Judge: Armen Tamzarian, Case: BC717774, Date: 2023-11-16 Tentative Ruling

Case Number: BC717774    Hearing Date: November 16, 2023    Dept: 52

Plaintiff Michal Ben-Shoshan’s Motion Strike or, in the Alternative, to Tax Costs

Plaintiff Michal Ben-Shoshan moves to strike or tax numerous items in defendant Zohar Tsfira’s memorandum of costs.

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.  “ ‘An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (§ 1033.5, subd. (c)(2).)’ ”  (Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1128 (Sanford).)  All costs awarded by the court must be reasonable and necessary.  (7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 118, pp. 657-658.)

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, supra, 246 Cal.App.4th at p. 1128; accord Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 855 (Benach) [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.) 

Striking Entire Memorandum of Costs

Plaintiff moves to strike the entire memorandum of costs for three reasons.  First, she argues the court should strike all costs because she received a waiver of court fees.  She provides no authority permitting a court to strike a prevailing party’s entire memorandum of costs on that basis.  A fee waiver generally applies only to specified court costs.  (Gov. Code, § 68631; Cal. Rules of Court, rule 3.55.)  Second, plaintiff argues defendant “used his insurance to pay for his representation and costs.”  That is irrelevant.  “Costs are allowable if incurred, whether or not paid.”  (CCP § 1033.5(c)(1).)  Third, plaintiff argues the court should strike all costs because defendant did not fill out the second page of form MC-010 concerning service of the memorandum.  The memorandum, however, includes an attached proof of service on plaintiff. 

Court Reporter Fees

            Plaintiff moves to tax all $21,685 in court reporter fees in defendant’s memorandum of costs.  “Court reporter fees as established by statute” are recoverable.  (CCP § 1033.5(a)(11).)  Among other reasons, plaintiff argues she should not be required to pay this cost because of her fee waiver.  “The fee” for an official court reporter “shall be waived for a person who has been granted a fee waiver under Section 68631.”  (Gov. Code, § 68086(b).)  Government Code section 68086(d)(2) provides, “The Judicial Council shall adopt rules to ensure… [t]hat if an official court reporter is not available, a party may arrange for, at the party’s expense, the presence of a certified shorthand reporter to serve as an official pro tempore reporter.  …  The fees and charges of the certified shorthand reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law.” 

California Rules of Court, rule 2.956(c) provides, “If the services of an official court reporter are not available for a hearing or trial in a civil case, a party may: (1) Arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter, whom the court must appoint unless there is good cause shown to refuse to do so.  It is that party’s responsibility to pay the reporter’s fee for attendance at the proceedings, but the expense may be recoverable as part of the costs, as provided by law; or (2)  If the party has been granted a fee waiver, request that the court provide an official reporter for attendance at the proceedings.  The court must provide an official reporter if the party has been granted a fee waiver and if the court is not electronically recording the hearing or trial.”  If the party with a fee waiver makes a proper and timely request, “[t]he court reporter’s attendance is to be provided at no fee or cost to the fee waiver recipient.”  (Rule 2.956(c)(2)(D).)

On July 29, 2022, plaintiff filed a request on form LASC CIV 269 for court reporting services at no cost pursuant to her fee waiver.  She timely filed her request more than 10 days before the trial, which began August 24, 2022.  With limited exceptions, however, the court did not provide an official court reporter at the trial—a common occurrence in civil actions.  Many “of the superior courts throughout the state have adopted new policies limiting the availability of official court reporters to only a narrow category of civil cases, which generally do not include ordinary contract, personal injury, or professional negligence cases.”  (Jameson v. Desta (2018) 5 Cal.5th 594, 610 (Jameson).)  Defendant arranged for a certified reporter and incurred $21,685 in expenses. 

Taxing these costs is appropriate.  “[U]nder California law when a litigant in a judicial proceeding has qualified for in forma pauperis status, a court may not consign the indigent litigant to a costly private alternative procedure that the litigant cannot afford and that effectively negates the purpose and benefit of in forma pauperis status.  In other words, whatever a court’s authority may be in general to outsource to privately compensated individuals or entities part or all of the court’s judicial duties with respect to litigants who can pay for such private services, a court may not engage in such outsourcing in the case of in forma pauperis litigants when the practical effect is to deprive such litigants of the equal access to justice that in forma pauperis status was intended to afford.”  (Jameson, supra, 5 Cal.4th at p. 622.)  In Jameson, “no court reporter was present,” so “no reporter’s transcript of the trial was available or prepared.”  (Id. at p. 598.)  The California Supreme Court held that “the trial court erred in failing to make an official court reporter available to plaintiff upon request.”  (Id. at p. 623.) 

