Judge Audra Mori, Case 20STCV33913 2023-01-27 Tentative Ruling

Plaintiffs Ik Hoon Choi (“Ik Hoon”) and Hannah Choi (“Hannah”) (collectively, “Plaintiffs”) filed this action against Defendant Filippo Marchino (“Defendant”) for damages relating to a dog bite incident. Plaintiff alleges that on June 16, 2019, Defendant’s dog bit Ik Hoon. The complaint alleges a cause of action for negligence by each of the Plaintiffs against Defendant.

On September 19, 2022, the Court heard and granted Defendant’s motion for summary judgment as to Hannah’s claim only against Defendant. (Min. Order, Sept. 19, 2022.) Thereafter, Defendant filed and served a Notice of Entry of Judgment providing notice of the order granting Defendant’s motion for summary judgment. On October 26, 2022, Defendant filed a Memorandum of Costs seeking $5,386.90 in total costs, which includes $1,017.97 for filing and motion fees, $150 for jury fees, $3,843.24 for deposition costs, $175.69 for service of process costs, and $200 for witness fees.

On November 14, 2022, Plaintiffs filed an objection to Defendant’s Notice of Entry of Judgment,[1] and the instant motion to strike or tax costs. Defendant opposes the motion, and Plaintiffs filed a reply.

Plaintiffs argue that as of filing the motion, a final judgment has not been entered in this matter, so Defendant’s memorandum of costs is premature. Plaintiffs assert there are other issues that remain outstanding, namely Ik Hoon’s claims against Defendant, and any entry of judgment should be delayed until those issues are determined. Further, Plaintiffs contend that Defendant failed to allocate his costs between Ik Hoon and Hannah, and that most of Defendant’s claimed costs were not reasonably necessary to the conduct of the litigation.

In opposition, Defendant contends he is entitled to recover costs as a matter of law. Defendant argues all costs were necessary to defend against Hannah’s claim, and that the costs were reasonable and necessary to prevail. Defendant further asserts that the extent that judgment has not already been entered, the Court should now enter judgment because all of Hannah’s claims were disposed of on summary judgment.

Plaintiffs, in reply, assert that Defendant acknowledges that his memorandum of costs is premature, and Plaintiffs argue that Defendant fails to cite any authority holding Hannah should bear all of Defendant’s costs.

California Rules of Court, Rule 3.1700(a)(1) states: “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.”

In this case, Plaintiffs contend that as of the filing of their motion to tax costs, Defendant failed to file a proposed judgment. However, on January 11, 2023, Defendant filed a proposed order for judgment on Defendant’s motion for summary judgment on Hannah’s negligence claim, which the Court has signed and filed. To the extent that Plaintiffs argue that Defendant’s memorandum of costs was filed prematurely before the proposed judgment was filed, “time limitations pertaining to a memorandum of costs are not jurisdictional [Citation], and the premature filing of a memorandum of costs is treated as ‘a mere irregularity at best’ that does not constitute reversible error absent a showing of prejudice. [Citations.] Rather, courts treat prematurely filed cost bills as being timely filed.” (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 880 [memorandum of costs filed before entry of judgment was not late under Cal. Rules of Court, Rule 3.1700].) Plaintiffs do not argue that, or show that they were, prejudiced in any manner by Defendant’s premature filing of the memorandum of costs. (Ibid.; see Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 961 [“In any event, even the wholly outdated cases cited by counsel have treated premature filing of a cost memorandum as a mere irregularity at best, and we have been offered no reason to impose a contrary rule. In the absence of any possibility that plaintiff was prejudiced in any way by the filing of the cost memorandum, we reject this argument.”].)

Plaintiffs’ reliance on Boonyarit v. Payless Shoesource, Inc. (2006) 145 Cal.App.4th 1188, is therefore misplaced. There, the plaintiff sued multiple defendants, including Payless Shoesource for personal injuries she suffered when she slipped in a shopping center parking lot. (Id. at p. 1190.) In her amended complaint, the plaintiff deleted six of the previously named defendants, including Payless, and she filed a request for dismissal of the six defendants. The court clerk rejected the request for dismissal because of a defect in the form, and a dismissal was never entered. Payless still filed a memorandum of costs as a prevailing party and was awarded costs. (Id. at p. 1191.) On appeal, the plaintiff contended Payless should not have been awarded costs because no judgment or dismissal had been entered. (Ibid.) The Court of Appeal agreed, explaining “Payless never obtained an order of dismissal” and it therefore “failed to perfect its statutory right to costs as a prevailing party under section 1032,” which specifically states that a “prevailing party” is “a defendant in whose favor a dismissal is entered.”[2] (Id. at p. 1193.) But in this case, unlike in Boonyarit, Defendant’s proposed judgment has now been signed and filed.

