Judge Joel R Wohlfeil, Case 37-2020-00023341-CU-BC-CTL 2024-03-15 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2020-00023341-CU-BC-CTL, Date: 2024-03-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 12, 2024

03/15/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2020-00023341-CU-BC-CTL HAMBY VS REED [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike or Tax Costs, 01/29/2024

1. The Motion (ROA # 302) of Plaintiff RODERICK HAMBY ('Plaintiff') to tax the costs claimed by Defendant TRANG REED ('Defendant') on the Memorandum of Costs (ROA # 299) filed by Defendant TRANG REED ('Defendant'), is GRANTED IN PART and DENIED IN PART.

As set forth within the body of this ruling, total allowable costs are reduced from $25,473.96 to $20,297.64.

Item 1 includes the amount of $808.75 incurred on 2 / 24 /23 for a 'Petition for Writ of Mandate' filed with the Court of Appeal. This cost item will not be taxed. 'An award of costs shall be ... ¶ ... reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.' Code Civ. Proc. 1033.5(c)(2). Even though the appellate writ was denied, this does not make this cost unreasonable on its face.

Item 4 includes the amount of $1,363.35 incurred on 3 / 15 / 22 for the deposition of David Heistein, and the amount of $816.98 incurred on 3 / 23 /22 for the deposition Lee Alan Marc. These cost items will not be taxed. The declaration of attorney Ottilie sufficiently demonstrates that these depositions were reasonably necessary.

Item 4 includes the amount of $960.75 incurred on 10/31/23 for 'Tracy Reed, as PMK of COPILOTCO – Videographer's Charge.' This cost item will not be taxed. Allowable costs include '[t]aking, video recording, and transcribing necessary depositions....' Code Civ. Proc. 1033.5(a)(3)(A). Thus, this cost is facially proper. In addition, the declaration of attorney Ottilie confirms this cost was not for editing the video.

Item 4 includes the amount of $337.40 incurred on 10 / 31 /23 for the 'SYNC of Tracy Reed, as PMK of COPILOTCO.' This cost item will be taxed. This constitutes editing of a videotaped deposition for trial and is not reasonably necessary. See Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal. App. 4th 1095, 1105.

Item 5 includes various cost items as 'service of process.' See Code Civ. Proc. 1033.5(a)(4). Multiple attempts to effectuate service are reasonably necessary. On the other hand, '[i]nvestigation expenses in preparing the case for trial' is a cost that is expressly not permitted. The 'skip trace' costs are investigatory and will be taxed (total of $350).

Also, service of discovery on an adverse party does not equate with service of process. These items will Calendar No.: Event ID: TENTATIVE RULINGS

3077068 CASE NUMBER: CASE TITLE: HAMBY VS REED [IMAGED] 37-2020-00023341-CU-BC-CTL be taxed (total $404.25). Finally, the duplicate item for service of David Heistein is taxed in the amount of $121.75. The remaining cost items are not taxed.

Item 11 (but denominated as item 12 within the attached worksheet) seeks $2,931.32 for court reporter fees. This entire item of cost is reduced to zero. Allowable costs include '[c]ourt reporter fees as established by statute.' Code Civ. Proc. 1033.5(a)(11). On the other hand, expressly disallowed costs include '[t]ranscripts of court proceedings not ordered by the court.' Id. at (b)(5).

The cost items within number 11 are for the use of a court reporter so that a transcript could be prepared of various court hearings. The Court did not order the parties to prepare these transcripts and there is no statute establishing or mandating court reporter fees in this circumstance.

Item 12 (but denominated as item 11 within the attached worksheet) includes various cost items as '[m]odels, enlargements, and photocopies of exhibits.' Allowable costs include: 'Models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.' Code Civ. Proc. 1033.5(a)(13). Items not mentioned within section 1033.5 may be allowed or denied in the Court's discretion. Id. at (c)(4).

In Applegate v. St. Francis Lutheran Church (1994) 23 Cal. App. 4th 361 the opinion held the Court did not abuse discretion in awarding Defendant its exhibit costs under section (c)(4) even though the exhibits were never used because Plaintiff dismissed the action on the first day of trial.

