Judge: Anne Hwang, Case: 21STCV16330, Date: 2023-09-28 Tentative Ruling

Case Number: 21STCV16330    Hearing Date: March 7, 2024    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 April 30, 2021, Plaintiffs Berta Mirano and Guillermo Munoz Mirano (collectively, “Plaintiffs”) filed a complaint against Fitness International, LLC, LA Fitness, Pacific Investors Group, and Does 1 to 20 for injuries Mirano allegedly sustained from a defective treadmill at a gym. The complaint alleges causes of action for negligence and premises liability. Guillermo Munoz Mirano, Berta Mirano’s husband, also alleges a cause of action for loss of consortium.  

On July 7, 2021, Defendant Fitness International, LLC (“Defendant”) filed an answer.

On September 28, 2023, the Court granted Defendant’s motion for summary judgment.

Judgment for Defendant was entered on November 13, 2023.

On November 14, 2023, Defendant served and filed notice of the entry of judgment.

On November 15, 2023, Defendant filed and served electronically, its Memorandum of Costs (forms MC-010 and MC-011), claiming $7,194.79 in costs.

On December 1, 2023, Plaintiffs filed the instant motion to strike Defendant’s Memorandum of Costs, or in the alternative, Tax Costs. Defendant opposes and Plaintiffs reply.

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 an initial matter, Plaintiffs argue the memorandum of costs was untimely filed and served. “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.” (Cal. Rules of Court, rule 3.1700(a)(1).) Here, notice of the entry of judgment was served on November 14, 2023. Because the Memorandum of Costs was filed the next day, it is timely. Contrary to Plaintiffs’ assertion, the time to file the Memorandum of Costs does not begin to run when summary judgment was granted.

Next, Plaintiffs argue that the Memorandum of Costs was not verified under penalty of perjury. “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 Court, rule 3.1700(a).) Though Plaintiffs cite Code of Civil Procedure section 446 to argue that the Memorandum must be verified under penalty of perjury, section 446 only applies to pleadings. Here, the form Memorandum of Costs complies with the language in rule 3.1700(a), which does not require a verification “under penalty of perjury.”

Next, contrary to Plaintiffs’ assertion, since they did not “recover any relief against” Defendant, Defendant is the prevailing party in this action. (Code Civ. Proc., § 1032, subd. (a)(4) [“ ‘Prevailing party’ includes . . . a defendant as against those plaintiffs who do not recover any relief against that defendant.”].) Defendant is therefore entitled to recover its costs.

Turning to the merits, Plaintiffs object to and seek to strike the following portions of Defendant’s memorandum of costs: filing and motion fees, deposition costs, and other. “An award of costs shall be subject to the following: . . . Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc. § 1033.5(c)(2).)

Filing and Motion Fees

Plaintiffs argue these costs are not reasonably necessary for the conduct of the litigation and unreasonable. Code of Civil Procedure section 1033.5(a)(1) expressly allows for filing, motion, and jury fees. The values appear reasonable on the face of the memorandum and are meant for filings and motions, except for the minute orders in 1(a), 1(b), and the complaint (1(f)).  The declaration in support of the motion does not provide evidence regarding the unreasonableness of the remaining motion and filing fees. Therefore, Plaintiffs fail to meet their burden. Similarly, Defendant fails to show how downloading the minute order and complaint are motion and filing fees under section 1033.5. Accordingly, the Court grants the motion to strike 1a, 1b, and 1f, totaling $42.00 and denies the motion as to the remaining costs.

Deposition Costs

Plaintiffs challenge $5,000.04 in deposition costs. Code of Civil Procedure section 1033.5(a)(3)(A) expressly authorizes costs for the “[t]aking, video recording, and transcribing” necessary depositions. Additionally, obtaining business records through a deposition subpoena is a “deposition” within section 1033.5(a)(3) and recoverable as a cost. (See Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 576-78.)

Plaintiffs argue the depositions costs were not reasonably necessary for the litigation. Looking at the face of the memorandum, the amount for depositions appears reasonable. Plaintiffs provide no evidence why the amount is unreasonable. Therefore, the Court denies the motion as to these costs. (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].)

Other

Lastly, Plaintiffs challenge item 16: the $795.45 fee for the Court Reporter at the hearing on the motion for summary judgment. They argue this amount is excluded by section 1033.5(b)(5) which prohibits costs of “[t]ranscripts of court proceedings not ordered by the court.” However, section 1033.5(a)(11) permits recovery of “Court reporter fees as established by statute.”[1] Court reporter fee “charges are not for transcripts. They are for court reporter fees, an entirely different expense. The parties have to pay the court reporter regardless of whether anyone orders transcripts.”  (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58.)  

The amount appears reasonable on the face of the Memorandum of Costs. Therefore, Plaintiffs have failed to show that the costs were for transcripts or otherwise unreasonable. The motion is denied as to this cost.   

CONCLUSION AND ORDER

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

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