Judge: Lisa R. Jaskol, Case: 20STCV01489, Date: 2024-01-31 Tentative Ruling
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Case Number: 20STCV01489 Hearing Date: January 31, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On January 13, 2020, Plaintiff Gloria Edel (“Plaintiff”) filed this action against Defendants City of West Hollywood (“City”) and Does 1-50 for negligence, negligence under Government Code section 815.2, subdivision (a), and dangerous condition of public property.
On December 1, 2021, Plaintiff filed a first amended complaint against the City and Does 1-50 for premises liability, dangerous condition of public property under Government Code section 835 et seq., negligence under Government Code sections 815.2, subdivision (a), and 835, and negligence per se.
On February 8, 2022, Plaintiff filed a second amended complaint against the City and Does 1-50 for dangerous condition of public property under Government Code section 835 et seq. and negligence under Government Code sections 815.2, subdivision (a), 815.4, and 820, subdivision (a).
On April 1, 2022, the Court sustained the City’s demurrer to the second amended complaint with leave to amend.
On April 28, 2022, Plaintiff filed a third amended complaint against the City and Does 1-50 for dangerous condition of public property under Government Code section 835 et seq. and negligence. On July 28, 2023, Plaintiff amended the complaint to include Defendants Delta Scientific Corporation as Doe 1 and Perimeter Security Group, LLC as Doe 2.
On May 25, 2022, the City filed an answer and a cross-complaint against Cross-Defendants Roes 1-50 for implied indemnity, express indemnity, declaratory relief, breach of contract – duty to indemnify, and breach of contract – duty to defend.
On September 26, 2023, the Court granted the City’s motion for summary judgment. On October 16, 2023, the Court signed a “Judgment Granting Motion for Summary Judgment.” On October 17, 2023, the City served a notice of entry of judgment. On October 23, 2023, the Court dismissed the City’s cross-complaint with prejudice at the City’s request. On October 30, 2023, the Court dismissed Delta Scientific Corporation and Perimeter Security Group, LLC without prejudice. On December 4, 2023, Plaintiff filed a notice of appeal.
On October 17, 2023, the City filed a memorandum of costs.
On October 24, 2023, Plaintiff filed a motion to tax costs to be heard on January 31, 2024. On January 18, 2024, the City filed an opposition. On January 22, 2024, Plaintiff filed a reply.
No trial date is currently scheduled.
PARTIES’ REQUESTS
Plaintiff requests that the Court tax $14,938.76 of the $15,017.98 costs the City has requested in its memorandum of costs.
The City asks the Court to tax its costs in an amount no greater than $6,734.21 and award the City $8,283.77 in costs.
LEGAL STANDARD
The trial court retains jurisdiction to award or tax costs after an appeal is taken. (See Bankes v. Lucas (1992) 9 Cal.App.4th 365, 369 [“filing of a notice of appeal does not stay any proceedings to determine the matter of costs”], superseded by statute on other grounds as stated in Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1197.)
“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, subd. (b).)
“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (Cal. Rules of Court, rule 3.1700.)
Code of Civil Procedure section 1033.5, subdivisions (a) and (b), list recoverable and non-recoverable costs. Subdivision (c) of the statute provides in part:
“An award of costs shall be subject to the following:
“(1) Costs are allowable if incurred, whether or not paid.
“(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.
“(3) Allowable costs shall be reasonable in amount.
“(4) Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”
(Code Civ. Proc., § 1033.5, subds. (c)(1) - (c)(4).)
“The losing party may dispute any or all of the items in the prevailing party’s costs memorandum by a motion to strike or tax costs.” (R. Fairbanks et al., Cal. Practice Guide: Civil Trials and Evidence (Rutter 2022) ¶ 17:517, p. 17-94.) “If the items [in the memorandum of costs] appear on their face to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.” (Id., ¶ 17:526, p. 17-96.) “On the other hand, items that are properly objected to are put in issue, and the burden of proof is on the party claiming them as costs.” (Ibid.)
