Judge Audra Mori, Case 20STCV18427 2022-10-13 Tentative Ruling

Plaintiff Emma Flodin (“Flodin”) and Mouad Lahsini (“Lahsini”) (collectively, “Plaintiffs”) filed this action against Defendant UDR Marina Pointe LLC dba the Westerly on Lincoln (“Defendant”), erroneously sued and served as the Westerly on Lincoln Apartments, alleging causes of action for negligence and premises liability. The complaint alleges that Defendant’s property was in a dangerous condition “due to a plate glass window/door that was usually open was left closed and had inadequate warnings, stickers or other means, as well as inadequately lit, making it a potential trap for patrons/tenants such as plaintiff herein.” (Compl. at p. 7.) Plaintiffs allege that Flodin walked directly into the door and sustained severe injuries. (Id.)

Defendant’s motion for summary judgment was previously granted as to Plaintiff’s complaint. Following notice of entry of the judgment, Defendant filed its Memorandum of Costs seeking costs of $6,807.51.

Plaintiffs now move to tax Defendant’s claimed costs. Defendant filed an opposition to the motion. Any reply to the motion was due on or before October 6, 2022. As of October 10, 2022, no reply has been received.

Plaintiffs assert they object to the memorandum of costs in its entirety and particularly items 1, 4 and 5. If the memorandum of costs is not stricken in its entirety, Plaintiffs contend that items 1, 4 and 5 should be taxed in the amount of $5,807.51. Plaintiffs contend there are no supporting affidavits or receipts attached to Defendant’s memorandum showing the costs were reasonable and actually incurred. Alternatively, Plaintiffs request that any recovery by Defendant be limited to no more than $1,000 pursuant to Seever v. Copley Press. Inc. (2006) 141 Cal.App.4th 1550.

In opposition, Defendant contends that there is no dispute it is entitled to its costs as the prevailing party, and that Plaintiffs rely on inapplicable case law in moving to tax Defendant’s costs. Defendant argues that all its costs were reasonably necessary to its defense in this litigation and reasonable in amount. Defendant asserts that Plaintiffs fails to show that Defendant’s costs were unreasonable or unnecessary to the conduct of the litigation.

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP, §1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.)

Allowable costs under CCP Section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. An item not specifically allowable under Section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). If 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. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.) 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. (Ibid.) 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. (Ibid.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.) Discretion is abused only when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.)

Furthermore, whether or not an item is “reasonably necessary” is not the same as “merely convenient of beneficial to its preparation.” (Ladas, supra, 19 Cal.App.4th at 774.) Once proper objections are asserted, the burden of proof rests with the party seeking to recover its costs. (Ibid.) When items are properly challenged by a motion to tax costs and do not appear on their face to be proper and necessary, or if necessity is doubtful, the burden of establishing necessity is on the party claiming those items of costs. (Ibid.) “[T]he mere filing of a motion to tax costs may be a ‘proper objection’ to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. [Citation.] However, ‘[i]f the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].’ [Citations.]” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

In this case, to the extent Plaintiffs moves to tax the entirety of the costs claimed by Defendant, because the charges on their face appear to be proper, the burden is on Plaintiffs to show that the claimed costs were not reasonable or necessary. (Ladas, 19 Cal.App.4th at 773-74.) Plaintiffs contend that Defendant’s memorandum of costs is improper because it does not contain any affidavits or receipts regarding the costs. However, in making this argument, Plaintiffs cite only to CCP § 1033.5. Nothing in this statute states that a prevailing party seeking costs must file affidavits or receipts with its memorandum of costs. Plaintiffs do not cite any authority showing that affidavits or receipts are required to be filed with a memorandum of costs, and thus, Plaintiffs fail to establish that Defendant’s memorandum is defective.

Concerning Defendant’s memorandum of costs, item 1 seeks $1,566.83 for motion and filing fees, item 4 seeks $2,355.70 for deposition costs, and item 5 seeks $2,884.98 for service of process costs.

As to item 1, Plaintiffs assert that they take issue with this cost item, but Plaintiffs fail to articulate any reason why any of the costs listed for item 1 were not reasonable or necessary. (Ladas, supra, 19 Cal.App.4th at 773-74.) The request to tax costs is denied as to item 1.

As to item 4, Plaintiffs argue that the amount being claimed “for the sole deposition is highly outrageous and completely unreasonable.” (Mot. at p. 7:12-13.) However, as Defendant points out in its opposition, Defendant is seeking costs for three depositions, two of which were for each of the Plaintiffs in this case. Plaintiffs fail to provide any reasons to show the depositions of the persons listed on the memorandum of costs were unnecessary, and Plaintiffs otherwise provide no evidence to show the claimed costs for the depositions were unreasonable.

