Judge: Armen Tamzarian, Case: BC644314, Date: 2025-02-07 Tentative Ruling

Case Number: BC644314    Hearing Date: February 7, 2025    Dept: 52

Defendant County of Los Angeles’s Motion to Strike or Tax Costs

Defendant County of Los Angeles moves to strike or tax numerous costs claimed in plaintiff Kassandra Smith’s memorandum of costs.

Defendant does not dispute that plaintiff is entitled to recover costs as the prevailing party.  Instead, defendant argues the amount of costs plaintiff seeks to recover is too high.

In FEHA cases, the prevailing party may recover costs, in the court’s discretion, including expert witness fees and costs allowable under Code of Civil Procedure section 1033.5.  (See Gov. Code § 12965, subd. (c)(1)(E)(6); Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 105-106.)

Code of Civil Procedure section 1033.5, subdivision (a) sets forth a list of allowable costs.  Section 1033.5, subdivision (b) lists costs that are not allowable.  Items not expressly allowed or prohibited “may be allowed or denied in the court’s discretion.”  (Id., subd. (c)(4).)  All costs recovered “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” (id., subd. (c)(2) and “shall be reasonable in amount” (id., subd. (c)(3)).

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’s reply brief significantly changed the amounts defendant challenges.  The court will therefore address the items specified in defendant’s reply.

Item 1: Filing Fees

Defendant contests $564.95 of plaintiff’s filing fees.  Of the items challenged, defendant meets its burden of showing $168 is not recoverable because plaintiff claims above the amounts specified in the court’s fee schedule.  Pursuant to the court’s fee schedule, plaintiff claims $83 above schedule for filing the complaint (fee schedule, item 1), $35 extra for filing the amended complaint (id., item 27), and an extra $50 for advanced jury fees (id., item 70).  The other expenses were reasonably necessary to the litigation and reasonable in amount.  The court will therefore tax this element of costs by $168.

Item 2: Jury Fees

            The parties agreed plaintiff should recover $2,462.46 instead of the $2,939.76 claimed.  The court will therefore tax this item of costs by $477.30.

Item 4: Deposition Fees

            Defendant contests $1,826.48 of plaintiff’s claimed costs.  The court finds the fees to expedite transcripts were reasonably necessary.  It was not necessary, however, to pay $762.45 to take affidavits of nonappearances after defendant gave advance notice that the depositions would not occur.  Nor was it necessary to incur $61.13 in interest due to a late payment.  The court will tax this item by $823.58.

Item 5: Service of Process

            Defendant challenges $1,522.21 of these costs.  For the reasons stated in defendant’s reply brief, the challenged costs were not recoverable or not reasonably necessary.  The court will tax this item of costs by $1,522.21.

Item 8: Expert Witness Fees

            Defendant contests $7,083.60 incurred for expert Connie Worden.  Defendant successfully moved in limine to exclude Worden’s testimony because plaintiff failed to produce her for deposition.  (McGaffigan Decl., ¶ 5. Ex. 3.)  Plaintiff withdrew Worden as an expert and did not oppose defendant’s motion in limine to exclude her testimony.  (Id., p. 9.)  The court finds fees incurred for Worden were not reasonably necessary to the conduct of the litigation.  The court will therefore tax plaintiff’s expert fees by $7,083.60.

Item 11: Court Reporter Fees

            Defendant moves to strike the entire $53,182.50 of court reporter fees.  In the alternative, defendant moves to tax $6,238.80 for expediting transcripts and $795 for cancelling services on December 3, 2021.  The court finds these expenses were reasonably necessary.  Having prompt access to trial transcripts is often prudent and can assist in conducting the remainder of the trial.  The court will not tax this item of costs.

Item 12: Models, Enlargements, and Photocopies of Exhibits

            Defendant contests $1,008.93 of these charges.  Code of Civil Procedure section 1033.5(a)(13) allows recovering these costs when “reasonably helpful to aid the trier of fact.”  The court finds plaintiff’s use of models, enlargements, and photocopies of exhibits was reasonably helpful.  Defendant does not show these expenses were unreasonable or unnecessary.

Item 14: Fees for Electronic Filing or Service

            Defendant challenges $1,669.76 of these costs.  For the reasons stated in the reply brief, the court will tax this item of costs by that amount.

Item 16: Miscellaneous

            Finally, defendant challenges $6,241.84 of plaintiff’s miscellaneous costs.  Plaintiff’s miscellaneous costs include duplicates, items prohibited under section 1033.5(b), and items that should be included as part of the firm’s overhead.  For the reasons stated in defendant’s reply brief, the court will tax this item of costs by $6,241.84.

Disposition

            Defendant County of Los Angeles’s motion to strike or tax costs is granted in part.  The court hereby taxes plaintiff’s memorandum of costs by $17,986.29.  Plaintiff Kassandra Smith shall recover $96,511.26 in expenses claimed in her memorandum of costs.