed and served their Memorandum of Costs on form MC-011, claiming $24,967.69 in costs.

On August 25, 2023, Plaintiff filed the instant motion to strike Defendants’ Memorandum of Costs, or in the alternative, Tax Costs.

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. section 1032, subd. (b).) Under Code of Civil Procedure section 1033.5, subd. (c)(2), allowable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.”¿Subdivision (3) requires: “Allowable costs shall be reasonable in amount.”¿“Items not mentioned in [Section 1033.5] and items assessed upon application may be allowed or denied in the court’s discretion.” (Code Civ. Proc., § 1033.5, subd. (c)(4).) 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. (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308.)

On a motion to tax, “[i]f 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. Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. However, because the right to costs is governed strictly by statute a court has no discretion to award costs not statutorily authorized.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774, internal citations omitted.) “The court’s first determination, therefore, is whether the statute expressly allows the item, and whether it appears proper on its face. If so, the burden is on the objecting party to show them to be unnecessary or unreasonable.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, internal citations omitted.) The objecting party does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. (Litt v. Eisenhower Med. Ctr. (2015) 237 Cal.App.4th 1217, 1224; Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.)

DISCUSSION

As Plaintiff did not “recover any relief against” Defendants, Defendants are the prevailing party in this action. (Code Civ. Proc., § 1032, subd. (a)(4).) Defendants are therefore entitled to recover their costs.

Plaintiff objects to and seeks to strike the following portions of Defendants’ memorandum of costs: filing and motion fees, jury fees, deposition costs, service of process, witness fees, court-ordered transcripts, interpreter fees, fees for electronic filing or service, and other.

Filing, Motion, and Jury Fees

Plaintiff does not provide any evidence or argument as to why the filing or motion fees are unreasonable, and simply argues that Defendants should seek a refund from the Court for jury fees. Code of Civil Procedure section 1033.5(a)(1) expressly allows for filing, motion, and jury fees. (See also Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 576 [jury fee was reasonable litigation expense and recoverable even though defendant prevailed on summary judgment because defendant was required to pay the fee to preserve its right to a jury trial].) Accordingly, the Court denies the motion as to these costs.

Deposition Costs

Plaintiff argues that various deposition costs were neither reasonable nor necessary. However, the memorandum of costs was verified and appears to be proper on its face. Code of Civil Procedure section 1033.5(a)(3)(A) expressly authorizes costs for the “[t]aking, video recording, and transcribing” necessary depositions. Plaintiff has provided no evidence in response. Plaintiff has therefore not met his burden. (See County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113-14 [the party did not meet its burden where it submitted no affidavits in support of motion to tax costs, but merely alleged depositions were unnecessary or unreasonable].) Accordingly, the Court denies the motion as to these costs.

Plaintiff also challenges as unauthorized a certificate of non-appearance fee ($550) and video cancellation fee ($325) for witness Felipe Herrera. These charges are not expressly authorized by Code of Civil Procedure section 1033.5. Accordingly, the Court grants the motion as to these costs.

Court-Ordered Transcripts

Plaintiff argues that the Court did not order that Defendants transcribe the hearings for their Motion to Compel Physical examination ($687.50) or their Motion for Summary Judgment ($1,247.95). Under section 1033.5, “[t]ranscripts of court proceedings not ordered by the court” cannot be recoverable as costs, unless expressly authorized by law. (Code Civ. Proc. § 1033.5(b)(5).) Although Defendants argue that Government Code section 68086(d) provides that fees of a private court reporter shall be recoverable as taxable costs “as otherwise provided by law,” the Court agrees with Plaintiff that the Court did not order the two proceedings to be transcribed. Accordingly, the motion is granted as to these costs.

Interpreter Fees

Here, the costs for interpreter fees appear reasonable on the face of the memorandum and are expressly authorized by Code of Civil Procedure section 1033.5(a)(3)(B). Plaintiff offers no declaration or other evidence, but merely argument. As a result, Plaintiff has failed to meet his burden to show these costs are unreasonable. Accordingly, the Court denies the motion as to these costs.

Electronic Filing and Other Costs

Plaintiff merely argues that documentation is needed to support the $445.28 in electronic filing fees. This amount appears reasonable on the face of the memorandum and electronic filing fees are expressly authorized by Code of Civil Procedure section 1033.5(1)(14). Defendant has provided documentation in opposition and Plaintiff offers no evidence.

Finally, although Plaintiff objected to the costs under “Service of Process” and “Other” in the Notice of Motion, he fails to discuss these in his memorandum of points and authorities. The Court finds these amounts to be reasonable on their face. By not addressing these, Plaintiff has failed to meet his burden. Accordingly, the Court denies the motion as to these costs.

CONCLUSION AND ORDER

Therefore, Plaintiff’s motion to strike costs is GRANTED in part and DENIED in part.

Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.