Judge Jill Feeney, Case 20STCV08149 2023-03-24 Tentative Ruling

Judge: Jill Feeney, Case: 20STCV08149, Date: 2023-03-24 Tentative Ruling

Case Number: 20STCV08149 Hearing Date: March 24, 2023 Dept: 30

Department 30, Spring Street Courthouse

March 14, 2023

20STCV08149

[Consolidated with 21STCV 31607]

-Motion to Tax Costs filed by Plaintiff Herman Murphy

-Motion to Tax Costs filed by Plaintiff Tinasha Sullivan

DECISION

The motions are granted in part and denied in part.

Moving party to provide notice.

Background

On November 3, 2022, the Court granted the motion for summary judgment filed by Defendants Brea Auto Body, Inc. and Virginia Ann Pina.

On January 30, 2023, Defendant Virginia Pina filed her memorandum of costs.

On February 9, 2023, Plaintiff Tinasha Sullivan filed her motion to tax costs.

On February 10, 2023, Plaintiff Herman Murphy filed his motion to tax costs.

Summary

Moving Arguments

Plaintiff Herman Murphy moves to tax Pina’s requests for filing fees, motion fees, deposition costs, service fees, and electronic filing or service fees on the grounds that the costs are not permitted.

Plaintiff Tinasha Sullivan also moves to tax costs on the grounds that the two Plaintiffs should not be held jointly and severally liable for Pina’s costs. Sullivan requests that the Court require Pina to file separate cost memorandums with respect to each Plaintiff. Sullivan also argues that the two Plaintiffs should not be held jointly and severally liable for costs because they did not elect for their cases to be consolidated. Sullivan also requests that the costs that predate Plaintiff’s Complaint and did not involve the prosecution or defense of her case should be taxed.

Opposing Arguments

With respect to Murphy’s motion, Pina argues that the filing fees requested are reasonable because she was required to file electronically and the papers filed were not excessive or unnecessary. The deposition costs were allowable because travel expenses and deposition transcripts are expressly allowed under Code of Civil Procedure Section 1033.5. The service frees are allowable because they were used to serve deposition subpoenas and serving Plaintiff with a restraining order.

With respect to Sullivan’s motion, Pina argues that she does not bear the burden of apportioning costs because the two Plaintiffs sued on a joint liability theory. Pina argues that he Court is required to determine the rights and obligations of the Plaintiffs. Pina also argues that Sullivan was involved in Murphy’s lawsuit because she was added as a defendant. Pina also argues that the costs which Sullivan argues should be taxed were necessary to litigate against both Plaintiffs, who shared the same claims.

Reply Arguments

Plaintiff Sullivan argues that she was not a defendant in Murphy’s case because she was never served and never appeared. Plaintiff reiterates arguments from her motion.

Legal Standard

Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover certain costs in any action or proceeding. (Code Civ. Proc. section 1033.5(a).) Under 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.” Subdivision (3) requires: “[a]llowable costs shall be reasonable in amount.” There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted. (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308.)

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. “If so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) 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. at 132.) “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.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774, 23 Cal.Rptr.2d 810.)

A court has discretion to apportion costs between the parties on the same or adverse sides pursuant to the rules adopted under Code Civ. Proc., section 1034. (Code Civ. Proc., section 1032, subd. (a)(4).) Allowable prejudgment costs shall be claimed and contested in accordance with rules adopted by the Judicial Council. (Code Civ. Proc., section 1034.) A defendant who is sued by multiple Plaintiffs who sue on the same liability theories and prevails against all of them is not required to apportion costs or file separate cost memoranda for each of them. (Roman v BRE Props., Inc. (2015) 237 CA4th 1040, 1063.) The plaintiffs are jointly and severally liable for the costs and the defendant may collect the amount as it sees fit from the various plaintiffs. (Acosta v SI Corp. (2005) 129 CA4th 1370, 1374.) Any plaintiff who satisfies the cost award may seek contribution from the other plaintiffs in a separate action. (Id.) The plaintiffs have the burden on a motion tax costs to show that some costs are not related to the joint theory of liability but are specific to a particular plaintiff and, therefore it is not fair to include these in a joint award. (Id at p.1380.)

