Judge: Barbara M. Scheper, Case: 20STCV21399, Date: 2022-12-16 Tentative Ruling

Case Number: 20STCV21399    Hearing Date: December 16, 2022    Dept: 30

Dept. 30

Calendar No.

Joiner vs. Builder.AI Corp., et. al., Case No. 20STCV21399

Tentative Ruling re:  Plaintiff’s Motion to Tax Costs

Plaintiff Joshua Joiner (Plaintiff) moves for an order taxing items in the Memorandum of Costs filed by Defendants Engineer.ai, Engineer.ai Global Limited, and SD Squared (collectively, Defendants). The motion is granted in part. The Court taxes Defendants’ Memorandum of Costs in the amount of $33,184.40.

A prevailing party in litigation may recover costs, including but not limited to filing fees. (Code of Civ. Proc. §1033.5, subd. (a)(1).)  Under Code of Civil Procedure section 1033.5, subdivision (c)(2), allowable costs are only recoverable if they are “reasonably necessary to the conduct of the litigation.” Even mandatory costs, when incurred unnecessarily, are subject to section 1033, subdivision (c)(2). (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.)

The memorandum of cost is a verified statement by the party, attorney, or agent that the costs are correct and were necessarily incurred in the case. (Cal. Rules of Court, rule 3.1700(a)(1).) If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses, and services listed therein were necessarily incurred. (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698 (Oak Grove).) “The trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face; if so, the burden is on the objecting party to show the costs to be unnecessary or unreasonable.” (Foothill-DeAnza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29 (Foothill-DeAnza).) The burden of showing that an item is not properly chargeable or is unreasonable is upon the party challenging the costs. (Wilson v. Nichols (1942) 55 Cal.App.2d 678, 682-683 (Wilson).)

Where the items are properly objected to, they are put at issue, and the burden of proof is on the party claiming them as costs. (Oak Grove, supra, 217 Cal.App.2d at p. 698.) In other words, the burden is initially on the objecting party to show that the costs are not proper on their face. Then, the burden shifts to the moving party to justify its costs and expenses. If the costs are not facially proper, that is, the costs are not expressly allowed under a statute, then the moving party must justify the requests for the expenses.

Under section 1033.5, “[a]n 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.’” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).)

Plaintiff contests the following items and amounts in Defendants’ Memorandum of Costs:

Filing and Motion Fees

Plaintiff first seeks to tax $451.20 in Filing Fees incurred for the filing of an answer on February 2, 2021 by Defendant Builder.ai Corporation (Builder.ai). (Motion, Ex. B.) Builder.ai is the dba of Defendant Engineer.ai Corp., and is not a separate entity from Engineer.ai.

            Filing fees are expressly allowable as costs. (Code Civ. Proc. § 1033.5, subd. (a)(1).) However, a court may “disallow recovery of costs, including filing fees, when it determines the costs were incurred unnecessarily.” (Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.)

            In November 2020, Plaintiff’s counsel requested confirmation from Defendants’ counsel that Builder.ai was not a separate corporation from Engineer.ai, and offered to stipulate to dismiss Builder.ai upon such confirmation. (Reply, Ex. 1.) Defendants’ counsel responded in January 2021 to confirm that Builder.ai is not a separate company. (Opposition, Ex. 1.) At that point, Plaintiff’s counsel had already formally served Builder.ai, and so Defendants filed a responsive pleading on behalf of Builder.ai to avoid Entry of Default threatened by Plaintiff’s counsel. (Ibid.)

Based on the above, the Court finds the $451.20 filing fee for Builder.ai was unnecessarily incurred due to Defendants’ failure to timely clarify the status of the entity, and so taxes that amount from Defendants’ costs.

Deposition Costs

Plaintiff contests $7,962.57 incurred by Defendants for certified copies of the depositions of Tooraj Helmi and Sachin Duggal. (Motion, Ex. C.) Plaintiff argues that these costs were unnecessary because Plaintiff sent Defendants an original and courtesy copy of each deposition. (Kaufman Decl. ¶ 5.)

Items allowable as costs include “[t]aking, 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.” (Code Civ. Proc., § 1033.5, subd. (a)(3).) Because Defendants are expressly entitled to costs for one copy of depositions taken by Plaintiff, the Court declines to tax these costs.

            Plaintiff next contests $1,286.25 of the deposition transcript fees on the basis that the court reporter charged $9.95 per page for the transcript of the first session of Joshua Joiner’s deposition, but charged only $6.20 per page for the subsequent sessions. (Motion, Ex. C [47].) Defendants state that this charge was higher because the transcript was ordered on an expedited basis, and argue that the expedited transcript was necessary to support Defendants’ motion for reconsideration filed shortly after the deposition. On this basis, the Court finds that the extra costs from Defendants’ expedited order of the Joiner deposition transcript were reasonably incurred and so declines to tax these costs. (See Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 55 [finding expedited transcript costs justified where party needed to quickly obtain transcript for motion in limine].)

