Judge: Christian R. Gullon, Case: 21STCV10803, Date: 2023-09-07 Tentative Ruling

Case Number: 21STCV10803    Hearing Date: September 7, 2023    Dept: O

Tentative Ruling

Plaintiff’s MOTION TO TAX COSTS OF DEFENDANT ROBINSON V. BARON is DENIED because CCP section 1033.5 allows for the recovery of one copy of the deposition transcript by claimant (i.e., Defendant).

Background

This is a medical malpractice case. Plaintiff Pleasant V. Booker (“Plaintiff”) alleges the following against Defendant Emanate Health (“Emanate”) and Doe Defendants: On May 15, 2020, Plaintiff underwent an hemicolectomy, but after the surgery, Plaintiff still experienced abdominal pain. It was later discovered that a surgical sponge was left within Plaintiff’s plaintiff during the original surgery, which required a second surgery to remove the surgical sponge.[1]

On March 19, 2021, Plaintiff filed the instant action against Emanate and Doe Defendants.

On July 12, 2021, Plaintiff named Robinson V. Baron (“Dr. Baron” or “Defendant”) as Doe 1.

On August 24, 2021, Plaintiff named Edwin Edillon, M.D., as Doe 4.[2]

On April 4, 2022, Dr. Baron filed his answer, asserting a statute of limitations (SOL) defense.

On February 24, 2023, the court granted Plaintiff ex-parte application substituting Maddie Cowger, Ursulina Booker, Jennifer Booker, Reinaldo Booker, and Pleasant Booker, Jr. as a party plaintiff in place of plaintiff Pleasant V. Booker, who passed away on January 3, 2023.

On May 3, 2023, Dr. Baron a summary judgment motion (“MSJ”), which had a hearing on July 5, 2023 and thereafter, on July 12, 2023 (after taking the matter under submission), the court issued its final ruling granting the MSJ[3].  

On July 19, 2023, Defendant filed NOTICE OF RULING RE DEFENDANT ROBINSON V. BARON, M.D.’S MOTION FOR SUMMARY JUDGMENT.

On July 25, 2023, Defendant filed a MEMORANDUM OF COSTS (SUMMARY).

On August 9, 2023, Plaintiff filed the instant MOTION TO TAX COSTS OF DEFENDANT ROBINSON V. BARON.

On August 24, 2023, Defendant filed his opposition to the motion.

On August 30, 2023, Plaintiff filed its Reply.

Legal Standard

Allowable costs under California Code of Civil Procedure (CCP) Section 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. (Id.) 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. (Id.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.)

Discussion

Plaintiff seeks to tax Item 4(b) in Defendant’s memorandum of costs, which is the cost for Defendant’s June 28, 2023 deposition taken by Plaintiff. Plaintiff avers (i) Defendant cannot recover for the deposition cost his own deposition and (ii) that the deposition was unnecessary for Defendant’s defense as it was taken three months after Dr. Baron filed his MSJ.

CCP section 133.5 states that the “[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.” (emphasis added).

When interpreting a statute, a court first examines the language giving “it a plain and commonsense meaning” and “[i]f the language is clear, courts must generally follow its plain meaning.” (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.)

Here, taking the plain meaning of the statute, the party of took the deposition is Plaintiff and it is “the party against whom costs are allowed.” Effectively, the cost for the deposition transcription (i.e., “transcribing necessary deposition”) is recoverable by claimant/Defendant. (See also Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 660 [“Deposition copies, therefore, are plainly not one of those ‘[i]tems not mentioned in this section’: The Legislature has expressly stated how many copies may be included as recoverable costs.”].)[4]

Therefore, as it is axiomatic that the right to recover costs is purely statutory and here CCP section 133.5 allows for the recovery the deposition transcription, then the cost for one copy of the deposition transcript is permissible.

Assuming arguendo that the cost is not permissible under the statute, “it may be awarded in the trial court's discretion under section 1033.5, subdivision (c)(4), provided it satisfies the further requirement of section 1033.5, subdivision (c)(2), that it was reasonably necessary to the conduct of the litigation.” (See Seever v. Copley Press (2006) 141 Cal.App.4th 1550, 1558.)

Plaintiff argues that there is no reasonable basis that Defendant required his own deposition transcript while the MSJ was pending. While that is true (Defendant’s Reply to the MSJ was filed on 6/27/23 and the deposition was taken on 6/28/23), Defendant in opposition argues that the deposition transcript was needed in the event the case went to trial. (Opp. p. 4.) On this point, the court notes that while the tentative ruling was to grant Defendant’s motion, the court took the matter under submission, perhaps suggesting to Defendant that the court may not adopt its tentative such that Defendant may very well have needed the deposition transcript for trial. In any event, the fact that the deposition was not used does not preclude the recovery of costs. (Id. at p. 1557 [Though videotaped depositions were not used at time of trial; the cost was necessary and reasonable because counsel deemed them necessary for trial preparation to prepare its strategy for cross-examination of the most important witness in the case].)

Therefore, as the material was reasonably necessary to the conduct of litigation and reasonable in amount (the deposition was lengthy),[5] the cost would be permissible under the court’s discretion.

Conclusion

Based on the foregoing—notably that CCP section 1033.5 allows for the recovery of the deposition transcript cost—the court DENIES the motion.