Discussion

Filing and Motion Fees

Filing and motion fees are specifically allowed pursuant to Code of Civil Procedure Section 1033.5(a)(1). Hence, the burden is on Plaintiffs to demonstrate that the costs are unnecessary or unreasonable.

Pina alleges she incurred $948.35 in filing and motion fees. Pina claims the following filing fees in its memorandum of costs:

Courtcall $94

Answer $513.75

Motion filing fee $61.65

The motion filing fees were for a notice of non-opposition to bifurcate, a notice of trial, a motion to consolidate, and a motion to bifurcate.

Pina seeks costs for motion filing fees, the filing fees for her answer, and remote appearance fees paid to Courtcall. Plaintiff argues that there are extra service fees associated with Pina’s motions. However, these items are for filing fees, not service fees.

As for the remote appearance fees, the Court finds that these fees were necessary for Pina to appear through Courtcall. The Court also finds that the amount requested is reasonable. Thus, these costs should not be taxed.

Deposition Costs

Pina also alleges she incurred $2,865.86 in deposition costs. The memorandum of costs states the deposition costs were for the depositions of Herman Murphy and Virginia Pina.

Travel expenses to attend depositions are expressly allowed under Code of Civil Procedure Section 1033.5 (a)(3)(C). Hence, the burden is on Plaintiffs to demonstrate that the costs are unnecessary or unreasonable.

Allowable costs for taking a deposition include the costs of photocopying business records produced in lieu of a personal appearance by the custodian of records under Code of Civil Procedure sections 2020.020 and 2020.410. (Naser v. Lakeridge Athletic Club¿(2014) 227 Cal.App.4th 571, 578.)

Here, Pina’s counsel testifies that Pina felt nervous and was more comfortable with counsel being present in person at her deposition. Although Murphy argues the cost is not reasonable because remote deposition was available, Pina was not required to proceed with her deposition remotely without the presence of her counsel. The Court finds that Pina’s counsel’s travel expenses were incurred for the purpose of attending Pina’s deposition. Although travel expenses for local travel by attorneys are not allowable, Pina’s counsel is based in Sacramento and Pina’s deposition was to take place in Santa Ana. The cost of the flights to and from Santa Ana and other transportation expenses appear reasonable. Although the deposition was cancelled at the last minute by Murphy’s counsel, Pina still incurred these expenses in preparation for the deposition. Because Pina’s counsel incurred travel expenses to attend Pina’s deposition, the costs should not be taxed.

Pina also employed a mobile copy service to serve deposition subpoenas, travel to records custodians, make copies of records produced, and deliver the records. Although the cost of photocopying is generally, not allowable, the cost of copying business records to obtain records through a deposition subpoena is allowable. These are allowable deposition costs.

Service of Process

Murphy also objects to the fees for service of process included in Pina’s Attachment 5D. These entries are primarily fees incurred from the use of the mobile copy service. As discussed above, costs to obtain business records through deposition subpoenas are allowable.

Next, Pina seeks fees for service fees related to a restraining order Pina obtained after Henry Murphy threatened her at her residence. This does not appear to be related to litigation in this matter. Thus, $555 must be taxed from Pina’s memorandum of costs.

There is also a charge for electronic filing related to the response to an OSC filed in August 2022 in personal injury case. The Superior Court of California for the County of Los Angeles implemented mandatory electronic filing for parties represented by attorneys. Although the invoice states the cost was $37.70, the chart in the memorandum of costs states the cost was $31.70. This cost, though in the wrong category, is allowable under Code of Civil Procedure Section 1033.5(a)(14). This cost appears reasonable and necessary and should not be taxed.

Electronic Filing

Murphy also objects to costs for electronic filing or service in attachment 14. Although labeled service fees, the invoices attached to Pina’s counsel’s declaration show that these are electronic filing fees. As discussed above, the Superior Court of California for the County of Los Angeles implemented mandatory electronic filing for parties represented by attorneys. Thus, this cost is allowable under Code of Civil Procedure Section 1033.5(a)(14).

