Judge: Frank M. Tavelman, Case: BC690062, Date: 2022-09-21 Tentative Ruling

Case Number: BC690062    Hearing Date: September 21, 2022    Dept: A

ALLEGATIONS:

In this action, Jonathan C. Rosen, individually and dba Law Office of Jonathan C. Rosen (“Rosen”), and JCR Law Group (“JCR”) (collectively, “Plaintiffs”) commenced this action against Dale Reicheneder (“Reicheneder”), Reichender Law Group (“RLG”, and together, "Reicheneder Defendants"), James Moorhead (“Moorhead”), and Arturo Aguilar (“Aguilar,” and collectively, "Defendants").

Rosen is a lawyer specializing in criminal defense. In 2013, the district attorney charged Aguilar with certain criminal charges.  At the time of charging, Rosen defended Aguilar and procured a plea bargain, which Aguilar accepted. As a result, Aguilar was convicted and sentenced to one year in the juvenile facility.  The conviction was subsequently expunged.

Nearly two and a half years after the conviction, Aguilar filed a lawsuit against Rosen and JCR for legal malpractice, (LASC Case No. EC064392) (hereinafter, “Underlying Lawsuit”). Plaintiffs allege that before Aguilar filed the Underlying Lawsuit, that Reicheneder and RLG, Aguilar’s attorney, had the duty to evaluate the case’s merits objectively and fairly prior to pursuing it on behalf of Aguilar. In February 2017, Plaintiffs allege that Aguilar’s Underlying Lawsuit was dismissed with prejudice, constituting a termination in Plaintiffs’ favor.

Plaintiffs filed a Complaint on January 11, 2018, a First Amended Complaint ("FAC") on October 22, 2018, and a Second Amended Complaint ("SAC") on March 11, 2019, alleging a single cause of action sounding in malicious prosecution.

The Court dismissed the action on July 19, 2022.

HISTORY:

The Court received the Memorandum of Costs filed by Aguilar on August 3, 2022.  The Court received the Motion to Tax Costs as to Aguilar filed by Plaintiffs on August 4, 2022; the opposition filed by Aguilar on August 22, 2022; and the reply filed by Plaintiffs on August 30, 2022.

The Court received the Amended Memorandum of Costs filed by Moorhead on August 4, 2022. The Court received the Motion to Tax Costs as to Moorhead filed by Plaintiffs on August 4, 2022; the opposition filed by Moorhead on August 22, 2022; and the reply filed by Plaintiffs on August 26, 2022.

alludes that Mr. Hutchinson in some way also provided informal legal guidance (Moorhead Sept. 16^th Filing, Page 2 L26-27)

At the initial hearing, the Court requested additional documentation to support Mr. Moorhead’s and Mr. Aguilar’s claims.   These documents were filed with the Court September 16, 2022.

RELIEF REQUESTED:

Amended Memorandum of Costs filed by Moorhead:

1.      Deposition Costs in the amount of $2,133.01

2.      Service of Process in the amount of $1,140

3.      Other Secretarial, typing, document preparation, copying, etc. in the amount of $5,155.

Amended Memorandum of Costs filed by Aguilar:

1.      Filing and Motion Fees in the amount of $555

2.      Service of Process in the amount of $860

3.      Other Secretarial, Typing, Document Preparation, Copying. Etc. in the amount of $4,385.

Plaintiff moves to strike these costs.

ANALYSIS:

I.          LEGAL STANDARD

California Code of Civil Procedure §1033.5 discusses the costs recoverable under CCP §1032.  As related to this case, these costs include:  filing and motion fees, transcribing necessary depositions, service of process, court reporter fees.   Excluded are transcripts of court proceedings not ordered by the court.  These costs are allowable if incurred, whether or not paid.  (CCP §1033.5(b).)  Items not expressly mentioned by the statute may be allowed or denied at the court’s discretion.  (CCP §1033.5(c)(4)).   All allowable costs shall be reasonably necessary to conduct litigation, and not merely convenient or beneficial.  (CCP §1033.5(c)(2)).

“[T]he 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.” (612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285.) Evidence is generally required to support an objection, and the mere submission of conclusions or bare allegations typically does not justify taxing costs. (See County of Kern v. Ginn (1983) 146 Cal.App.3d 1107) (bare allegation that depositions were neither necessary nor reasonable insufficient to overcome right to costs). Allegations are sufficient, however, if they depend upon undisputed facts where nothing more needed to be, or could have been, added by additional declarations or affidavits. (Fennessy v. Deleuw-Cather Corp. (1990) 218 Cal.App.3d 1192, 1196.)

