Judge: Gail Killefer, Case: 19STCV10479, Date: 2023-12-13 Tentative Ruling

Case Number: 19STCV10479    Hearing Date: December 13, 2023    Dept: 37

HEARING DATE:                 Wednesday, December 13, 2023

CASE NUMBER:                   19STCV10479

CASE NAME:                        Anthony Guytan v. Swift Transportation Co. of Arizona, LLC, et al.

MOVING PARTY:                 Defendants Swift Transportation Co. of Arizona, LLC and Swift Transportation Services, LLC

OPPOSING PARTY:             Plaintiff Anthony Guytan

TRIAL DATE:                        Post Trial

PROOF OF SERVICE:           OK

PROCEEDING:                      Motion to Tax Costs

OPPOSITION:                        29 November 2023

REPLY:                                  6 December 2023

TENTATIVE:                         Defendants’ Motion to Tax Costs is denied.

Background

This action arises from Anthony Guytan’s (“Plaintiff”) employment with Swift Transportation from 2015 to 2016. The Complaint alleges that during his employment, Plaintiff engaged in activities protected under the public policies, regulations, and laws of the State of California and that as a result of Plaintiff’s protected activity and complaints, Swift Transportation launched into a retaliatory campaign against Plaintiff that culminated in his termination.

After Plaintiff’s termination, he filed a lawsuit against Swift Transportation alleging Fair Employment and House Act (“FEHA”) claims for discrimination, harassment, and retaliation, California Family Right Act violations, whistleblower retaliation, wrongful termination, Labor¿ 

Code violations, assault and battery.  That the lawsuit was resolved in 2017.

The Complaint further alleges that in December 2018, US 1 Logistics hired Plaintiff and, when it checked Plaintiff’s job references, it was furnished with false information that Plaintiff had refused to take a legitimate drug test while employed by Swift Transportation.¿¿ 

The Complaint alleges four causes of action against Swift Transportation Co. of Arizona, LLC, Swift Transportation Services, LLC, Swift Transportation Co, Inc., Swift Transportation Company, (collectively “Defendants”) and Lee Stevens: (1) violation of the FEHA; (2) violation of California Labor Code §§ 1050 et seq.; (3) intentional interference with prospective economic relation; and (4) defamation.¿ 

The Complaint was filed on March 27, 2019, and the case was first set for trial on September 28, 2021.  At Plaintiff’s request, the trial was continued to February 15, 2022.  (Minute Order, 8/12/2021.)  The court, sua sponte, continued the trial to March 1, 2022.  (Minute Order, 11/15/2021.) 

On January 28, 2022, the court granted Defendants’ motion for summary judgment or, in the alternative, for summary adjudication on the second through fourth causes of action and the claim for punitive damages.  (Order, 1/28/2022.)  The motion was otherwise denied.  (Id.)  This ruling left the first cause of action, alleging a FEHA violation, for trial.   

When counsel announced they were not ready for trial on February 22, 2022, the court continued the trial to May 3, 2022.  (Minute Order, 2/22/2022.)   Trial was continued again to July 5, 2022, to August 23, 2022, to January 31, 2023, and finally. to February 21, 2023.  (Minute Orders, 4/26/2022; 6/28/2022; 8/16/2022; 10/4/23; 1/31/2023.) 

Jury selection began on February 21, 2023; the court declared a mistrial on February 23, 2023.  (Minute Orders, 2/21/2023 and 2/23/2023.) 

On April 7, 2023, the court scheduled the jury trial for July 5, 2023.  (Minute Order, 4/7/2023.)   

Jury selection began on July 6, 2023; the jury was impaneled that day.  (Minute Order, 7/6/2023.)  On July 7, 2023, the court impaneled the alternate jurors and Plaintiff called his first witness.  (Minute Order, 7/7/2023.)  On July 18, 2023, the jury returned a verdict in favor of Plaintiff. (Minute Order, 07/18/23.) The jury awarded Plaintiff $600,000.00 in damages, consisting of $250,000.00 for noneconomic loss, including physical pain/mental suffering, and $350,000.00 for past loss of earnings. (Id.)

On August 25, 2023, Plaintiff filed a Memorandum of Costs.

