Judge: Deborah C. Servino, Case: 30-2017-00945345, Date: 2022-10-21 Tentative Ruling
Plaintiffs Michael Barnes and Lisa Underwood’s motion to tax costs sought by Defendant Ana Martinez is denied in part and granted in part.
As a preliminary matter, Martinez filed an amended memorandum of costs after filing the instant motion. (ROA 438.) This amended memorandum of costs does not comply with California Rules of Court, rule 3.1700.
Applicable Law on Taxing Costs
The right to recover costs of suit is determined entirely by statute. (Code Civ. Proc., § 1032, et seq.) Unless otherwise expressly prohibited by statute, a prevailing party is entitled to recover costs as a matter of right. (Code Civ. Proc., § 1032, subd. (b).) Code of Civil Procedure section 1033.5, subdivision (a) specifies cost items that are allowable, including filing and motion fees, deposition costs, and court reporter fees. (Code Civ. Proc., § 1033.5, subd. (a)(3).) Allowable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5, subd. (c).)
If the items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761,774-776; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266 [mere statements in points and authorities and declaration of counsel insufficient to rebut prima facie showing]; see Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 777-778 [prevailing defendant properly awarded its photocopying costs which were supported by invoice from copy company, when plaintiffs failed to present any evidence showing that copying could have been done for less].) The burden then rests with the party seeking to tax costs to show they were improper, unreasonable, or unnecessary. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 856.) If the party seeking to tax costs makes a proper objection to an item in the cost bill (as determined after the trial court reviews the submissions), the burden then shifts back to the party claiming them as costs. (Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1380.) The propriety of costs is a question of fact to be determined by the trial court. (Jones v. Dumrichob, supra, 63 Cal.App.4th at p. 1266.) An order denying a motion to tax costs, in whole or in part, means that the moving party must pay the costs allowed. (Krikorian Premiere Theatres, LLC v. Westminster Central, LLC (2011) 193 Cal.App.4th 1075, 1084.)
Merits
Deposition Costs (Item 4)
Plaintiffs object to $535.15 of the amount claimed, contending the deposition of Susan Carmichael was not reasonably necessary, as reflected by the fact Martinez did not rely on her testimony at trial.
But a witness does not have to be called at trial for his or her deposition to be necessary or for the costs of the taking the deposition to be recoverable. (See Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.) Discovery is not just to find and examine helpful witnesses, but to establish what evidence exists or does not exist to support the other side’s position. It was reasonable for Martinez to depose a potential witness to establish what harmful testimony she did or did not have. Accordingly, the motion to tax deposition costs is denied.
Service of Process (Item 5)
Plaintiffs object to $1,202.59 of the amount sought for service of process, contending that the subpoenas served on Unique Risk Management, Officer Mirakian Jordan (two of them), Officer David McGill, and Officer James Coto were not reasonably necessary as none of these witnesses were deposed or presented at trial and no documents obtained from them were introduced at trial. (Jeffrey Decl., at ¶ 6.)
The court finds that these costs were reasonable and necessary to the litigation. Accordingly, the service of process costs are not taxed.
Attachment Expenses (Item 6)
Code of Civil Procedure section 1033.5, subdivision(a)(5) provides for recovery of “[e]xpenses of attachment including keeper's fees.” The costs shown at item 6 are not costs of attachment. Martinez acknowledges that, but argues that they are nevertheless recoverable costs for: (1) CourtCall invoices; (2) “receipts from the court attainable to the defendant’s effort to retrieve court filings and other documents necessitated by virtue of the electronic filing system”; (3) parking at the County of Orange Courthouse; and (4) meals. (Opp., at p. 8.)
To the extent these costs are associated with Martinez’s motion for fees and costs pursuant to Code of Civil Procedure section 2033.420, that motion was denied. (See 10/7/2022 Minute Order.)
Costs associated with CourtCall appearances are not specifically addressed in Code of Civil Procedure section 1033.5. Due to the COVID-19 pandemic, the court required all counsel to appear only by CourtCall. This cost was reasonably necessary to the conduct of the litigation, and not merely convenient or beneficial to its preparation. (See Code Civ. Proc., § 1033.5, subds. (c)(2) & (c)(4); Landwatch San Luis Obispo County v. Cambria Community Services District (2018) 25 Cal.App.5th 638, 645-646; Fourth Amended Administrative Order No. 20/06 [Civil Order Regarding Court Closure].) As a result, the court allows the costs associated with the CourtCall for August 18, 2020, which was $94.
It is unclear why retrieving court filings and other documents was reasonable and necessary to the conduct of litigation, particularly since Martinez appeared in this case no later than June 4, 2018, and should have been served with all documents filed in this matter. By analogy, photocopying charges, except for exhibits, are not allowed as costs. (Code Civ. Proc., § 1033.5, subd. (b)(3).)
The only travel expenses authorized by section 1033.5 are those to attend depositions. (Code Civ. Proc., § 1033.5, subd. (a)(3)(C).) Parking at the court is not an allowable cost. (Ladas v. Cal. State Auto Assn., supra, 19 Cal.App.4th at pp. 775-776.) Accordingly, the attachment expenses are taxed $283.42.
Court-Ordered Transcripts (Item 9)
Only the cost of court-ordered transcripts of court proceedings are recoverable. (Code Civ. Proc., 1033.5, subd. (a)(9).) Plaintiffs object to the requested costs on this basis because the court did not order transcripts in this case. Martinez apparently agreed, but did not withdraw the request. (Jeffrey Decl., at ¶¶ 4-5 and Exhs. C, D.) Rather, after Plaintiff’s filed their motion, Martinez filed an amended memorandum re-designating the costs as reporters fees by statute.
The per diem cost for having a court reporter is recoverable. (See Code Civ. Proc., § 1033.5, subd. (a)(11); Govt. Code, § 68086, subd. (a); Cal. Rules of Court, rule 2.956(c).) The fees for the transcripts themselves, however, are a separate matter from fees for the court reporter’s presence at trial. (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58.) These fees are not recoverable if the transcripts were not ordered by the court. (Id; Code Civ. Proc., § 1033.5, subd. (b)(5).) The per diem court reporter fee for a full-day is $860, pursuant to the Court’s posted fee schedule. It is apparent that the amounts claimed are not limited to reporter’s fees. It appears that the court reporter fees were split between the defense and the Plaintiffs. It also appears that the fees were further split between Martinez and Defendant JTC Estates. Martinez has not established that fee amounts charged were pursuant to statute as required. At most, she has only established that she is entitled to recover $2,150 for the days a court reporter was utilized for proceedings on April 18, 19, 20, 25, 26, 27, and May 2, 3, 4, and 6, 2022. Accordingly, this item is taxed $5,494.64.
Martinez’s costs are taxed a total of $5,778.06 ($283.42 + $5,494.64 = $5,778.06). Martinez is awarded $7,336.19 in costs ($13,114.25 - $5,778.06 = $7,336.19).
Plaintiffs shall give notice of the ruling.