As to Plaintiffs contention that any entry of a final judgment should be delayed until Ik Hoon’s claims are resolved at trial, Plaintiffs do not dispute that Defendant is the prevailing party as to Hannah’s claims against Defendant. (CCP § 1032(a)(4); see also Etienne v. DKM Enterprises, Inc. (1982) 136 Cal. App.3d 487, 489 [motion for summary judgment that disposes of the action as to certain parties completely is a final, appealable order].)

Therefore, because Plaintiffs do not show any prejudice from Defendant’s prematurely filed memorandum of costs, the request to strike Defendant’s entire memorandum is denied.

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 § 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.)

Plaintiffs assert that Hannah’s claim was for negligent infliction of emotional distress and was secondary to Ik Hoon’s personal injury claim. Plaintiffs argue that as a result, Defendant’s claimed costs should be apportioned between Hannah and Ik Hoon.

In opposition, Defendant contends that this matter was not complex and involved the single alleged dog bite incident, so Defendant contends costs are not required to be apportioned in this case. However, review of the memorandum of costs reveals, and Defendant does not deny, that the costs sought are for litigating against both Hannah’s and Ik Hoon’s claims. However, as Plaintiffs’ assert, Ik Hoon’s claim is premised on the allegation that Defendant’s dog bit Ik Hoon, while Hannah’s claim was premised on a negligent infliction of emotional distress theory after allegedly witnessing injury to her father. Hannah’s and Ik Hoon’s claims are independent, and each could have filed a separate action against Defendant for their claims. Defendant fails to cite any authority holding that Defendant is entitled to recover its complete costs after prevailing against one plaintiff while a second plaintiff continues to litigate their case against Defendant.

The Court has discretion to apportion costs under CCP § 1032. “The recovery of costs is purely statutory, and a prevailing party is entitled as a matter of right to recover costs of suit in any action or proceeding. (Code Civ. Proc., § 1032, subd. (b).) … In apportioning costs in cases involving multiple litigants, trial courts should look to the reason the costs were incurred.” (Ducoing Management, Inc. v. Superior Court (2015) 234 Cal.App.4th 306, 315; compare with Acosta

In the case of Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, the prevailing defendant was not required to apportion costs among the plaintiffs and file separate memorandum of costs as to each where the plaintiffs were represented by the same law firm and pursued a single cause of action in a joint trial against the defendant. (129 Cal.App.4th 1370, 1376-78.) If some costs were not related to the single theory of liability, the plaintiffs could move to tax particular costs on the ground that it was unfair to include such costs in a joint award. (Id. at 1376.)

We have found no California authority to support the proposition that a defendant who is sued by several plaintiffs and who fully prevails against all of them bears the burden of apportioning costs where the plaintiffs were represented by the same law firm and pursued a single cause of action in a joint trial.

Nor does section 1032 explicitly address whether a defendant who prevails against a group of plaintiffs who sued it jointly on a single liability theory must apportion its cost bill among the plaintiffs or groups of plaintiffs. The reason is that in most cases where a defendant is entitled to costs as of right because plaintiffs took nothing in their joint action, there will be nothing to apportion. The costs are joint and several because the plaintiffs joined together (represented by the same attorney) in a single theory of liability against a defendant who prevailed. It is up to the plaintiffs in a motion to tax costs to point out that some costs are not related to the joint theory of liability, but are specific to a particular plaintiff, and it is therefore not fair to include these in a joint award. Plaintiffs did not do so here.

(129 Cal.App.4th 1370, 1376.) Acosta explicitly provides that Plaintiffs may file a motion to tax to point our which costs should be delegated to one plaintiff or the other. Acosta, therefore, makes clear that the Court has discretion to apportion costs as between multiple plaintiffs. (See Andersen v. Pacific Bell (1988) 204 Cal.App.3d 277, 286 [defendant was entitled to recover costs against plaintiffs’ whose claims were dismissed following grant of summary judgment, regardless of remaining plaintiffs in action that might recover their own costs]; Accord. Charton v. Harkey (2016) 247 Cal.App.4th 730, 738 [“ “ ‘When a prevailing party has incurred costs jointly with one or more other parties who are not prevailing parties for purposes of an award of costs, the judge must apportion the costs between the parties’ [based on the reason the costs were incurred and whether they were reasonably necessary to the conduct of the litigation by the jointly represented party who prevailed].” ”].)

Unlike the plaintiffs in Acosta, in this case, Plaintiffs Ik Hoon and Hannah were suing under different theories of liability that could have been the basis of separate actions. Therefore, Defendant may only recover those costs that were incurred and reasonably necessary to prevailing on Hannah’s claims. However, the burden is on Plaintiffs to show that a particular cost was “specific to a particular plaintiff.” (Acosta, 129 Cal.App.4th at 1376.)

Plaintiffs argue that the majority of Defendant’s costs were not pertinent to Hannah’s negligent infliction of emotional distress claim. As to item 1, Plaintiffs contend that the $22.97 related to an Informal Discovery Conference form and the $60 for a motion for evidentiary sanctions filed by Defendant had nothing to do with Hannah’s claim. In opposition, Defendant asserts that Plaintiffs necessitated both of these filings because Plaintiffs, including Hannah, initiated the Informal Discovery Conference, and the motion for sanctions concerned Plaintiffs’ counsel’s unauthorized videotaping of depositions. Plaintiffs do not respond to these contentions in the reply.