On September 6, 2023, the Defendants filed a Motion to Tax Plaintiff’s Costs. Plaintiff opposes the Motion. The matter is now before the court.

motion to tax costs

I.         Legal Standard

A prevailing party is entitled to recover costs, including attorneys’ fees, as a matter of right.¿ (CCP §§ 1032(a)(4), 1032(b), 1033.5.)¿Gov. Code § 12965(c)(6) provides in part that “[i]n civil actions brought under [the FEHA], the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.”

CCP § 1033.5 sets forth the costs recoverable by the prevailing party. To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount. (Perko’s Enterprises, Inc. v. RRNS Enterprises (l992) 4 Cal.App.4th 238, 244.) “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 were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.) “On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” (Id.) 

II.        Discussion

Pursuant to Plaintiff’s Memorandum of Costs, Plaintiff seeks to recover costs totaling $51,552.32. Defendants have filed this Motion to tax costs on the basis that certain costs are not recoverable as a matter of law, are unreasonable in amount, or are not reasonably necessary to the conduct of the litigation. (CCP § 1033.5(c)(2)-(3).)

A.        Deposition Costs

Defendants oppose the deposition costs for Robert Flores (“Flores”) as Flores was not involved with Plaintiff or this action. (Cole Decl. ¶ 4.) Defendants assert that Flores’ deposition confirmed that Flores did not have any supervisory responsibility for the terminal where Plaintiff worked, and that the deposition did not yield useful information. (Id. ¶ 5.) Plaintiff argues that the deposition of Flores was necessary to obtain admissible evidence that was introduced at trial. (Abrolat Decl. ¶ 4, Ex. C.)  Plaintiff correctly asserts he had the right to conduct discovery as a “matter of right” and “[t]his right includes an entitlement to learn ‘the identity and location of persons having knowledge of any discoverable matter.’ [Citation.]” (Williams v. Superior Court (2017) 3 Cal.5th 531, 541.)

The court agrees that the deposition costs incurred with deposing Flores were reasonable and necessary and will not be taxed.

Defendants also object to the cost of obtaining the deposition transcripts of Plaintiff in the underlying action, as the parties had agreed that each would bear their own costs in connection with the settlement of that case. (Cole Decl. ¶ 6.) Accordingly, Defendants assert that it is inappropriate for Defendants to pay for transcripts related to the underlying action.

Plaintiff states that he did not purchase a copy of his deposition transcript in the underlying action because his deposition was taken on September 7, 2017, and the case settled on September 18, 2017, and thus there was no need to purchase the transcript. (Abrolat Decl. ¶ 6.) Plaintiff further asserts that many of the same facts in the previous matter were discussed at trial in this action, such that Plaintiff’s deposition transcripts were a necessary part of trial preparation, including preparing Plaintiff for cross-examination.

The court is satisfied that Plaintiff has shown that his prior deposition transcripts were necessarily incurred and will not be taxed.

Defendants also state that it is unreasonable for Defendants to pay for the non-appearances at depositions of Barbara Predmore, Jeremy Baca, and Robert Flores when the cause for their nonappearance was due to Plaintiff’s failure to mutually agree on dates. (Cole Decl. ¶ 7.) Plaintiff asserts that Defendants fail to cite any legal authority that allows deposition costs for nonappearance to be waived. Moreover, Plaintiff asserts that his counsel did reach out to Defense counsel to obtain disposition dates but received no reply and the depositions were necessary to oppose the motion for summary judgment. (Abrolat Decl. ¶¶ 8- 15, Ex. D.) Since the three deponents were not produced, the court continued the motion for summary judgment on January 28, 2022, and ordered that Baca, Flores, and Predmore be produced for deposition. (Abrolat Decl. ¶ 19, Ex. E.)

The court agrees that the deposition costs were reasonably incurred and are recoverable.

                        i.          Court Reporter Costs

Defendants also object to various court reporter costs listed under “Deposition Costs” but not associated with depositions. The court reporter costs were incurred for a Final Status Conference (“FSC”) on the following dates: February 22, 2022; April 26, 2022; June 28, 2022; August 2, 2022; August 16, 2022; October 4, 2022; January 24, 2023; January 31, 2023; February 16, 2023; June 27, 2023; and June 30, 2023.  Defendants argue that it was unreasonable for Plaintiff to incur these costs on eleven separate occasions when Plaintiff’s counsel could manage scheduling and did not need to secure court reporter services for various “Final Status Conferences” that either did not occur or were non-substantive.

