Judge: Donald F. Gaffney, Case: "Inga v. Assent Mortgage, LLC", Date: 2022-12-07 Tentative Ruling

TENTATIVE RULING: 

Motion to Tax Costs

Defendants Assent Mortgage, LLC, and Mahyar Kazemi aka Matt Kazemi move to tax costs claimed by Plaintiff Maria Inga. For the following reasons, the motion is DENIED in part and GRANTED in part.

The right to recover costs of suit is determined entirely by statute. (Code Civ. Proc., § 1032.) The prevailing party is entitled to costs as a matter of right in any action or proceeding. (Code Civ. Proc., § 1032(b).) Allowable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and must be “reasonable in amount.” (Code Civ. Proc., § 1033.5(c).) “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 are not reasonable or necessary.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

Here, it is undisputed that Plaintiff is the prevailing party.

On a motion to strike or tax costs, 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. Ass’n. (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].)

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, 19 Cal.App.4th at 774-776.)

Item 4. Deposition Costs.

Section 1033.5(a)(3) provides for the recovery of costs associated with “necessary depositions”—including costs to take, video record, and transcribe necessary depositions, registered interpreter fees, and travel expenses to attend depositions. A prevailing party may recover the costs of more than one attorney to attend deposition. (Segal v. ASICS Am. Corp. (2020) 50 Cal.App.5th 659, 668 [finding the plain terms of the statute include no such limitation, and the court was unaware of any authority to support that limitation].)

Here, the claimed deposition cost appears on its face to be a proper charge. In addition, Plaintiff provides an invoice showing the amount charged to be reasonable and necessary. (Singh Decl., Ex. 1.) Whether Defendants were charged less for their copy of the deposition transcript does not show the amount paid by Plaintiff to be unreasonable in amount.

Item 8. Expert fees.

Expert witness fees are not allowable unless ordered by the court. (Code Civ. Proc., § 1033.5(a)(8), (b)(1).) Section 998 provides that post-offer expert witness costs that are not regular employees of any party are recoverable in the court’s discretion if “an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award . . . .” (Code Civ. Proc., § 998(c)(1).)

Here, the witness fees appear on their face to be proper charges. The court finds Dr. Rosen’s hourly rate of $400 and the hours incurred to be reasonable and necessary. His billed time included consulting with counsel, reviewing documents, preparing an expert report, and preparing for and testifying at trial. (Singh Decl. ¶ 4.)

Item 11. Court reporter fees.

Government Code section 68086(d)(2) provides that “if an official court reporter is not available, a party may arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter, the costs therefore recoverable as provided in subdivision (c).” Subdivision (c), in turn, provides that the “costs for the services of the official court reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law.” Code of Civil Procedure section 1033.5(c)(4) provides this court discretion to allow or deny cost items not explicitly mentioned in section 1033.5.

Here, the court finds Plaintiff has shown the private court reporter fees at trial to be reasonably necessary to the conduct of the litigation and, therefore, exercises its discretion to allow for recover of those fees. Plaintiff’s evidence and the court record shows a private court reporter was present for 11.5 days of trial, and that Plaintiff was responsible for $750/day. (See Singh Decl., Ex. 4.)

The cost of trial transcripts are not recoverable unless ordered by the court (Code Civ. Proc., § 1033.5(b)(5)), and Plaintiff fails to show the court reporter fee for the “FSC” to be reasonably necessary to the conduct of the litigation. Thus, the court hereby taxes $4,167.42 from Plaintiff’s claimed court reporter costs.

Amended Memorandum of Costs

On 11/22/2022, Plaintiff filed an amended memorandum of costs reflecting an additional $1,399.15 in jury fees.

As noted above, the right to recover costs of suit is determined entirely by statute. (Code Civ. Proc., § 1032.) Plaintiff cites no authority providing for the recovery of jury fees incurred post-judgment.

Plaintiff shall recover $20,514.79 in prejudgment costs.

Plaintiff to give notice.