Judge: Lee S. Arian, Case: 22STCV20823, Date: 2024-07-29 Tentative Ruling

Case Number: 22STCV20823    Hearing Date: July 29, 2024    Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION TO STRIKE COSTS

Hearing Date: 7/29/24 

CASE NO./NAME: 22STCV20823 LESLIE JEAN KANAWAH vs. THOMAS JEFFERY PAUL, et al.

Moving Party: Plaintiff 

Responding Party: Defendant Exhibit Works

Notice: Sufficient 

Ruling: MOTION TO STRIKE COSTS IS DENIED

Background

On June 6, 2024, the Court entered summary judgment in favor of Defendant Exhibit Works, based on the going and coming rule. On June 26, 2024, Defendant filed a memorandum of costs. Plaintiff now moves the court to strike portions of these costs, especially deposition transcript fees, witness fees, service fees, and interpreter fees for numerous witnesses. Plaintiff argues that the depositions of these witnesses wee not reasonably necessary and  had no bearing on Plaintiff’s injuries or Exhibit Works' arguments against liability and were not referenced in Defendant’s motion for summary judgment.

Legal Standard 

Generally, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (Code Civ. Proc., § 1032, subd. (b).) The losing party may dispute any or all the items in the prevailing party’s memorandum of costs by a motion to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b).) 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, 1267.) To overcome that prima facie showing, the objecting party must introduce evidence to support its claim that the claimed costs were not reasonably necessary to carry out the litigation. (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) 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. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.) 

“Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (§ 1033.5, subd. (c)(2).) “Allowable costs shall be reasonable in amount.” (§ 1033.5, subd. (c)(3).) 

Discussion

Plaintiff acknowledges that the costs contested in this motion are authorized by statute to be recoverable. The primary dispute between the parties concerns whether the costs to be recovered were reasonably necessary or merely convenient or beneficial to the preparation of the case. Plaintiff contends that deposition transcripts, service of process, witness fees, and interpreter fees for numerous witnesses, including Garcia Amador, Juan Caciano, Cristobal Victor Cos Matul, Ramiro Garcia, Alfredo Heredia, Kyle Sneve, and Robert Berry, were not reasonably necessary. Plaintiff argues that the depositions of these witnesses had no bearing on Plaintiff’s injuries or Exhibit Works’ argument against liability. None of the witnesses or their respective transcripts were referenced in Exhibit Works’ dispositive motion.

In opposition, Plaintiff does not contend that Defendant failed to meet its prima facie burden through verification of the memorandum of costs. To overcome that prima facie showing, the objecting party must introduce evidence supporting its claim that the contested costs were not reasonably necessary for the conduct of the litigation. (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.)

However, Plaintiff failed to introduce any evidence to support its claim that the costs were not reasonably necessary. The only evidence attached to the opposition was a copy of the memorandum of costs. Plaintiff did not introduce pertinent parts of the motion for summary judgment or the various witnesses' deposition transcripts to support its position. Without this evidence, the Court is unable to assess whether, as Plaintiff alleges, the witnesses’ depositions had no bearing on Defendant’s argument against liability.

Even if Plaintiff had demonstrated that the contested costs were not used as part of the summary judgment motion, Plaintiff failed to provide any legal authority that costs for evidence not used as exhibits in the motion for summary judgment are not recoverable. The recovery of deposition costs does not hinge on whether the deponent ultimately testifies at trial. (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 57.)  The critical consideration is whether the costs were reasonably necessary at the time they were incurred. (Garcia v. Tempur-Pedic North America, LLC, (2024) 98 Cal.App.5th 819, 826.)

Plaintiff, in her Reply, raises a new argument that she could not determine which costs could be recovered until the entire action was resolved because Defendant Thomas Jeffrey Paul remains in the litigation. Typically, no new arguments can be raised in a reply as it deprives the opposing party of an opportunity to respond. In any event, the summary judgment was filed only on behalf of Defendant Exhibit Works, and Plaintiff presented no evidence that the costs sought were incurred with or on behalf of any other defendant.

For the foregoing reasons, Plaintiff’s motion to strike costs is denied.

PLEASE TAKE NOTICE: 

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion.