Judge Audra Mori, Case BC670775 2023-02-08 Tentative Ruling

Plaintiff Jose Luis Martinez Zarate (“Plaintiff”) filed this action against Defendant City of Whittier (“Defendant”) for damages Plaintiff sustained when he was riding his bicycle and encountered an alleged dangerous condition of public property. Plaintiff alleges that “as Plaintiff was riding his bicycle on the Subject Street, at the Subject Location, the tire(s) of the Plaintiff's bicycle fell into, got caught by, got stuck in, was affected by and/or became wedged in the Subject Fissures/Gaps/Cracks, causing Plaintiff to fly off of his bicycle and land onto the ground, thereby causing Plaintiff to suffer severe and permanent injuries and damages.” (Compl. ¶ 8.)

On September 22, 2022, Defendant’s motion for summary was heard and granted after Defendant met its moving burden of proving that it was entitled to design immunity as to the subject road and bicycle path and concrete or cold joints on them, and Plaintiff did not meet the shifted burden of proving that Defendant’s design immunity had been lost.

On December 5, 2022, Defendant filed its memorandum of costs seeking total costs of $19,657.72, which includes for $2,790.62 for deposition costs, $1,625.00 for interpreter fees, and $15,242.10 for expert fees.[1]

On December 23, 2022, Plaintiff filed the instant motion to tax costs. Defendant opposes the motion. Any reply was due on or before February 1, 2023.[2] As of February 3, 2023, no reply has been filed.

Plaintiff asserts he is moving to tax Defendant’s memorandum of costs pursuant to CCP § 1032 and moving to tax attorney fees pursuant to CCP § 1038 because Plaintiff’s government claim form and complaint were filed in good faith. Plaintiff generally argues that the amounts requested were not reasonable or necessary to the litigation, though Plaintiff identifies no particular cost to which he objects. Additionally, Plaintiff asserts that he timely filed the motion as required under California Rules of Court, Rule 3.1700.

In opposition, Defendant argues that it is entitled to its costs as the prevailing party, and Defendant asserts that its request for deposition and interpreter costs are appropriate. Further, Defendant argues that Plaintiff’s motion was untimely filed and served.

California Rules of Court, Rule 3.1700(b)(1) states: “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).”

In this case, Defendant electronically served its memorandum of costs on Plaintiff on December 5, 2022. As Plaintiff acknowledges in his motion, this meant that Plaintiff was required to file and serve the motion by December 22, 2022. (Mot. at p. 3:19-22.) However, the issue is that the Court’s record show that the motion was not filed until December 23, 2022, and the proof of service attached to the motion were electronically served on Defendant on December 23, 2022. Defense counsel provides in the opposition that the motion was served electronically at 12:15 a.m. on December 23, 2022. The motion, thus, was served only approximately 15 minutes late, and Defendant shows no actual prejudice from the filing. The Court exercises has discretion to extend the deadline for the filing a motion to strike for a period of not more than 30 days, which extension the Court hereby grants. (Cal. Rules of Court, Rule 3.1700(b)(3); accord. Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 880 [time limitations pertaining to memorandum of costs are not jurisdictional].)

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 or 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.)

As a preliminary matter, concerning Plaintiff’s request the Court deny Defendant’s request for attorney fees, Defendant’s memorandum of costs does not seek any attorney fees. Additionally, to the extent that Plaintiff asserts that he filed his government claim and complaint in good faith, Plaintiff fails to cite any authority holding that his purported good faith is relevant to determining what costs Defendant is entitled to as the prevailing party in this action.

Plaintiff fails to identify any other particular item on the Memorandum of Costs to which it objects. Thus, it does not appear that any particular item is properly challenged, and the Motion to Tax might be denied on this basis.

However, the Court will address those costs that Defendant argues are appropriate in its Opposition. As to the deposition costs of $2,790.62 and the interpreter fees of $1,625.00 requested in Defendant’s memorandum of costs, Plaintiff does not provide any reasons to show the depositions of the persons listed on the memorandum of costs were unnecessary, and Plaintiff does not otherwise provide any argument or evidence showing the claimed costs for the depositions were unreasonable. Similarly, Plaintiff does not provide any argument as to why the interpreter fees sought were unnecessary to the conduct of the litigation. Moreover, in opposition, Defendant asserts that the interpreter was necessary for Plaintiff’s deposition due to Plaintiff not being fluent in English, and that the deposition costs were incurred in relation to Defendant having to notice Plaintiff’s deposition multiple times and to the depositions for Defendant’s persons most knowledgeable that were noticed by Plaintiff.

Accordingly, the motion is denied as to the deposition costs of $2,790.62 and the interpreter fees of $1,625.00 requested in Defendant’s memorandum of costs.

As to the request for expert fees, CCP § 1033.5(b)(1) provides that expert fees not ordered by the Court are not allowable as costs, except when expressly authorized by statute. Defendant’s memorandum states that Defendant is seeking the expert fees per CCP § 998. (Memo. of Costs at p. 4.) “A ‘verified memorandum of costs is prima facie evidence of the propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.” (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486.) Thus, because Defendant’s verified memorandum of costs constitutes prima facie evidence that the listed expert witness fees were reasonable, Plaintiff has the burden on the motion to tax costs of showing that the fees were improper and unnecessary. (Id.; Bender v County of Los Angeles (2013) 217 Cal.App.4th 968, 989.) Plaintiff, however, offers no evidence showing that the expert fees were unreasonable, or suggesting that Defendant are otherwise not entitled to their requested expert fees.

Therefore, the motion is denied as to the expert fees of $15,242.10 in Defendant’s memorandum of costs.

Defendant must file a proposed judgment with the awarded costs included within ten court days.

Hon. Audra Mori

Judge of the Superior Court

[1] On page 1 of Defendant’s memorandum of costs, Defendant states that it seeks $15,242.10 for “Other.” However, a review of the memorandum makes clear at page 4 that the requested $15,242.10 pertains to expert fees.

[2] Defendant filed its opposition on January 26, 2023, with a declaration attached from defense counsel. On January 27, 2023, Defendant filed a Notice of Errata providing that the attached Exhibits A-L were not attached to the opposition papers due to electrical and internet issues defense counsel experienced on January 26, 2023. In the absence of any showing of prejudice, the Court considers the Exhibits filed with the Notice of Errata.