As to item 5 for service of process costs, Plaintiffs contend the item is vague and ambiguous in nature. Plaintiffs contend that CCP § 1033.5 does not allow for reimbursement of photocopying medical records. Further, Plaintiffs argue that Defendant cannot justify the use of the subpoenaed documents. However, Defendant avers that the relevant subpoenas were served to obtain records from medical providers, identified by Plaintiff, that treated Plaintiff for alleged injuries related to the incident, which Plaintiffs do not dispute. Although Plaintiffs contend that CCP § 1033.5 does not allow for reimbursement of photocopying costs, item 5 of Defendant’s memorandum does not identify any costs that are sought for photocopying. Rather, item 5 lists various medical providers that were served with subpoenas. Plaintiffs did not file a reply and do not dispute that these medical providers were identified as providing treatment related to the alleged incident. In any event, Defendant is permitted to recover costs related to obtaining copies of Plaintiffs’ medical records through deposition subpoenas. (Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 576-78.) Plaintiffs fail to show that these costs were not reasonable or necessary to the conduct of this litigation.

Lastly, Plaintiffs cite to Seever v. Copley Press. Inc. (2006) 141 Cal.App.4th 1550, in arguing that Plaintiffs’ financial resources should be considered in determining whether Defendant’s sought costs are reasonable. Unlike this matter, Seever concerned a trial court’s cost award pursuant to CCP § 998. (Id. at 1560-62, overruled on other grounds by Segal v. ASICS America Corp. (2022) 12 Cal.5th 651.) As Plaintiffs acknowledge, Seever held:

Section 998 requires the amount to be “reasonable.” Given the purpose of the statute, reasonableness must be measured by considerations beyond whether it was reasonable for the offering party to have incurred the expense. In our view, the trial court also must take account of the offeree's economic resources in determining what is a “reasonable” cost award.

If the goal of Code of Civil Procedure section 998 is to encourage fair and reasonable settlements—and not settlements at any cost—trial courts in exercising their discretion must ensure the incentives to settle are balanced between the two parties. Otherwise less affluent parties will be pressured into accepting unreasonable offers just to avoid the risk of a financial penalty they can't afford. Thus, when two competing parties possess vastly disparate economic resources, this may require the trial courts to “scale” the financial incentives (in this instance the 998 cost awards) to the parties' respective resources.

(Id. at 1561-62.) However, Seever did not consider whether a court could consider a party’s financial resources when awarding a prevailing party their litigation costs under CCP § 1032. (See State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 614 [“Cases are not authority for propositions not considered therein.”].)

Rather, Plaintiffs “cite[ ] no authority, and we are aware of none, holding that the language of section 1033.5 allowing costs that are ‘reasonable in amount’ and ‘reasonably necessary to the conduct of the litigation’ also confers authority for the court to analyze whether costs are reasonable based on the losing party's ability to pay.” (LAOSD Asbestos Cases (2018) 25 Cal.App.5th 1116, 1124-25.) “Instead, the cases analyzing costs under the applicable statutes focus on whether certain claimed costs were reasonable or necessary.” (Id. at 1125.) While “[i]n contrast to the restrictions in section 1032, courts have interpreted the discretionary authority in section 998 to allow the consideration of a party's ability to pay when determining the appropriate recovery under that statute,” Defendant is not seeking costs under CCP § 998. (Id. at 1127.) Plaintiffs do not establish their alleged inability to pay is relevant to determining whether Defendant’s costs were necessary or reasonable in this matter.

What is more, even if the Court could consider Plaintiffs’ financial condition, Plaintiffs merely submit their counsel’s declaration stating that “Ms. Flodin is a young woman (24 years old) amidst finding a career and providing for herself, while Defendants had the benefit of representation from a multi-million-dollar insurance company…” (Mot. Chambers Decl. ¶ 6.) This is insufficient to find that Plaintiffs lack the ability to pay costs to which Defendants are entitled. (LAOSD Asbestos Cases, 25 Cal.App.5th at 1127.) Plaintiffs must provide evidence of their inability to pay, such as a declaration setting forth their gross income, their net income, their monthly expenses, their assets, or any other information that would support their position. (See Id., citing Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1204.) No such evidence is provided regarding either of the Plaintiffs.

Hon. Audra Mori

Judge of the Superior Court