Judge: Armen Tamzarian, Case: 22STCV21576, Date: 2024-10-09 Tentative Ruling

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Case Number: 22STCV21576    Hearing Date: October 9, 2024    Dept: 52

Plaintiff Shaul Havivy’s Motion to Tax Costs

Plaintiff Shaul Havivy moves to tax all costs claimed in the memorandum of costs by defendant Nicole Gutierrez.  Defendant served and filed a memorandum of costs (summary) on Judicial Council form MC-010.  The memorandum of costs lists, in full: $472.70 in filing and motion fees, $1,708.25 in deposition costs, and $301.60 in fees for electronic filing or service.

Under Code of Civil Procedure section 1032, the prevailing party is entitled to recover costs.  (§ 1032(b).)  Section 1033.5, subdivision (a) sets forth a list of allowable costs.  Section 1033.5, subdivision (b) lists costs that are not allowable.  If the items on a memorandum of costs appear proper on their face, the prevailing party has produced prima facie evidence the costs were reasonable and necessary (Seaver v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557 (Seaver); Doe v. Department of Children & Family Services (2019) 37 Cal.app.5th 675, 693), and the burden is on the party seeking to tax costs to show otherwise.  (Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1128; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 855 [if the claimed costs are expressly allowable, “ ‘the burden is on the objecting party to show them to be unnecessary or unreasonable’ ”].)  “[I]t is not enough for the losing party to attack the submitted costs by arguing that he thinks the costs were not necessary or reasonable.  Rather, the losing party has the burden to present evidence and prove that the claimed costs are not recoverable.”  (Seaver, at p. 1557.) 

Defendant may recover all costs claimed in her memorandum of costs.  Filing fees of $472.70 are facially recoverable.  “Filing, motion, and jury fees” are recoverable.  (CCP § 1033.5(a)(1).)  The amount of these fees is reasonable.  The first appearance fee alone is $435. 

Plaintiff does not meet his burden of showing these costs are not recoverable.  He argues the expenses were unreasonable because “Plaintiff made numerous attempts to settle this matter without the filing of a lawsuit,” and “Defendant caused this litigation by blatantly stealing money from the Plaintiff, and then giving him no alternative than to file a lawsuit.”  (Motion, p. 4.)  Once plaintiff filed the lawsuit, filing an answer (among other papers) was necessary and reasonable.  Defendant prevailed in this action because plaintiff recovered nothing from her.  Plaintiff may not file a lawsuit, lose, and then object to defendant’s costs because the whole lawsuit was purportedly unnecessary.

Defendant may recover the $1,708.25 in deposition costs she claims.  The prevailing party may recover the costs of “[t]aking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed.”  (CCP § 1033.5(a)(3)(A).)  Plaintiff acknowledges that two depositions were taken in this action: plaintiff and defendant.  Defendant claims a reasonable amount of expenses for taking one deposition and obtaining a transcript of the other deposition. 

Plaintiff does not meet his burden of showing defendant cannot recover these costs.  Plaintiff argues deposing him was unnecessary because the transcript “was not used at trial to impeach the Plaintiff.  No new or relevant information was gained by taking the deposition that was not already contained in Plaintiffs Complaint and in his written responses to discovery propounded by Plaintiff.”  (Motion, p. 4.)  Defendant could not know that in advance.  Deposing the plaintiff is among the most basic discovery necessary in every lawsuit. 

Finally, defendant may recover $301.60 in electronic filing or service fees.  “Fees for the electronic filing or service of documents” are recoverable.  (CCP § 1033.5(a)(14).)  Defendant served and filed at least 10 separate papers in this action.  She claims a reasonable amount of electronic filing and service fees. 

Plaintiff does not meet his burden of showing defendant cannot recover her fees for electronic filing or service.  Plaintiff argues this item “appears to be for the filing fee for Defendant’s Cross-Complaint for Declaratory relief,” for which she “was not the prevailing party.”  Though defendant recovered nothing on her cross-complaint, she is still the prevailing party.  “[W]hen neither the plaintiff nor the defendant who has filed a cross-complaint prevails, the defendant is the prevailing party entitled to costs.”  (McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn. (1991) 231 Cal.App.3d 1450, 1454.)  Moreover, unsuccessful efforts are not per se unreasonable or unnecessary.  (Simers v. Los Angeles Times Communications LLC (2024) 104 Cal.App.5th 940, 947; Rozanova v. Uribe (2021) 68 Cal.App.5th 392, 399; State Farm General Insurance Company v. Lara (2021) 71 Cal.App.5th 197, 218.) 

Disposition   

            Plaintiff Shaul Havivy’s motion to tax costs is denied.  Defendant Nicole Gutierrez shall recover all $2,482.55 in expenses claimed in her memorandum of costs.