This action was dismissed shortly before trial was set to commence. Thus, it was not unreasonable for Defendant to incur costs preparing exhibits for trial. These costs are proper under the discretionary standard set forth above.

On the other hand, records copied in relation to a family court proceeding are not proper costs. The total amount of $404.25 will be taxed.

Also, some other charges appear to be related to obtaining records or in the context of discovery. These costs are also taxed, and total $627.35.

Item 14 seeks $684.60 for '[f]ees for electronic filing or service.' This cost item will not be taxed.

Allowable costs include: 'Fees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.' Code Civ.

Proc. 1033.5(a)(14).

Even in instances where electronic filing is not mandated by the Court, it is now common practice for litigants to file documents in this manner. To the extent e-filing is not required, it is a discretionary cost that cannot reasonably be avoided. As a result, these costs will be awarded under either sections (a)(14) or (c)(4) (discretionary costs). Also, Defendant was compelled to file the motions in limine because Plaintiff dismissed this action on the eve of trial.

_____ 2. The Motion (ROA # 309) of Cross-Complainant TRANG REED ('TRANG REED or Cross-Complainant') to strike and / or tax the costs claimed by Plaintiff RODERICK HAMBY and TRACY REED on the Memorandum of Costs (ROA # 301) filed by Plaintiff and Cross-Defendant RODERICK HAMBY, and Cross-Defendant TRACY REED, is GRANTED IN PART, DENIED IN PART and is MOOT IN PART.

The Motion to tax costs claimed by Hamby is GRANTED and is DENIED to costs claimed by Tracy Calendar No.: Event ID: TENTATIVE RULINGS

3077068 CASE NUMBER: CASE TITLE: HAMBY VS REED [IMAGED] 37-2020-00023341-CU-BC-CTL Reed.

The alternative Motion to tax specific cost items is MOOT to Plaintiff and Cross-Defendant Hamby, and is GRANTED to Cross-Defendant Tracy Reed.

As set forth within the body of this ruling, total allowable costs for Tracy Reed are reduced from $7,319.95 to $563.38.

Cross-Complainant's Request (ROA # 313) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of nos. 1, 2, 6, 7, 9 and the dates only on which nos. 3 - 5 and 8 were filed with the Court; otherwise, the Request is DENIED.

''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(a)(4).

In this case, Defendant Trang Reed, and not Hamby, is the prevailing party because the Fourth Amended Complaint was dismissed. Also, the Second Amended Cross-Complaint was dismissed by the Court, not by Cross-Complainant Trang Reed, because it was deemed to be moot when the main action was dismissed. The cross-action for contribution and indemnity was completely dependent on potential recovery in the main action. Under the circumstances presented, this is a situation in which Cross-Defendant Hamby did not prevail when the Second Amended Cross-Complain was dismissed by the Court.

On the other hand, Cross-Defendant Tracy Reed was the prevailing party when the Second Amended Cross-Complain was dismissed. However, Cross-Defendant Tracy Reed did not incur the costs listed.

Nearly all of the cost items listed and described within the memorandum worksheet appear to be costs incurred by Plaintiff Hamby in prosecution of the main action. These costs (with exceptions as described below) are not recoverable by Cross-Defendant Tracy Reed.

In addition, the line item for 'various printing and scanning costs' appears to seek prohibited copying costs and is unexplained. Also, the cost of $445 for service of process of '[a]ll potential witnesses' does not appear to make sense and is unexplained.

Independent costs incurred by cross-defendant Tracy Reed are those associated with filing an answer (first appearance) to the Cross-Complaint. However, no such cost is listed within the memorandum worksheet. It appears this first appearance fee may be erroneously listed at line 1.a. as 'Complaint' ($435). Also, the cost associated with filing and serving the Tracy Reed substitution of attorney is an independent cost ($10.50). Also, one-half of the $150.00 jury fee deposit is an independent cost. Also, one-half of the costs ($73.76 and $11.99) associated with filing and serving the demurrer to the Second Amended Cross-Complaint is an independent cost.

Calendar No.: Event ID: TENTATIVE RULINGS

3077068