DISCUSSION
A. Filing and motion fees
Plaintiff challenges the City’s request for $168.91 in costs for filing and motion fees, arguing the City failed to identify each filing for which it is seeking filing and motion fees and establish those filings were necessary. Plaintiff acknowledges that the City filed numerous motions but asserts that several were not necessary and the City should not recover fees for unnecessary or failed motions.
In its opposition, the City lists three motions for which it is seeking $102.43 in costs for filing and motion fees and provides evidentiary support. The City has withdrawn its request for the remaining $66.48. The City has carried its burden of proving entitlement to $102.43 in costs for filing and motion fees. The Court taxes $66.48 and denies Plaintiff's motion to tax the remaining $102.43 in costs.
B. Deposition costs
Plaintiff asks the Court to tax the City’s request for $6,137.00 in deposition costs because the City did not identify the deponents and how they related to the proceedings. In addition, Plaintiff asserts that one of the City’s witnesses failed to appear for deposition and another deposition had to be rescheduled due to the City’s counsel’s scheduling conflict.
The City’s opposition lists the depositions and transcript for which the City is seeking costs, explains the reasons for taking the depositions, and provides evidentiary support.
The City also lists $650.00 in costs for fees caused by the late cancellation of Los Angeles Sheriff’s Deputy Arthur Penate’s deposition as a result of his need to reschedule. According to the City, Deputy Penate was the officer who investigated Plaintiff’s motor vehicle accident and the costs were necessarily incurred for the litigation and could not be avoided due to the lateness of Deputy Penate’s cancellation. (Bordin-Wosk Decl., ¶ 10 & exh. 8.)
Plaintiff responds that she should not have to pay $650.00 based on Deputy Penate’s late cancellation because the deputy was the City’s witness, the City did not provide a certificate of non-appearance, and the City should have coordinated with Deputy Penate to confirm his appearance at the deposition.
The City has not carried its burden of proving that $650.00 in costs for Deputy Penate’s cancelled deposition was reasonable and necessary. The Court taxes this amount. The Court finds that the City has carried its burden of proving entitlement to the remaining $5,487.00 in costs for depositions and denies Plaintiff’s motion to tax this amount. (See Code Civ. Proc., § 1033.5, subd. (a)(3).)
C. Service of process
Plaintiff argues that the City has not explained why it incurred $403.10 in costs for service of process.
Although the City does not expressly withdraw its request for $403.10 in costs for service of process, it does not respond to Plaintiff’s argument that the request is improper. The Court grants Plaintiff’s motion to tax this amount.
D. Subpoenaed records/production
Plaintiff challenges the City’s request for $1,902.64 in costs for “Subpoenaed Records/Production.” Plaintiff argues that the City does not identify the records or explain how they were reasonably necessary for the litigation.
In its opposition, the City argues that the costs associated with obtaining subpoenaed records, including the cost of photocopying those records, are recoverable as costs. (See Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 577-578 [cost of photocopying plaintiff’s medical records was recoverable as deposition cost because records were relevant to plaintiff’s personal injury claim].) The City withdraws $407.10 of these costs, describes the basis for the remaining $1,495.54 in costs that it is requesting, and provides evidentiary support.
The Court finds that the City has carried its burden of showing $1,495.54 in costs are recoverable for subpoenaed records/production. The Court taxes $407.10 in costs and denies the motion to tax the remaining $1,495.54 in costs.
E. Investigation and expert fees
The City agrees with Plaintiff that the Court may tax this item of costs in the amount of $6,327.11 (the amount requested in the memorandum of costs). The Court grants Plaintiff’s motion to tax this amount.
CONCLUSION
The Court GRANTS IN PART Plaintiff Gloria Edel’s motion to tax costs and taxes Defendant City of West Hollywood’s costs in the amount of $7,853.79. In all other respects, the Court DENIES the motion.
The Court awards Defendant City of West Hollywood $7,164.19 in costs.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.