Judge: Margaret L. Oldendorf, Case: 19STCV40692, Date: 2022-12-20 Tentative Ruling
Case Number: 19STCV40692 Hearing Date: December 20, 2022 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
I. INTRODUCTION
This litigation involves an
automobile accident that occurred July 14, 2018, on the 91 freeway. Plaintiff
Roman Manuel Espinosa (Espinosa) was rear-ended by Defendant Parker Thomas
Steed (Steed). The force of the impact pushed Espinosa’s vehicle into the
vehicle ahead of him. Espinosa suffered personal injuries. Steed admitted fault
but disputed the extent of Espinosa’s injuries. The case was tried to a jury,
resulting in a special verdict of $1,094,426.08.
Judgment on the special verdict was
entered October 14, 2022. Espinosa timely filed a memorandum of costs within 15
days thereafter. Steed timely filed this motion to tax costs within 15 days
after that. California Rules of Court, rule 3.1700. Steed’s motion to tax costs
is granted in significant part, as set forth below.
II. LEGAL
STANDARD
Code Civ. Proc. §1032 Code (b) provides that a prevailing
party is entitled to recover costs. Civ. Proc. §1033.5(a) itemizes allowable costs;
§1033.5(b) itemizes costs that are not allowed. Subsection (c) provides that
costs shall be necessary to the litigation and reasonable in amount, and that
items of cost not mentioned in the statute are recoverable in the court’s
discretion.
III. DISCUSSION
Prior to trial (in December 2020), Espinosa served
Steed with a statutory offer to compromise for $65,000 which Steed did not
accept. As Steed declined the offer, and Espinosa recovered more at trial, the
Court may in its discretion require Steed to pay Espinosa’s post-offer expert
costs. See Cal. Civ. Proc. Code
§998(d).
The disputed cost items are discussed in the order
they appear on the cost bill:
ITEM 1 Filing
and Motion Fees $3,483.98
Included among the filing fees is the cost for filing
two ex parte applications that were denied on procedural grounds and which
Espinosa later refiled as noticed motions. (Worksheet at 1.c Motion to Compel
Responses to RFP - $68.69; 1.d Motion to Compel Deposition - $61.65.) Steed’s
argument is that he should not have to pay Espinosa’s filing fees twice simply
because he improperly sought relief by way of ex parte application the first
time. This argument has merit. While a prevailing party may recover the cost
even of motions that were denied, there is no reasonable basis for recovering
the cost of a filing fee for the same motion twice due to procedural error on
the part of the prevailing party.
Amount to be taxed: $68.69 + $61.65 = $130.34
Espinosa has also included the cost for remote
appearances, three at $15 and one at $23. Espinosa likens these costs to that
of parking, noting that given the prevalence of remote appearances parking is
no longer necessary. Steed agrees and argues that this is exactly why the cost
is not recoverable. Ladas v. California State Auto. Assn. (1993) 19
Cal.App.4th 761, 775-775 [taxing the cost of “parking fees, cab fares and ‘mileage/parking’
fees” on the basis that “The only travel expenses authorized by section 1033.5
are those to attend depositions. (§ 1033.5, subd. (a)(3).) Routine expenses for
local travel by attorneys or other firm employees are not reasonably necessary
to the conduct of litigation.”].
Amount to be taxed: $15 + $15 + $23 = $53
Steed seeks to tax the cost for downloading
documents from the court’s website, arguing there is no statutory basis for the
recovery of download fees, these are neither filing nor motion fees, and in any
event the documents were all electronically provided to Espinosa so there was
no need for him to download them and pay for conformed copies. Espinosa’s
opposition does not directly address these arguments, instead he argues that the
cost of electronic filing or service of documents is specifically allowed
pursuant to Code Civ. Proc. §1033.5(a)(14). Steed does not challenge the cost
of electronic filing or service. As these are not allowable costs, the argument
is well taken.
Amount to be taxed: $5.00 + $45.40 + $72.80 =
$123.20
Steed challenges as unreasonable the fees charged by
Espinosa’s third-party electronic filer Valpro. Steed notes that Espinosa’s
other electronic filer, RapidLegal, charged only $12 per filing plus a small
convenience fee while Valpro charged $45 and on most of them an additional $40
for a “rush” order. Steed calculates that the 27 Valpro filings total $2,159.95
and argues they should all be reduced to $12 for a new total of $324. Espinosa
opposes on the ground that he does not control the costs various providers
charge and he should not be penalized because one charges more than another.
All costs must be reasonable in amount. An $85 electronic
filing fee seems excessive. However,
rather than reduce all electronic filing fees to the $12 figure, the Court
finds that a reasonable figure is $20. At that rate, the 27 filings total $540.
This amount is allowed, and the balance is taxed.
Amount to be taxed: $2,159.95 - $540 = $1,619.95
Finally, Steed challenges $160.70 charged by Steno
Agency for efiling a deposition subpoena. He raises two challenges: (1)
deposition subpoenas do not need to be filed; and (2) the cost for the
out-of-state commission for this subpoena was charged by Rapid Legal. Espinosa explains
only why the out-of-state commission needed to be filed.
Amount to be taxed: $160.70.
Total
amount to be taxed under Item 1: $
130.34
$ 53.00
$
123.20
$1,619.95
$
160.70
$2,087.19
$3,483.98 - $2,087.19 = $1,396.79
The total recoverable costs for Item 1 is therefore $1,396.79.
