Judge: Daniel M. Crowley, Case: 19STCV46885, Date: 2022-12-21 Tentative Ruling

Case Number: 19STCV46885    Hearing Date: December 21, 2022    Dept: 28

Motion to Tax Costs

Having considered the moving and opposing papers, the Court rules as follows.

BACKGROUND

            On December 30, 2019, Karo Isadzhanyan (“Karo”) and Larissa Isadzhanyan (“Larissa”) (collectively, “Plaintiffs”) filed a complaint against Yusen Logistics (American) Inc. (“Yusen”) and Esmeralda Agredano-Salazar (“Salazar”). Plaintiff later amended the complaint to include Defendant National Retail Systems, Inc. (“NRS”) and National Retails Transportation (“NRT”). The complaint alleges negligence, premises liability, and loss of consortium arising from an accident that occurred on Defendant Yusen’s premises when Plaintiff suffered injuries after loading a heavy cargo load onto his truck.

            On August 23, 2022, the Court granted Defendant NRT’s motion for summary judgment and found that, because NRT had hired Karo as an independent contractor, NRT was not liable for the injuries sustained by Karo while on the job. There was no indication of extenuating circumstances, such as a concealed dangerous condition or affirmative action by NRT that contributed to the accident, to make NRT liable. Thus, on October 10, 2022, the Court entered a judgment in favor of NRT and against Plaintiffs.

            Additionally, on October 10, 2022, the Court signed and filed a stipulation and order finding that NRS was also entitled to summary judgment against Plaintiffs on the same grounds as the summary judgment granted to NRT.

            On October 15, 2022, NRS and NRT filed a memorandum of costs seeking $9,673.00 in total costs.

            On November 9, 2022, Plaintiffs filed a motion to tax costs, and on December 8, 2022, NRT and NRS filed an opposition.

PARTY’S REQUESTS

            Defendants ask the Court to strike or tax Plaintiff’s memorandum of costs.

LEGAL STANDARD

            “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of dismissal, or within 180 days after entry of judgment, whichever is first.”  (Cal. Rules of Court, rule 3.1700, subd. (a)(1).) 

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the costs memorandum.  If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013.”  (Cal. Rules of Court, Rule 3.1700, subd. (b)(1).) 

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.  This means that the prevailing party is entitled to all of his costs unless another statute provides otherwise.  Absent such statutory authority, the court has no discretion to deny costs to the prevailing party.”  (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 128-129 (citations and internal quotations omitted); Code of Civ. Proc. § 1032, subd. (b) (“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding”). 

Initial verification of a bill of costs is prima facie evidence of the reasonable necessity of the claimed costs, and there is no requirement that copies of bills, invoices, statements or other supporting documentation be attached to the bill of costs; however, if costs have been put in issue by a motion to tax costs, the burden shifts to the party claiming costs to establish reasonableness.  (Jones v. Dumrichob, (1998) 63 Cal.App.4th 1258, 1267.) 

DISCUSSION

Videotaped Deposition Costs of $5,783

            Plaintiffs move to strike the claimed costs of $5,783. They argue that this amount for a single videotaped deposition of Plaintiff Karo was not reasonably necessary for purposes of defending the case because there was no indication that through the conduct of Plaintiff he would not appear for his trial or be unavailable. Additionally, they argue that Defendant has not provided verification of the costs.

            In opposition, NRT and NRS state that they erroneously miscalculated the deposition costs, which instead total $3,482.25 ($1,763.05 for the transcript and $1,719.20 for the videographer). An invoice is attached as Exhibit 3 to the opposition.

            As a preliminary note, initial verification on the memorandum of costs establishes the reasonable necessity of the costs claimed. Supporting documentation must be submitted only if costs have been put in issue by a motion to tax costs. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) Thus, Plaintiffs arguments about the lack of supporting evidence attached to the memorandum are insufficient. Instead, Plaintiffs must put forward facts, rather than mere conclusions challenging the reasonableness or necessary nature of the cost. (See County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113-1114.)

            Section 1033.5, subdivision (a)(3)(A) provides as allowable costs: “(A) Taking, 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.”  (Code Civ. Proc., § 1033.5, subd. (a)(3)(A).)  This section, on its face, allows for the recovery of a video recording of the deposition. Additionally, there can be no legitimate dispute that Plaintiff is a necessary party to depose, since he is the only one with firsthand knowledge of the accident and his injuries.

            Because Defendants have attached invoices showing the deposition expenses, and because Plaintiffs have offered no facts supporting their argument that the videotaped deposition was necessary, except for the fact that there was no indication Plaintiff would be unavailable for trial, the Court finds that the deposition costs were reasonable and necessary.  Although, because NRT and NRS miscalculated the deposition expenses in their memorandum of costs, the Court taxes this item of costs in the memorandum to award only $3,482.25.  

Interpreter Fees of $1,743

            Plaintiffs argue that the amount claimed for interpreter fees is excessive and unsupported by documentation.

            In opposition, NRS and NRT state that Plaintiff Karo required an interpreter for the deposition because he speaks Armenian. They argue this is reasonable and necessary. An invoice for the interpreter is attached as Exhibit 4 to the opposition.

            The Court finds that an interpreter was reasonably necessary for the deposition and the cost was not excessive. Thus, the motion to strike or tax the interpreter fee is denied.

Filing Fees of $2,147

            Plaintiffs move to strike the costs of filing and motion fees because Defendants did not provide Plaintiffs with a worksheet enumerating the filings. Plaintiffs also  argue that NRS’ filing an untimely answer was not reasonably necessary and should not be incurred as a cost.

            In their opposition, NRS and NRT attach the Exhibit 2 showing an enumerated list of the filing fees incurred.

 It is not required that prevailing party submit a worksheet to request costs. This form is optional, and a verified memorandum of costs is sufficient. (Code Civ. Proc. § 1034; California Rules of Court, rule 3.1700(a).) Defendants have met their requirement by providing a verified memorandum of costs. Filing and motion fees are allowable costs. (Code Civ. Proc. § 1033.5(a)(1).)

            The record reflects that NRS’ answer was filed on August 5, 2022, and that NRS was served with the complaint on June 14, 2021. Although the answer was filed late, the filing of an answer is necessary to present a defense; thus, the Court denies the motion to strike or tax the costs of the filing fees.

CONCLUSION

            The motion to tax is granted in part as to the deposition costs and denied in part as to the interpreter and filing fees.

            The awarded costs are as follows:

• Deposition costs: $3,482.25

• Interpreter fees: $1,743.00

• Filing fees: $2,147.00

              Defendants National Retail Systems, Inc. and National Retails Transportation are ordered to give notice of this ruling.

Defendants National Retail Systems, Inc. and National Retails Transportation are ordered to file the proof of service of this ruling with the Court within five days.

Defendants National Retail Systems, Inc. and National Retails Transportation are ordered to refile the memorandum of costs reflecting the accurate deposition costs.

The parties are directed to the header of this tentative ruling for further instructions.