Judge James C. Chalfant, Case 22STCP00986 2023-05-04 Tentative Ruling

Santa Monica-Malibu Unified School District and the City of Santa Monica v. Los Angeles County Committee on School District Organization, 22STCP00986
Tentative decision on motion to tax memorandum of costs: granted

Petitioners Santa Monica-Malibu Unified School District (“District”) and the City of Santa Monica (“City”) move to tax three items in the memorandum of costs of Intervenor Jennifer DeNicola’s (“DeNicola”).

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

On March 18, 2022, Petitioners filed the Petition against Respondent Los Angeles County Committee on School District Organization (“Committee”), alleging causes of action for (1) traditional mandamus and (2) declaratory relief. The verified Petition alleges in pertinent part as follows.

The California Constitution gives municipal charter provisions the force of legislative enactments and provides that they supersede state law on municipal affairs such as local elections. Pursuant to the City Charter, the City elects the District’s Board of Education members, or trustees, using an at-large system. Each constituent votes on every member, meaning that each District voter casts seven votes. Fear of litigation under the California Voting Rights Act (“CVRA”) -- which prohibits at-large elections that impair a protected class’s ability to elect candidates due to dilution of class members -- has prompted some school districts to transition to trustee area-based election formats.

Historically, Education Code (“Ed. Code”) section 5019 (“section 5019”) has provided a process whereby a county committee on school district organization (“county committee”) can change the manner in which a school district elects its board members but exempting any district where the city or city and county charter provides for election of the board of education. Thus, a modification of the manner in which the City elects Board of Education members would require an amendment to the City charter, which can occur only if (1) the City Council passes a resolution or 15% of registered voters or 10,000 voters sign a petition and (2) a majority of electors approves the amendment.

In 2021, the Legislature enacted SB 442, which amended section 5019 by repealing the prohibition of county committees from altering election processes where city or city and county charter provides for election of the board of education. SB 442 also amended Education Code section 5020 (“section 5020”) to allow the county committees to establish trustee areas without presenting the proposal to the constituency for a vote. The county committee need only (1) unilaterally propose, or have 500 citizens sign a petition proposing, the change, (2) conduct one hearing, and (3) vote to approve the change. This procedure bypasses the City’s process for amending its Charter and abolishes the at-large voting system approved by voters.

The legislative history of SB 442 suggests that the Legislature intended to help school districts that wanted to voluntarily transition to trustee area-based elections without spending money on judicial action or seeking amendment of the city charter. The Legislature did not intend to allow the county committees to impose trustee area-based elections when the school district’s elected representatives do not want them.

On January 4, 2022, District voters DeNicola and Tricia Crane filed a petition (“DeNicola/Crane petition”) to establish trustee-area elections for its governing board. The petition falsely claims that Latino and black communities have been underrepresented on the Board of Education, despite the fact that both groups are represented at a higher percentage than their number of constituents. The DeNicola/Crane petition provides no evidence of racially polarized voting or vote dilution in the District.

On January 21, 2022, the Committee reported that the DeNicola/Crane petition had 500 signatures. The District and various organizations objected to the Committee’s jurisdiction to hear the DeNicola/Crane petition prior to the February 2, 2022 Committee meeting on the issue. At its February 2 meeting, the Committee did not acknowledge these objections, only stating that the next step in the process would be to schedule a public hearing to receive testimony and formally consider the proposal. The Committee scheduled this hearing for April 2022.

Petitioners seek a (1) a writ of traditional mandate nullifying any SB 442 provisions that violate the California Constitution provisions whereby city and city and county charters supersede all inconsistent laws governing municipal affairs; (2) injunctive relief enjoining the Committee implementing SB 442 with respect to the DeNicola/Crane petition or similar proposals; (3) declaratory relief finding such sections of SB 442 unconstitutional; and (4) attorney’s fees and costs.

On March 21, 2022, Petitioners served Respondent Committee with the Petition and Summons.

On July 26, 2022, the court denied a motion to intervene by Senator Josh Newman (“Newman”) but granted such a motion for DeNicola. As Intervenor, DeNicola filed an Answer on August 2, 2022.

On January 5, 2023, the court denied the Petition. Judgment was entered on February 8, 2023.

On April 7, 2023, DeNicola filed a motion for attorney’s fees which is set for hearing on June 20, 2023.

Prejudgment costs allowable under statute shall be claimed and contested in accordance with rules adopted by the Judicial Council. CCP §1034(a). 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. CRC 3.1700(b)(3) also allows the parties to agree to extend the time for serving and filing the cost memorandum and a motion to strike or tax costs.