Defendant, thus, establishes that the Informal Discovery Conference form and motion for evidentiary sanctions were necessary to the conduct of this litigation as to Hannah’s claims. However, the Court does not find it appropriate to apportion the full cost of these filing fees only to Hannah, as Defendant provides the filings were also made by Ik Hoon. Therefore, Hannah is apportioned 50% of these costs, or $41.49 [$82.97/2].

Plaintiffs’ motion to tax costs is granted in the amount of $41.48 as to item 1.

Plaintiffs argue the $150 sought for jury fees are premature and redundant because Ik Hoon’s claims remain. Jury fees are paid per side, not per party. In other words, regardless of the number of plaintiffs, Defendant had to pay $150 to avoid waiver of a jury under Code of Civil Procedure section 631. Because Ik Hoon’s claims remain, Defendant must still pay the $150 if Defendant wants a jury trial. As Defendant has not indicated any desire to waive a jury as to Ik Hoon’s claims, Plaintiffs’ motion to tax costs is granted as to item 2.

Plaintiffs argue that the deposition costs sought by Defendant concerning Defendant’s, Ik Hoon’s, Hannah’s, and animal control officer William Van Stralen’s depositions should be stricken because they were not necessary to the conduct of Hannah’s claims.

As Defendant asserts, allowable costs include “Taking, 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).)

Defendant avers that animal control officer William Van Stralen’s (“Stralen”) deposition was necessary because Hannah herself called animal control and provided multiple statements to Stralen regarding what Hannah perceived at the time of the incident. Furthermore, Defendant asserts he is entitled to recover ordinary witness fees incurred to compel Stralen’s attendance at the deposition. Plaintiffs do not respond to these contentions in their reply, and thus, Plaintiffs fail to show that any particular portion of Stralen’s deposition cost was not necessary to the conduct of Hannah’s claims. Similarly, as to item 5, which seeks $175.69 for service of process costs relating to Stralen, Plaintiffs fail to articulate any reasoning as to why such service was not necessary to the conduct of the litigation pertaining to Hannah’s claims.

However, as to the witness fees for Stralen, CCP § 1033.5 provides that a prevailing party may recover “Ordinary witness fees pursuant to Section 68093 of the Government Code.” Government Code § 68093 states, “Except as otherwise provided by law, witness' fees for each day's actual attendance, when legally required to attend a civil action or proceeding in the superior courts, are thirty-five dollars ($35) a day and mileage actually traveled, both ways, twenty cents ($0.20) a mile.” Defendant’s memorandum of costs merely provides that Defendant is seeking to recover $200 as the daily fee for Stralen’s deposition. However, Defendant fails to establish that it he is entitled to $200 in this case for the deposition fee. Defendant is awarded $35 for Stralen’s daily fee; the remaining $165 are taxed from the memorandum of costs.

As to Hannah’s, and Defendant’s depositions, Plaintiffs contend that Defendant should not recover the costs for his own deposition transcript, or the costs for videotaping Hannah’s deposition. However, these costs are expressly permitted under CCP § 1033.5(a)(3)(A). Additionally, Defendant avers that each of these depositions, including Hannah’s, were necessary to establish that Hannah did not perceive the subject incident. Plaintiffs do not dispute Defendant’s arguments that these depositions were necessary in their reply.

As to Ik Hoon’s deposition, Defendant contends that Ik Hoon’s deposition addressed various issues concerning Hannah, including whether Hannah was present, and whether Ik Hoon could see Hannah at the time of the incident, which were crucial to Hannah’s claims against Defendant.

However, the Court does not find it appropriate to apportion the full cost of Hannah’s, Ik Hoon’s, and Defendant’s depositions only to Hannah, as Defendant may use the testimony obtained therein in the case filed by Ik Hoon. Therefore, Hannah is apportioned 50% of these costs, or $527.23 for Hannah’s deposition [$1,054.45 total costs/2], $245.50 for Defendant’s deposition [$491.00 total costs/2], and $748.20 for Ik Hoon’s deposition [$1,496.39 total costs/2].

Therefore, the motion to tax costs as to item 4 is granted in the amount of $1,520.91 [$527.22 + $245.50 + $748.19]. The motion is granted as to item 8 in the amount of $165.00.

Based on the foregoing, Plaintiffs motion to tax costs is granted in the total amount of $1,877.39 ($41.48 [filing and motion fees] + $150 [jury fees] + $1,520.91 [deposition costs] + $165 [witness fees].)

Hon. Audra Mori

Judge of the Superior Court

[1] Plaintiffs objected to Defendant’s Notice of Entry of Judgment on the grounds that the Court had not yet entered judgment, and the minute order granting the summary judgment motion is not itself a judgment.

[2] Section 1032(a)(4) provides in total: “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034 .