Judge: Elaine W. Mandel, Case: SC126958, Date: 2024-02-09 Tentative Ruling

Case Number: SC126958    Hearing Date: February 9, 2024    Dept: P

Tentative Ruling

David Houck v.  James L. Barber, Case No. SC126958

Hearing Date February 9, 2024

Defendant Barber’s Motion to Strike or Tax Costs; Briefing Regarding Costs after Trial

Defendant Barber moves to tax or strike plaintiff Houck’s memorandum of costs after trial. At the initial hearing, the court asked the parties to brief the following threshold questions: (1) who was prevailing party under Cal. Code of Civ. Proc. §1032 and (2) what is the basis for Houck’s claim to fees/costs.

Cal. Code of Civ. Proc. §1032 provides the prevailing party entitled to recover costs. A prevailing party includes “the party with a net monetary recovery.” Cal. Code of Civ. Proc. §1032(a)(4). If no party prevailed according to the statute, the court “may allow costs or not and, if allowed, may apportion costs between the parties.” Id.

In its judgment the court awarded Houck a prescriptive easement, an injunction preventing Barber from interfering with the easement and damages of $11,000. Houck argues the damages award makes him the prevailing party under §1032.

DeSaulles v. Community Hospital of the Monterey Peninsula held a plaintiff who obtains a net monetary recovery is prevailing party under Cal. Code of Civ. Proc. §1032, even if the recovery was partial or most of plaintiff’s causes of action were defeated. DeSaulles, supra, (2016) 62 Cal.4^th 1140, 1157, citing Michell v. Olick (1996) 49 Cal.App.4^th 1194, 1198-1199 (“[A]lthough 11 of the plaintiff’s causes of action were not successful, plaintiff’s success on the 12^th cause of action for a jury award of $63,000 entitled a plaintiff to costs.”). Subsequent cases adhered to that ruling and concluded a trial court has no discretion to deny costs under §1032 to a party obtaining a net monetary recovery, regardless of any gap between the party’s litigation objectives and the amount ultimately obtained. See, e.g., Vought Construction, Inc. v. Stock (2022) 84 Cal.App.5th 622, 635.

The court has discretion, however, to deny all or a portion of the prevailing party’s costs where the “prevailing party recovers a judgment that could have been rendered in a limited civil case.” Cal. Code of Civ. Proc. §1033.

The judgment for $11,000 was for trees and nuisance. Barber was awarded nothing. Houck is the party with a net recovery. Under DeSaulles, it is immaterial that Houck failed on ten of his eleven causes of action and received a significantly smaller monetary award than he sought. As Houck obtained a net monetary award, he is the prevailing party.

Barber argues the court should exercise discretion under §1033 and award no costs, since Houck’s $11,000 award is beneath the $25,000 jurisdictional ceiling for limited civil court. This ignores the other categories of relief Houck obtained. In addition to $11,000 in damages, the court awarded a prescriptive easement over a portion of Barber’s land adjacent to the driveway. A limited civil court cannot determine existence of an easement or issue injunctive relief. Section 1033 does not permit the court to “split” its judgment, looking only at the amount of money awarded to determine whether the case could have been heard in limited civil court. The final judgment included relief a limited civil court cannot award. Section1033 does not apply, so the court lacks discretion to deny costs outright. Under §1032 and binding caselaw interpreting it, Houck is the prevailing party. The court has no discretion to apportion costs or conclude that neither party prevailed, regardless of the gap between Houck’s litigation objectives and the relief he ultimately obtained. Houck prevailed and is entitled to an award of reasonably necessary costs.

Barber’s motion to tax argues three categories ($12,155.26 in deposition costs, $10,975 in mediation costs and approximately $777 in filing fees) are unreasonable. In reply, Barber presents no further argument as to the filing fees, which the court will treat as an admission that they are recoverable. Even if Barber had argued, the court finds filing fees reasonable.

The cost of “taking, video recording, and transcribing necessary depositions” is recoverable by a §1032 prevailing party if the costs are reasonably necessary to the litigation, rather than merely convenient or beneficial to its preparation. Code of Civ. Proc. §1033.5(a)(3)(A); Davis v. KGO-TV, Inc. (1998) 17 Cal.4th 436, 441. The recovery of deposition costs does not depend on whether the deponent ultimately testifies at trial. Garcia v. Tempur-Pedic North America, LLC (2024) 316 Cal.Rptr.3d 898, 902 (“[C]ourts routinely refuse to tax costs on the ground that a deponent did not end up testifying or providing useful testimony at trial[.]”)

Houck seeks to recover $12,155.26 for twelve depositions. Barber argues since Houck lost on all but one of his causes of action, the depositions were not reasonably necessary. Houck argues no authority supports Barber’s argument that deposition costs can be disallowed merely because the prevailing party lost on one or more claims. Nonetheless, the court has discretion to determine whether it was “reasonable” for Houck to depose certain witnesses, and the reasonableness of the prevailing party’s causes of action is relevant to this analysis.

Barber seeks to disallow fees associated with depositions of Jack Garvey, David Tokushige, Michael Schaaf, Steve Frankel and Michael Sanders. The memorandum of costs worksheet attached to the Lorman declaration indicates Houck does not seek costs associated with the Garvey deposition.

Lorman admits witnesses Schaaf and Tokushige offered opinions related to Houck’s adverse possession claim. Lorman decl. ¶13. That cause of action lacked merit, evinced by Houck’s stipulation to a nonsuit. It was unreasonable to bring that claim, so the court finds costs associated with it are also unreasonable and are taxed.

Costs associated with the Frankel deposition are similarly unrecoverable; Barber named Frankel to refute Houck’s claim for damages due to inability to sell the property. Houck ultimately abandoned that claim, and the vast gulf between the damages Houck sought and those awarded indicates the amount initially requested was unreasonable. Since Frankel was called to refute an unreasonable request for damages, the court finds in its discretion that Houck’s costs associated with deposing him are taxed.

Sanders provided expert testimony as to the value of the disputed area. This was relevant to Houck’s requests for an easement, an issue that lay at the core of this case and was litigated at both stages of trial. It was reasonable and necessary for this witness to be called and for Houck to depose him. Houck is entitled to costs associated with his deposition.  

The court grants the motion to tax costs by $941.50 for Tokushige, $897.10 for Schaaf and $313.95 for Frankel, a total reduction of $2,152.55.

Mediator’s fees are not an allowable cost under Cal. Code of Civ. Proc. §1033.5, but a court has discretion to award. Gibson v. Bobroff (1996) 49 Cal.App.4th 1202, 1209-1210; Berkeley Cement, Inc. v. Regents of University of California (2019) 30 Cal.App.5^th 1133, 1140-1143.

Houck requests $11,091 in mediator fees. This includes $1,945 for mediation with Judge Collins before litigation began. Lorman decl., exh. 2. Under Cal. Code of Civ. Proc. §1032(b), a prevailing party is entitled to recover costs “in any action or proceeding.” The statute does not allow costs incurred before the action began. This amount is therefore unrecoverable.

The other mediation costs are recoverable subject to court discretion. Granting these costs would violate the public policy behind mediation. Courts encourage mediation as a timely and cost-effective method for resolving disputes and saving judicial resources. Code of Civ. Proc. §1775. Barber notes if losing parties are penalized through post-judgment cost awards for participating in voluntary mediation, litigants would be reluctant to agree to mediate. The policy in favor of mediation is best served by requiring parties to bear their own mediation costs.

$11,091 in costs associated with mediation will be taxed. Houck’s costs are taxed by $13,243.55, for a final cost award of $20,196.84.

GRANTED in part and DENIED in part.