Judge: Lisa R. Jaskol, Case: 21STCV40815, Date: 2024-12-18 Tentative Ruling
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Case Number: 21STCV40815 Hearing Date: December 18, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
A. Case number 21STCV40815
On November 5, 2021, Plaintiff Southern California Edison Company (“Edison”) filed an action against Defendants Jeffery Alan Blanchette, Sr. (“Blanchette”), and Does 1-10 for negligence and damages by self-insured employer under Labor Code section 3852 et seq. (Case number 21STCV40815.)
On May 9, 2022, Blanchette filed an answer.
On December 1, 2022, Edison amended the complaint to include Defendant Seeley Brothers (“Seeley”) as Doe 1 and Seeley Bros (“Seeley Bros”) as Doe 2.
On January 10, 2023, Edison filed a first amended complaint against Blanchette, Seeley, Seeley Bros, and Does 1-10 for negligence and statutory liability.
On January 17, 2023, Blanchette filed an answer to Edison’s first amended complaint. On March 20, 2023, Seeley filed an answer to Edison’s first amended complaint.
On May 24, 2024, the Court dismissed Seeley and Seeley Bros with prejudice at Edison’s request.
B. Case number 21STCV43711
On November 30, 2021, Plaintiff Keith Yarbrough (“Yarbrough”) filed an action against Defendants Jeffery Alan Sr Blanchette and Does 1-10 for negligence and negligence per se. (Case number 21STCV43711.)
On September 9, 2022, Blanchette (erroneously sued as Jeffery Alan Sr Blanchette) filed an answer.
On November 3, 2022, Yarbrough amended the complaint to include Seeley as Doe 1 and Seeley Bros as Doe 2.
On December 28, 2022, Yarbrough filed a first amended complaint against Blanchette, Seeley, Seeley Bros, and Does 1-10 for negligence and negligence per se.
On January 17, 2023, Blanchette filed an answer to Yarbrough’s first amended complaint. On March 20, 2023, Seeley filed an answer to Yarbrough’s first amended complaint.
C. The Court relates and consolidates the cases
On May 17, 2022, the Court found that case numbers 21STCV40815 and 21STCV43711 are related within the meaning of California Rules of Court, rule 3.300(a). Case number 21STCV40815 became the lead case. The cases were assigned to Department 28 at the Spring Street Courthouse for all purposes.
On May 18, 2022, the Court ordered cases numbers 21STCV40815 and 21STCV43711consolidated and assigned to Department 28 in the Spring Street Courthouse for all purposes. The Court designated 21STCV40815 as the lead case.
D. Post-consolidation proceedings
On June 7, 2024, the Court granted Seeley’s motion for summary judgment on Yarbrough’s first amended complaint.
On July 11, 2024, Edison filed a notice of settlement.
On August 7, 2024, the Court dismissed Edison’s complaint with prejudice at Edison’s request.
On August 9, 2024, the Court entered judgment for Seeley on Yarbrough’s first amended complaint.
On August 20, 2024, the Court dismissed Yarbrough’s action with prejudice at Yarbrough’s request.
On August 29, 2024, Seeley served notice of entry of the August 9, 2024 judgment.
E. Yarbrough’s motion to strike or tax costs
On September 3, 2024, Seeley filed a memorandum of costs. The memorandum of costs requested:
Filing
and motion fees: $935.00
Jury
fees: $150.00 civil deposit
Deposition
costs: $2,374.91
Service
of process: $1,735.00
Fees for electronic filing or service: $336.00
Total
costs: $5,530.91
On September 16, 2024, Yarbrough filed a motion to strike and tax costs. The motion was set for hearing on October 28, 2024. On October 15, 2024, Seeley filed an opposition. On October 22, 2024, Yarbrough filed a reply. The Court continued the hearing to December 18, 2024.
PARTIES’ REQUESTS
Yarbrough asks the Court to tax or strike the costs listed in Seeley’s memorandum of costs.
Seeley asks the Court to deny the motion.
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, subd. (b).) “ ‘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, subd. (a)(4).)
“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, subd. (c)(1) to (1)(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. Meet and confer
Yarbrough argues that Seeley’s costs are unreasonable because Seeley did not meet and confer with Yarbrough before filing its motion for summary judgment. Yarbrough cites no authority to support this argument and the Court considers it waived.
B. Electronic filing fee
Yarbrough argues that Seeley failed to show it actually incurred the $336.00 fee for electronic filing or service.
In response, Seeley provides evidence that it incurred the electronic filing fees. Seeley argues that it is actually entitled to $422.18 in costs for electronic filing fees but listed $336.00 in its memorandum of costs due to a typographical error. Seeley has not moved to amend its memorandum of costs.
The Court denies Yarbrough’s motion to strike or tax Seeley’s request for $336.00 in costs for electronic filing fees.
C. Proof of service fee
Yarbrough argues that the $1,735.00 fee for service of process is “unreasonably inflated.” According to Yarbrough, there was “no need for personal service” because he had authorized electronic service and he should not be responsible for the fee for service of process on the other parties.
Seeley responds that Yarbrough never advised or agreed that he would accept electronic service in lieu of personal service. (The Court’s file does not contain a consent to electronic service filed by Yarbrough.) In addition, Seeley argues, when Seeley personally served the motion for summary judgment on Yarbrough, Seeley was also required to properly and timely serve the motion on the parties.
Yarbrough argues that other parties agreed to accept personal service, making personal service of the summary judgment motion on those parties unnecessary. On May 9, 2022 and September 9, 2022, Blanchette filed requests that the other parties serve notices and documents by electronic service unless personal service was required. (The Court's file does not appear to contain any other party's consent to electronic service.) Seeley was not required to personally serve the motion for summary judgment on Blanchette. Therefore, the Court taxes $459.00 (the fee for personal service of the summary judgment moving papers on Blanchette’s counsel) from the memorandum of costs.
The Court also taxes $269.00 in costs for service of “Kenny Hanna, M.D.’s Objections to Defendants City of Thousand Oaks and Fred Gessler’s Deposition Subpoena for Personal Appearance and Production of Documents and Things” (exh. C), which appears to be a filing in a different case.
D. Jury fee deposit
Yarbrough’s notice of motion states that he is challenging Seeley’s request for costs based on the $150.00 jury fee civil deposit. However, Yarbrough does not address this cost in the body of his motion. The Court considers the issue waived.
E. Deposition costs
Yarbrough argues that the deposition cost of $2,374.91 was unreasonable because Seeley did not need to take Yarbrough’s deposition after it moved for summary judgment.
The Court finds that Seeley properly continued to prepare for trial after it moved for summary judgment. The trial preparation included taking Yarbrough’s deposition. The expense was reasonable and necessary. The Court denies Yarbrough’s motion to strike or tax this cost.
CONCLUSION
The Court GRANTS in part Plaintiff Keith Yarbrough’s motion to strike and tax costs. The Court taxes Defendant Seeley Brothers’ memorandum of costs in the amount of $728.00 ($459.00 plus $269.00). In all other respects, the Court DENIES the motion.
The Court AWARDS Defendant Seeley Brothers $4,802.91 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.