Judge: Latrice A. G. Byrdsong, Case: 20SMCV00928, Date: 2023-11-29 Tentative Ruling

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Case Number: 20SMCV00928    Hearing Date: November 29, 2023    Dept: 25

Hearing Date:                         Wednesday, November 29, 2023

Case Name:                             ADVANCED ORTHOPEDIC CENTER INC., a corporation v. HEADLIGHT FACTORY, LLC, a corporation; BLUE CROSS OF CALIFORNIA dba ANTHEM BLUE CROSS, a corporation; ANTHEM BLUE CROSS LIFE AND HEALTH INSURANCE CO., a corporation; and DOES 1-20

Case No.:                                20SMCV00928

Motion:                                   Motion to Tax Costs

Moving Party:                         Plaintiff Advanced Orthopedic Center Inc.

Responding Party:                   Defendants Blue Cross of California dba Anthem Blue Cross and Anthem Blue Cross Life and Health Insurance Company

Notice:                                    OK

Tentative Ruling:           Plaintiff Advanced Orthopedic Center Inc’s Motion to Tax Costs DENIED in part and GRANTED in part. Defendants’ Memorandum of Costs is taxed in the amount of $151.80.

BACKGROUND

On July 16, 2020, Plaintiff Advanced Orthopedic Center, Inc. (“Plaintiff”) filed this action against Defendants Blue Cross of California dba Anthem Blue Cross and Anthem Blue Cross Life and Health Insurance Company (collectively, “Defendants”) and Does 1 through 20. On September 21, 2020, Plaintiff filed the First Amended Complaint. On November 18, 2020, Plaintiff filed a Joint Stipulation to Authorize the filing of a Second Amended Complaint. On November 30, 2020, Plaintiff filed its operative Second Amended Complaint (“SAC”) alleging the following causes of action: (1) quantum meruit; (2) breach of implied contract; (3) breach of contract; and (4) declaratory relief. The complaint alleged that Defendants failed to make payments to physicians for treatments that was provided to patients who were insured with Defendants.

On December 14, 2021, Defendants filed their answer to the SAC.

On October 12, 2022, the Court granted Plaintiff’s motion to reclassify the jurisdiction from unlimited to limited jurisdiction pursuant to Code of Civil Procedure § 403.090.

On July 27, 2023, the Court granted Defendants’ motion for summary judgment.  Thereafter, on August 22, 2023, Judgement was entered in Defendants’ favor.

On September 7, 2023, Defendants filed their memorandum of costs, seeking to recover $4,643.71.  On September 15, 2023, Plaintiff filed a notice of appeal.

On September 19, 2023, Plaintiff filed the instant motion to tax costs on the grounds that the claimed costs are disallowed and/or unreasonable. On November 14, 2023, Defendants filed their opposition to the instant motion. On November 17, 2023, Plaintiff filed its reply.

MOVING PARTY POSITION

            Plaintiff first asserts that the claimed filing fees should be reduced because they are excessive. Plaintiff points out that the cost memorandum does not include an itemized list of costs to show what filing fees were actually incurred. Moreover, the amount is excessive considering no discovery motions had been filed. Lastly, the deposition cost is unreasonable because only one deposition took place that lasted four hours and was only recorded stenographically.

OPPOSITION

            First, Defendants argue that the instant motion is defective and should be stricken because they lack the necessary signature required under Code of Civil Procedure § 128.7 and California Rules of Court, Rule 2.257(b). Second, the claimed costs are reasonable and advances that a Memorandum of Costs Worksheet was completed, detailing of the filing fees incurred. Furthermore, in terms of the deposition cost, the invoice shows that $2,232.45 was charged and paid for.  

REPLY

            In reply, Plaintiff argues it was unaware that there were signatures missing from the moving papers and has included signed copies within the reply. Plaintiff maintains that the costs in question are excessive because fees consists of electronic filing fees and the deposition invoice includes $707 in unnecessary costs.

ANALYSIS

I.          Motion to Tax Costs

A.        Legal Standard

“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. § 1032(b).  “Allowable 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).  Cost items not expressly mentioned in section 1033.5 may be allowed in the court’s discretion if they are reasonably necessary to the conduct of the litigation.  Id. at § 1033.5(c)(4).

“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 they were not reasonable or necessary.”   Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)  “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.”   Ibid.

B.        Procedural Issue

            Defendant contends that the instant motion should be stricken because the notice of motion and the accompanying declaration lacks the required signature pursuant to Code of Civil Procedure § 128.7 and California Rules of Court, Rule 2.257(b).  Opposition at pg. 3.

“Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. . . . An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.”  Code Civ. Proc. § 128.7(a).

Under the circumstances, striking the instant motion is not warranted. As Plaintiff points out in its reply, its counsel was not made aware of the lack of signature in the version served on Defendant until Defendant filed its opposition on November 14, 2023. See Reply at pg. 2; Nesbit Decl. ¶¶ 4-6.  Nevertheless, Plaintiff has included a signed version of its filing within its reply papers. Reply, Exh. A.

Because this was a minor error, the Court shall proceed to the merits of the instant motion.  

C.        Merits

Plaintiff argues that the claims costs associated with Defendant’s filing fees and deposition costs should be reduced because they are excessive. The Court shall address each in turn.

1.      Item 1: Filing Fees

Plaintiff challenges the request for $2,411.26 because it has not been itemized, and the amount appears excessive.  Motion at pg. 3.

Pursuant to Code of Civil Procedure § 1033.5(a)(14), it states: “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.” In Los Angeles County, electronic filing has been mandated for civil actions.  See Los Angeles County Local Rules 3.4(a).

 In opposition, Defendants have provided an itemized list of its filing fees as well as the associated filing receipts.  See Chien Decl. ¶¶ 6-7, Exhs. C-D.

In reply, Plaintiff maintains these fees are excessive because they consist of electronic filing fees.  Reply at pp. 3-4.  However, this argument is not persuasive. First, as noted above, electronic filing of documents is mandated in Los Angeles County.  Thus, even though Defendants included their electronic service fees in the wrong category, they are recoverable pursuant to Code of Civil Procedure § 1033.5(a)(14).  Second, while the individual invoices were not included with the Memorandum of Costs, verification of the memorandum of costs by the prevailing party’s attorney establishes a prima facie showing that the claimed costs are proper.  Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.  Moreover, Defendants have provided the necessary invoices in their opposition.  To overcome this prima facie showing, the objecting party must introduce evidence to support its claim that the costs are not reasonably necessary.  Id. at pp. 1267-1268.  Because the memorandum has been verified by Defendants’ attorney, the claimed costs are proper.  See Memorandum of Costs.  Ultimately, Defendant fails to present any evidence to show that the costs associated here were incurred unnecessarily.

Accordingly, Plaintiff’s motion to tax costs is denied as it pertains to Defendants’ filing fees.

2.      Item 4: Deposition Costs

Next, Plaintiff argues that the claimed deposition cost in the amount of $2,232.45 is excessive because it only consisted of one deposition that lasted several hours.  Motion at pg. 4.

In opposition, Defendants have provided the relevant invoice pertaining to the deposition, which details the amounts charged by Veritext, LLC.  Chien Decl. ¶ 8, Exh. E.

In reply, Plaintiff argues that the deposition invoice includes unnecessary fees because it includes a surcharge for an expert deposition when this deposition did not concern an expert.  Reply at pg. 5. Also, it includes fees uniquely associated with Veritext and not actually related to the cost of the deposition.  Ibid.  Thus, Plaintiff asserts that this cost should be taxed in the amount of $707.

Under the circumstances, the Court finds that recovery of this cost is permissible under Code of Civil Procedure § 1033.5. Generally, the costs associated with taking a deposition are recoverable.  Code Civ. Proc. § 1033.5(a)(3)(A).  Because this deposition cost is proper on its face, it is the Defendant’s burden to show that these costs were unnecessary.  Ladas, supra, 19 Cal.App.4th at 774.  Based on the evidence submitted by Defendants as to this claimed cost, the invoice and proof that the deposition was taken show that the costs were incurred in connection with “[t]aking, video recording, and transcribing necessary depositions,” which are permissible.  However, because this deposition did not concern an expert witness, the surcharge included in the invoice was unreasonable.  As to the remaining contested costs that Plaintiff asserts uniquely associated with Veritext, the Court does not find this argument persuasive because Plaintiff has not shown that those costs were not associated with the taking of the deposition.

Accordingly, Plaintiff’s motion to tax costs is granted in part as it pertains to Defendants’ deposition costs and this claimed cost is taxed in the amount of $151.80.

II.        Conclusion

            Based on the foregoing, Plaintiff’s Motion to Tax Costs is DENIED in part and GRANTED in part. Defendants’ Memorandum of Costs is taxed in the amount of $151.80.