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, 101-02. 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, and under those circumstances, the court in its discretion may allow costs or not. Building Maintenance Services Co. v. AIL Systems, Inc., (1997) 55 Cal.App.4th 1014, 1025.

The statutory scheme clearly establishes two mutually exclusive sets of trial preparation expenses – one set which is allowable as a matter of right to the prevailing party (CCP §§1032(b), 1033.5(a)), and one which is not (CCP §§ 1033.5(b), 1032(b)). 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, (“Science Applications”) (1995) 39 Cal.App.4th 1095, 1103. 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, supra, 39 Cal.App.4th at 1102 & n.7.

Even where a party receiving a favorable judgment is entitled to costs “as of course,” the trial court has broad discretion to disallow unnecessary costs. Perko’s, supra, 4 Cal.App.4th 238. It is generally held 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 properly 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. A properly verified memorandum of costs is considered prima facie evidence that the costs listed in the memorandum were necessarily incurred. Bach v. County of Butte, (“Butte”) (1989) 215 Cal. App. 3d 294, 308. Documentation must be submitted only when a party dissatisfied with the costs claimed in the memorandum challenges them by filing a motion to tax costs. Id. at 308.

On February 20, 2023, counsel for DeNicola, Kevin Shenkman, Esq. (“Shenkman”), emailed Petitioners’s counsel her memorandum of costs. Woocher Decl., ¶2, Exs. A-B. The memorandum listed filing and motion fees of $870, electronic filing and service fees of $273.20, and $116.16 of “other” costs. Woocher Decl., ¶2, Ex. A. The worksheet explained that the motion to intervene and associated papers accounted for all of the $870 filing and motion fees. Woocher Decl., ¶2, Ex. A. DeNicola explained that the $116.16 of “other” costs were for travel to or from hearings. Woocher Decl., ¶2, Ex. A.

Counsel for Petitioners, Frederic Woocher, Esq. (“Woocher”), realized that, because the filing fee for one motion is $435, the $870 reflected the filing costs for both DeNicola and proposed intervenor Newman, for whom the motion was denied. Woocher Decl., ¶3. Woocher also could not determine a legal basis for the travel expenses as court costs. Woocher Decl., ¶3. The $273.20 in electronic filing and service costs also seemed high because DeNicola filed relatively few papers in this case. Woocher Decl., ¶3.

On February 21, 2023, Woocher asked Shenkman for a breakdown of the filing and motion fees and of the electronic filing and service fees. Woocher Decl., ¶4, Ex. B. He also asked for the legal authority that justified travel in the “other” cost item. Woocher Decl., ¶4, Ex. B.

On February 28, 2023, Shenkman replied that a verified memorandum is sufficient evidence of the validity of the costs therein. Woocher Decl., ¶5, Ex. B. He said he was willing to provide that evidence in response to a motion to tax the memorandum, but it seemed like a misuse of public funds since the total costs are only $1,259.36. Woocher Decl., ¶6, Ex. B.

Shenkman filed motions to intervene for both DeNicola and Newman. Shenkman Decl., ¶2. The two motions doubled the filing cost, and Newman’s right to intervene was less clear than DeNicola’s right. Shenkman Decl., ¶6. They agreed that it was best to include Newman in the motioin to intervene so that the court would understand that the arguments advanced in the case were those of Newman, the principal legislative author of SB 442. Shenkman Decl., ¶6. The court granted only DeNicola’s motion on July 26, 2022. Shenkman Decl., ¶3, Ex. A.

On June 30, 2022, DeNicola incurred a $12.69 e-filing and e-service charge for the motion to intervene. Shenkman Decl., ¶7, Ex. C.

On July 21, 2022, DeNicola spent another $12.69 to e-file and e-serve her reply brief, plus $50 to lodge a courtesy copy. Shenkman Decl., ¶7, Ex. C.

On August 5, 2022, DeNicola spent $21.18 to e-file and e-serve her Answer as Intervenor and $40 to lodge a courtesy copy. Shenkman Decl., ¶7, Ex. C.

On December 3, 2022, DeNicola spent $11.76 to e-file and e-serve her opposition to the Petition, plus $60 to lodge a courtesy copy thereof. Shenkman Decl., ¶7, Ex. C.

On December 14, 2022, DeNicola spent $11.76 to e-file and e-serve her opposition to Petitioners’ ex parte application. Shenkman Decl., ¶7, Ex. C.

