Judge: H. Jay Ford, III, Case: 20SMCV00952, Date: 2023-09-26 Tentative Ruling

Case Number: 20SMCV00952    Hearing Date: September 26, 2023    Dept: O

 Case Name:  Marina Pacific Hotels & Suites, LLC v. Fireman’s Fund Insurance Company

SUBJECT:                 MOTION TO TAX COSTS

MOVING PARTY:   Plaintiff Marina Pacific Hotel & Suites, LLC

RESP. PARTY:         Defendant Fireman’s Fund Insurance Company

TENTATIVE RULING

            Plaintiff Marina Pacific Hotel & Suites, LLC Motion to Tax Costs is GRANTED in part and DENIED in part. Item No. 1 is DENIED and the full amount of $3,371.15 is due. Item No. 4  is GRANTED, and the amended amount of $55,843.28 is due.  Item No. 9 is DENIED and the full amount of $47,983.53 is due. Item No. 12 is DENIED and the full amount of $186,455.88 is due. Item No. 16 is GRANTED in part, with the amended amount of $2,517.01 due.  The motion to tax costs was filed on 6-23-23, and the opposition was filed on 9-12-23. No reply has been filed as of 9-14-23.

A valid costs memorandum establishes a prima facie case for recovery. Thus, the burden is on the party moving to strike or tax costs to establish that each disputed item is not recoverable.  (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308.). “In ruling upon a motion to tax costs, the trial court's first determination is whether the statute expressly allows the particular item and whether it appears proper on its face.  If so, the burden is on the objecting party to show the costs to be unnecessary or unreasonable.  Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.”  (Rozanova v. Uribe (2021) 68 Cal.App.5th 392, 459.) 

“Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.  However, because the right to costs is governed strictly by statute [citation] a court has no discretion to award costs not statutorily authorized.  When the issue to be determined is whether the criteria for an award of costs have been satisfied, and that issue requires statutory construction, it presents a question of law requiring de novo review.”  (Id.)  

I.                Item No. 1 – Filing and Motion Fees - DENIED

CCP § 1033.5(a)(1) allows for the prevailing party to recover “[f]iling, motion, and jury fees” (Code Civ. Proc., § 1033.5.) Plaintiff objects to Item No. 1 for “Filling and Motion Fees” arguing the claimed amount of $3,371.15  should be taxed in the amount of $1,636.15, (reduced to $1,325.80 in the reply) lowering the balance to $2, 045.35. because Defendants included charges in excess of actual filing fees set forth in the Los Angeles County Superior Court’s Civil Fee Schedule. (Motion, pg. 2­–3.) However, Plaintiff does not identify the individual challenged costs leading to $1,636.15 or modified to $1,325.80. Further, upon reviewing the Opposition’s attached memorandum of costs, the fees paid to One Legal for electronic filing appear to be the standard electronic filing fees paid to the court for such services. Therefore, Plaintiff does not meet their burden to establish these filing and motion fees are not recoverable.

II.             Item No. 4 ­­—Deposition Costs - GRANTED

Plaintiff argues that Defendant is improperly seeking to recover deposition fees for “David Frangiamore, Timothy Brewer, Anthony Reading, Alexander Klibanov, and Roger Lewis in the amounts of $3,332, $3,500, $3,483.33, $4,322.50, and $2,750, respectively (collectively, these fees total $17,387.83),” when there was never a court order compelling these expert’s depositions. (Motion, pg. 4–5.) CCP 1033.5(b)(1) expressly prohibits “fees of experts not ordered by the court.”  (Code Civ. Proc., § 1033.5.) Defendant concedes to this fee reduction and amends its request for deposition to $55,843.28.

Thus, the Plaintiff’s motion to tax costs is GRANTED for deposition costs, in the amount of $17, 387.83 bringing the total recoverable costs for depositions to $55,843.28.

