Judge: Daniel M. Crowley, Case: 21STCV36702, Date: 2024-07-26 Tentative Ruling

Case Number: 21STCV36702    Hearing Date: July 26, 2024    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Juvwana Clay’s motion to strike Defendant’s memorandum of costs is denied.  Plaintiff’s motion in the alternative to tax Defendant’s memorandum of costs is granted in the reduced total amount of $632,173.86.

Plaintiff Juvwana Clay (“Clay”) (“Plaintiff”) moves to tax costs requested by Defendant Hawaiian Gardens Casino (“HGC”) (“Defendant”) in their entirety on the basis Defendant’s costs memorandum is not the proper means of seeking recovery of attorney’s fees and there is no ground for attorney fees or costs to be awarded to a defendant of an Unruh Act action.  (Notice Motion, pgs. 1-2; CRC, Rule 3.1700(b).)  Plaintiff also moves on the ground that where costs are allowed, there is no showing by Defendant that this action was objectively unfounded, as required for Defendant to seek costs.  (Notice Motion, pg. 2.)

Procedural Background

On April 4, 2024, Defendant filed a Memorandum of Costs claiming $435.00 in filing and motion fees, $6,702.53 in deposition costs, $448.48 in service of process, $2,082.33 in attachment expenses, $11,399.98 in court reporter fees, $569.80 for exhibit aids, $1,182.00 in fees for electronic filing or service, and $619,775.28 in “Other” costs, with $606,949.50 of those “Other” costs consisting of Attorney’s Fees.  (See Memorandum of Costs, Attachment to Memorandum of Costs (Worksheet).)

On April 16, 2024, Plaintiff filed the instant motion.  On July 12, 2024, Defendant filed its opposition.  Plaintiff filed her reply on July 23, 2024.

Motion to Tax Costs

“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. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.”  (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

“[T]he mere filing of a motion to tax costs may be a ‘proper objection’ to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face.  [Citation] However, ‘[i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].’ [Citations.]”  (Id.)

“The court’s first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. [Citation] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. [Citation.]”  (Id.)

A prevailing party is entitled as a matter of right to recover costs in any action or proceeding, except as otherwise expressly provided by statute.  (C.C.P.  §1032(b).)  California law recognizes three types of litigation costs: allowable, not allowable, and discretionary.  (C.C.P. §§1033.5(a), (b), (c)(4).)  Items not specifically allowable as costs under C.C.P. §1033.5(a), and not specifically prohibited under §1033.5(b), may be allowed as costs at the discretion of the trial court if reasonably necessary to the conduct of the litigation.  (Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 506, citing Ladas v. California State Auto Association (1993) 19 Cal.App.4th 761, 774.)   For allowable costs, C.C.P. §1033.5(c) provides:

(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.

(3) Allowable costs shall be reasonable in amount.

(C.C.P. §§1033.5(c)(2)-(3).) 

To the extent Plaintiff challenges costs, they must be challenged as costs that were not, “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” or not “reasonable in amount.”  (C.C.P. §§1033.5(c)(2)-(3).) 

Here, Defendant is the prevailing party in the instant action by virtue of the jury returning a verdict in favor of Defendant on Plaintiff’s claims for violation of the Unruh Act, negligence, retaliation, and intentional infliction of emotional distress.  (Judgment on Special Verdict Form, pg. 4.)  Further, in the instant motion, Plaintiff does not argue she is the prevailing party in this action.

In order for the prevailing party to obtain its costs, all that is required is the timely filing and service of the “memorandum of costs” that is verified with a statement, “that to the best of his or her knowledge the items of costs are correct and were necessarily incurred in the case.”  (CRC, Rule 3.1700(a)(1).)  Defendant timely filed its Memorandum of Costs.

Plaintiff argues that pursuant to C.C.P. §1033.5(c)(5)(A), any request for attorneys’ fees must be made by motion, and because no motion was filed, Defendant’s memorandum should be stricken for Defendant’s failure to comply with CRC, Rule 3.1702(b)(1).  Plaintiff argues in the alternative that this Court should tax Defendant’s costs that are prohibited under California law and were not reasonably necessary to the conduct of litigation.  (Motion, pg. 3.)

In an Unruh action, like employment actions, the prevailing defendant should not be awarded attorneys’ fees or costs unless the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so.  (Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (2018) 19 Cal.App.5th 525; Turner v. Association of American Medical Colleges (2011) 193 Cal.App.4th 1047, 1060 [awarding only plaintiffs’ fees and costs].)  Here, this Court does not find Plaintiff’s action was objectively without foundation when brought or that Plaintiff continued to litigate after it clearly became so.  Therefore, Defendant is not entitled to attorneys’ fees or costs for prevailing on the Unruh action.

Further, Defendant cannot recover attorneys’ fees under C.C.P. §128.5 because Defendant did not comply the with the safe harbor requirements for filing a §128.5 sanctions motion.

Therefore, Defendant would only be entitled to costs pursuant to C.C.P. §1032(b) as the prevailing party. 

1.     Filing and Motion Fees (Item 1)

Defendant requests $435.99 in deposition costs.  Plaintiff moves to tax these costs as not permitted under the Unruh Act.

