Judge: Deborah C. Servino, Case: 30-2019-01064083, Date: 2022-09-02 Tentative Ruling
Plaintiff Shana and Cade Gadreau’s motion to strike or tax the costs of Defendant City of La Habra is granted in part and denied in part, as set forth below.
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]. On the other hand, items that are properly objected to are put in issue, and the burden of proof is on the party claiming them as costs. (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at pp. 774-776.)
Merits
It is undisputed that Defendant is the prevailing party. On April 28, 2022, judgment was entered in its favor following a trial by jury. Defendant claims a total of $66,693.25 in costs. (ROA 725.)
Filing and Motion Fees (Item 1)
Filing fees are allowable costs. (Code Civ. Proc., § 1033.5, subd. (a)(1).) Electronic filing fees are also recoverable under Code of Civil Procedure section 1033.5, subdivision (a)(15). Plaintiffs argue that because Defendant, as a public entity, is exempt from filing fees under Government Code section 6103, these costs should be disallowed. However, a review of the invoices shows that the charges were mostly not for filing or motion fees. Rather, they were for other fees such as CourtCall fees and courier fees to provide courtesy copies of documents to the court.
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 CourtCall.
On the other hand, Defendant has not shown that courtesy copies were reasonable or necessary. While the court appreciates courtesy copies, they are not required. Accordingly, the court declines to exercise its discretion in awarding the costs of courtesy copies. (Ladas v. California State Auto. Assoc., supra, 19 Cal.App.4th at p. 776.)
In its opposition, Defendant concedes that matters billed by service providers as “photocopy,” “urgent,” or “convenience fee” charges, can be taxed. Accordingly, the filing and motion fees are taxed $1,955.42.
Deposition Costs (Item 4)
Plaintiffs argue that $909.75 should be taxed for the costs associated with the deposition of Dr. Wungwattana, because, among other reasons, she was not called as a witness at trial. Plaintiffs admit that they designated Dr. Wungwattana as a non-retained expert, thus undermining their argument that she was not a relevant witness. A witness does not have to be called at trial for their deposition to be necessary or the cost for the taking of the deposition to be recoverable. (See Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.)
Plaintiffs also argue that $4,743.00 should be taxed for the costs of videotaping depositions. While the cost of videotaping depositions is expressly recoverable under section 1033.5(a)(3), it is subject to the caveat in subdivision (c)(2), that such costs must be reasonably necessary to the conduct of the litigation. Here, Defendant disputes Plaintiffs’ assertion that none of the witnesses would have been unavailable for trial. It argues that videotaping was necessary for potential use at trial for impeachment purposes and for evaluation to use in lieu of live testimony. Indeed, during trial management, defense counsel specifically indicated that while Defendant did not anticipate presenting testimony of any witnesses only by deposition, he would apprise the court if Defendant needed to use videotaped depositions if any doctors were unavailable to testify. (3/2/2022 Minute Order.) With Defendant’s explanation, corroborated by the record, the court finds that Defendant has demonstrated that videotaping the depositions of Cody Gaudreau, Elizabeth Reyes, M.D, Sarah Shawesh, Rachel Malin, and Debbie Jason were reasonably necessary. (See Seever v. Copley Press, Inc., supra, 141 Cal.App.4th at p. 1558.)
Plaintiffs also contend that $490 for “Plaintiff’s MSA Hearing” should be taxed. Defendant agrees and concedes Plaintiff’s argument. Accordingly, the deposition costs are taxed $490.
Service of Process (Item 5)
Plaintiffs argue that $135 should be taxed for service of process on Dr. Wungwattana, and $135 for service of process on Philip Unger, M.D. In addition to Dr. Wungwattana, Philip Unger M.D. was also designated by Plaintiff as a non-retained expert witness. Plaintiffs also argue that $356.38 should be taxed representing service of process on Elizabeth Reyes, M.D.
The court finds that all of these costs are reasonable and necessary to the litigation. Photocopying records is part of the costs incurred in subpoenaing records. The court in Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 577, held that all costs associated with obtaining subpoenaed medical records are recoverable as prevailing party costs. Accordingly, the service of process costs are not taxed.
Witness Fees (Item 8)
Plaintiffs argue that Defendant is only entitled to recover $70 for ordinary witness fess payable to Dr. Bhatta and Dr. Feng and the remaining costs must be taxed. Defendant concedes that its claimed witness costs may be taxed or stricken as requested by Plaintiffs. (Opp., at p. 5.) Accordingly, the witness fees are taxed $21,507.50.
Other Costs (Item 16)
Defendant concedes that its costs under the “other” category (costs for the reporting of trial transcripts) are not recoverable. (Opp., at p. 5.) Therefore, “other” costs are taxed $16,342.84.
Defendant’s costs are taxed a total of $40,295.76 ($1,955.42 + $490 + $21,507.50 + $16,342.84 = $40,295.76). Defendant is entitled to recover $26,327.49 in costs ($66,693.25 - $40,295.76 = $26,397.49).
Plaintiffs shall give notice of the ruling.