Tax Costs (as to Aguilar)

II.        OBJECTIONS

Plaintiffs appear to object to portions of Aguilar’s opposition in their reply brief. These objections are not in proper form, and the Court is unable to reconcile the objection to the document on file.   As such, the Court declines to rule on the objections.

In Aguilar’s supplemental response filed September 16, 2022, the Court will strike on its own motion page two, lines 7 through 14 as not relevant to the issue before the court.

III.       MERITS

Plaintiffs argue that Aguilar did not incur any filing fees because he obtained a fee waiver; that there was no service of process, and thus no service of process costs in this matter, and to the extent that such costs were incurred, they were paid by former defendant Reicheneder; and that secretarial, typing, document preparation, and copying costs are not recoverable, and to the extent that such costs exist, they were also paid by Reicheneder. Plaintiffs also argue that Aguilar did not serve the required Memorandum of Costs (Worksheet).

In opposition, Aguilar argues that he did incur filing fees and did not have a fee waiver; that Aguilar did pay for service of various documents; and that Aguilar hired a secretary to prepare documents.

As a preliminary matter, Plaintiffs argue that Aguilar was required to submit an MC-011 Memorandum of Costs (Worksheet) with the Memorandum of Costs pursuant to the California Rules of Court, but do not cite to such a rule. The Court will thus not grant the instant Motion to Tax on this basis.

Defendants have provided supporting documentation at the Court’s request, and the Plaintiffs carry the burden to show that certain costs were not reasonable or necessary, as a verified Memorandum of Costs is prima facie evidence of their propriety. (612 South LLC, supra, 184 Cal.App.4^th at p. 1285.) Plaintiffs initially did not submit sufficient evidence showing that Aguilar did not incur any filing fees, and so do not carry their burden. Second, Aguilar’s contention that the “service of process” costs came from serving documents on Plaintiffs, and not on process servers, leads the Court to assume that such costs were spent on hand-delivery of documents without the use of a professional process server. CCP § 1033.5(b).   Based on the proofs of service in Exhibit A to the Supplemental Documentation filed September 16, 2022, service was not completed by a licensed process server.   As such, CCP 1033.5(a)(4)(D) permits reimbursement in the lesser amount of actual cost, or the amount charged by the Los Angeles County Sheriff’s Office to serve it.   The Court takes judicial notice of the fee schedule of the Los Angeles County Sheriff’s Office, which indicates that the minimum fee for service is $35.00.

Third, Plaintiffs are correct in that CCP § 1033.5(b)(3) prohibits postage, telephone, and photocopying costs. However, secretarial costs appear to fall under the general category of CCP §1033.5(c)(4), which are discretionary costs.   The Court finds that these costs should be awarded.  Aguilar attached Exhibit A from his initial filing and additional exhibits in a subsequent filing. In Aguilar’s supplemental filing, he includes some handwritten notes addressing the secretarial costs.  The Court does believe that secretarial expenses were excessive at a rate of $50 per hour.  Aguilar submits reimbursement for 87.7 hours of secretarial cost (calculated by dividing the requested amount of $4,385 by $50 an hour) for which the Court will award $30 per hour for a total of $2,631.

The Court also notes 6 proofs of service that were attached to Aguilar’s September 16^th filing The Court will authorize service at a rate of $35, the going rate for basis service of process, totaling $210.   Plus, costs of $555 for a total of $3,396.

The Court strikes the $7.50 cost of postage pursuant to CCP § 1033.5(b)(3), but Plaintiffs do not otherwise carry their burden to show that the invoice for typing services presented represents unallowable costs.

IV.       CONCLUSION

The Court thus grants the instant motion as to $7.50 in postage costs; and denies the motion as to the remaining costs.   The Court will award costs of $3,396.

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Tax Costs (as to Moorhead)

II.        OBJECTIONS

A.    Plaintiff’s Objections to the Moorhead Declaration

Plaintiffs appear to object to portions of Aguilar’s opposition in their reply brief. These objections are not in proper form, and the Court is unable to reconcile the objection to the document on file.   As such, the Court overrules the objections.

