Judge: Holly J. Fujie, Case: BC702531, Date: 2022-09-29 Tentative Ruling

Case Number: BC702531    Hearing Date: September 29, 2022    Dept: 56

CASE NO.: BC702531 [TENTATIVE] ORDER RE: MOTIONS TO TAX COSTS


CHRISTIN MATTHES,

Plaintiff,

vs.

CHRISTIAN RODGERS, et al.,

Defendants.

Date: September 21, 2022
Time: 8:30 a.m.
Dept. 56

This action concerns two motions to strike/tax costs: (1) filed by Plaintiff (the “Matthes Motion”); and (2) filed by Defendants Christian Rodgers (“Mr. Rodgers”) and Lyndsy Rodgers (“Ms. Rodgers”) (collectively, “Defendants”) (the “Rodgers Motion”)

MOVING PARTIES: (1) Plaintiff; (2) Defendants

RESPONDING PARTIES: (1) Defendants; (2) Plaintiff

The Court has considered the moving, opposition and reply papers.


BACKGROUND

On April 18, 2018, Plaintiff filed a complaint (the “Complaint”) alleging 13 causes of action arising out of misconduct that occurred while Plaintiff lived with Defendants and workedA jury trial was held on April 11, 2022. Before the jury deliberated, Plaintiff dismissed the breach of the implied covenant of quiet use and enjoyment claim. The jury returned its verdict on April 14, 2022. The jury found in favor of Plaintiff and awarded damages on her: (1) constructive invasion of privacy claim against Mr. Rodgers in the amount of $100,000; (2) negligent infliction of emotional distress claim against Ms. Rodgers in the amount of $100,000; (3) intentional infliction of emotional distress claim against Mr. Rodgers in the amount of $250,000; and (4) hostile work environment claim against both Moving Defendants in the amount of $100,000 against Mr. Rodgers and $100,000 against Ms. Rodgers. In addition, the jury found that Moving Defendants acted with malice, oppression, or fraud and awarded Plaintiff punitive damages in the amount of $2,000,000 against Mr. Rodgers and $1,000,000 against Ms. Rodgers. The jury found in favor of Defendants with respect to the remainder of the claims alleged in the Complaint against them. The judgment (the “Judgment”) was entered on June 16,as their au pair. On February 17, 2022, Plaintiff filed a notice of dismissal providing that on March 10, 2020, several causes of action were dismissed. Thereafter, the Complaint alleged: (1) invasion of privacy; (2) violation of Civil Code section 1708; (3) assault; (4) negligent infliction of emotional distress; (5) intentional infliction of emotional distress; (6) violation of the Government Code section 12940; and (6) breach of the implied covenant of quiet use and enjoyment. Each of the aforementioned remaining causes of action were alleged against Mr. Rodgers, while the remaining causes of action asserted against Ms. Rodgers were limited to the negligent infliction of emotional distress, intentional infliction of emotional distress and Government Code section 12940 violations claims.

A jury trial was held on April 11, 2022. Before the jury deliberated, Plaintiff dismissed the breach of the implied covenant of quiet use and enjoyment claim. The jury returned its verdict on April 14, 2022. The jury found in favor of Plaintiff and awarded damages on her: (1) constructive invasion of privacy claim against Mr. Rodgers in the amount of $100,000; (2) negligent infliction of emotional distress claim against Ms. Rodgers in the amount of $100,000; (3) intentional infliction of emotional distress claim against Mr. Rodgers in the amount of $250,000; and (4) hostile work environment claim against both Moving Defendants in the amount of $100,000 against Mr. Rodgers and $100,000 against Ms. Rodgers. In addition, the jury found that Moving Defendants acted with malice, oppression, or fraud and awarded Plaintiff punitive damages in the amount of $2,000,000 against Mr. Rodgers and $1,000,000 against Ms. Rodgers. The jury found in favor of Defendants with respect to the remainder of the claims alleged in the Complaint against them. The judgment (the “Judgment”) was entered on June 16, 2022.1 The Judgment designates Plaintiff as the prevailing party entitled to costs. (See Judgment ¶ 12(h).)