On February 7, 2023, DeNicola spent $13.12 to e-file and e-serve the proposed judgment, plus $40 to lodge a courtesy copy thereof. Shenkman Decl., ¶7, Ex. C.

To calculate his travel costs, he multiplied the number of miles between the courthouse and his office by $0.59, the IRS deduction rate. Shenkman Decl., ¶7, Ex. C. He then added the $20 parking fee per visit. Shenkman Decl., ¶7, Ex. C. This led to total travel expenses of $58.08 per trip. Shenkman Decl., ¶7, Ex. C.

On June 13, 2016, the Legislature passed AB 2244, which allows a prevailing party to recover electronic filing service provider fees as costs. Woocher Reply Decl., ¶2, Ex. A. AB 2244 explained that current law specifically provides which items are allowable or not allowable as recoverable costs. Woocher Reply Decl., ¶2, Ex. A. Because some courts have mandatory electronic filing, AB 2244 adds electronic filing service provider fees to the list of allowable recoverable costs but limits it to costs actually incurred. Woocher Reply Decl., ¶2, Ex. A.

Petitioners move to tax (1) filing costs by $435, (2) e-filing and e-service costs by either $273.20 or $83.20, and (3) travel charges by $116.16.

DeNicola admits that half of the $870 in filing fees in her memorandum of costs are for Newman’s failed motion to intervene. Shenkman Decl., ¶¶ 2-3, Ex. A. She cites Quiles v. Parent (“Quiles”) (2018), 28 Cal.App.5th 1000, 1014-17 for the argument that a prevailing party can recover costs when the prevailing and non-prevailing party jointly incur them. Opp. at 3.

Quiles does not aid DeNicola. The question was whether the trial court must wait until the litigation ends to allocate costs between jointly represented parties. 28 Cal.App.5th at 1014. The court found that the trial court need not do so. Id. at 1017. It may determine the cost award for a prevailing party by examining the reason each cost was incurred, whether the cost was reasonably necessary to incur in the litigation, and the reasonableness of the amount of the cost incurred. Id. at 1017. Quiles followed Charton v. Harkey (“Charton”) (2016), 247 Cal. App. 4th 730, 744-745, which held that a trial court has discretion to award costs incurred by both a prevailing and non-prevailing party when reasonably necessary to the conduct of the litigation for both. 28 Cal.App.5th at 1016. The $435 at issue was not incurred for a jointly filed motion, but rather for Newman’s separate motion to intervene.

DeNicola asserts that even though Newman’s motion was denied, he prevailed insofar as he obtained his desired outcome of the Petition’s denial. Opp. at 3. Newman was never a party and could not be considered as a prevailing party. Nor could DeNicola, who is a prevailing party. recover Newman’s costs.

A properly verified memorandum of costs is prima facie evidence that the costs listed in the memorandum were necessarily incurred. Butte, supra, 215 Cal. App. 3d at 308. If an item on the memorandum of costs is properly objected to as not reasonable or necessary, the cost is put in issue and the burden is on the party claiming them as costs. Ladas v. California State Auto. Ass’n, (1993) 19 Cal.App.4^th 761, 774. In that circumstance, documentation must be submitted to support the cost. Butte supra, 215 Cal. App. 3d at 308.

Before filing this motion, Petitioners’ counsel asked Shenkman for a breakdown of the electronic filing and service fees. Woocher Decl., ¶4, Ex. B. Shenkman replied that a verified memorandum is sufficient evidence of the validity of the costs therein. Woocher Decl., ¶5, Ex. B. This only applied until Petitioners filed this motion, at which point DeNicola had the burden of showing the contested costs were reasonable.

Shenkman said that he was willing to provide that evidence in response to a motion to tax, indicating that he understood the burden would shift. Woocher Decl., ¶6, Ex. B. Despite this fact, he only provides a table that lists the claimed costs. Shenkman Decl., ¶7, Ex. C. Without the invoices themselves or proof of payment, the claimed costs are not sufficiently supported.

Even if it were, $190 of the $273.20 was for lodging courtesy copies of electronically filed documents. Shenkman Decl., ¶7, Ex. C. Petitioners argue that CCP section 1033.5(a)(14) only permits recovery for the electronic filing and service itself. Because the right to costs is governed strictly by statute, a court has no discretion to award costs that are not statutorily authorized. Reply at 5-6.

