Judge: Gregory Keosian, Case: BC641704, Date: 2022-12-15 Tentative Ruling
Case Number: BC641704 Hearing Date: December 15, 2022 Dept: 61
Defendants Min & Hong
Corporation and Maureen Hocking’s Motion to Strike or Tax Costs is GRANTED in
part; $9,856.11 are taxed from Plaintiff’s memorandum of costs, leaving a total
costs bill of $3,028.19.
I.
MOTION TO TAX COSTS
“Any notice of motion to
strike or to tax costs must be served and filed 15 days after service of the
cost memorandum. If the cost memorandum was served by mail, the period is
extended as provided in Code of Civil Procedure section 1013. If the cost
memorandum was served electronically, the period is extended as provided in
Code of Civil Procedure section 1010.6(a)(4).” (California Rules of Court Rule
3.1700, subd. (b)(1).)
“Code of Civil Procedure section 1032, subdivision (b) [], guarantees
prevailing parties in civil litigation awards of the costs expended in the
litigation: ‘Except as otherwise expressly provided by statute, a prevailing
party is entitled as a matter of right to recover costs in any action or
proceeding.’” (Williams v. Chino Valley Independent Fire Dist. (“Williams”) (2015) 61 Cal.4th 97, 100.).
“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.” (Rappenecker
v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) Although
individual cost items are ordinarily challenged by a motion to tax costs, no
cost-item is effectively put in issue by “mere statements” claiming them to be
unreasonable. (Ibid.) However, where
“it cannot be determined from the face of the cost bill whether the items are
proper,” “the mere filing of a motion to tax costs may be a ‘proper objection’
to an item.” (Nelson v. Anderson (1999)
72 Cal.App.4th 111, 131, 132.)
Plaintiff Joseph Pumphrey (Plaintiff) seeks costs amounting
to $12,884.30. Defendants Min & Hong Corporation and Maureen Hocking
(Defendants) object to these costs on several grounds. They argue, in general,
that these costs should be denied under Code of Civil Procedure § 1033, because
Plaintiff obtained a recovery — $4,000 — far less than that appropriate to
maintain an action in an unlimited jurisdiction court.
Defendants are
correct that a substantial reduction in costs is warranted under Code of Civil
Procedure § 1033, subd. (a). That statute states: “Costs or any portion of
claimed costs shall be as determined by the court in its discretion in a case
other than a limited civil case in accordance with Section 1034 where the
prevailing party recovers a judgment that could have been rendered in a limited
civil case.” (Code Civ. Proc. § 1033, subd. (a).) Here, it was reasonably
apparent to all parties by October 11, 2019 — when Plaintiff filed their first
attorney fees motion — that Plaintiff’s prayer for injunctive relief had been
rendered moot by Defendants’ voluntary remedial efforts. Thus by that time,
injunctive relief was off the table, and Plaintiff’s maximum damages were
readily estimable at $12,000.00. This is far below the amount in controversy
necessary to maintain an action in unlimited jurisdiction court. (See Code
Civ. Proc. § 86 [defining limited civil cases to include those involving
$25,000 or less].) Even if Plaintiff reasonably believed that injunctive relief
(and unlimited jurisdiction) were appropriate when the suit was filed, no such
belief would have been reasonable from October 11, 2019 onward. Thus the
maximum costs that Plaintiff could reasonably incur are appropriately limited
to those incurred prior to October 2019, pursuant to Code of Civil Procedure §
1033, subd. (a). Such a cutoff date is consistent with the foreseeable damages
available to Plaintiff, and the policies favoring remediation of accessibility
barriers underlying the catalyst theory and Code of Civil Procedure § 1021.5. (See
Cruz v. Fusion Buffet, Inc. (2020) 57 Cal.App.5th 221, 233
[describing factors relevant to a decision to deny fees under section 1033].)
Applying the
foregoing cutoff date, the following reductions are appropriate for being
incurred during and after October 2019:
·
$240 in filing and motion fees;
·
$641.42 in service of process charges;
·
$7,654.00 in court reporter fees;
·
$758.68 in electronic electronic filing or
service fees;
·
$80.77 in overnight delivery charges.
These amount to
an overall reduction of $9,374.87 from the costs sought. But some of
Defendants’ more-specific objections apply to the remaining cost items.
Defendant
objects to a $20 charge for the filing of a stipulation to continue trial, on
the grounds that said continuance was for Plaintiff’s benefit. (Motion at p.
9.) But the stipulation itself plainly indicates that it was for, among other
things, to accommodate Defendant’s unavailability for a settlement conference,
and to allow a hearing on Plaintiff’s motions to compel, which he ultimately
prevailed upon. (See 4/20/2018 Stipulation.) This cost is proper.
Defendant
objects to service of process against certain named individuals, — Manal
Elkhamisi, Craig Lobnow, and Adel Elkhamisi — on the grounds that the reason
for their subpoena is not made clear in the costs bill, as they were not
witnesses at trial. (Motion at p. 10.) Defendant is partially correct: Of these
persons, only Lobnow’s utility as a witness is reasonably apparent from the
record, as his inspection report was admitted into evidence at trial by
stipulation. (See 7/27/2022 Minute Order.) Thus the subpoenas related to
the Elkhamisi witnesses are properly taxed, in an amount equal to $162.00.
Defendant
objects to the court reporter fee incurred on November 6, 2018. The record
reveals that trial was set to begin on that date, appointment of the reporter
on that date was approved by the court, and trial was continued pursuant to an
ex parte application granted on that same date. The reporter was therefore
reasonably necessary in the expectation that trial would begin at that time. No
further reduction is appropriate on that charge.
Defendants
object to the electronic filing charges on the grounds that Plaintiff’s fees
indicate variable charges ranging from $29.13 to $274 for electronic filing and
service costs, when alternative filing services are available that will charge
a flat $7 per item. (Motion at p. 11.) Defendants do not, however, submit any
admissible evidence that their proposed reduction is reasonable. And the
matters for which these costs are sought are all reasonably related to
necessary steps in the litigation process, taking into account the October 2019
cutoff discussed above, pursuant to Code of Civil Procedure § 1033.
Defendants
finally object to the “other” charges sought by Plaintiff, which consist of
FedEx charges and courtcall charges to attend hearing. (Motion at p. 12.) These
FedEx charges are indeed not compensable, as “postage” charges are expressly
disallowed as costs under Code of Civil Procedure § 1033.5, subd. (b)(3).
However, Plaintiff’s courtcall expenses for hearings on April 11 and April 23,
2018, represent a reasonable and economical way to attend hearing on
Plaintiff’s motions to compel further. Accordingly, of the overall $572.01 in
other costs sought, $172.00 are reasonably permitted.
This yields a
total cost award as follows:
·
$695 in filing and motion fees;
·
$250.64 in service of process costs;
·
$525 in court reporter fees;
·
$1,385.55 in electronic filing fees;
·
$172.00 in “other” costs.
This yields a total
costs bill for Plaintiff amounting to $3,028.19.
Defendants’
motion to tax costs is GRANTED in part; $9,856.11 are taxed from Plaintiff’s
memorandum of costs, leaving a total costs bill of $3,028.19.