Judge: Gail Killefer, Case: BC633162, Date: 2025-02-13 Tentative Ruling

Case Number: BC633162    Hearing Date: February 13, 2025    Dept: 37

HEARING DATE:                 Thursday, February 13, 2025

CASE NUMBER:                   BC633162

CASE NAME:                        Daniel J. Tripathi et al., v. the City of the Canada Flintridge

MOVING PARTY:                 City of La Canada Flintridge

OPPOSING PARTY:             Plaintiffs Daniel J. and Leanna Tripathi

TRIAL DATE:                        Post Judgment

PROOF OF SERVICE:           OK

PROCEEDING:                      Tax Costs

OPPOSITION:                        18 December 2024

REPLY:                                  31 December 2024

TENTATIVE:                         Plaintiffs’ motion to tax costs is granted in the sum of $136.00. Defendant City is granted $14,232.29 in costs. Defendant to give notice.

Background

One of the real properties which forms the subject matter of this action is commonly known as Los Angeles County Assessor's Parcel No. 17 ("APN") 5864-006-015 (the “Tripathi Parcel”). In 2011, plaintiffs Leanna and Daniel Tripathi (collectively, “Plaintiffs”) purchased the Tripathi Parcel as a vacant hillside lot in the Hall-Beckley Canyon Recreation Area in La Cañada Flintridge for $47,500.00. The Tripathi Parcel is not located on a public street, but Plaintiffs have an easement across land owned by defendant City of La Cañada Flintridge (the “City Parcel”) for ingress and egress extending northerly from La Sierra Drive. Plaintiffs claim that their easement is unusable because it runs through a flood control channel which was created when the Los Angeles County Flood Control District installed concrete weir crib structures in the 1960’s.

On September 8, 2016, Plaintiffs filed the original Complaint in this action against the City of La Cañada Flintridge (“Defendant City”).

The operative First Amended Complaint (“FAC”) alleges four causes of action for (1) declaratory relief, (2) quiet title, (3) inverse condemnation, and (4) property damage-negligence. On February 28, 2022, the court granted Defendant City’s request for summary adjudication as to the third and fourth causes of action in the FAC. The case proceeded to a bench trial in May 2024 as to the first and second causes of action.

Plaintiffs’ first cause of action for declaratory relief and second cause of action for quiet title sought an order creating a different easement across the City Parcel. The easements would provide access to their property from La Sierra Drive, or from Jessen Drive to the west, through hiking trails that the public has used for decades. Plaintiffs claim a right to alternative easements based on theories of easement by necessity, by prescription, or by equitable easement.

On October 23, 2024, the court issued the Statement of Decision finding in favor of Defendant City and against Plaintiffs. On October 10, 2024, the court signed a judgment finding in favor of Defendant City and against Plaintiffs on all causes of action alleged in the FAC. 

On October 30, 2024, Defendant City filed a Memorandum of Costs seeking costs in the sum of $14,368.29. Plaintiffs now move to strike or tax coats. Defendant City opposes the Motion. The matter is now before the court.

tax costs

I.         Legal Standard

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.” (Ibid.)¿ 

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The losing party may dispute any or all the items in the prevailing party’s memorandum of costs by a motion to strike or tax costs. (CRC, rule 3.1700(b).) A motion to strike challenges the entire costs memorandum, whereas a motion to tax challenges particular items or amounts.

II.        Discussion

On October 30, 2024, Defendant City filed a Memorandum of Costs seeking $14,368.29 in costs.

Plaintiffs assert that certain costs should be taxed as they are not allowable and not reasonably necessary to the conduct of the litigation. First, Plaintiffs object to the fact that the memorandum of costs did not include a receipt for all costs sought. Receipts are not required until the costs are challenged because a verified memorandum of cost is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred.  (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.) “The burden of showing an item is not properly chargeable or is unreasonable falls on the objector.” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 858.)

A.        Item 1: Filing and Motion Fees

Plaintiffs challenge various costs related to filing and motion fees on the grounds that the hearing dates for the motions and the fees claimed do not align. On reply, Defendant City attaches receipts and invoices for many of the costs challenged by Plaintiffs. (Martin Decl., Ex. A.) Defendant City recognizes that $136.00, on Line 8 on attachment 1g, should be taxed because the cost was erroneously included and relates to a fee incurred in another action. (Opposition at p. 2:21-22.)

Accordingly, $136.00 will be taxed from Item 1 Filing and Motion Fees.

While Defendant City has not provided an invoice to support the cost of $60.65 related to a January 18, 2024, filing of its demurrer, the court records reflect that a demurrer was filed on that date. Moreover, Defendant City has attached an invoice for $61.65 incurred on March 6, 2024, related to this court’s order requiring Defendant to provide notice of the ruling on the demurrer. Therefore, these items will not be taxed.

Plaintiffs also object to the $38.58 filing costs claimed for an Ex Parte Application. Defendant City provide invoices showing that on September 11, 2019, it incurred an eFiling Charge of $8.46 and a charge of $30.12 for Photocopy and Courtesy Copy costs. (Martin Decl., Ex. A.)

Plaintiffs also object to the filing and motion fees costs of $14.15 associated with the December 20, 2018, substitution of attorney filing. Defendant’s invoices show that on December 19, 2018, Defendant incurred an eFiling Charge of $9.95 and a $4.20 charge for Court Technology Access Fee related to the substitution of attorney filing. (Martin Decl., Ex. A.) The court finds these costs reasonable.

Therefore, only $136.00 will be taxed from Item 1.

