Judge: Barbara M. Scheper, Case: BC717934, Date: 2022-08-22 Tentative Ruling
Case Number: BC717934 Hearing Date: August 22, 2022 Dept: 30
Calendar No.
Bidye vs. UMA Enterprises
Inc., et. al., Case No. BC717934
Tentative Ruling
re: Defendant’s Motion to Tax Costs
Defendant UMA Enterprises, Inc
(Defendant) moves to tax items from the Memorandum of Costs filed by Plaintiff
Jalandhar Bidye (Plaintiff). The Court taxes the costs in the amount of $1,641.01.
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, subdvision (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 occurred. (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).)
Defendant seeks to tax the
following items from Plaintiff’s Memorandum of Costs:
1.
Motion and filing fees ($38.25)
2.
Deposition costs ($2,787.82)
3.
Service of process fees ($2,104.88)
4.
Witness fees ($201.55)
5.
Expert fees ($15,760.00)
6.
Court reporter costs ($19,153.34)
7.
Misc. charges ($3,281.87)
Motion and filing fees
Defendant first
seeks to tax a total of $38.25 in filing fees incurred by Plaintiff for: (1) A
motion to compel the deposition of James Muhe, prior to which Plaintiff failed
to serve a deposition subpoena on the witness personally; (2) A Supplemental
Brief related to Defendant’s Motion in Limine No. 3 that was not accepted by
the Court; (3) Plaintiff’s Motion to Consolidate filed March 1, 2022, which was
denied; (4) Plaintiff’s Notice of Related Cases filed March 1, 2022, also
denied.
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.)
The Court
does not find that the filing fees for the motion to compel the deposition of
Muhe unreasonable or unnecessary. As to
the fees related to the supplemental brief, motion to consolidate and notice of
related case, the Court finds that these fees were incurred unnecessarily. Plaintiff’s new attorneys appeared in the
case and almost immediately sought to upend the posture of the instant case and
combine it with another case that happened to be fore this Court but had never
been formally related. The Court taxes
costs related to these three items in the amount of $31.50
Deposition costs
Defendant
next seeks to tax $2,787.82 in deposition costs listed by Plaintiff for: (1) the
deposition of Plaintiff, which was in fact taken and paid for by Defendant; (2)
the deposition of “T. D’Angelo,” which Defendant claims did not take place; (3)
fees for transcripts for the deposition of Karen Smith; and (4) a
non-appearance fee for the deposition of non-party James Muhe.
Plaintiff
states that the fees related to his own deposition were incurred to obtain a
transcript of the deposition. (Opposition, Ex. E.) Code Civ. Proc. § 1033.5
expressly allows recovery of costs for “transcribing necessary depositions.”
(Code Civ. Proc. § 1033.5, subd. (a)(3)(A).) Defendant has not shown that these
fees are improper.
Plaintiff
presents evidence that the deposition of Thomas D’Angelo did in fact take place
on May 31, 2019, and was attended by counsel for Defendant. (Opposition, Ex.
H.) Because the costs are expressly allowed, Defendant has the burden to show
that the costs are unreasonable. The fact that Plaintiff did not ultimately
make use of the deposition testimony is insufficient on its own to meet
Defendant’s burden. (See Chaaban v. Wet Seal, Inc. (2012) 203
Cal.App.4th 49, 57 [“The recovery of deposition costs
does not depend on whether the deponent ultimately testifies at trial”]; Culbertson
v. R. D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 711-712.)
As to the
deposition of Karen Smith, the purported errors in scheduling do not present
grounds for taxing costs incurred to obtain transcripts.
Finally,
Plaintiff agrees to withdraw the $379.35 in costs for the non-appearance fee from
the deposition of James Muhe. (Opposition p. 4.)
Accordingly,
the deposition costs are taxed in the amount of $379.35.
Service of process fees
Defendant requests
that $2,104.88 in Service of Process fees incurred for 12 service attempts on
James Muhe be struck. Defendant argues that these costs should be disallowed
because Plaintiff never deposed Muhe or called him as a witness at trial.
The Court finds that these costs are
permissible. Muhe had told Plaintiff that he was a witness to discriminatory
statements by Defendant’s CEO, and made similar claims in a letter to Defendant
from his lawyer. (Aarons Decl. ¶ 13.) Given the relevance of this information,
discovery related to Muhe was reasonably necessary. (Culbertson v. R. D.
Werner Co., Inc. (1987) 190 Cal.App.3d 704, 711 [permitting recovery of
costs for depositions where “such discovery was mandated by the nature of the
plaintiff's complaint”].) Furthermore, “[t]he recovery of deposition costs does not depend on whether the deponent
ultimately testifies at trial.” (Chaaban, 203 Cal.App.4th at 57.) Plaintiff’s
numerous attempts to serve Muhe following his repeated failures to appear were
reasonably necessary to the conduct of the litigation.
Accordingly, the motion is denied as to the
service of process fees.
Witness fees
Defendant
seeks to tax $201.55 in witness fees related to Thomas D’Angelo. These fees are
expressly permitted: a party may recover costs for “[o]rdinary witness fees
pursuant to Section 68093 of the Government Code.” (Code Civ. Proc. § 1033.5,
subd. (a)(7).)
Defendant again argues that the
fees are improper because Plaintiff did not ultimately make use of the deposition
testimony. As stated above, this fact alone is insufficient to satisfy
Defendant’s burden to show the impropriety of the costs.
