Judge: Cynthia A Freeland, Case: 37-2020-00037607-CU-PA-NC, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 26, 2023

10/27/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Auto Motion Hearing (Civil) 37-2020-00037607-CU-PA-NC FRENCH VS KNOX [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike or Tax Costs, 08/14/2023

Defendants Darrin and Kim Knox (collectively, 'Defendants')'s motion to strike or tax costs is granted in part and denied in part.

California Code of Civil Procedure ('CCP') § 1032(b) provides that '[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.' Cal. Code Civ. P. § 1032(b). '[S]ection 1033.5 sets forth the items that are and are not allowable as the costs recoverable by a prevailing party under section 1032[.]' Chaaban v. Wet Seal, Inc. (2012) 203 Cal. App. 4th 49, 52. CCP § 1033.5(a) enumerates the items allowable as costs, whereas CCP § 1033.5(b) lists items not recoverable as costs. See Segal v. Asics America Corporation (2020) 50 Cal. App. 5th 659, 664. The court has discretion to allow or deny costs for items not explicitly identified under CCP §§ 1033.5(a) or (b). See Cal. Code Civ. P. § 1033.5(c)(4). 'All costs awarded, whether expressly permitted under subdivision (a) or awardable in the trial court's discretion under subdivision (c), must be 'reasonably necessary to the conduct of the litigation' and be 'reasonable in amount.'' Segal, 50 Cal. App. 5th at 664 (quoting Cal. Code Civ. P. §§ 1033.5(c)(2)-(3)).

In ruling on a motion to strike or tax costs, the court first must decide whether CCP § 1033.5(a) expressly allows costs for the item objected to and whether it appears facially proper. See Gorman v. Tassajara Development Corp. (2009) 178 Cal. App. 4th 44, 71. If so, the objecting party bears the burden of establishing that the costs are unnecessary or unreasonable. Ibid. The objecting party must do more than merely allege that the costs were not necessary or reasonable; rather, he or she is obliged to present evidence proving that the claimed costs are not recoverable. See Seever v. Copley Press, Inc.

(2006) 141 Cal. App. 4th 1550, 1557. If there is a proper objection to an item, the burden shifts to the party claiming costs to prove they were necessary and reasonable. See Ladas v. California State Auto.

Assn. (1993) 19 Cal. App. 4th 761, 774. If, on the other hand, the claimed costs are not expressly authorized by statute, the party claiming them bears the burden of demonstrating that they were reasonable and necessary. See Gorman, 178 Cal. App. 4th at 71.

Defendants initially sought to strike or tax the following costs from Plaintiffs Tami and Michael French (collectively, 'Plaintiffs')'s Memorandum of Costs (the 'MOC'): (1) $11,245.12 in deposition costs (Item 4), and (2) $1,701.00 in 'other' costs (Item 16). However, Defendants, in their reply brief, have withdrawn their request as to Item 4. Consequently, the court denies the motion as to Item 4 and will limit its analysis to Item 16. On that basis, the court need not address the parties' respective argument concerning the applicability of CCP § 998(d), which applies only to 'postoffer costs of the services of expert witnesses[.]' Cal. Code Civ. P. § 998(d).

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3008336 CASE NUMBER: CASE TITLE:  FRENCH VS KNOX [IMAGED]  37-2020-00037607-CU-PA-NC Item 16 ('Other' Costs) Plaintiffs' claimed costs for 'other' expenses is not explicitly identified under CCP §§ 1033.5(a) or (b).

Therefore, Plaintiffs bear the initial burden of demonstrating that the charges were reasonably and necessarily incurred. Moreover, the court has discretion to allow or deny the claimed costs if it determines that they were or were not reasonably and necessarily incurred. In this case, Plaintiffs have claimed $1,701.00 in 'other' expenses owing to: (1) the rental of a 55' television that was used at trial in the total amount of $800.00, and (2) meals and lodging for Plaintiffs' counsel in the total amount of $901.28. Plaintiffs have attached as an exhibit to their MOC Worksheet: (1) the $800.00 invoice for the television from Imagine Reporting, and (2) receipts from the Quality Inn & Suites in Oceanside totaling $685.50. No documentation has been provided as to the meal costs that Plaintiffs are claiming.

As to the television rental, the court finds that Plaintiffs have met their burden of demonstrating that the claimed costs was reasonably and necessarily incurred. California courts have consistently held that the use of technological presentation methods is reasonable and necessary to the conduct of litigation if it enhances counsel's advocacy and assists the trier of fact. See, e.g., Bender v. County of Los Angeles (2013) 217 Cal. App. 4th 968, 990-991; Green v. County of Riverside (2015) 238 Cal. App. 4th 1363, 1374. In this case, the court finds that Plaintiffs' use of the television at trial was reasonable and necessary and did, in fact, assist the jury in returning a verdict in Plaintiffs' favor. Defendants, for their part, argue, without supporting evidence, that the use of the television was merely a convenience, as opposed to a necessity, because Plaintiffs could have presented their case in a less costly way, i.e., by using Defendants' projector or by renting a less expensive television. This assertion is not well taken.

Defendants, in essence, argue that the claimed cost is excessive. However, as set forth above, more is necessary to overcome the prima facie validity of the charge. Moreover, Defendants cite no authority for the proposition that the claimed cost should be struck/taxed simply because Defendants believe that the same result could have been achieved through more economically efficient means – especially where, as here, the jury returned a verdict in Plaintiffs' favor.

The court agrees with Defendants that the claimed costs for Plaintiffs' counsel's meals and lodging must be stricken. As a general proposition, meals and lodging for non-local travel constitute recoverable costs. See Doe v. L.A. County Dept. of Children & Family Services (2019) 37 Cal. App. 5th 675, 695; Howard v. American National Fire Ins. Co. (2010) 187 Cal. App. 4th 498, 541. However, routine expenses for local travel are not reasonably necessary to the conduct of litigation. See Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 775. In this case, Plaintiffs concede that trial counsel, Marlon D. Campos, lives and works in the North Park area of San Diego and, as such, his daily commute to and from the courthouse during trial would have been over two hours. The court must respectfully disagree that Mr. Campos' commute warrants a finding that the claimed costs for the hotel and meals was reasonable and necessary. The court agrees with Defendants that this constitutes a mere convenience as opposed to a necessity – indeed, local counsel routinely commute from their offices to a courthouse in San Diego County.

Accordingly, the court grants the motion in part as to Item 16 and strikes from the claimed charges $901.28 incurred for meals and lodging.

In light of the foregoing, the court: (1) denies the motion as to Item 4, and (2) grants the motion in part as to Item 16. The court awards Plaintiffs costs in the total amount of $43,821.46.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, October 27, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of October 27, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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