Judge: Curtis A. Kin, Case: 19STCV40836, Date: 2023-01-19 Tentative Ruling
Case Number: 19STCV40836 Hearing Date: January 19, 2023 Dept: 72
MOTION TO TAX COSTS
Date: 1/19/23
(8:30 AM)
Case: Joyful Will Intl. Limited et
al. v. Romex Textiles, Inc. et al. (19STCV40836)
TENTATIVE
RULING:
Defendant Romex Textiles, Inc.’s Motion to Tax Costs is
GRANTED IN PART.
Defendant Romex Textiles, Inc. moves to tax $93,653.29 of
the costs claimed by plaintiffs Joyful Will International Limited and Brightex
International Inc.
As a preliminary matter, plaintiffs Joyful Will
International Limited and Brightex International Inc. are entitled to claim
costs as the parties with a net monetary recovery. (CCP §§ 1032(a)(4), (b).)
With respect to item 1 of the memorandum of costs for filing
and motion fees, defendant seeks to strike $1,803.50 out of the $2,563.50
claimed by plaintiffs.
Contrary to defendant’s assertion, courtesy copies are
required by the Court for several types of documents, including any filing
electronically filed two or fewer days before the hearing, as well as pleadings
and motions that include points and authorities and motions to compel further
discovery. (See First Amended General Order re Mandatory Electronic
Filing for Civil at ¶ 9, located at https://lascpubstorage.blob.core.windows.net/cpw/LIBOPSCivil-36-1stAmendedGeneralOrderMandatoryEfilingCivil.pdf.)
Even though the courtesy copy charges are technically not filing or motion
fees, these costs are not categorically unrecoverable. If a cost is not
expressly disallowed under CCP § 1033.5(b), a cost may be recoverable as long
as it was “reasonably necessary to the conduct of the litigation rather than
merely convenient or beneficial to its preparation.” (CCP § 1033.5(c)(2),
(c)(4).) “The law respects form less than substance.” (Civ. Code § 3528.)
Plaintiffs argue that, even if costs are disallowed under
CCP § 1033.5(b), they may recover such costs pursuant to Civil Code § 1717.
Plaintiffs refer to unpaid orders by defendant as the buyer, which provided
that “[t]he buyer shall pay all reasonable costs and fees, including legal
expenses incurred by the seller in collecting cargo amount on [sic] due.”
(Sandoval Decl. ¶ 3 & Exs. 1 [Admitted Ex. 4A-3], 2. [Admitted Ex. 5-3])
“[W]hen a contract provision states only that a prevailing
party is entitled to ‘“reasonable attorney's fees and costs,”’ or similar
nonspecific language, courts have held that such language must be interpreted
in light of the limits set forth in Code of Civil Procedure section 1033.5.” (Thrifty
Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050,
1065, citing Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co.
(1996) 47 Cal.App.4th 464, 491.) However, “where sophisticated parties knowingly
and intentionally negotiate a broader standard into their contract—and
particularly where…that standard specifically includes “witness and expert
fees”—the intent of the parties should be upheld by the court.” (Thrifty, 185
Cal.App.4th at 1066.)
Here, the provision cited by plaintiffs does not expressly
provide for the recovery of costs that are expressly disallowed by CCP §
1033.5(b), including photocopying charges, expert witness fees, and transcripts
of court proceedings not ordered by the Court.
For the foregoing reasons and the reasons stated below, the
costs set forth in item 1 of the memorandum of costs are allowed or taxed, as
set forth below.
·
$31.00 PDF Courtesy Delivery for 9/20/22
Proposed Judgment on Jury Verdict – No courtesy copy was required. $31.00
is taxed.
·
$97.00 PDF Courtesy Delivery-Rush for 9/15/22
Special Jury Instructions No. 1 – Plaintiffs’ counsel was in the courtroom
during trial on 9/15/22. Plaintiffs’ counsel could have delivered the courtesy
copy themselves. $97.00 is taxed.
·
$116.25 Photocopy and Courtesy Copy Charges for
9/12/22 Plaintiff’s Response to Declaration of Nico N. Tabibi in response to
the Court’s OSC re Monetary Sanctions – Photocopy charges are not reimbursable.
(CCP § 1033.5(b)(3).) No courtesy copy was required for this document. $116.25
is taxed.
·
$63.75 PDF Courtesy Delivery-Rush for 9/7/22
Plaintiffs’ Supplemental Memorandum in support of Motions in Limine Nos. 1, 2,
5, and 6 – Because this document contained points and authorities, a courtesy
copy was required. A rush charge is reasonable because trial was set to begin
on 9/12/22, and this filing was submitted in response to the Court’s order
during the 9/2/22 Final Status Conference. This cost is not taxed.
·
$307.50 PDF Courtesy Delivery for 8/26/22
Plaintiffs’ Reply in support of Motions in Limine Nos. 1-6 - Because this
document contained points and authorities, courtesy copies were required. This
cost is not taxed.
