Judge Jill Feeney, Case 20STCV18156 2022-08-12 Tentative Ruling

The issue of the imposition of attorney’s fees and whether the requested fees are reasonable will be decided at hearing on Defendant’s motion for fees.

On May 12, 2020, Plaintiff Kimberly K. Higgins (“Plaintiff”) filed her Complaint alleging a cause of action for general negligence against Defendants Doe Gardeners. This action arises out of a June 17, 2018 incident where Plaintiff was struck by a ladder in a storage room while working at Restoration Hardware. Plaintiff alleged the ladder was last used by Doe Gardeners.

Plaintiff moves to strike Defendant Environmental Design Studio’s memorandum of costs in its entirety and demands that (1) each and every item of cost was actually incurred by Defendant, and (2) that each item of cost meets the statutory requirements for recovery of that particular item of cost. In the alternative, Plaintiff moves to strike certain items of cost.

EDS argues that it is entitled to costs as a prevailing party pursuant to Code Civ. Pro. section 1032, subd. (b). EDS further argues it only claimed costs that are allowable under Code Civ. Pro. section 1033.5, subd. (a) and (c).

Plaintiff argues that there is no evidence that EDS’s attorney’s fees or any individual charges are reasonable. Additionally, Plaintiff argues she should not be responsible for attorney’s fees for EDS’s failed attempts to file motions for mental examination.

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. Code Civ. Proc. section 1032, subd. (b). Under CCP section 1033.5, subd. (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: “Allowable 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.)

Where a cost item does not appear proper and necessary on its face, the burden of proof is on the claimant to show the cost is appropriate. (Murphy v. F.D. Cornell Co. (1930) 110 Cal. App. 452, 454.) If the items appear to be proper charges, the burden is on the party seeking to tax costs to show they were not reasonable or necessary. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761.) Where items are properly objected to as not reasonable or necessary, however, they are put in issue and the burden of proof is on the party claiming them as costs. (Id.) The trial court’s determination on a motion to tax or strike costs will be reversed only for an abuse of discretion. (Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 121.)

Plaintiff objects to and seeks to strike EDS’s memorandum of costs in its entirety because EDS failed to provide documentation of costs. Plaintiff demands that EDS provide documentation to support the costs claimed on the grounds that she has put the costs at issue by filing a motion to tax costs. However, there is no requirement that a memorandum of costs be supported by documentation. Plaintiff has not alleged facts in her motion to put EDS’s claimed costs at issue. Accordingly, Plaintiff’s request for documentation supporting EDS’s costs is denied.

As the items appear to be proper charges on their face, Plaintiff has the burden to show that these were not reasonable or necessary. Plaintiff has not offered any specific reasons why, aside from attorney’s fees, the costs are not reasonable or necessary.

It does not appear these motions were frivolous, thereby entitling EDS to recover filing fees for these papers. (Greene v. Dillingham Construction, N.A., Inc. (2002) 101 Cal.App.4th 418, 424, quoting Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 250 [“Attorneys generally must pursue all available legal avenues and theories in pursuit of their clients' objectives; it is impossible, as a practical matter, for an attorney to know in advance whether or not his or her work on a potentially meritorious legal theory will ultimately prevail.”].) These costs appear reasonable on their face and should not be taxed.

EDS alleges it incurred $669.46 in deposition costs. EDS’s memorandum of costs states the deposition costs were for Plaintiff’s deposition. EDS used the deposition testimony for its motion for summary judgment. (Opposition, p.5.) The testimony was thus necessary for the litigation. The cost is allowable under Code Civ. Proc. section 1033.5 subd. (a)(3)(A). This cost should not be taxed.

EDS alleges it incurred $638.41 in service of process fees. EDS incurred a total of $638.41 in process server fees to serve the two other parties in this action with its motion for summary judgment. The cost for service of process was set by Express Network, a registered process server. (Bubion Decl., ¶7.) EDS incurred and paid this cost. (Id.) Thus, the fees are allowable under Code Civ. Proc. section 1033.5 subd. (a)(4)(B) and reasonable on their face. This cost should not be taxed.

EDS alleges it incurred $11,664 in witness fees. EDS retained a neuropsychological examination of Plaintiff in order to evaluate her neuropsychological and brain injury claims. (Bubion Decl., ¶8.) EDS’s expert conducted an examination of Plaintiff and spent 24.3 hours on this matter, working at a rate of $480 an hour. (Id., ¶10.) These costs are allowable under Code Civ. Proc. section 1033.5 subd. (a)(8). EDS’s explanation of the cost and its necessity for litigation appear reasonable on its face. This cost should not be taxed.

EDS alleges it incurred $37,896.50 in attorney’s fees. Attorney’s fees are only allowable if they are authorized by contract, statute, or law. EDS contends under Code Civ. Pro. section 2033.420, subd. (a) on the grounds that Plaintiff denied the truth of EDS’s Request For Admission No. 1, which asked Plaintiff to admit that EDS was in no way negligent in connection with the accident which gave rise to the lawsuit. EDS then proved the truth of the matter when its Motion for Summary Judgment was granted on May 24, 2022. To resolve this issue, EDS filed a motion for cost of proof sanctions which will be heard on October 26, 2022. Thus, whether attorney’s fees are allowable will depend on the outcome of EDS’s motion.

EDS alleges it incurred $728.20 in electronic filing or service fees. EDS incurred these fees filing motions, notices, ex parte applications, and other documents for a total of 8 transactions. (Bubion Decl., ¶16.) Costs were set by Express Network, an electronic service provider. (Id.) The Superior Court of California for the County of Los Angeles implemented mandatory electronic filing for parties represented by attorneys between 2018 and 2021. Thus, this cost is allowable under Code Civ. Proc. section 1033.5 subd. (a)(14). This cost appears reasonable and should not be taxed.

Plaintiff filed this motion on the grounds that EDS refused to provide documentation of the costs represented in its memorandum of costs. There is no such requirement and Plaintiff fails to raise any facts calling the validity of EDS’s memorandum into question. In failing to provide any explanation, except for attorney’s fees, as to why EDS’s costs are unreasonable, Plaintiff fails to meet her burden of proving why these costs are unnecessary or unreasonable.

Plaintiff’s motion is denied. The issue of attorney’s fees is to be resolved at the hearing on EDS’s motion for attorney’s fees on October 26, 2022.