On June 17, 2022, Plaintiff filed and served a Notice of Entry of Judgment. On June 30, Plaintiff filed a Memorandum of Costs (the “Matthes MOC”) and Defendants filed a Memorandum of Costs (the “Rodgers MOC”). On July 15, 2022, Defendants filed the Rodgers Motion and on July 18, 2022, Plaintiff filed the Matthes Motion.

LEGAL STANDARD

The right to recover any costs is determined entirely by statute. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.) The statutory scheme detailing a prevailing party’s right to recover costs establishes three categories of trial preparation expenses: (1) costs allowable as a matter of right to the prevailing party (CCP § 1033.5, subd. (a)); (2) costs not allowable unless expressly authorized elsewhere by law (CCP § 1033.5, subd. (b)); and (3) costs not explicitly deemed allowable or not allowable category that may be awarded in the court’s discretion. (See CCP § 1033.5, subd. (c)(4)). Even where costs are deemed allowable, such costs are only recoverable to the extent that they are: (1) reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation; and (2) reasonable in amount. (CCP § 1033.5, subd. (c)(2)-(3).)

1 On August 11, 2022, the Court denied Defendants’ motion for judgment notwithstanding the verdict and motion for new trial. During the August 11, 2022 hearing, Plaintiff agreed to reduce the award of punitive damages against Mr. Rodgers to 1.8 million and $200,000 against Ms. Rodgers.

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. (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.) If so, the burden is on the objecting party to show the costs to be unnecessary or unreasonable. (Id.) 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. (Id.)

Whether a costs item was reasonably necessary to the litigation presents a question of fact for the trial court. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.) The items on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) Only if the costs have been put at issue must supporting documentation be submitted. (Id.) Once a party shows that an expense or cost was necessarily incurred the burden is upon the moving party to establish the illegality of the challenged items; otherwise, the amount demanded in the verified cost bill is controlling. (Wilson v. Nichols (1942) 55 Cal.App.2d 678, 682-83.) The objecting 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.)

MATTHES MOTION

Prevailing Party

In the context of determining an award of costs as a matter of right under CCP section 1032, the “prevailing party” includes the party with a net monetary recovery; a defendant in whose favor a dismissal is entered; a defendant where neither plaintiff nor defendant obtains any relief; and a defendant as against those plaintiffs who do not recover any relief against that defendant. (CCP § 1032, subd. (a)(4).) If any party recovers other than monetary relief and in situations other than as specified, the prevailing party shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under CCP section 1034. (Id.)

A party that receives a net monetary recovery is entitled to its costs even if the party did not prevail on all causes of action asserted. (Dell’Oca v. Bank of New York Trust Co., N.A. (2008) 159 Cal.App.4th 531, 559.) For costs awards under CCP section 1032, subdivision (a)(4), there is a single prevailing party. (Sharif v. Mehusa, Inc. (2015) 241 Cal.App.4th 185, 194.)

Plaintiff argues that the Rodgers MOC should be stricken in its entirety because Defendants are not the prevailing parties in this action. The Court agrees. Although Plaintiff voluntarily dismissed several claims initially alleged in the Complaint against Defendants and the jury found in favor of Defendants on some of the claims, Defendants were not dismissed from the action as a whole prior to the entry of the Judgment. Moreover, it is undisputed that Plaintiff received a net monetary recovery upon the conclusion of the trial. The Court therefore GRANTS the Matthes Motion in its entirety.

RODGERS MOTION

Defendants argue that the Matthes MOC should be stricken in its entirety because Plaintiff did not submit the supplemental MC-011 worksheet. Defendants cite to no rule which requires the filing of the MC-011 worksheet and will not strike the Matthes MOC on this basis. The Court agrees, however, with Defendants’ argument that the costs in the Matthes MOC being broadly divided into categories without further breakdown prevents them from raising arguments or providing evidence concerning the necessity or reasonableness of the incurred costs. The Court will therefore review the costs claimed in the MOC and the evidence Plaintiff submitted with her opposition papers (the “Opposition”).

Item 1: Filing Fees - $61.65

Filing, motion, and jury fees are allowable as costs. (CCP § 1033.5, subd. (a)(1).) Defendants generally object to this fee and note that the Matthes MOC does not specify the filing which the claimed costs correspond with, although they make no specific arguments regarding whether the costs were unnecessary or unreasonable to the litigation. In the Opposition, Plaintiff provides evidence of the cost. (See Declaration of Matthew F. Baker (“Baker Decl.”) ¶ 7, Exhibit B.) The Court finds that the claimed filing fees are proper and DENIES the Motion as to this item.

Item 2: Jury Fees - $1,083.20

Filing, motion, and jury fees are allowable as costs. (CCP § 1033.5, subd. (a)(1).) The Court finds that the costs claimed in Item 2 are proper and reasonably incurred and therefore DENIES the Rodgers Motion as to this item. (See Baker Decl. ¶ 8, Exhibit C.)

Item 4: Deposition Costs - $10,238.43

Taking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed is an allowable cost. (CCP § 1033.5, subd. (a)(3)(A).)

Defendants have not provided evidence that the costs claimed in Exhibit D of the Baker Declaration are unreasonable. (See Baker Decl. ¶ 9, Exhibit B.) 2 The Court therefore DENIES the Rodgers Motion as to this item.

Item 11: Court Reporter Fees - $9,280

Court reporter costs are allowable as costs as established by statute. (CCP § 1033.5, subd. (a)(11).)

The Baker Declaration provides a breakdown of the court reporter fees Plaintiff incurred. (Baker Decl., Exhibit D.) The Rodgers Reply does not provide evidence that these charges are unreasonable or unnecessary. The Court therefore DENIES the Rodgers Motion as to this item.

Item 12: Models, Enlargements and Photocopies of Exhibits - $1,691.00

2 The reply brief (the “Rodgers Reply”) does not include a declaration. In law and motion practice, factual evidence is supplied to the court by way of declarations. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

Models, 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. (CCP § 1033.5, subd. (a)(13).)

The Court finds that the Plaintiff’s costs for models, enlargements and photocopies of exhibits are proper except that the Plaintiff’s invoices indicate that she incurred $1,640.45 rather than $1,691 in such costs. (See Baker Decl. ¶ 11, Exhibit F.) The Court will therefore tax these costs so that they are consistent with the submitted invoices.

Item 14: Electronic Filing/Services Fees - $363.228

Fees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents. (CCP § 1033.5, subd. (a)(14).)

The Baker Declaration does not indicate if the electronic filing or service of documents via an electronic service provider was required or ordered by the Court. Plaintiff’s memorandum of costs worksheet, however, indicates that such fees were required by the Court. (See Baker Decl., Exhibit I at ¶ 14.)

Defendants’ attorney’s declaration supporting the Motion also does not indicate if the electronic filing or service of documents via an electronic service provider was required or ordered by the Court. Defendants present no evidence that the $1,200.09 in costs for fees for electronic filing or service of documents through an electronic service provider was unnecessary or unreasonable. The Court therefore DENIES the Rodgers Motion as to this item.

Item 16: Other Costs - $608.38

The Matthes MOC does not break down the costs which comprise Item 16. Plaintiff has provided evidence, however, that the costs incurred represent the costs incurred to have FedEx deliver documents related to the trial to Defendants between January 12, 2022 and April, 28, 2022. (See Baker Decl. ¶ 13, Exhibit H.) Plaintiff incurred these costs because Defendants declined to accept electronic or email service. (Id.)

Postage, telephone, and photocopying charges, except for exhibits are expressly prohibited as costs, except when expressly authorized by law. (CCP § 1033.5, subd. (b) (4).) Plaintiff has cited no authority that authorizes these shipping fees. The Court therefore GRANTS the Rodgers Motion as to this item.

The Court therefore GRANTS the Rodgers Motion in part and orders that the Matthes MOC be taxed in accordance with this order.Moving parties are ordered to give notice of this ruling.

Dated this 29th day of September 2022

______________________________

Hon. Holly J. Fujie
Judge of the Superior Court