·
$56.00 Photocopy and Courtesy Copy Charges for
8/22/22 Witness List, Exhibit List, Jury Instructions, Statement of the Case,
and Special Verdict – Photocopy charges are not reimbursable. (CCP §
1033.5(b)(3).) Courtesy copies were not required for these documents. $56.00
is taxed.
·
$191.00 PDF Courtesy Delivery for 8/22/22
Plaintiff’s Opposition to Motion in Limine Nos. 1-3 - Because these documents
contained points and authorities, courtesy copies were required. This cost is
not taxed.
·
$41.00 Photocopy and Courtesy Copy Charges for
8/22/22 Notice of Appearance – Photocopy charges are not reimbursable. (CCP §
1033.5(b)(3).) Courtesy copies were not required for these documents. $41.00
is taxed.
·
$115.50 for 8/18/22 Plaintiff’s Motion in Limine
No. 1 to Exclude Documents Not Produced in Discovery, A. Renfro Declaration –
Because no filing fee was required for this document, plaintiffs have the
burden to provide documentation to justify this cost. (Ladas v. California
State Auto. Assn. (1993) 19 Cal.App.4th 761, 774; Jones v. Dumrichob
(1998) 63 Cal.App.4th 1258, 1267.) Plaintiffs did not provide any invoice with
this cost. $115.50 is taxed.
·
$41.00 Photocopy and Courtesy Copy Charges for
8/16/22 Notice Resetting Plaintiff’s Motion in Limine Hearing – Photocopy
charges are not reimbursable. (CCP § 1033.5(b)(3).) Courtesy copies were
not required for these documents. $41.00 is taxed.
·
$47.50 PDF Courtesy Delivery of 8/9/22 Motion in
Limine No. 6, $31.00 PDF Courtesy Delivery of 8/9/22 Motion in Limine No. 5,
$31.00 PDF Courtesy Delivery of 8/9/22 Motion in Limine No. 4, $33.50 PDF
Courtesy Delivery of 8/9/22 Motion in Limine No. 3, $181.50 PDF Courtesy
Delivery of 8/9/22 Motion in Limine No. 2 - Because these documents contained
points and authorities, courtesy copies were required. These costs are not
taxed.
·
$31.00 PDF Courtesy Delivery of 6/2/22
Plaintiff’s Response to Defendant’s Report re Depositions – Because this
document contained points and authorities, a courtesy copy was required. This
cost is not taxed.
·
$31.00 for 4/12/22 Joint Stipulation to Continue
Deadline for Depositions and Request to Continue Status/Trial Setting
Conference - $22.25 is recoverable for the filing and transaction fees. The
remainder, which may be attributed to a PDF Courtesy Delivery charge, was
unreasonably incurred because no courtesy copy was required for this document. $8.75
is taxed.
·
$53.75 PDF Courtesy Delivery-Rush for 3/10/22
Plaintiff’s Opposition to Ex Parte Application to Compel Deposition and $48.75 PDF
Courtesy Delivery-Rush for 1/27/22 Plaintiff’s Opposition to Defendant’s Ex
Parte Application to Continue Hearing Date for Plaintiff’s Motion for Summary
Adjudication – Because these documents were filed one day before the
corresponding ex parte applications were heard, courtesy copies were required.
For the same reason, rush charges were reasonably incurred. These costs are not
taxed.
·
$549.75 PDF Courtesy Delivery for 12/23/21
Plaintiff’s Motion for Summary Adjudication - $500.00 is recoverable for filing
fees. The remainder may be attributed to a PDF Courtesy Delivery charge.
Because this document contained points and authorities, a courtesy copy was
required. This cost is not taxed.
·
$46.75 PDF Courtesy Delivery-Rush for 6/14/21
Notice of Case Reassignment - No courtesy copy was required for this document. $46.75
is taxed.
·
$273.25 Filing-Fax/PDF Rush for 2/24/21 Motions
to Compel Further Responses to Written Discovery - $180.00 is recoverable as
the filing fee for 3 motions. The remainder, which is attributable to a
courtesy delivery charge, was reasonably incurred because these documents
contained points and authorities. This cost is not taxed.
·
$53.50 for 12/23/20 Plaintiff’s Opposition to
Defendant’s Demurrer to Second Amended Complaint - Because this document
contained points and authorities, a courtesy copy charge of $35.00 was
reasonably required. However, $18.50 in photocopy charges are not reimbursable.
(CCP § 1033.5(b)(3).) $18.50 is taxed.
·
$40.75 for 12/23/20 Plaintiff’s Opposition to
Motion to Strike Portions of Second Amended Complaint - Because this document
contained points and authorities, a courtesy copy charge of $35.00 was
reasonably required. However, $5.75 in photocopy charges are not reimbursable.
