Case Name:        Albright ,et al. v. Cale, et al.

Case No.:            SC128395

Hearing:              4-20-23

Calendar #:         7

Notice:  OK

 

Complaint Filed:                             11-16-17

Motion C/O:                     1-10-20?

Discovery C/O:                 12-27-20?

Trial Date:                          Passed

______________________________________________________________________________

SUBJECT:             MOTION TO TAX COSTS

MOVING PARTY:              Defendants Charles G. Cale and Jessie R. Cale

RESP. PARTY:     Plaintiffs Larry W. Albright and Helen R. Albright, et al.

 

TENTATIVE RULING

               Defendants Charles G. Cale and Jessie R. Cale’s Motion to Tax Costs is GRANTED as to Item 4 in the amount of $215 and Item 11 as to the “exhibit tabs/notebooks” in the amount of $188.61and the “bate stamping/organizing/notebooking exhibits” in the amount of $1,225 and DENIED as to Item 1(e)-(i), Item 11 for photos/drone videos and demonstrative exhibit and Item 16 for exhibit technician. 

 

I.  The memo of costs is verified.

 

Defendants’ motion to tax based on Plaintiff’s failure to file a signed copy of the memo of costs is DENIED.  CRC Rule 8.75 provides that “When a document must be signed under penalty of perjury, the document is deemed to have been signed by the declarant if filed electronically, provided that either of the following conditions is satisfied:…(2) The declarant, before filing, has physically signed a printed form of the document. By electronically filing the document, the electronic filer certifies that the original signed document is available for inspection and copying at the request of the court or any other party.” 

 

Plaintiff’s counsel testifies that she signed the memo of costs prior to electronically filing the memo of costs.  Plaintiff’s counsel also submits a copy of the executed memo of costs.  Defendant never requested a signed copy of the memo of costs in accordance with the procedure set forth under CRC Rule 8.75(a)(2). 

 

II.  $300 in filing fees not reasonably incurred: GRANTED

 

               CCP §1033.5(a)(1) expressly allows for recovery of filing fees.  The motions filed in connection with the deposition Raymond Scott were resolved by stipulation.  See Dec. of J. Damon, ¶3.  Defendant establishes that the motions were not reasonably necessary, because (1) Scott was a percipient witness and (2) Plaintiff should have met and conferred in good faith prior to filing any of the motions.  A trial court may disallow costs, including filing fees, which were incurred unnecessarily.  See Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4^th 238, 244; CCP §1033.5(c)(2)(“allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation”). 

 

III.  Item 4 Deposition costs in the amount of $215 for witness Ray Scott—GRANTED as conceded by Plaintiff.

 

IV.  Item 11 models, enlargements, etc.—GRANTED as to exhibit tabs/notebooks ($188.61) and bate stamping/organizing/notebooking exhibits ($1,225) and DENY as to photos, drone videos and demonstrative exhibits ($5500)

 

               Defendant establishes that the exhibit tabs/notebooks and bate stamping, etc. are not expressly allowable as models or exhibits reasonably helpful to the trier of fact under CCP §1033.5(a)(13).  Plaintiff argues these costs are recoverable as the costs for photocopying exhibits under CCP §1033.5(b)(3).  However, Plaintiff fails to establish these costs were for photocopying of exhibits. 

 

               Plaintiff, however, establishes that the drone video and photos were models and exhibits that were reasonably helpful to the trier of fact.  Defendant fails to establish that these costs were not reasonably necessary to the litigation or that they are unreasonably excessive. 

 

V.  Item 16 Exhibit Technician ($5,330)—DENIED

 

               Plaintiff’s hiring of an exhibit technician is neither expressly allowed under CCP §1033.5(a) nor expressly disallowed under CCP §1033.5(b).  The cost of hiring an exhibit technician is therefore recoverable at the court’s discretion under CCP §1033.5(c)(4), so long as it is “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.”  CCP §1033.5(c)(2). 

 

               Defendant argues that Plaintiff’s exhibit technician is akin to the “assistants” hired in Science Applications Internat. Corp. v. Supr. Ct. (1995) 39 Cal.App.4^th 1095, 1104.  The “assistants” in Science Applications Internat. Corp. were hired to “‘Bates-stamp’ the documents, input them for retrieval, maintain a document library, create databases to search for records by date, author or subject.”  Science Applications Internat. Corp., supra, 39 Cal.App.4th at 1104.  The court found these “assistants” “organize[d] documents and access them in discovery and at trial—in other words, the costs of a ‘high tech’ paralegal.”  Id. 

 

               Plaintiff’s exhibit technician was hired to assist with electronic presentation of evidence.  Plaintiff’s technician was not merely a paralegal hired to organized documents.  Defendant fails to establish that the exhibit technician was not reasonably necessary.