Judge: Colin Leis, Case: 19STCV33960, Date: 2023-03-08 Tentative Ruling

Case Number: 19STCV33960    Hearing Date: March 8, 2023    Dept: 74

Superior Court of California

County of Los Angeles – CENTRAL District

Department 74

MOVING PARTIES:             Plaintiff Tatro Tekosky Sadwick, LLP

RESPONDING PARTY:        Defendant Douglas Maclean

Motion to Tax Costs

The court considered the moving papers and opposition filed in connection with this motion.

BACKGROUND

            On September 20, 2019, Plaintiff Tatro Tekosky Sadwick, LLP (“Plaintiff”) filed a complaint asserting causes of action for (1) common counts, (2) intentional misrepresentation, and (3) negligent misrepresentation against, among others, Defendant Douglas Maclean. On January 9, 2023, the Court entered judgment in favor of Maclean (hereinafter referred to as “Defendant”) and against Plaintiff.  The Court found Defendant was the prevailing party.

            On January 23, 2023, Defendant filed a memorandum of costs.

            On January 30, 2023, Plaintiff filed its motion to tax costs.

LEGAL STANDARD

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.)  Allowable costs under 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. 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.)  A verified memorandum of costs is prima facie evidence that the costs, expenses, and services were necessarily incurred.  (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal. App. 3d 256, 266.)

A party seeking to tax costs must provide evidence to rebut this prima facie showing.  (Jones v. Dumrichob (1998) 63 Cal. App. 4th 1258, 1266.)  Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred.  (Id.) If the opposing party properly objects to a cost item, the burden of proof shifts to the party claiming the item as a recoverable cost.  (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.)

DISCUSSION

            Plaintiff moves to tax Defendant’s court reporter fees (item 12) on the grounds that the parties agreed before trial to split the costs.  The relevant correspondence is as follows:

Plaintiff’s Counsel wrote:

“Hi Matt — I'm trying to cross our ts and dot our is and want to confirm you and your client are willing to split the costs of the court reporter in this matter. I am planning on reaching out to Network Deposition Services to get a reporter to the court starting on Monday afternoon, on the chance we get the courtroom by then.” (italics added) (Pettitt Decl., Exh. A.)

After getting no reply, Plaintiff’s counsel followed up with another email to Defendant’s counsel asking for a response to Plaintiff’s prior email. On July 6, 2022, Defendant’s counsel responded, writing: “Yes we will split.”  (Id.)

            The bargain counsel struck in their July 6 email exchange did not cover court reporter costs incurred before counsel agreed “we will split” court reporter costs. Accordingly, $993.75 in court reporter costs incurred in October 2021 are not taxable. (Mervis Decl., Exh. 3.) The July 6 agreement – “yes we will split” – did, however, cover court reporter costs incurred after July 6, 2022, notwithstanding Defendant’s protestations to the contrary. (See Oppos p. 3-4; Anthony v. Xiaobin Li (2020) 47 Cal.App.5th 816, 824-825). Accordingly, the Court taxes $9,410.05 ($10,403.80 – $993.75) from item 12 for court reporter fees.

            Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  March 8, 2023

_____________________________

Colin Leis

Judge of the Superior Court