III.       MERITS

Plaintiffs argue that the deposition costs claimed by Moorhead were paid by former defendant Reicheneder; that the service of process costs cannot be verified because Moorhead did not file a Memorandum of Costs (Worksheet); and that postage, telephone, and photocopying charges are not allowable costs pursuant to CCP § 1033.5.

In opposition, Moorhead argues that, while Reicheneder paid for the deposition, Moorhead paid him back; that the service of process costs were spent on hand-delivering documents to Plaintiffs until the Court gave permission to serve by mail and email only; and that secretarial costs include typing, document preparing, copying, and editing services performed by a legal secretary.

As a preliminary matter, Plaintiffs argue that Moorhead was required to submit an MC-011 Memorandum of Costs (Worksheet) with the Memorandum of Costs pursuant to the California Rules of Court, but do not cite to such a rule. The Court will thus not grant the instant motion on this basis.

Plaintiffs carry the burden to show that certain costs were not reasonable or necessary, as a verified Memorandum of Costs is prima facie evidence of their propriety. (612 South LLC, supra, 184 Cal.App.4^th at p. 1285.) First, although Moorhead concedes that Reicheneder fronted deposition costs, Plaintiffs do not submit any evidence disputing that Moorhead ultimately paid for the costs of deposition, and so do not carry their burden, and even if he had not yet fully paid them the right to reimbursement applies for costs incurred.  (CCP §1033.5(b)). Second, the Court accepts Moorhead’s explanation that “Service of Process” costs were spent on hand-delivery of documents without the use of a professional process server, and so Plaintiffs do not carry their burden. Third, Plaintiffs are correct in that CCP § 1033.5(b)(3) prohibits postage, telephone, and photocopying costs. Moorhead, however, attaches Exhibit E, a copy of an invoice from his contracted legal secretary, Robin Hutchinson, showing the cost breakdown of the $5,080 in secretarial costs.

Moorhead provides 19 proofs of service, which occurred prior to email service. (Sept. 16 Filing, 2:5-10). Based on the proofs of service in Exhibit A to the Supplemental Documentation filed September 16, 2022, service was not completed by a licensed process server.   As such, CCP 1033.5(a)(4)(D) permits reimbursement in the lesser amount of actual cost, or the amount charged by the Los Angeles County Sheriff’s Office to serve it.   The Court takes judicial notice of the fee schedule of the Los Angeles County Sheriff’s Office, which indicates that the minimum fee for service is $35.00.  Costs for proof of service are $665.

As for secretarial costs, Moorhead notes that Ms. Hutchinson appears to have provided some legal guidance as well as typing services.  Moorhead notes, “[A]part from Ms. Hutchison typing every document I produced, she has been instrumental in my work being made legally comprehensible[.]”  (Sept. 16, 2022 Supplemental Briefing, 2:26-27).  The Court does believe that secretarial expenses were excessive at a rate of $50 per hour.  Moorhead submits reimbursement for 103.1 hours of secretarial cost (calculated by dividing the requested amount of $5,155 by $50 an hour) for which the Court will award $30 per hour for a total of $3,093.

The Court strikes the $30 cost of postage pursuant to CCP § 1033.5(b)(3), but Plaintiffs do not otherwise carry their burden to show that the invoice for typing services presented represents unallowable costs.   The Court also strikes costs of $292 for transcripts from the reporter as these transcripts were not ordered produced by the Court pursuant to CCP §1033.5(a).

IV.       CONCLUSION

The Court thus grants the instant motion as to $30 in postage costs; and denies the motion to tax as to the remaining costs.  The Court grants costs in the amount $3,758

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiffs Jonathan C. Rosen and JCR Law Group's Motion to Tax Costs (as to Aguilar) and Motion to Tax Costs (as to Moorhead) came on regularly for hearing on September 21, 2022,  with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO TAX COSTS (AS TO AGUILAR) IS GRANTED IN PART AND DENIED IN PART; THE COURT STRIKES $7.50 IN POSTAGE COSTS.  COSTS FOR AGUILAR ARE AWARDED IN THE AMOUNT OF $3,396.00.

THE MOTION TO TAX COSTS (AS TO MOORHEAD) IS GRANTED IN PART AND DENIED IN PART; THE COURT STRIKES $30 IN POSTAGE COSTS AND COSTS OF COURT REPORTER TRANSCRIPTS.   COSTS FOR MOORHEAD ARE AWARDED IN THE AMOUNT OF $3,758.

IT IS SO ORDERED.

DATE:  September 21, 2022                           _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles