Judge James C. Chalfant, Case 19STCP02860 2023-05-16 Tentative Ruling

Department of Animal Care and Control v. Los Angeles County Civil Service Commission, 19STCP02860

Tentative decision on motion to tax memorandum of costs: granted

Petitioner Department of Animal Care and Control (“Department”) moves to tax both items in the memorandum of costs of Real Party-in-Interest Jesus Plaza (“Plaza”).

The court has read and considered the moving papers, opposition, and reply,^{^[1]} and renders the following tentative decision.

Petitioner Department commenced this proceeding on July 9, 2019, against Respondent Los Angeles County Civil Service Commission (“Commission”) alleging a cause of action for administrative mandamus. The Petition alleges in pertinent part as follows.

Plaza was discharged because a dog in his sole custody and under his control suffered a terrifying, violent, and painful death. The evidence in the record establishes that on July 6, 2015, Plaza pulled a dog (“Marley”) from her cage because she was on the shelter’s euthanasia list. Plaza should have availed himself of a readily available sedative for the dog or asked to be moved to the head of the line, or both, but instead held on to Marley with a catchpole and refused such assistance.

When Plaza’s turn came for Marley’s euthanasia, the registered veterinary technician saw that Marley was in agonal breathing with circulation shut down. The technician was unable to access a vein for the euthanasia drug and instead put the drug directly into Marley’s heart to end suffering. This event was traumatic for the technician and other staff.

Plaza petitioned the Commission for a hearing, which appointed a hearing officer to entertain the evidence in the case. After a hearing lasting several days, the hearing officer recommended upholding the discharge. The hearing officer’s proposed findings stated that Plaza's physical abuse of the dog and use of excessive force caused her death. The hearing officer found that Plaza had a history of mistreatment of animals, he had been counseled by the Department, and he intentionally or with careless disregard strangled the dog to death. The hearing officer found Plaza's discharge was appropriate.

Plaza objected to the hearing officer's report. The Commission overturned the discharge and determined Plaza be reinstated to his position and serve a 30-day suspension. The Department objected to the new proposed decision, but the Commissioner overruled those objections. The Commission prepared a new ruling, mostly adopting the hearing officer's findings, but adding other facts, some which were erroneous and not part of the record or were inconsistent and without any basis or foundation.

The Commission ordered Plaza's discipline reduced from discharge to a 30-day suspension and ordered Plaza reinstated. This order came despite the fact that the Commission adopted the hearing officer's report with findings of Plaza's prior mistreatment of animals and his causation of the animal's death. The Commission’s decision is an abuse of discretion and is against the Department’s interests.

On July 19, 2019, the Department served Commission with the Petition and Summons.

On August 6, 2019, Plaza signed an acknowledgement of receipt for the Petition and Summons.

On July 2, 2020, the court denied the Petition. Judgment was entered on August 19, 2020 and served on Plaza the same day by U.S. Mail.

On October 12, 2020, the Department filed a notice of appeal. The court of appeal has issued a remittitur affirming denial of the Department’s Petition and ordering that Plaza shall recover his costs for appeal.

Although the purpose of much civil litigation is to make the injured party “whole,” the traditional common law rule is that the parties must bear their own costs. Davis v. KGO-TV, Inc., (1998) 17 Cal.4th 436, 446. It is, therefore, axiomatic that the right to recover costs is purely statutory, and, in the absence of an authorizing statute, no costs can be recovered by either party. Crib Retaining Walls, Inc. v. NBS/Lowry, Inc., (1996) 47 Cal.App.4th 886, 889; Garcia v. Hyster Co., (1994) 28 Cal.App.4th 724, 732; Perko's Enterprises, Inc. v. RRNS Enterprises, (1992) 4 Cal.App.4th 238, 241.

Prejudgment costs allowable under statute shall be claimed and contested in accordance with rules adopted by the Judicial Council. CCP §1034(a). Thus, any notice of motion to strike or to tax costs shall 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 CCP section 1013. CRC 3.1700(b)(1). These time limitations are not jurisdictional, and a trial court has broad discretion in allowing relief from a late filing where there is absence of a showing of prejudice by the opposing party. Hoover Community Hotel Development Corp. V. Thomson, (1995) 168 Cal.App.3d 485. Also, CRC 3.1700(b)(3) allows the parties to agree to extend the time for serving and filing the cost memorandum and a motion to strike or tax costs.

Unless objection is made to the entire cost memorandum, the motion to strike or tax costs shall refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and shall state why each item is objectionable. CRC 3.1700(b)(2). After the time has passed for a motion to strike or tax costs or for determination of that motion, the clerk shall enter the costs on the judgment forthwith. CRC 3.1700(b)(4).

The statutory scheme clearly establishes two mutually exclusive sets of trial preparation costs -- those which are allowable as a matter of right to the prevailing party (CCP §§1032(b) and 1033.5(a)), and those which are not (CCP §§1033.5(b), 1032(b)). CCP section 1033.5(a) contains a list of expenses which are allowable as costs, and includes filing fees, deposition transcripts, models, blowups, exhibits and copies of exhibits if reasonably helpful to the trier of fact. Michell v. Olick, (1996) 49 Cal.App.4th 1194, 1200; Science Applications Internat. Corp. v. Superior Court, (1995) 39 Cal.App.4th 1095, 1102, n. 7. Expenses which do not fit into either of these two categories fall into a special statutory safety net; they may be recovered only at the discretion of the court. CCP §1033.5(c); Science Applications Internat. Corp. v. Superior Court, supra, 39 Cal.App.4th at 1103.

Even where a party receiving a favorable judgment is entitled to costs, the trial court has broad discretion to disallow unnecessary costs upon a motion to tax. Perko’s Enterprises, Inc. v. RRNS Enterprises, supra, 4 Cal.App.4th at 238. It is generally held under CCP section 1033.5 and CRC 3.1700 that costs awarded should be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. Thon v. Thompson, (1994) 29 Cal.App.4th 1546, 1548. When items claimed as costs do not appear on their face as proper and necessary and the items are challenged by a motion to tax costs, the burden of establishing the necessity of the items is on the party claiming them as costs. Whitney v. Whitney, (1958) 164 Cal.App. 2d 577.

CCP section 1032 defines the term “prevailing party” as the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, or a defendant who avoids all liability. Great Western Bank v. Converse Consultants, Inc., (1997) 58 Cal.App.4th 609, 612; Childers v. Edwards, (1996) 48 Cal.App.4th 1544, 1548; Coltrain v. Shewalter, (1998) 66 Cal.App.4th 94, 101-102. CCP section 1032(a)(4) provides that when any party recovers other than monetary relief, the prevailing party shall be as determined by the court. Building Maintenance Services Co. v. AIL Systems, Inc., (1997) 55 Cal.App.4th 1014, 1025.

On August 19, 2020, this court denied the Petition. Beckman Decl., II.A. On September 9, 2020, Plaza filed his memorandum of costs. Beckman Decl., II.B, Ex. A. The memorandum of costs included $435 for filing an Answer and $153.28 in attachment expenses. Beckman Decl., II.B, Ex. A. The memorandum of costs did not seek the cost of a reporter’s transcript from the underlying administrative proceeding. Beckman Decl., II.B. The County did not file a motion to tax the memorandum of costs. Beckman Decl., II.B.

On October 13, 2020, the Department filed a notice of appeal from this court’s judgment in full. Beckman Decl., II.C. On November 22, 2022, the Court of Appeal affirmed the judgment and ordered that Plaza could recover his costs on appeal. Beckman Decl., III.

On February 23, 2023, Plaza filed a memorandum of costs that incurred all costs incurred during the appellate and trial proceedings. Beckman Decl., IV.A, Ex. B. On March 15, 2023, after the Department filed this motion, Plaza filed an amended memorandum of costs. Beckman Decl., IV.A, Ex. C.

Both memoranda of costs filed in 2023 list filing fees of $1,077.63. Beckman Decl., Exs. B-C. On August 26, 2019, Plaza paid $485.83 to electronically file his Answer to the Petition. Beckman Decl., IV.B(a), Ex. D. The 2023 memoranda of costs list this filing fee twice. Beckman Decl., IV.B(a), Exs. A-C. Plaza admits that the court should tax $485.83 for Item 1 (filing fees). Beckman Decl., IV.B(a).

On July 7, 2017, Dropulic Court Reporters (“Dropulic”) sent a $5,380 invoice for the reporter’s transcript from the administrative proceeding, dated May and June 2017. Beckman Decl., IV.B(b), Ex. E. The invoice shows that the parties shared this cost, and that Plaza paid his half, or $2,690. Beckman Decl., IV.B(b), Ex. E. Plaza cited this transcript in his appellate brief. Beckman Decl., IV.B(b), Exs. F-G.

Plaza concedes that the actual reporter’s charge to him was $2690, not the $2,971.89 reflected in the 2023 memoranda of costs. Beckman Decl., IV.B(b), n. 1.

The County moves to tax the memorandum of costs for (1) filing fees of $485 and (2) the cost of the administrative proceeding reporter’s transcript by $2,690.

On March 23, 2023, Plaza filed an amended memorandum of costs after the County filed its motion. Beckman Decl., IV.A, Ex. C. The County asserts that this memorandum is untimely. Reply at 2. A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under CCP section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. CRC 3.1700(a)(1). The parties do not state the date of remittitur on which the court’s jurisdiction was reinstated and the 15-day clock started on the memorandum of costs. Plaza’s amended memorandum of costs was filed on March 6, 2023, 11 days after the initial memorandum of costs on February 23, 2023. The amended memorandum is probably untimely or at least Plaza does not show that it was. The court will consider the February 23, 2023 memorandum of costs as operative.

The County seeks to tax $485 (Item 1) as filing fees for an Answer and $2690 for the administrative reporter’s transcript. Plaza admits that he double charged for the Answer filing fee and argues that the remaining $485 should not be taxed. Plaza also argues that the administrative reporter’s transcript was necessary for preparation of his reply brief.

Both items will be taxed. Plaza was required to seek costs in connection with the trial within the time limit imposed by CRC 3.1700(a)(1), and he in fact did so. His trial court costs are now frozen, and he may not add to them by calling them costs on appeal. All filing fees for the Answer clearly falls into this category and the administrative proceeding reporter’s transcript, which is part of the cost of the administrative record, does also. The mere fact that Plaza might have used the transcript for his brief on appeal does not make it a recoverable cost on appeal. Plaza cites no authority to the contrary.

The motion to tax costs is granted. The only costs permitted from the appeal are the $455.70 in undisputed costs which the clerk is directed to add to the costs already in the judgment.

^{^[1]}Plaza filed to provide a courtesy copy of his opposition in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. His counsel is admonished to provide courtesy copies in all future filings.

^{^[2]}The Declaration of Joel Beckman fails to number the paragraphs to his declaration.