Here, rather than proceeding without a court reporter, defendant provided one.  Defendant prevailed at trial and now claims $21,685 in court reporter fees.  Plaintiff was entitled to an official court reporter at no cost.  The court was obligated to provide one.    Requiring plaintiff to pay this great expense would negate the purpose and benefit of in forma pauperis status.  Doing so would have a chilling effect on indigent litigants’ “ability to obtain meaningful access to the judicial process.”  (Jameson, supra, 5 Cal.5th at p. 604.)  The court therefore will tax all court reporter fees.

The court also taxes these court reporter fees as “merely convenient or beneficial” to litigating this action rather than “reasonably necessary to the conduct of the litigation.”  (CCP § 1033.5(c)(2).)  Defendant knew plaintiff “was granted an official court reporter for the trial” due to her fee waiver.  (Carpenter Decl., ¶ 9.)  There was a “shortage of reporter[s].”  (Ibid.)  Defendant’s counsel states, “Defendant informed Plaintiff and the Court, that it would provide its reporter as a backup.  A court reporter provided by the court did not appear for any other day of trial, and as such Defendant was required to provide and pay for the reporter.  Defendant’s counsel never asked the court provided court reporter to appear.”  (Ibid.)

Defendant thus knew plaintiff was entitled to an official court reporter at no cost. Waiting for one to be available may have been inconvenient.  By providing a reporter, defendant avoided that inconvenience.  But doing so was not reasonably necessary to the conduct of the litigation.    

Other Expenses

            Defendant is entitled to recover all other expenses stated in the memorandum of costs.  “Filing, motion, and jury fees” (CCP § 1033.5(a)(1)), “[t]aking, video recording, and transcribing necessary depositions” (id., subd. (a)(3)(A)) are expressly allowed.  Plaintiff makes only conclusory arguments that these fees were not necessary.  The court finds they were all reasonably necessary.  “[T]he enlargements of exhibits and photocopies of exhibits … may be allowed if they were reasonably helpful to aid the trier of fact.”  (Id., subd. (a)(13).)  The court finds defendant incurred a reasonable amount of fees in copying and presenting exhibits, which were reasonably helpful to aid the trier of fact.  Defendant also reasonably incurred all claimed “[f]ees 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.”  (Id., subd. (a)(14).)  The court’s first amended general order issued May 3, 2019, requires represented litigants to electronically file documents.   

Plaintiff moves to tax $1,172 defendant paid to “Westlake investigation.”  (MC-011, p. 5.)  “Investigation expenses in preparing the case for trial” are not recoverable.  (CCP § 1033.5(b)(2).)  Defendant’s counsel, however, states, “[T]he Westlake investigation cost of $1,172.60 was incurred to personally serve witnesses for depositions and advance witness fees.”  (Carpenter Decl., ¶ 10.)  The invoice from Westlake Investigation Agency, Inc. states it is for “Service of deposition subpoenas” and itemized costs including “Witness Fees” (Memo. of Costs, p. 45 of 47.)  “Service of process” (CCP § 1033.5(a)(4)) and “[o]rdinary witness fees” (id., subd. (a)(7)) are recoverable.  That the service provider was named “Westlake Investigation Agency, Inc.” does not supersede defendant’s evidence that the expense was incurred for recoverable purposes.

All other costs not expressly allowed were reasonably necessary to litigate this action and were reasonable in amount.  The court exercises its discretion under Code of Civil Procedure section 1033.5(c)(4) to allow them.

In the opposition, defendant belatedly seeks to claim an additional $1,700 in deposition costs.  “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.”  (Cal. Rules of Court, rule 3.1700(a)(1).)  Defendant may not claim additional costs via the opposition to plaintiff’s motion. 

Disposition   

            Plaintiff Michal Ben-Shoshan’s motion to strike or tax defendant Zohar Tsfira’s memorandum of costs is granted in part.  The court hereby taxes defendant’s memorandum of costs by $21,685 for court reporter fees.  Defendant Zohar Tsfira shall recover $10,218.00 in costs from plaintiff Michal Ben-Shoshan.