(CCP § 1033.5(b)(3).) $5.75 is taxed.
·
$50.50 Filing-Fax/PDF Same Day for 11/27/19
Motion for Peremptory Challenge to Disqualify Judge Pursuant to CCP § 170.6 –
This charge was unreasonably incurred as the peremptory challenge was denied as
untimely. $50.50 is taxed.
For the foregoing reasons, the $2,563.50 set forth in item 1
is taxed in the amount of $628.00.
With respect to item 8b of the memorandum of costs for
expert witness fees, defendant seeks to tax $57,150.19 out of $57,166.69.
(Sandoval Decl. ¶ 17 & Ex. 9.) Under CCP § 1033.5(b)(1), “[f]ees of experts
not ordered by the court” are disallowed. Plaintiffs do not contend that their
expert was ordered by the Court. For the reason stated above, plaintiffs’
assertion that they have a contractual basis to recover expert fees is
unavailing. The $57,150.19 set forth in item 8b is taxed.
With respect to item 9 of the memorandum of costs for
court-ordered transcripts, defendant seeks to tax $9,664.50 out of $9,664.50.
Under CCP § 1033.5(b)(5), “[t]ranscripts of court proceedings not ordered by
the court” are disallowed. Plaintiffs do not contend that any transcripts were
ordered by the Court. For the reason stated above, plaintiffs’ assertion that
they have a contractual basis to recover transcript fees is unavailing. The $9,664.50
set forth in item 9 is taxed.
With respect to item 11 of the memorandum of costs for court
reporter fees as established by statute, defendant seeks to tax $13,500.00 out
of $13,500.00. While transcriptions not ordered by the Court are disallowed
under CCP § 1033.5(b)(5), court reporter fees as established by statute are
recoverable under CCP § 1033.5(a)(11). (Chaaban v. Wet Seal, Inc. (2012)
203 Cal.App.4th 49, 58 [distinguishing between transcripts of court proceedings
and court reporter fees].) Under Government Code § 68086(d)(2), when no
official court reporter is available, a prevailing party may arrange for the
attendance of a reporter and recover the fees for the reporter’s attendance.
(Gov. Code § 68086(d)(2) [when official court reporter not available and party
arranges for presence of court reporter, “[t]he fees and charges of the
certified shorthand reporter shall be recoverable as taxable costs by the
prevailing party as otherwise provided by law”].) The court reporter fees shall
not be taxed.
With respect to item 12 of the memorandum of costs for
models, enlargements, and photocopies of exhibits, defendant seeks to tax
$9,111.75 out of $11,821.07, which plaintiffs claim as trial technology fees.
During the trial, a trial technician facilitated the use of a projector screen
that displayed witnesses appearing remotely, exhibits, and presentations.
(Sandoval Decl. ¶ 19 & Ex. 11.) These costs, including the costs
necessitated by the appearance of plaintiffs’ witnesses located in China, were
reasonably necessary to the conduct of the litigation. Accordingly, the Court
exercises its discretion under CCP § 1033.5(c)(4) and allows recovery of the
technology costs in full.
With respect to item 14 of the memorandum of costs for fees
for electronic filing or service, defendant seeks to tax $2,423.35 out of
$3,282.35 on the ground that the costs are excessive. Defendant refers to a fee
schedule stating that the price of electronic filing through One Legal is
$12.50 per filing and the price for electronic service is $1 per recipient.
(Tababi Decl. ¶ 3 & Ex. 1.) In response, plaintiffs provide invoices from
First Legal, a different company, mostly supporting its entire claim of
electronic filing and service costs. (Sandoval Decl. ¶ 20 & Ex. 12.)
Setting forth invoice numbers in the reply, defendant
contends that certain rush charges were unreasonably incurred. (Reply at
12:5-15.) “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 were not
reasonable or necessary.” (Ladas, 19 Cal.App.4th at 774.) Without
discussing each invoice, defendant asserts in a conclusory manner that the
charges could have been avoided with timely preparation. With respect to the
$72.00 incurred for the 10/21/20 opposition to demurrer, for example,
plaintiffs filed this opposition nine court days before the hearing, which is
allowed under CCP § 1005(b). Plaintiffs are not expected to deprive
themselves of statutorily granted time to respond to defendant’s motion.
Defendant sets forth no basis to categorically disallow rush charges.
However, with respect to the $72.00 for 9/4/20 E-File –
Summons on Second Amended Complaint (Rejected), defendant is not required to
pay for plaintiffs’ mistake in electronic filing. $72.00 is
taxed.
For the foregoing reasons, the motion is GRANTED IN PART.
Plaintiffs Joyful Will International Limited and Brightex International Inc.
claim for $122,910.01 is taxed in the amount of $67,514.69
($628.00 motion and filing fees + $57,150.19 expert witness fees + $9,664.50
transcripts + $72.00 electronic filing fees).