            Finally, Plaintiff requests the Court strike $2,190.57 in fees for other transcripts ordered by Defendants on an expedited basis. Defendants have not offered any justification for the extra costs from the expedited production of the deposition transcripts of Sachin Duggal. However, the attached invoices show fees from expedite charges only in the amount of $1,579.32. (Motion, Ex. C [41, 43, 44].) Accordingly, the Court taxes the deposition costs in that amount.

            In sum, the deposition costs are taxed in the total amount of $1,579.32.

Attachment Expenses

            Plaintiff requests the Court tax all $105 in “Attachment Expenses” claimed by Defendants. Defendants represent that these are court appearance costs that defense counsel inadvertently mislabeled as attachment costs, but offer no evidentiary support for the purported appearance costs. The Court therefore taxes the $105 in costs.

Expert Fees

            Plaintiff next seeks to tax all $1,800 in Expert Fees sought by Defendant.

A party may recover “[f]ees of expert witnesses ordered by the court.” (Code Civ. Proc. § 1033.5, subd. (a)(8).) [A]n expert witness ordered by the court is one who has been appointed by the court pursuant to Evidence Code section 730 or other statutory authority. In the absence of an order of the trial court appointing an expert witness, the fees of an expert witness are not recoverable as costs under Code of Civil Procedure section 1032.” (Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 601.)

            The Expert Fees claimed by Defendants appear to have been incurred for the deposition of Plaintiff’s expert witness, Bruce Pixley. (Kaufman Decl. ¶ 7, Ex. E.) The Court did not enter any order appointing Pixley as an expert witness, and so strikes the associated costs of $1,800.

Court Reporter Fees

            Plaintiff seeks to tax $11,027.77 of Defendants’ claimed Court Reporter Fees, which Plaintiff argues were unnecessarily incurred for various short motion hearings and case management appearances. (Kaufman Decl. ¶ 8, Ex. G [69-77].)

These costs are recoverable, as court reporter fees as provided by statute are expressly allowable as costs. (Code Civ. Proc. § 1033.5, subd. (a)(11); Gov. Code, § 68086; see Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 858.)  Plaintiff argues that these costs are improper because transcripts are not recoverable as costs unless court ordered. (Code Civ. Proc., § 1033.5, subd. (a)(9).) However, court reporter fees are “an entirely different expense” from transcripts; “[t]he parties have to pay the court reporter regardless of whether anyone orders transcripts.” (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58.)

            Plaintiff also requests that the Court tax $1,860.00 in costs incurred for the court reporter at trial, arguing that the fees charged by the reporter inexplicably increased on some dates. The invoices show that the reporter’s full day rate ranged from $2,000 to $2,800. (Kaufman Decl. ¶ 8, Ex. G [78-86].) These fees are expressly allowable as costs and are supported by the invoices, and appear proper on their face. Plaintiff has not met his burden to demonstrate that the amounts charged are unnecessary or unreasonable. Accordingly, the Court declines to strike these costs.

Models, Enlargements, and Photocopying of Exhibits

“Models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.” (Code Civ. Proc. § 1033.5, subd. (a)(13).)

Plaintiff challenges $2,046.81 in costs claimed by Defendants for photocopies of exhibits for trial. Plaintiff argues that these costs are inflated, given the number of pages in Defendants’ exhibits and the cost of photocopying. 

The invoices produced by Defendants in support show charges unrelated to photocopying, including for “General Labor” and purchasing binders. (Kaufman Decl. ¶ 9, Ex. F [65-66].) These costs are not recoverable. In addition, the invoices appear to show that Defendants purchased sets of 1,355 and 1,215 pages (listed as “Digital Prints Color – Grade C (Medium Litigation)”) at the rate of $0.89 per page. The Court agrees with Plaintiff that the amount requested by Defendants here is excessive, and so strikes the costs claimed by Defendants for models, exhibits, and photocopying in the amount of $2,046.81.

Delivery of Courtesy Copies

“Costs for courier or messenger fees are not specifically enumerated as allowable costs in Code of Civil Procedure section 1033.5, subdivision (a), neither are they prohibited in subdivision (b). Thus, messenger fees may be recoverable in the trial court's discretion if ‘reasonably necessary to the conduct of the litigation.’” (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30.)

Plaintiff moves to strike $1,791.53 in fees for delivery of courtesy copies, listed by Defendants as “Fees for Electronic Filing or Service.” (Kaufman Decl, ¶ 10, Ex. H.) These fees are not proper on their face, and Defendants have failed to meet their burden to show that delivery of the courtesy copies were reasonably necessary to the conduct of the litigation. The motion is granted as to these costs.

“Other” costs

            Finally, Plaintiff seeks to tax costs of $25,410.54 listed under the category, “Other.” Defendants’ stated grounds for these costs are “Trial Technician, Exhibit Transcription Services.” (Memorandum of Costs, ¶ 16.)

Costs for trial presentation technology are recoverable when reasonably necessary to the conduct of the litigation. (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 990.) Defendants have not met their burden to show that use of the trial technician was “reasonably necessary to the conduct of the litigation” rather than merely beneficial. The Court therefore strikes the associated costs. The Court also agrees with Plaintiff that the exhibit transcription costs were not reasonably incurred. Accordingly, the costs in the Other category are taxed in full, in the amount of $25,410.54.