Petitioners cite Ladas v. California State Auto. Assn. (“Ladas”) (1993) 19 Cal.App.4th 761, 774, to support their argument. Reply at 5. But this case says the opposite. If an item is not specifically allowable under CCP section 1033.5(a) nor prohibited under CCP section 1033.5(b), it may nevertheless be recoverable in the discretion of the court if “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” CCP §1033.5(c)(2), (4); Ladas, supra, 19 Cal.App.4th at 774. Petitioners fail to show that the cost of courtesy copies is prohibited under CCP section 1033.5(b).^{^[2]}

Petitioners assert that DeNicola has not shown that per CCP section 1033.5(c)(2), courtesy copy costs were reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial. DeNicola paid $50 to lodge the reply brief for the motion to intervene, $40 for the Answer, $60 for her opposition brief to the Petition, and $40 for the proposed judgment. Shenkmann Decl., ¶7, Ex. C. Petitioners assert that none of these were necessary because the court only asks for courtesy copies of law and motion papers that exceed 20 pages. Reply at 6.

The Presiding Judge’s First Amended General Order requires courtesy copies when the papers exceed 20 pages. The Order also says that nothing precludes a judicial officer form requesting a courtesy copy of additional documents and refers the reader to the specific department’s “Courtroom Information” on the court website. The Department 85 Courtroom Information requires courtesy copies for all law and motion matters exceeding 15 pages. Although the court has not counted pages, it is likely that the Answer and briefs exceeded 15 pages.

In any case, an action can be “reasonably” necessary without being required as a matter of law or rule. Courtesy copies of the Answer, reply for the motion to intervene, and proposed judgment are reasonably necessary insofar as they provide the court with an easy ability to review. The court would award these costs if they had been supported by source documents. The same is not true for the opposition on the merits. As Petitioners note, the court asked them to prepare a trial notebook with all briefs and stated that it did not want courtesy copies of the parties’ briefs when filed. Reply at 6. The $60 spent to lodge DeNicola’s opposition brief was not reasonably necessary.

Because Petitioners have not supported this item with supporting evidence, the $273.20 cost of electronic filing and serving, and lodging courtesy copies thereof, is taxed.

Shenkman traveled to court on July 26, 2022 for the hearing on the motion to intervene. Shenkman Decl., ¶7, Ex. C. He traveled to court again on December 13, 2022 for the hearing on Petitioners’ ex parte application. Shenkman Decl., ¶7, Ex. C. To calculate the travel costs, he multiplied the number of miles between the courthouse and his office by $0.59, the IRS deduction rate. Shenkman Decl., ¶7, Ex. C. He then added the $20 parking fee per visit. Shenkman Decl., ¶7, Ex. C. This led to total travel expenses of $58.08 per trip. Shenkman Decl., ¶7, Ex. C.

Petitioners cite Gorman v. Tassajara Development Corp. (“Gorman”) (2009) 178 Cal.App.4th 44, 72, which states that, because CCP section 1033.5(a) includes costs of attending depositions as an allowable cost, by negative implication it does not provide for recovery of local travel expenses by attorneys and other firm employees unrelated to attending depositions. Mot. at 8-9.

DeNicola acknowledges that CCP section 1033.5 does not authorize recovery of travel expenses for attending a hearing. She asserts that even expenses prohibited by CCP section 1033.5(b) are recoverable if otherwise authorized by law and CCP section 1021.5 entitles her to attorney’s fees and costs. Opp. at 5.

This is incorrect. CCP section 1021.5 only allows a court to “award attorney’s fees” and not costs. See Hsu v.Semicondcutor Systems, Inc., (2005) 126 Cal.App.4^th 1330, 1342 (in the absence of specific provision to the contrary, attorney’s fees are not costs and costs are not attorney’s fees).

DeNicola asserts that the travel costs are still recoverable as fees even if not as costs. Opp. at 6. The memorandum of costs does not list the $116.16 as attorney’s fees. Reply at 8; Shenkman Decl., ¶3, Ex. A. The $116.16 in travel costs are taxed in full.

The motion to tax costs is granted. DeNicola may only recover the $435 for filing her own motion to intervene.

^{^[1]}DeNicola failed to provide a courtesy copy of her opposition, and City and District failed to provide a courtesy copy of their reply, in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Counsel is admonished to provide courtesy copies in all future filings.

^{^[2]} Petitioners cite AB 2244, which added electronic filing and service to the list of specifically allowable costs. Woocher Reply Decl., ¶2, Ex. A. AB 2244 acknowledged that courts have mandatory electronic filing, and therefore these costs should be recoverable. Woocher Reply Decl., ¶2, Ex. A. AB 2244 did not limit the court’s discretionary authority to determine that the cost of courtesy copies are recoverable under CCP section 1033.5(c)(4).