III.           Item no 9 – Court- Ordered Transcripts – GRANTED

            “Transcripts of court proceedings not ordered by the court.. . . . are not allowable as costs.” (Code Civ. Proc., § 1033.5.) Plaintiff argues Defendant is improperly seeking to recover transcripts never ordered by the Court, mainly regarding the reserving of a court reporter for trial, and thus the full recover amount of $47,983.53 needs to be taxed. (Motion, pg. 3.)

While the Court discussed the practical need for a reporter, the Court recalls the Defendant intended to obtain a reporter and daily transcripts of its own accord. Generally, where the Court orders the parties to obtain a reporter, over a party’s objection, the Court’s minutes will reflect such order noting it would be a recoverable cost.  The minute order for the 2-21-2023 pre-trial conference only states, “The Court reminds counsel to obtain a court reporter with real-time capability for the Final Status Conference and trial.”

Thus, the Plaintiff’s motion to tax costs is GRANTED for court reporter costs n costs, in the amount of $47,983.53

IV.           Item No. 12 – Models, Enlargements, and Photocopies of Exhibits - DENIED

CCP § 1033.5(a)(13) provides that a prevailing party is entitled to costs for “[m]odels, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.” (Code Civ. Proc., § 1033.5.) CCP § 1033.5(c)(4) gives the Court discretion to award costs for items not specifically mentioned in CCP § 1033.5. (Id.) “[W]e find no indication that the Legislature intended to circumscribe the trial court’s discretionary authority under section 1033.5(c)(4) to award costs incurred in preparing demonstratives and photocopies of trial exhibits, even though they were not ultimately used at trial, when such materials are reasonably necessary to the conduct of litigation and reasonable in amount.” (Segal v. ASICS America Corp. (2022) 12 Cal. 5th 651, 667.)

The Plaintiff first seeks to tax $55,492.78 for printing and copying costs because Defendants submitted all of its trial exhibit printing costs, including exhibits that were not used at trial. (Motion, pg. 4–5.)  Defendants argue that that the Court required the parties to print and provide copies of all potential exhibits, for both phases of trial, and that the parties should be prepared to move to Phase II when the Phase I verdict was entered, pointing to the Feb. 3, 2023 minute order. (Opposition, pg. 5–6.)  Thus, because the court required these materials to be printed, it does not matter that they were not ultimately used in trial since under CCP § 1033.5(c)(4) the costs are allowable.

The Plaintiff next seeks to tax the $94,909.60 stating the fees are unreasonable since Plaintiff paid only $36,053.50 for similar services. However, this argument does not meet the burden required of the Plaintiff to tax the costs. “[I]t is not enough for the losing party to attack submitted costs by arguing that he thinks the costs were not necessary or reasonable. Rather, the losing party has the burden to present evidence and prove that the claimed costs are not recoverable.” (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557, as modified (Aug. 22, 2006) disapproved of on other grounds by Segal v. ASICS America Corp. (2022) 12 Cal.5th 651.) Here, simply stating the costs are not reasonable and they are too high in comparison to the Plaintiff’s costs is not enough to meet the Plaintiff’s burden for this motion.

V.              Category No. 16 – Other

The Plaintiff argues that the “other” costs including $6,896.79 for trial equipment rental costs should be taxes since the rental was not “reasonably necessary to conduct the litigation.” (Motion, pg. 5; Code Civ. Proc., § 1033.5 (c)(2)-(3).) Furthermore, Plaintiff argues it was unclear from the Defendant’s memorandum of costs what exactly was rented, and ultimately utilized in the trial. (Motion, pg. 5.)  Defendant agrees with the Plaintiff, to a point, and offers to amend the amount to $2,517.01 for costs under CCP § 1033.5(a)(13), covering the costs for the monitors and trial technician set-up which Defendant argues both sides used during the trial. (Opposition, pg. 8; Davison Decl., ¶ 9, Ex. H.)  These newly amended costs appear reasonable and the equipment assisted the parties and trier of fact during the trial. Thus, Plaintiff’s motion is granted in part with these costs amended to $2,517,01.