Judge: John J. Kralik, Case: 19BBCV00929, Date: 2023-03-24 Tentative Ruling
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Case Number: 19BBCV00929 Hearing Date: March 24, 2023 Dept: NCB
North Central District
|
woodhill ventures, llc dba
big sugar bakeshop, Plaintiff, v. BEN YANG, Defendant. |
Case No.: 19BBCV00929 Hearing Date: March 24, 2023 [tentative] order RE: motion to tax costs |
BACKGROUND
1.
Allegations
Plaintiff Woodhill Ventures, LLC dba Big
Sugar Bakeshop (“Plaintiff”) is a small business bakery. Plaintiff alleged that Defendant Ben “Ben
Baller” Yang (“Defendant”) made numerous profane, libelous, and slanderous
comments on social media and his podcast accusing Plaintiff of putting Drugs/RX
prescription pills on his son’s birthday cake.
The operative complaint, filed October 17, 2019,
alleged causes of action for: (1) libel; (2) slander; and (3) unfair business
practices.
2.
Relevant
Background
On February 7, 2020, the Court denied Defendant
Ben Yang’s special motion to strike the complaint pursuant to CCP §425.16. Defendant appealed. On September 3, 2021, the Court of Appeal
affirmed and awarded costs to Respondent/Plaintiff. On January 7, 2022, the Court of Appeal
issued its Remittitur.
The case then proceeded to a jury trial. On November 4, 2022, the jury returned the
special verdict forms.
On January 3, 2023, Judgment was entered on the
special verdict forms. The Court entered
judgment in favor of Plaintiff, Plaintiff was entitled to recover $1,407,000
from Defendant with interest at 10% per annum from the date of judgment until
paid, Plaintiff was to take nothing on the 3rd cause of action, and
Plaintiff was deemed the prevailing party in the action and entitled to recover
costs against Defendant.
3.
Motion
on Calendar
On February 6, 2023, Defendant filed a motion
to tax costs.
On March 13, 2023, Plaintiff filed an opposition
to the motion to tax costs.
DISCUSSION
Defendant moves to tax Plaintiff’s costs claimed in its
Memorandum of Costs (filed January 18, 2023), which claimed $31,640.12 in
costs.
In its Memorandum of Costs,
Plaintiff seeks the following costs:
·
Item
1. Filing and Motion Fees - $1,384.20
·
Item
2. Jury Fees - $1,112.91
·
Item
4. Deposition Costs - $9,420.15
·
Item
11. Court Reporter Fees as Established by Statute - $18,714.87
·
Item
14. Fees for
Electronic Filing or Service - $670.40
·
TOTAL:
$31,630.12
A. Timeliness of Motion
“Any
notice of motion to strike or to tax costs must 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 Code of Civil Procedure section
1013. If the cost
memorandum was served electronically, the period is extended as provided in Code
of Civil Procedure section 1010.6(a)(4).”
(CRC Rule
3.1700(b)(1).) CCP § 1010.6(a)(4) states:
“Any document that is served electronically between
12:00 a.m. and 11:59:59 p.m. on a court day shall be
deemed served on that court day. Any document that is served electronically on
a noncourt day shall be deemed served on the next court day.” (CCP § 1010.6(a)(4).) After the time has passed for a
motion to strike or tax costs or for determination of that motion, the clerk
must immediately enter the costs on the judgment. CRC Rule 3.1700(b)(4).)
The
Memorandum of Costs was filed on January 18, 2023 and served the same day by
electronic mail on defense counsel. As
such, Defendant was required to file the motion within 15 days after service of
the Memorandum of Costs, or February 2, 2023.
Defendant
filed this motion to tax on February 6, 2023.
As such, the motion is untimely and will be denied on this procedural
basis.
The
Court notes that even if it did consider the substantive merits of the motion, it
would still deny the motion.
B. Item 1: Filing and Motion Fees
CCP §1033.5(a)(1) classifies filing, motion,
and jury fees as allowable costs under section 1032.