The right to recover filing and motion fees is expressly authorized by C.C.P. §1033.5(a)(1).  Costs are allowable if they are “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.”  (C.C.P. §1033.5(c)(2).)

Plaintiff’s contention that these costs should not be awarded because Defendant cannot recover these costs under the Unruh Act does not prevent Defendant from recovering its costs under C.C.P. §1032(b).

Accordingly, Plaintiff’s request to tax $435.00 in filing and motion fees is denied.

2.     Deposition Costs (Item 4)

Defendant requests $6,702.53 in deposition costs.  Plaintiff moves to tax all deposition costs. 

Deposition-related costs are explicitly allowed as costs, as set forth in C.C.P. §1033.5(a)(3).

Accordingly, Plaintiff’s request to tax $6,702.53 in deposition costs is denied.

3.     Service of Process (Item 5)

Defendant requests $448.48 in service of process costs.  Plaintiff moves to tax all service of process costs. 

Here, service of process costs were merely for the convenience of Defendant; it was not necessary for the litigation, and is, therefore, not recoverable.  (See C.C.P. § 1033.5(c).)

Accordingly, Plaintiff’s request to tax $448.48 in service of process costs is granted.

4.     Attachment Expenses (Item 6)

Defendant requests $2,082.33 in attachment expenses.  Defendant concedes that $115.12 of the attachment expenses is duplicative and does not seek this cost.  (Opposition, pg. 12.)

The expenses requested in Attachment 5 for the total of $645.72 is proper because these costs were for service of process of deposition subpoenas to third parties, as are the costs of $1,436.61 for the deposition of Richard Johnson included in Attachment 4.

Therefore, Plaintiff’s request to tax Defendant’s Attachment Expenses is granted in the reduced amount of $115.12.

5.     Court Reporter Fees (Item 11)

Defendant requests $11,399.98 in court reporter fees.  Plaintiff moves to tax all court reporter fees. 

Defendant is not entitled to recover court reporter fees because such fees were not ordered by this Court. Court reporter fees were not necessary for the litigation, and are, therefore, not recoverable.  (See C.C.P. § 1033.5(c).)

Accordingly, Plaintiff’s request to tax Defendant’s court reporter fees is granted in the amount of $11,399.98.

6.     Models, Enlargements, and Photocopies of Exhibits (Item 12)

Defendant requests $569.80 in costs for models, enlargements, and photocopies of exhibits.  Plaintiff moves to tax these costs.

A prevailing party is entitled to recover costs for “[m]odels, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting . . . if they were reasonably helpful to aid the trier of fact.” (C.C.P. §1033.5(a)(13).)  Costs for photocopying “are allowable” for exhibits.  (El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc. (2007) 150 Cal.App.4th 612, 618; see also Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1627; Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 77-78.)  Defendant is entitled to recover costs related to photocopies of exhibits and Plaintiff has failed to demonstrate these costs were unnecessary or unreasonable.

Accordingly, Plaintiff’s request to tax Defendant’s costs for models, enlargements, and photocopies of exhibits is denied.

7.     Fees for Electronic Filing or Service

Defendant requests $1,182.00 in fees for electronic filing.  Plaintiff moves to tax all fees.

The right to recover filing and motion fees is expressly authorized by C.C.P. §1033.5(a)(1).  Costs are allowable if they are “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.”  (C.C.P. §1033.5(c)(2).)

Plaintiff’s contention that these costs should not be awarded because they are “excessive and unexplained” is not a proper basis for challenging these costs.

Accordingly, Plaintiff’s request to tax $1,182.00 in electronic filing or service fees is denied.

8.     Other (Item 16)

Defendant requests $619,775.28 in “other” costs.  Plaintiff moves to tax all costs, comprised of $606,949.50 in attorneys’ fees; $12,395.70 in legal research; and $430.08 for the delivery of trial binders and supplies to Court during trial.

As stated earlier, Defendant is not entitled to recover attorneys’ fees under the Unruh Act.  Further, Defendant has not made a noticed motion for attorneys’ fees as required by C.C.P. §1033.5(c)(5)(A), and Defendant inexplicably does not include its request for attorneys’ fees in Item 10 of the memorandum of costs.

Defendant is not entitled to recover legal research costs.  “Fees for legal research, computer or otherwise, may not be recovered under section 1033.5” because “subdivision (b)(2) of section 1033.5 bars recovery of ‘[i]nvestigation expenses in preparation of the case for trial.”  (Ladas v. California State Automobile Ass’n (1993) 19 Cal.App.4th 761, 776.)

Defendant is also not entitled to recover costs for deliver of trial binders because such costs were incurred for mere convenience, were not necessary for the litigation, and are, therefore, not recoverable.  (See C.C.P. § 1033.5(c).)

          Accordingly, Plaintiff’s request to tax $619,775.28 in “other” costs is granted.

          Conclusion

          Plaintiff’s motion to strike Defendant’s memorandum of costs is denied.  Plaintiff’s motion in the alternative to tax Defendant’s memorandum of costs is granted in the reduced total amount of $632,173.86.

          Moving party to give notice.

Dated:  July _____, 2024