Apportionment

Sullivan argues that Pina’s costs must be apportioned and requests that the Court order Pina to file separate cost memorandums with respect to each Plaintiff. Defendant is not required by statute to file separate cost memorandums. Rather, the Court has discretion to apportion costs.

Sullivan and Murphy both brought negligence and negligent entrustment causes of action against Pina arising from a vehicle collision which resulted in the death of their son, Jalen Murphy. Thus, Plaintiffs shared the same theory of liability against Pina.

Sullivan argues that she should not be held responsible for costs incurred in Murphy’s case before the cases were consolidated. Sullivan bears the burden of proving the costs are not related to the joint theory of liability and are specific to Murphy.

1. 2 Court calls ($94 each)

Sullivan argues that although there is no date, she believes these fees were incurred prior to when she filed her case because the Court began using CourtConnect when she filed her case. Because it appears these fees were incurred for telephonic appearances in Murphy’s case before Sullivan filed her case, these fees are not related to the joint theory of liability and should only be imposed against Murphy. Although Pina’s counsel argues that Sullivan was added to Murphy’s case after he filed a Cross-Complaint in December 2020, Sullivan was not served and did not begin litigating her own action until August 2021. Pina’s Cross-Complaint was dismissed in October 2021.

2. Filing fees for the answer to Murphy’s Complaint ($513.75)

Sullivan and Murphy filed causes of action for the same causes of action arising from the same vehicle collision. Because the Answer to Murphy’s Complaint is related to the joint theory of liability, the filing fees should not be apportioned or taxed.

3. All entries from 3/3/2020 to 4/21/21 in attachment 14 of Pina’s memorandum of costs. (Total $1,776.51)

3/3/20 Service fees ($752.98)

3/29/20 Service fees ($37.33)

7/2/20 Request for telephonic appearance ($170)

8/6/20 Proof of service ($90)

8/6/20 Request for telephonic appearance ($170)

8/11/20 Substitution of attorney ($90)

10/21/20 Substitution of attorney ($90)

11/2/20 Request for continuance ($170)

4/21/21 Service Fees continue trial ($36.20)

These fees consist of service and court fees associated with Murphy’s action. Because these fees do not appear to be related to the joint theory of liability, these fees should only be imposed against Murphy. Sullivan believes these charges total $3,555.56. However, the dates on Pina’s attachment 14 to her memorandum of costs are not in order and Sullivan appears to have included fees from after August 2021 and from 2022. The fees between 3/3/2020 and 4/21/21 total $1,776.51.

4. Deposition costs for Murphy and Pina (Total $1,160.45)

Sullivan argues these deposition were related to Murphy’s damages claims and that Pina’s deposition was requested by Murphy. However, as Pina points out, both of these depositions were necessary to the litigation. Murphy’s deposition necessary to determine damages with respect to both Murphy and Sullivan. (Opp., p.5-6.) Pina’s deposition was necessary to determine Pina’s liability to both Murphy and Sullivan regardless of which Plaintiff requested the deposition. (Id., p.6.) These costs should not be apportioned or taxed.

5. Service of process

7/7/22 Service on Herman Murphy re: restraining order

7/15/22 Service on Herman Murphy re: restraining order

7/29/22 Service on Herman Murphy re: restraining order

8/11/22 Service on Herman Murphy re: restraining order

(Total $555)

As discussed above, the costs related to the restraining order against Herman Murphy are not related to this action and must be taxed.

6. Service Fees for deposition subpoenas (Total $836.30)

Sullivan argues that she should not be responsible for service of the deposition subpoenas because she never received the subpoenas and Pina did not provide sufficient evidence establishing those costs. As discussed above, costs to obtain business records through deposition subpoenas are allowable. Pina also did provide invoices detailing these costs. Additionally, the proof of service attached to Pina’s subpoenas show Sullivan was served with copies of the subpoenas. (Jaime Decl., Exh. 8.) These costs should not be apportioned or taxed.