Defendant moves to strike Plaintiff’s costs in
the amount of $513.75 for a motion for summary adjudication because Plaintiff
had insufficient grounds for filing the motion and the Court denied most of the
motion. Whether the motion for summary adjudication
was meritorious is not the standard to strike this cost. Further, the Court granted in part and denied
in part Plaintiff’s motion for summary adjudication. In addition, it appears that the filing of
the motion for summary adjudication prompted Defendant to withdraw a large number
of his affirmative defenses. The motion
for summary adjudication filing fee is not only an allowable cost, but appears
to have been reasonably necessary to the litigation.
Defendant also objects to the fees of $184.50
in Items 1.d to 1.f ($61.65 each for a motion for attorney’s fees [no costs
awarded], motion for pretrial financial discovery [costs for court reporter and
videographer allowed, but no costs for filing fees requested], and motion to
compel the deposition of Nicolette Yang [no ruling as motion was withdrawn]),
arguing they were already costs granted to Plaintiff when those motions were
granted. The Court has reviewed its
orders on these three motions and notes that it did not award filing fee costs in
connection with these motions. Thus,
they shall be recoverable by way of the Memorandum of Costs.
The motion to strike motion filing fees is
denied.
C. Item 2: Jury Fees
Defendant did not object to this Item.
D. Item 4: Deposition Costs
CCP
§ 1033.5(a)(3) states that: (A) taking, video recording, and transcribing
necessary depositions, including an original and one copy of those taken by the
claimant and one copy of depositions taken by the party against whom costs are
allowed; (B) fees of a certified or registered interpreter for the deposition
of a party or witness who does not proficiently speak or understand the English
language; and (C) travel expenses to attend depositions, are allowable costs
under section 1032.
Defendant moves to strike Plaintiff’s requested
deposition costs as unreasonable and unnecessary. Specifically, Defendant argues that the
deposition cost of the “Wife of the Party” ($426) was unnecessary and
unreasonable because the deposition of the “Wife of the Party” was never taken,
Plaintiff did not notice it, and it was not necessary for the case. He also objects to the videotaping cost of Nicolette
Yang ($395 and $809) as unnecessary and unreasonable.
In opposition, Plaintiff argues that it
provided notice of the deposition of the Wife of the Party by serving the notice
at Defendant’s home on November 19, 2019 and she was a witness at trial. (Sosnick Decl., Ex. 1.) Plaintiff also argues that it incurred a $426
non-appearance for the Wife of the Party’s failure to appear at the noticed
deposition. Further, Plaintiff argues
that the videotaping of Mrs. Yang was justified because it is an allowable cost
under CCP § 1033.5(a)(3)(A) (stating that an allowable cost includes “Taking,
video recording, and transcribing necessary depositions….”) As this is an allowable cost, the Court declines
to tax this item.
The motion to strike deposition costs is
denied.
E. Item 11: Court Reporter Fees as Established by Statute
Defendant argues that Plaintiff is entitled
to recover a lesser amount of court reporter fees because they have not been
established by statute and, therefore, must be excluded. Defendant objects to the following court
reporter fees for February 7, 2020, February 2, 2022, March 23, 2022, July 29,
2022, August 19, 2022, September 27, 2022, October 6, 2022, and December 9, 2022
for a total of $3,931.40 (of the $18,714.87 requested).
Plaintiff argues that it is entitled to court
reporter fees for non-trial hearings.
The Court will allow the recovery of the
court reporter fees. Government Code, §
68086 provides for the costs of court reporting services by an “official court
reporter” pursuant to CCP § 269. Subsection
(c) of section 68086 provides that the “costs for the service of the official
court reporter shall be recoverable as taxable costs by the prevailing party as
otherwise provided by law.” (See also
Gov’t Code, § 68086(d)(2) [“(2) 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.”].) As represented
by Plaintiff, it did not use “official” court reporters and instead hired
private court reporters for these hearings.
Thus, the Court will allow the recovery of the fees incurred in using
the court reporters.
The
motion to tax Plaintiff’s Item 11 costs is denied.
F. Item 14: Fees for Electronic Filing or Service
Defendant did not object to this Item.
G. Conclusion
The Court denies Defendant’s motion to tax Plaintiff’s
requested costs. Thus, the Court will allow the costs are requested by Plaintiff
in the Memorandum of Costs in the total amount of $31,630.12.
CONCLUSION AND ORDER
Defendant Ben Yang’s motion to tax costs is denied.
Defendant shall provide notice of this order.