Judge James L. Crandall, Case 19-1111430 2022-08-18 Tentative Ruling

Judge: James L. Crandall, Case: 19-1111430, Date: 2022-08-18 Tentative Ruling

1. Motion to Tax Costs

2. Motion to Tax Costs

1.Plaintiff Tina Glynn’s Motion to Tax Costs is GRANTED in part.

Code Civ. Proc. § 1032, subdivision (a)(4) states: “ ‘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. 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 Section 1034.”

Code Civ. Proc. § 1032, subdivision (b) states: “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”

Ladas v. California State Automobile Association (Ladas) (1993) 19 Cal.App.4th 761, 773-774, states, “ ‘ [S]ection 1033.5, enacted in 1986, codified existing case law and set forth the items of costs which may or may not be recoverable in a civil action. [Citation.]’ [Citation.] An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) 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.’ [Citation.] [¶] 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 were not reasonable or necessary. On the other hand, 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. [Citations.] 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. [Citations.] However, because the right to costs is governed strictly by statute [citation] a court has no discretion to award costs not statutorily authorized. [Citations.]”

(See also, Jones v. Dumrichob (Jones) (1998) 63 Cal.App.4th 1258, 1265 and 1266.) “ ‘This means that the prevailing party is entitled to all of his costs unless another statute provides otherwise. [Citation.] Absent such statutory authority, the court has no discretion to deny costs to the prevailing party.’ [Citations.]” (Baker-Hoey v. Lockheed Martin Corp. (Baker-Hoey) (2003) 111 Cal.App.4th 592, 597.)

Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 856 (Benach), explains, “In Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774, 23 Cal.Rptr.2d 810 (Ladas), on which Benach primarily relies, the court held: ‘[i]f the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show they were not reasonable or necessary. On the other hand, 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. [Citations.]’ Benach interprets this language to mean his objection automatically shifted the burden to the Department to demonstrate its costs were reasonable and necessary. His reading of Ladas is incorrect. [¶] The objecting party made a similar mistake in Nelson. Our colleagues in Division Seven clarified the standard: ‘the mere filing of a motion to tax costs may be a “proper objection” to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. [Citation.] However, “[i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” [Citations.]’ [Citation.].”

Section 1(a):

Plaintiff Tina Glynn moves to tax the costs of Defendants Anthony Joseph Domazet and Ty Hargrove’s first appearance fees. Tina Glynn provides: “Per Code of Civil Procedure, Section 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. Here, there is no rational relationship to the conduct of the litigation and the claimed costs of $870 for two unrepresented, non-appearing and non-prevailing defendants.” (Motion 4:9-12.)

In support of this argument, Tina Glynn provides Ex. B to the Declaration of Anthony Liberatore, in which Defendants counsel stated the following: “Anthony, In follow up to your request below, we can agree to accept service on behalf of Marovic, but we do not have authority to accept service on behalf of Domazat and Hargrove, nor do we have any way of contacting those individuals. The notice of withdrawal of the erroneously filed answer on behalf of Domazat and Hargrove will be addressed at the CMC. We will ask the court the procedure they wish us to follow. We anticipate that a stipulated motion to strike those answers may be required. Regardless, we will follow the direction of the court. Please call if you have any questions or wish to discuss in preparation for the CMC on Friday 3/2. Thank You.”

Based on the foregoing, Tina Glynn met her initial burden of establishing that these costs are not recoverable because they are not reasonable.

Defendants stated the following in the Opposition: “Defense counsel was representing the individual defendants at the time the Answers were filed for defendants, Anthony Domazet and Ty Hargorve. The fees were reasonable and necessarily incurred. Ultimately counsel for defendants withdrew the defense because the individuals were no longer employed by Defendants.” (Opposition, 2:18-22.) Defendants do not provide any evidence in support of this contention. Thus, Defendants fail to establish that these costs were reasonable and necessary.

Further, it defies logic that defense counsel would be representing parties it had no way of communicating with. Just because an employee of a company is sued, does not allow the attorney for the company to assume there is a relationship with the individual and file an answer on his/her behalf.

As such, the Court taxes the costs of $870 for two unrepresented, non-appearing and non-prevailing defendants.

Sections 12(a) and 12 (b):

Tina Glynn moves to tax the costs of the court reporter transcripts for the motion hearings in this case. Tina Glynn contends: “Per Code of Civil Procedure, Section 1033.5(b)(5), court reporter fees are not items of recoverable costs, unless the Court orders transcripts of the proceedings or there is a statute that establishes the requested court reporter fees. There were no such orders in our case. Similarly, there is no statute that provides for court reporter fees in a case like ours for law and motion hearings. Absent Court order or statute, the request for court reporter fees is improper and subject to tax in the amount of $802.58.” (Motion 4:23-28.)

Defendants contend that Government Code §68086 and Burd v. Barkley Court Reporters, Inc. (2017) 17 Cal.App.5th 1037 (Burd) support the recovery of court reporter fees for the transcripts.

