Judge: Curtis A. Kin, Case: BC711605, Date: 2022-12-13 Tentative Ruling

Case Number: BC711605    Hearing Date: December 13, 2022    Dept: 72

MOTION TO TAX COSTS

Date:                     12/13/22 (8:30 AM)               

Case:                     Anthony Grillo et al. v. Marcum, LLP et al. (BC711605)

TENTATIVE RULING:

Cross-Complainants Marcum LLP and Steve Rapattoni’s Motion to Tax Costs is GRANTED IN PART.

Cross-complainants’ evidentiary objections are OVERRULED.

Cross-complainants Marcum LLP and Steve Rapattoni move to tax a total of $24,480.61 of the costs claimed by cross-defendant Michael Colaco.

On August 22, 2022, pursuant to the request of cross-complainants, Colaco was dismissed from the Second Amended Cross-Complaint (“SACC”). Accordingly, Colaco is entitled to claim costs as a defendant in whose favor a dismissal was entered. (CCP §§ 1032(a)(4), (b).) Colaco is entitled to recover costs reasonably necessary to his defense against cross-complainants’ cross-claims.

The Court notes that Colaco is not entitled to recover costs pertaining to his prosecution of his claims in the Third Amended Complaint as a plaintiff against Marcum and Rapattoni as defendants, because they won on summary judgment. (Ludeke Decl. ¶ 8 & Ex. 1.)

I.                   JURY FEES

Cross-complainants seek to tax $185.05 for posting of jury fees and notice thereof. (Memorandum of Costs Items 1(h) and 1(i).) Cross-complainants argue that these costs were incurred on November 30, 2020, and November 25, 2020, respectively, before Colaco was named as a cross-defendant in the First Amended Cross-Complaint (“FACC”) on December 17, 2020.

Colaco responds that he would have been entitled to a jury with respect to the SACC. In the SACC, cross-complainants asserted the eighth cause of action for equitable indemnity and ninth cause of action for comparative implied indemnity against Colaco. A “cause of action for equitable indemnity is a legal action seeking legal relief” to which the right to a jury trial attaches. (Martin v. County of Los Angeles (1996) 51 Cal.App.4th 688, 698.) Similarly, claims based on implied indemnity involve equitable principles but seek legal relief which a jury may provide. (Id. at 694.) On September 15, 2021, the Court overruled Colaco’s demurrer to the eighth and ninth causes of action based in indemnity in the SACC. (9/15/21 Minute Order at 2.)

Because Colaco was entitled to a jury for the indemnity-based causes of action, he may recover fees related to the posting of jury fees under CCP § 1033.5(a)(1). However, with respect to Item 1(i) pertaining to the notice of posting of jury fees, the invoice provided by Colaco shows that he incurred $9.95, not $15.95 as claimed in the memorandum of costs. (Outwater Decl. ¶ 4 & Ex. 2 at p. 4.) The difference of $6.00 shall be taxed.

II.                VAGUE OR DUPLICATIVE ENTRIES

Cross-complainants seek to tax $1,366.07 for purportedly vague or duplicative entries in Colaco’s claim for filing fees. (Memorandum of Costs Items 1(c), 1(d), 1(k-y).)

With respect to Items 1(c) and 1(d), these entries pertain to Colaco’s filing of a reply for his demurrer to the FACC. $25.94 was incurred for the filing fee of the reply. (Outwater Decl. ¶ 4 & Ex. 2 at p. 1.) $40.67 was incurred for delivering a courtesy copy to the Court. (Id. at p. 2.) Given the five court days between the filing of the reply and the hearing on the demurrer, the delivery of a courtesy copy to the Court was reasonably necessary to the conduct of the litigation. (See CCP § 1033.5(c)(2).)

Item 1(m) in the amount of $45.60 appears to be incurred for retrieval of documents from the Court website.  (Id. at p. 8.) These are not filing or motion fees that are recoverable under CCP § 1033.5(a)(1).) Colaco does not explain why retrieval of documents was reasonably necessary to the conduct of the litigation. Colaco’s costs shall be reduced by $45.60.

Item 1(q) in the amount of $32.00 is for the filing of an Answer. However, the corresponding invoice states that the filing of the Answer was rejected. (Id. at p. 12.) Colaco does not sufficiently explain why the rejection of a filing was a reasonably necessary cost to the conduct of the litigation. Colaco’s costs shall be reduced by $32.00.

Item 1(w) in the amount of $104.00 is for the filing of Colaco’s ex parte application to advance the hearing on the motion to sever. However, the corresponding invoice indicates that the filing was rejected. (Id. at p. 18.) Colaco does not sufficiently explain why the rejection of a filing was a reasonably necessary cost to the conduct of the litigation. Colaco’s costs shall be reduced by $104.00.

The other remaining costs for filing fees and courtesy copy delivery are recoverable under either CCP § 1033.5(a)(1), in the case of filing fees, or 1033.5(c)(2), in the case of courtesy copies. The invoices submitted by Colaco support the other remaining costs.

III.             DEPOSITION COSTS

Cross-complainants seek to strike $22,929.49 in specified deposition costs on the ground that Colaco incurred these costs before he was named as a cross-defendant in the FACC. (Memorandum of Costs Items 4(a-g); Ludeke Decl. ¶ 7.) Colaco does not dispute cross-complainants’ assertion regarding the timing of the depositions. (Ludeke Decl. ¶¶ 14-18 [depositions taken between January 23, 2020 and July 14, 2020, before filing of FACC].) Rather, Colaco maintains that the cross-claims and Colaco and co-plaintiffs’ claims against cross-complainants in the Third Amended Complaint (“TAC”), filed on May 15, 2019, arose from the same set of facts. Therefore, according to Colaco, the taking of the specified depositions before the filing of the FACC was reasonably necessary to Colaco’s defense against the cross-claims. (Outwater Decl. ¶¶ 5, 6.)

 “[I]f the items [appearing in a cost bill] are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Colaco fails to sufficiently argue how his taking of the specified depositions were reasonably necessary to the defense against the FACC if the FACC had not yet been filed. Colaco’s conclusory assertion that testimony pertaining to the TAC was intertwined with the cross-claims is insufficient to show how any of his deposition questions were probative of his defense against the allegations in the FACC or SACC.

Moreover, “Once costs claimed in the memorandum are challenged via a motion to tax, ‘[d]ocumentation must be submitted’ to sustain the burden.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265, quoting Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308.) Colaco did not submit any documentation supporting the claimed deposition costs which cross-complainants seek to tax. (See Outwater Decl. ¶ 4 & Ex. 2 [documentation reflecting “posting of jury fees, Answer, filing and motion costs, and costs for the delivery and service of courtesy copies of pleadings and motion papers”].)

For the foregoing reasons, Colaco fails to meet his burden to demonstrate that the costs of the specified depositions were reasonably necessary to defend himself against the cross-claims. Colaco’s costs shall be taxed in the amount of $22,929.49.

IV.             CONCLUSION

The motion is GRANTED IN PART. Cross-defendant Michael Colaco’s claim for $32.518.25 in costs is taxed in the amount of $23,117.09 ($6.00 Item 1(i) + $45.60 Item 1(m) + $32.00 Item 1(q) + $104.00 Item 1(w) + $22,929.49 depositions).