(See Chaaban, 203
Cal.App.4th at 57; Culbertson, 190 Cal.App.3d at 711-712.)
Accordingly,
the motion is denied as to the witness fees.
Expert fees
Defendant
seeks to tax $15,760.00 in Expert Fees claimed by Plaintiff for expert witness
Karen Smith.
Plaintiff prevailed at trial on his
causes of action against Defendant for FEHA Retaliation and Wrongful Discharge
in Violation of Public Policy. A prevailing plaintiff under FEHA is entitled to
recover “reasonable attorney’s fees and costs, including expert witness fees.” (Gov. Code, § 12965, subd. (c)(6).) These costs are therefore
permissible.
Defendant’s citation to Code Civ. Proc. § 998
is both misstated and irrelevant. That section precludes recovery of costs by a
plaintiff where “an offer made by a defendant is not accepted and the plaintiff
fails to obtain a more favorable judgment or award.” (Code Civ. Proc. § 998,
subd. (c)(1); see Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
(2018) 18 Cal.App.5th 525, 551-52.) No section 998 offer was made in this case.
The motion is denied as to the expert fees.
Court reporter costs
Defendant
next requests that all court reporter fees claimed by Plaintiff be struck, in
the total of $19,153.34.
A party may
recover as costs “[c]ourt reporter fees as established by statute.” (Code Civ.
Proc. § 1033.5, subd. (a)(11).)
Defendant
argues that the fees should be taxed as trial transcripts not ordered by the
Court, which are expressly prohibited. (Code Civ. Proc. § 1033.5, subd.
(b)(5).) As the Court of Appeal in Chaaban v. Wet Seal, Inc. (2012) 203
Cal.App.4th 49, stated in response to an identical argument, “These charges are
not for transcripts. They are for court reporter fees,
an entirely different expense. The parties have to pay the court reporter
regardless of whether anyone orders transcripts.” (Id. at 58; see Benach
v. County of Los Angeles (2007) 149 Cal.App.4th 836, 858.)
Accordingly,
the motion is denied as to the court reporter fees.
Misc. charges
Finally,
Defendant seeks to strike all $3,281.87 in costs listed under the “Other”
category, specifically, Remote Hearing Appearance fees, mediation fees, fees
for delivery of courtesy copies, messenger costs, and travel costs.
Remote
Hearing Appearance fees are neither expressly recoverable under Code Civ. Proc.
§ 1033.5, subd. (a), nor prohibited under subd. (b). Given the necessity of
remote appearances during the COVID-19 pandemic, the Court finds that these
fees are reasonably necessary to the conduct of the litigation.
Plaintiff has requested costs in the amount of
$1,900 for mediation fees. Mediation costs are neither expressly allowable nor
expressly prohibited, and so are recoverable in the discretion of the court if
reasonably necessary to the conduct of the litigation. (Berkeley Cement,
Inc. v. Regents of University of California (2019) 30 Cal.App.5th 1133,
1140.) Costs in connection with voluntary mediation may be recoverable. (Id.
at 1141.) “The question whether mediation fees should be awarded as costs in a
particular matter must be determined based on the facts and circumstances of
the particular action.” (Id. at 1143.)
Here, the parties undertook voluntary
mediation to resolve this action and two related cases. The Court finds that
the mediation costs are reasonably necessary to the conduct of the litigation:
“[M]ediation is fundamental to the conduct of litigation as it encourages the
parties to settle their disputes before trial and exposes parties who fail to
agree to a reasonable settlement proposal to the risk of a discretionary court
determination that they should pay their opponent's share of the failed
mediation.” (Id. at 1142.) Accordingly, Plaintiff may recover the
requested one-third of mediation costs.
“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 states that the courtesy copies fees
were incurred to deliver documents to the Court on ex parte matters. Plaintiff has not presented evidence showing
that any of the messenger fees at issue were reasonably necessary to the
conduct of the litigation. Accordingly, those fees totaling $435.81 are struck.
(Lopeztello Decl. ¶ 8.)
The Court
agrees with Defendant that Plaintiff’s travel-related expenses are improper as
costs. “The only travel expenses authorized by
section 1033.5 are those to attend depositions. [Citation.] Routine expenses
for local travel by attorneys or other firm employees are not reasonably necessary
to the conduct of litigation.” (Ladas v. California State Auto. Assn.
(1993) 19 Cal.App.4th 761, 775–776.) Here, none of the travel-related expenses
listed were to attend a deposition. These expenses appear to be merely routine
expenses for local travel by counsel, and so are not reasonably necessary to
the conduct of the litigation. The Court therefore taxes these costs, which
total $794.85. (Lopeztello Decl. ¶ 8.)
“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).)
The exhibits that
were unused at trial necessarily could not have been “reasonably helpful to aid
the trier of fact,” and Defendants have not otherwise shown that photocopying
of the unused exhibits was reasonably necessary to the conduct of the
litigation. Accordingly, the motion is granted as to these costs.
The Court
taxes costs under the “Other” category in the amount of $1,230.66.
In sum, the
Court strikes filing fees of $31.50, deposition costs in the amount of $379.35
and costs from the “Other” category in the amount of $1,230.66. A total of $1,641.01
is struck from Plaintiff’s Memorandum of Costs.