Judge: Daniel S. Murphy, Case: 22STCV32885, Date: 2025-03-07 Tentative Ruling

Case Number: 22STCV32885    Hearing Date: March 7, 2025    Dept: 32

BACKGROUND

            On October 6, 2022, Plaintiff BAFFS filed this action against Defendants Appliance Outlet, Inc. and Agasi Davtyan, alleging (1) breach of contract, (2) breach guaranty, (3) breach of the covenant of good faith and fair dealing, and (4) negligence. Plaintiff filed the operative First Amended Complaint on December 5, 2022.

            After a court trial, the Court found for Plaintiff on the first three causes of action and for Defendants on the fourth cause of action. Judgment was entered accordingly on February 10, 2025.    

            On February 3, 2025, Plaintiff filed a Memorandum of Costs (MOC) totaling $13,957.20.

            On February 6, 2025, Defendants filed the instant motion to tax costs. Plaintiff filed its opposition on February 24, 2025. Defendants filed their reply on February 28, 2025.

LEGAL STANDARD

“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.” (Code Civ. Proc., § 1032(b).) Section 1033.5 sets forth the types of costs that are recoverable to the prevailing party as follows: (1) costs that are expressly allowed; (2) costs that are expressly disallowed; and (3) costs that are allowed in the court’s discretion. (Id., § 1033.5.) Even where costs are deemed allowable, such costs are only recoverable if they are: (1) reasonably necessary to the conduct of the litigation and not merely convenient or beneficial to its preparation; and (2) reasonable in amount. (Ibid.)

“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.” (Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1128.)

DISCUSSION

I. Service of Process (Item No. 5)

            Fees for service of process are expressly allowed. (Code Civ. Proc., § 1033.5(a)(4).)

Plaintiff claims $260 for service of process. Defendants challenge the $195 claimed for personal service of trial subpoenas because the parties consented to electronic service. However, the availability of electronic service does not preclude personal service. The Court finds that personal service was reasonably necessary to the litigation. (See Tabatabai Decl. ¶ 4.) Thus, this cost is proper.

II. Witness Fees (Item No. 8)

Plaintiff claims $1,325 in witness fees, consisting of $275 in ordinary witness fees for Robert Chavez and $1,050 in expert fees for Yan Tkach pursuant to section 998.

a. Robert Chavez

Ordinary witness fees are expressly recoverable “pursuant to Section 68093 of the Government Code.” (Code Civ. Proc., § 1033.5(a)(7).) Government Code section 68093 provides for witness fees of $35 per day and $0.20 per mile. (Gov. Code, § 68093.) 

Plaintiff claims $275 for the trial appearance of Chavez, an inspector from the Los Angeles Department of Building Safety, pursuant to Government Code section 68096.1. That statute governs situations in which “[a]ny employee of a local agency . . . is obliged by a subpoena to attend a civil action or proceeding as a witness.” (Gov. Code, § 68096.1(a).) The statute provides for the following reimbursement:

“The party at whose request the subpoena is issued shall reimburse the local agency for the full cost incurred by the local agency in paying the employee his or her salary or other compensation and traveling expenses as provided for in this section, for each day that the employee is required to remain in attendance pursuant to the subpoena. The amount of two hundred seventy-five dollars ($275), together with the subpoena, shall be tendered to that local agency for each day that the employee is required to remain in attendance pursuant to the subpoena.”

(Id., § 68096.1(b).)

            Recovery of the $275-per-day reimbursement provided in Government Code section 68096.1(b) is neither expressly allowed nor disallowed. (See Code Civ. Proc., § 1033.5(a), (b).) Thus, recovery is within the Court’s discretion. (Id., § 1033.5(c)(4).) The Court finds that the cost was reasonably incurred and necessary to the litigation. Thus, Plaintiff may recover $275 for Chavez.

            b. Yan Tkach

            Fees for experts ordered by the court are expressly allowed, while fees for experts not ordered by the court are expressly disallowed unless otherwise permitted by law. (Id., § 1033.5(a)(8), (b)(1).) Section 998 permits a plaintiff to recover expert fees “[i]f an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award.” (Id., § 998(d).)

            Here, Plaintiffs offered to accept $2,250,000 from each defendant in exchange for dismissal. (Gerber Decl., Ex. C.) However, Plaintiff only recovered $310,107.88 at trial. Thus, the precondition of section 998(d) was not triggered. Because Plaintiff is not entitled to expert fees under section 998, and Yan Tkach was not otherwise an expert witness ordered by the Court, the fee for Yan Tkach is stricken.

            In sum, Item No. 8 is taxed in the amount of $1,050.  

III. Court Reporter Fees (Item No. 11)

            Plaintiff claims $9,302.50 for court reporter fees.

“Court reporter fees as established by statute” are expressly recoverable. (Code Civ. Proc., § 1033.5(a)(11).) Government Code section 68086 provides for the recovery of court reporter fees as follows: “The fees and charges of the certified shorthand reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law.” (Gov. Code, § 68086(d)(2).)

            In this case, Vivian Tristan was appointed as the certified shorthand reporter for trial. (Tabatabai Decl., Ex. 6.) The fees incurred for Ms. Tristan are substantiated by evidence. (Id., ¶ 7, Ex. 4.) Defendants argue that Government Code section 68086 does not provide a statutory basis for court reporter fees. Even if that were true, the reporter fees being requested are not expressly disallowed, either. (See Code Civ. Proc., § 1033.5(b).) Thus, the costs are within the Court’s discretion. (Id., § 1033.5(c)(4).) The Court finds these fees to be reasonably incurred.

However, Plaintiff also claims $265 for “rough draft transcripts.” (Ibid.) “Transcripts of court proceedings not ordered by the court” are expressly disallowed. (Code Civ. Proc., § 1033.5(b)(5).) The Court did not order rough draft transcripts. Thus, the transcript costs are stricken.

            In sum, Item No. 11 is taxed in the amount of $265.

IV. Other Costs (Item No. 15)

            Plaintiff claims $2,000 for interpreter fees at trial for Defendant Davtyan.

            Trial interpreter fees are neither expressly allowed nor disallowed. (See Code Civ. Proc., § 1033.5(a), (b).) Thus, recovery is within the Court’s discretion. (Id., § 1033.5(c)(4).) The parties stipulated to an Armenian interpreter for Mr. Davtyan. (Tabatabai Decl., Ex. 10.) The Court finds that an interpreter was reasonably necessary for trial. The cost is substantiated by evidence. (Id., ¶¶ 10-11, Ex. 7.) Thus, Plaintiff is entitled to recover $2,000 for the cost of interpreter services.      

CONCLUSION

            Defendants’ motion to tax costs in GRANTED in the amount of $1,315.