B.        Item 4: Deposition Costs

Plaintiffs take issue with the fees related to the Substitution of Attorney and Ex Parte Application. However, Defendant City provided invoices showing that the fees were incurred. (Martin Decl., Ex. A.) Defendant City states that the $6,007.95 sought in deposition fees relate to the depositions of five witnesses: David Knell (City’s expert), Richard Kadow (plaintiffs’ expert), Sundera Ariathurai (third party witness deposed by plaintiffs), Susan Koleda (the City's “PMQ”, person most qualified) and Frederick Buss (City's former employee). Invoices for the transcripts, video and services provided for these depositions are attached as Exhibit B to the Martin Declaration.

Plaintiffs take issue with the Invoice for Deposition of witness Richard L. Kadow on the grounds that the extra costs charged by the vendor -- such as “digitizing and transcript synchronization”, “electronic access”, “media and cloud service”, and “Expenses (Out of Pocket)” -- are unreasonable. The costs associated with “[t]aking, video recording, and transcribing necessary depositions” are allowable costs under CCP § 1033.5. The fact that the vendor charges additional fees for specific services related to the deposition does not make the costs unreasonable. For this reason, the court finds that the additional costs charged by the vendor for the depositions of Sundrea Ariathural and Susan Koleda are reasonable.

Plaintiffs also take offense to the fact that the vendor for providing deposition services for Fredrick William Buss charged less than the vendor for Sundrea Ariathural. The fact that two different vendors, as evidence by the address for remittance, charged different sums for their services does not make either charge unreasonable. (Martin Decl. Ex. B, Invoice No. 1432139, and Invoice No. 90222.) Moreover, one charge was not for a deposition but for furnishing a certified copy. (Martin Decl. Ex. B, Invoice No. 1432139.)

Therefore, no costs will be taxed from Item 4.

C.        Item 11: Models, Enlargements, and Photocopies of Exhibits

Plaintiffs assert that during the trial, Defendant City did not present all its exhibits and introduced six exhibits to which the parties did not stipulate but were nonetheless identified in the Joint Exhibit List. (Truitt Decl., ¶ 9.)

Defendant City attached the invoices for $1,172.30 charges related to maps and diagram enlargements and certified copies of title documents. (Martin Decl., Ex. C.) Defendant City asserts the costs were reasonably necessary to the litigation and reasonable in amount because the city needed certified copies in order that such copies could be admitted into evidence.  The blowup of the Maps, Exhibit 510, was used by both sides and showed the location of the properties and recorded easements that were useful in illustrating the City’s argument that the Plaintiffs were not entitled to any alternative easements. 

On reply, Plaintiffs take issue with the fact that the ASAP Legal Invoices lack the requisite specificity as to what exact documents were retrieved. As the invoices were prepared by ASAP Legal, the court cannot fault Defendant City for failing to provide detailed invoices. While the specific documents requested are not attached, the invoices do provide the costs for the advance fees, ASAP Branch Court, and research time. The court fails to find that hiring a third party to obtain certified documents from the Los Angeles County Recorder was an unreasonable cost given that it would be more for expensive and less efficient if Defense counsel or his paralegal completed the task.

Therefore, no costs will be taxed from Item 22.

D.        Other: Mediation Fees

Plaintiffs take offense to Defendant City seeking mediation costs. Defendant City’s share of the mediation fee paid to Judicate West was $6,016.00. An invoice is attached as Exhibit D to the Martin Declaration.

Defendant City asserts that the court has discretion to award it the fees for mediation. “We hold that when an unsuccessful mediation has been court-ordered, reasonably necessary expenses incident thereto may, in the sound discretion of the trial court, be awarded after trial to a prevailing party.” (Gibson v. Bobroff (1996) 49 Cal.App.4th 1202, 1209.) Plaintiffs assert that the mediation fees are not recoverable because the mediation in this action was not court ordered and was voluntary in nature. (Truitt Decl., ¶ 33.) The Gibson Court expressly declined to decide “whether a party prevailing after a trial which is preceded by unsuccessful voluntary mediation would be entitled to such costs.” (Gibson, at p. 1209, fn. 7 [italics original].)

Plaintiffs’ sole opposition to the mediation costs not being recoverable are that the mediation was voluntary and not court ordered. In Berkeley Cement, Inc. v. Regents of University of California (2019) 30 Cal.App.5th 1133, the appellate court concluded that “mediation fees incurred for mediation that was not ordered by the court are not categorically nonrecoverable as ‘not reasonably necessary to the conduct of litigation.’ ” (Id. at p. 1143.) “The question whether mediation fees should be awarded as costs in a particular matter must be determined based on the facts and circumstances of the particular action.” (Ibid.)

Defendant City’s opposition stated that the mediation was before Hon. Mitchell Goldberg (Ret.) and that the parties were close to settlement.  As no settlement was reached, the case proceeded to trial. (Opposition, at p. 4:4-8.) “[M]ediation is fundamental to the conduct of litigation as it encourages the parties to settle their disputes before trial and exposes parties who fail to agree to a reasonable settlement proposal to the risk of a discretionary court determination that they should pay their opponent's share of the failed mediation.” (Gibson, supra, 49 Cal.App.4th at p. 1209.)

Here, the court exercises its discretion and finds that the voluntary mediation costs in this action were reasonably necessary to the conduct of this litigation. Thus, mediation costs will not be taxed.

Conclusion

Plaintiffs’ motion to tax costs is granted in the sum of $136.00. Defendant City is granted $14,232.29 in costs. Defendant to give notice.