Judge: Helen Zukin, Case: 19STCV04561, Date: 2023-02-16 Tentative Ruling

Case Number: 19STCV04561    Hearing Date: February 16, 2023    Dept: 207

Background

Plaintiff Anita Dange (“Plaintiff”) brought this action for medical malpractice against Defendants Steve P. Yu, M.D., and Sonya Tat, M.D. (collectively “Defendants”). Plaintiff’s claims against Defendants were tried to a jury, and on November 29, 2022, the jury returned a verdict in favor of Defendants. On December 15, 2022, the Court entered judgment in favor of Defendants and against Plaintiff. On December 21, 2022, Defendants filed a Memorandum of Costs seeking an award of $73,728.45 in costs as the prevailing parties. Plaintiff brings this motion to tax the costs sought by Defendants. Defendants oppose Plaintiff’s motion.

Legal Standard

In general, the prevailing party is entitled as a matter of right to recover costs for suit in any action or proceeding.¿ (C.C.P.¿§ 1032(b);¿Santisas¿v.¿Goodin¿(1998) 17 Cal.4th 599, 606;¿Scott Co. Of¿Calif.¿v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.)¿ Assuming the prevailing party¿requirements are met, the trial court has no discretion to order each party to bear his or her¿own¿costs of suit. (Michell¿v. Olick¿(1996) 49 Cal.App.4th 1194, 1198;¿Nelson v. Anderson¿(1999) 72 Cal.App.4th 111, 129.)¿The term prevailing party is defined by statute to include:¿The party with a net monetary recovery;¿a¿defendant who is dismissed from the action;¿a¿defendant where neither plaintiff nor defendant recovers anything; and¿a¿defendant as against those plaintiffs who do not recover any relief against that defendant.¿ (C.C.P.¿§¿1032(a)(4).)¿

¿

Allowable costs under Code Civ. Proc.¿§¿1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount.¿An item not specifically allowable under¿§¿1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount).¿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, 773-774.)¿Whereas, 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.) 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.¿ (Id.)¿ However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.)¿ Discretion is abused only when, in its exercise, the court exceeds the bounds of reason, all of the circumstances being considered.¿

Analysis

            1.         Timeliness of Motion

On December 21, 2022, Defendants’ filed a Memorandum of Costs seeking an award of $73,729.45 in claimed costs. Defendants contend Plaintiff’s motion to strike should be denied because it is untimely. Plaintiff’s motion was filed and served on January 9, 2023. Defendants argue Plaintiff’s deadline to file was January 4.

California Rules of Court, rule 3.1700(b)(1) states: “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 electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” Code Civ. Proc. § 1010.6(a)(4)(5) provides: “Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days ….”

The proof of service attached to Defendants’ cost memorandum indicates it was served electronically on Plaintiff on December 21, 2022. Absent any extension for electronic service, the deadline for Plaintiff’s motion was January 5, 2023, pursuant to rule 3.1700(b)(1), This deadline was then extended by two court days pursuant to Code Civ. Proc. § 1010.6(a)(4)(5), making Plaintiff’s deadline January 9. Defendants admit Plaintiff’s motion was filed on January 9. The Court finds Plaintiff’s motion is timely.

            2.         Request to Strike All Costs

Plaintiff moves to strike all of Defendants’ claimed costs on the basis that they did not provide proof of their costs with their cost memorandum. The Court rejects this argument. Defendants were not required to submit documentary evidence supporting their claimed costs with their cost memorandum. Rather, a “‘verified memorandum of costs is prima facie evidence of the propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.” (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486–1487.)

            3.         Expert Fees

Defendants seek $43,187 in costs for expert witness fees pursuant to Code Civ. Proc. § 1033.5(a)(8). Section 1033.5(a)(8) provides a prevailing party may recover fees of expert witnesses ordered by the court. Plaintiff argues the Court did not order any expert witnesses in this case and thus Defendants cannot recover expert fees under section 1033.5(a)(8). The Court agrees with Plaintiff. Defendants seek to collect the fees for expert witnesses they retained by choice and not experts retained by order of the Court. Under Code Civ. Proc. § 1033.5(b)(1) such expert fees are not allowable costs unless they are otherwise expressly authorized by law. Defendants do not identify any such authorization for the recovery of their expert fees in this case. The Court grants Plaintiff’s request to tax these expert costs in their entirety.

            4.         Jury Fees

Defendants seek an award of $1,588.05 for jury fees. As Plaintiff points out, Defendants have submitted evidence showing they incurred a total of $863.62. (Ex. E to Vogt Decl.) The Court thus grants Plaintiff’s request to limit Defendants’ jury fees to $863.62.

            5.         Deposition Costs

Plaintiff seeks to tax $2,611.25 of the $9,679.40 claimed by Defendants for deposition costs, arguing Defendants did not use video depositions at trial and thus cannot establish costs associated with video depositions was reasonably necessary for litigation. The Court disagrees. While Defendants ultimately did not need to use the video recordings of these depositions at trial, the Court cannot say such costs were not reasonably necessary to conduct the litigation at the time they were incurred. The video recording of depositions is a commonplace occurrence and obviates any prejudice which could result from a witness being unavailable to offer live testimony at trial. That such video recordings were ultimately not used at trial does not, standing alone, mean such costs were unreasonably incurred by Defendants.

            6.         Service of Process

Defendants claim $1,320 in costs for service of process, consisting of a claimed $320 for service of deposition subpoenas and a claimed $1,000 for service of record subpoenas. Defendants have submitted documentary evidence supporting the $320 claimed in deposition subpoenas. (Ex. G to Vogt Decl.) However, Defendants have not made any showing that they incurred $1,000 in connection with record subpoenas. Defendants’ opposition refers the Court to Exhibit E to the Vogt Declaration as supporting these costs, but upon review Exhibit E does not contain any entries reflecting Defendants incurred any costs in serving record subpoenas. The Court grants Plaintiff’s request to tax $1,000 from Defendants’ claimed costs for service of process.

            7.         Models, Enlargements, and Photocopies

Plaintiff seeks to tax $493.05 of the $3,920 claimed by Defendants for models, enlargements, and photocopies, arguing Defendants’ records only indicate they incurred $3,426.95. The Court agrees. In support of these claimed costs, Defendants direct the Court to Exhibit J of the Vogt Declaration. Exhibit J contains evidence showing Defendants incurred $3,426.95 in costs for models, enlargements, and photocopies and the Court will tax $493.05 in unsupported costs from Defendants’ award.

Conclusion

Plaintiff’s motion to tax costs is granted in part and denied in part. The Court will reduce Defendants’ award of costs to $28,324.97 to account for the reductions set forth above. In all other respects, Plaintiff’s motion is denied.