Code of Civil Procedure § 1033.5, subdivision (a)(11) allows the recovery of costs for: “Court reporter fees as established by statute.” Government Code section 68086, subdivision (d)(2) states: “That if an official court reporter is not available, a party may arrange for, at the party's expense, the presence of a certified shorthand reporter to serve as an official pro tempore reporter. At the arranging party’s request, the court shall appoint the certified shorthand reporter to be present in the courtroom and serve as the official reporter pro tempore unless there is good cause shown for the court to refuse that appointment. The fees and charges of the certified shorthand reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law.”

Section 1033.5, subdivision (b)(5) states that “Transcripts of court proceedings not ordered by the court” are not allowable as costs.

Burd held: “The plain language of sections 69950 and 69954 apply statutory transcription rates to official reporters and official reporters pro tempore, when producing transcripts of court proceedings, whether employed by the court or privately retained by a party. The trial court accordingly erred by concluding that the statutory rates apply only to official reporters employed by the court. (Burd, supra, 17 Cal.App.5th at 1051.)

The holding of Burd is not applicable here. Specifically, Defendants cite “the Legislature provided in section 68086 an express exemption from statutory court reporter attendance fees for parties who retain a private reporter to serve as an official reporter pro tempore, but provided no similar exemption from statutory transcription fees for private reporters serving as official reporters pro tempore.” (Id. at 1047.) But this quote is referencing an attendance fee that is not the subject of this motion.

Here, Defendants seek $802.58 in court reporter fees to transcribe the hearings on Plaintiff’s Motion for Leave to Amend heard on 6-3-21 and Defendants’ Motion for Summary Judgment heard on 2-3-22. The Court did not order transcripts of either of the hearings.

Based on the foregoing, the Court taxes $802.58 in costs.

Section 16:

Tina Glynn moves to tax photocopy costs.

Code Civ. Proc. § 1033.5(a)(4) provides that “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” Code Civ. Proc. § 1033.5 states in pertinent part: “(c) Any award of costs shall be subject to the following... (2) Allowable costs shall be reasonably necessary to conduct the litigation rather that merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount... .”

Tina Glynn contends: “Plaintiff requests that all “Ronsin Photocopy” claimed costs in the amount of $1,771.55 be taxed. Plaintiff requests that the entire claimed amount be stricken because Defendants fail to quantify how much of the Ronsin Photocopy charges are due to service of process versus preparation of copies.

For this motion, Plaintiff will concede that service of process for subpoenas is recoverable. However, Plaintiff challenges that photocopy charges by a third party are recoverable. Third party copy charges to make copies of records to provide to defense counsel are not recoverable because Code of Civil Procedure, Section 1033.5(b)(3)” (Motion 5:2-8.)

Defendants respond, “plaintiff concedes that Defendants are entitled to recover fees for service of process of the subpoenas. Attached hereto as Exhibit " collectively are the invoices for Ronsin that have been divided between 16 plaintiffs, Tina Glynn and David Glynn. (Declaration of Mackenzie Foellmer ~2, Exhibit A) The invoices reflect the fees for service of subpoenas which are recoverable.” (Opposition 3:13-17.)

The Invoices provided contain the following fees: (1) “Base Fee-Subpoena”; (2) “Witness Fee”; (3) “Fees Advanced”; (4) Check Charge”; (5) “Fuel Surcharge”; (6) “CD of XRAYS”; (7) “Packaging & Delivery”; (8) “Page Count”; (9) “Documents made available online”; (10) “Image copies”; (11) “Statements”; (12) “Production hours”; (13) “Postage charge.”

Based on the foregoing, the Court taxes the following costs “CD of XRAYS” ($75), “Page Count” ($290); “Documents made available online” ($5.00) “Image copies” ($2.00) and “Statements” ($45.90). This totals $417.90.

Defendants divided the total amount of the costs by two so the amount to be taxed for each Plaintiff is half of this, $208.95.

The remaining costs are reasonably necessary to conduct the litigation and reasonable.

Based on the foregoing, Plaintiff Tina Glynn’s Motion to Tax Costs is GRANTED in part.

Plaintiff to give notice.

2.Plaintiff David Glynn’s Motion to Tax Costs is GRANTED in part.

Sections 12(a) and 12 (b):

For the same reasons stated in the ruling for Plaintiff Tina Glynn’s Motion to Tax Costs, heard concurrently with this Motion, the Court taxes $802.58 in costs.

Section 16:

For the same reasons stated in the ruling for Plaintiff Tina Glynn’s Motion to Tax Costs, heard concurrently with this Motion, the Court taxes $208.95 in costs.

Based on the foregoing, Plaintiff David Glynn’s Motion to Tax Costs is GRANTED in part.

Plaintiff to give notice.

Future hearing dates

6/26/23 – Status Conference