Defense counsel asserts that “[t]he majority of these conferences involved housekeeping matters related to the timing and order of witnesses, use of the courtroom technology and other logistics, for which there was no need for a court reporter. Substantive matters potentially impacting an appeal, such as motions in limine and jury instructions, were not argued or decided at all eleven of these Final Status Conferences.” (Cole Decl. ¶ 8.)

Plaintiff’s counsel states that she expected the court to rule on motions in limine and trial documents at the FSC and Plaintiff expected the trial to commence on February 21, 2022. (Abrolat Decl. ¶¶ 20-22, Ex. E, F, G.) The FSC and trial were continued. (Id. ¶¶ 23, 24, Ex. G, H.) At the June 28, 2022, FSC, Plaintiff’s counsel again expected the court to rule the motions in limine and trial documents, but the court continued the FSC to August 2, 2022, and then the parties stipulated to a further continuance to August 16, 2022. (Id. ¶ 25, Ex. I.) The FSC was continued to October 4, 2022, then to January 24, 2023. (Id. ¶¶ 26, 27, Ex. J, K.) At the January 24, 2023, hearing the court ordered the parties to continue trial preparation, with trial set for January 31, 2023. (Id. ¶ 28, Ex. L.) On February 16, 2023, the Court ruled on some of the parties’ MILs and confirmed that the trial would begin on February 21, 2023. (Id. ¶ 29, Ex. M.) After a mistrial, another FSC was held on June 27, 2023, and continued to June 30, 2023. (Id. ¶ 30, Ex. N.) The trial was set for July 5, 2023. (Id. ¶ 31, Ex. O.)

Since the FSC and trial dates were continued, and not due to Plaintiff’s wronging, Plaintiff’s counsel “held a good faith and reasonable belief that each of the hearings would result in an FSC and that the Court would issue rulings on MILs and trial documents.” (Abrolat Decl. ¶ 32.) For this reason, a court reporter was present at each hearing, and the costs incurred were reasonably incurred. The court agrees that court reporter costs should not be taxed.

B.        Service of Process Fees

Defendants object to the unreasonable and excessive amount of service of process costs related to Dolly Arvizu ($439.92), trial subpoena to Lee Stevens ($1,704), trial subpoena to Cynthia Proels ($457.13), and trial subpoena to Butch Goodwin ($725.75).

Plaintiff states that because Defense counsel did not accept service for these individuals and did not provide their last known contact information, it resulted in increased fees, as shown by Plaintiff’s invoices. (Abrolat Decl. ¶ 33, 34, 36, Ex. P, Q, R, S.) The court agrees that the fees were reasonably incurred and will not be taxed.

C.        Expert Witness Fees

Defendant objects to Plaintiff’s expert witness fees because they were not court ordered. (CCP § 1033.5(a)(8).) Defendant also objects to the fact that Plaintiff seeks to recover costs for three expert witnesses when only two were called to testify at trial.  Plaintiff withdrew Dr. Elizabeth Jude Durano Canete from the witness list at the eleventh hour and counsel had already stipulated to the admissibility of documents related to her examination of Plaintiff.  (Cole Decl., ¶ 9).

In a FEHA action, the court may award the prevailing party “attorney's fees and costs, including expert witness fees[.]” (Gov. Code § 12965(c)(6).) Therefore, Plaintiff can recover fees for expert witnesses without a court order as Gov. Code § 12965 “is an express exception to Code of Civil Procedure section 1032(b) and the former, rather than the latter, therefore governs costs awards in FEHA cases.” (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 105.) The court agrees that Plaintiff is entitled to recover expert witness fees even if one of Plaintiff’s experts was not called to testify.

In reply, Defendants continue to rely on CCP § 1032(b) to assert that certain costs are not recoverable to interject new objections to trial exhibit costs, and to insist that Plaintiff offer itemized billing invoices for certain costs not challenged in its initial Motion. “If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred.” (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.) First, Plaintiff’s costs appear to be proper. Second, Defendants waited until its reply to challenge and request invoices for costs related to “witness” and “other” fees. Since Defendants waited until the reply to challenge such costs for the first time, the court declines to address the matter. “Points raised for the first time in a reply brief will not be considered.” (Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187 Cal.App.3d 299, 320.)

Based on the above, Defendants’ Motion is denied.

Conclusion

Defendants’ Motion to Tax Costs is denied.