Judge Barbara M. Scheper, Case Number: 23STCV08704, Date: 2024-12-09 Tentative Ruling

Judge: Barbara M. Scheper, Case: 23STCV08704, Date: 2024-12-09 Tentative Ruling

Case Number: 23STCV08704 Hearing Date: December 9, 2024 Dept: 30

Dept. 30

Calendar No.

Griffis, et. al. vs. 7520 S. Broadway, LLC, et. al., Case No. 23STCV08704

Tentative Ruling re: Defendant’s Motion to Tax Costs

Tentative Ruling re: Plaintiff’s Motion to Tax Costs

7520 S. Broadway, LLC (Defendant) moves to tax the memorandum of costs filed by Charvette Michelle Griffis and David Doye (Plaintiffs). The motion is denied.

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 limitation under section 1033, subdivision (c)(2). (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.)

The memorandum of costs 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.) “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.) 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.)

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.)

The Court entered judgment on October 15, 2024. Plaintiffs prevailed on two causes of action and were awarded damages. Plaintiffs filed a memorandum of costs on October 17, 2024. Defendant moved to tax Plaintiffs’ memorandum on various grounds on November 4, 2024. Plaintiffs filed an opposition on November 22, 2024. Defendant filed a reply on December 2, 2024. Because the reply advances entirely new arguments, the Court will not consider it.

As a threshold matter, Defendant argues that all of Plaintiffs’ claimed costs should be halved because Plaintiffs only prevailed on two out of four causes of action. Because all of the causes of action relied on virtually the identical facts there is no basis to allocate the costs. Accordingly, the Court will not halve all of Plaintiffs’ costs.

First, Plaintiffs seek $735 to recover costs for filing and motion fees. (Memorandum of Costs ¶ 1.) Filing, motion, and jury fees are allowable costs. (Code Civ. Proc., § 1033.5, subd. (a)(1).) Defendant objects to an ex parte application filed by Plaintiffs and a JNOV motion filed after trial as not being necessary to the litigation. Plaintiffs needed counsel present at the final status conference, and the ex parte application ensured this result. (Strom Decl. ¶ 3.) Additionally, Plaintiffs’ post-trial motions are standard and reasonable. Thus, the Court does not tax any costs claimed by Plaintiffs as motion or filing fees.

Second, Plaintiffs seek $14,291.36 for costs related to depositions. (Memorandum of Costs ¶ ¶ 4.) Costs related to the taking, video recording, and transcribing of necessary depositions are allowable under statute. (Code Civ. Proc., § 1033.5, subd. (a)(3).) However, fees of experts not ordered by the Court are expressly disallowed. (Id. § 1033.5, subd. (b)(1).) Defendant argues that the inconsistency of cost per page between various depositions taken by Plaintiffs make the costs unreasonable. Defendant fails to account for the cost of photocopying exhibits and other miscellaneous charges involved in court reporter services. (Strom Decl. ¶ 5, Ex. 3.) The Court finds Plaintiffs’ claimed costs reasonable, including the fees required for expert depositions. Such fees do not constitute fees paid to experts, which are disallowed under section 1033.5, subdivision (b)(1). Thus, the Court does not tax any costs claimed by Plaintiffs relating to depositions.

Third, Plaintiffs claim $1,263.06 in jury fees. (Memorandum of Costs ¶ 2.) These fees are authorized under section 1033.5, subdivision (a)(1). Plaintiffs have provided evidence of jury fees incurred, as requested by Defendant. (Strom Decl. ¶ 4, Ex. 2.) The Court does not tax any costs claimed by Plaintiffs relating to jury fees.

Fourth, Plaintiffs seek $239.33 in service of process fees. (Memorandum of Costs ¶ 5.) Such fees are authorized under section 1033.5, subdivision (a)(4). This is the accurate amount paid to a registered process server by Plaintiffs’ counsel. (Strom Decl. ¶ 7.) The Court does not tax any costs claimed by Plaintiffs relating to service of process.

Fifth, Plaintiffs claim $675 in witness fees. (Memorandum of Costs ¶ 8.) These are allowed by statute. (Code Civ. Proc., § 1033.5, subd. (a)(7).) “[W]itness’ 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.” (Gov. Code, § 68093.) Defendant challenges $275 paid by Plaintiffs to a witness that they never called as unreasonable. However, Plaintiffs offer evidence demonstrating that such a cost was reasonable at the time and necessary for litigating the case effectively; another witness provided more effective testimony than expected. (Strom Decl. ¶ 8.) Plaintiffs should not be penalized for being efficient with jurors’ time. Defendant additionally objects to $100 paid to another lay witness, but Plaintiffs offer evidence that such a payment was required to secure her testimony given her limited means. (Id. ¶ 9.) Thus, the Court does not tax any costs claimed by Plaintiffs relating to witnesses.

Sixth, Plaintiffs claim $2,043.25 in costs for models, enlargements, and photocopies of exhibits. (Memorandum of Costs ¶ 12.) Such costs are allowed by statute. (Code Civ. Proc., § 1033.5, subd. (a)(13).) Defendant challenges Plaintiffs’ description of this cost as too vague. Plaintiffs provide evidence that such a cost is reasonable for the printing of over 5,000 pages of exhibits. (Strom Decl. ¶ 10.) Thus, the Court does not tax any costs claimed by Plaintiffs relating to exhibits.

Separately, Defendant has filed a memorandum of costs which Plaintiffs have moved to tax. The motion is granted.

Defendant argues that it is the prevailing party pursuant to Civil Code Section 1942.4. But Defendant never brought a motion pursuant to Section 1942.4 and in fact submitted their memorandum of costs under the purview of Code of Civil Procedure Sections 1032 and 1033.5. Similarly, Defendant never objected to the judgment entered by the Court which does not provide Defendant an opportunity to seek recovery of fees and costs pursuant to Civil Code Section 1942.4. Accordingly, the Court looks to Code of Civil Procedure Section 1032 to assess Plaintiffs’ motion to strike or tax costs.

The prevailing party entitled to costs under Code of Civil Procedure section 1032 is defined as “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.” Here, Plaintiffs recovered damages against Defendant, and Defendant recovered no damages against Plaintiff nor did Defendant obtain a dismissal of the Complaint. (Judgment, October 15, 2024.) Thus, Plaintiffs are the prevailing parties under section 1032, and the only parties entitled to costs.