ITEM 4 DEPOSITION
COSTS $10,762.50
ITEM 8 WITNESS
FEES $55,010.00
ITEM 11 COURT
REPORTER FEES $38,795.90
Steed discusses these three items of cost together,
arguing that Espinosa has intermingled them.
There are a few arguments made as to Dr. Kasimian, a
non-retained expert of Espinosa’s. According to records Espinosa produced to
Steed, Espinosa paid Dr. Kasimian a $5,000 retainer fee and $1,800 for two
hours of deposition, and he paid court reporters $1,944.83 for a transcript of
the deposition. A prior court order limited the hourly rate Dr. Kasimian could
charge for his testimony, capping it at $1,400. Steed argues that Espinosa is
only entitled to recover $2,800 for the two hours of testimony he gave, arguing
there is no basis for recovering the retainer fee or transcript fee.
Steed argues the deposition transcript is not
recoverable because the deposition was not taken during discovery but at
Espinosa’s election to present his deposition testimony in lieu of live
testimony at trial. If Dr. Kasimian had appeared at trial, Espinosa could have
saved the cost of the transcript and would have paid only his witness fee.
The cost of the transcript is taxed as not
reasonably necessary. The $5,000 retainer fee and $1,800 witness fee were
incurred post-offer, and therefore are not taxed.
Amount to be taxed from Item 4: $1,944.83
Court reporter fees are recoverable [§1033.5(a)(11)]
but transcripts are only recoverable when ordered by the court [§1033.5(a)(9)].
Here, no such order was issued. Thus, the cost of trial transcripts are properly
taxed.
According to the declaration of Steed’s counsel
based on records provided by Espinosa, Espinosa paid $23,126.45 to court reporters
for trial. After deducting from that the cost for trial transcripts he
indicates that $13,615.55 remains recoverable. Doing the math, this would mean Steed
is requesting $9,510.90 be taxed.
Amount to be taxed from Item 11: $9,510.90
ITEM 5 SERVICE
OF PROCESS $1,096.00
Steed challenges as invalid a trial subpoena served
on out-of-state witness Faith McKinney on August 11, 2022 ($235), as well as
the cost of attempted service of a deposition subpoena on her on March 15, 2021
($250). Steed argues that these costs are not recoverable because out-of-state
residents are not subject to California’s jurisdiction or service of process. Espinosa
makes no substantive response to this.
Steed also challenges $270 for service of a subpoena
duces tecum on ATB Investigation, which was duplicative and unnecessary because
Espinosa also served ATB employee Paul Blum, who appeared and produced the
requested documents. Espinosa makes no substantive opposition argument to this
either.
The identified costs are not recoverable, and are therefore
taxed.
$235 + $250 + $270 = $755
Amount to be taxed from Item 5: $755
ITEM 12 MODELS,
ENLARGEMENTS $10,225.00
Steed seeks to tax the $2,350 expert fee paid to
Vahe Garabedian on the basis that he was not an expert witness and even if he
had been, his testimony was not necessary to lay the foundation for the 3D
animation that was shown to the jury. This argument has merit, as Garabedian was
never designated as an expert.
Amount to be taxed from Item 12: $2,350.
ITEM 16 OTHER $34,764.99
There are a number of costs in this category Steed
seeks to tax.
The first is $2,549.09 for investigative services.
This is a non-recoverable cost per §1033.5(b)(2)(4). Espinosa makes no argument
in opposition.
The second is $15,700 for a jury consultant. The
third is legal consultation with outside counsel, at a cost of $2,720. Steed
challenges the jury consultant as akin to investigative services and the legal
consultation as attorney fees, which are not recoverable. Espinosa’s attempt to
categorize these as recoverable expert fees fails. These are not designated experts,
and there is no basis to recover these costs.
The fourth item challenged is Westlaw research at a
cost of $32.95. This cost is also precluded by §1033.5(b)(2), and Espinosa
makes no argument to the contrary.
The fifth is trial meals and travel expenses at
$1,289.06. While meals and travel are recoverable in connection with
depositions, there is no statutory basis for their recovery in connection with
trial. Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761,
775-775.
The sixth is a consultant, for which he paid $600. This
was for the cost of a nurse who attended Espinosa’s IME as an observer. Espinosa
cannot recover this as an expert cost,
as the nurse was never designated as an expert.
The seventh challenged item is $172.25 for FedEx
charges. Section 1033.5(b)(3) prohibits this cost, and Espinosa does not
disagree.
The eighth item is $105 for record review. Steed
challenges this as essentially paralegal work, which is not recoverable.
Espinosa makes no argument to the contrary.
The ninth item is $70.17 for a computer cable. Steed
challenges this cost as not falling under any recoverable category; Espinosa
makes no defense of the cost in his opposition.
Lastly, Steed challenges, in a miscellaneous
category, charges totaling $3,437.33. This includes a $1,987.42 charge for
“Google”; $1,050.35 for a court reporter for which no invoice or other
information is provided; $250 for payment to a Jorge Suarez which is
unexplained; $10 to the CHP for a copy of the police report, which is an
unrecoverable investigative cost; and $78.25 and $61.31 for FedEx charges that
predate the filing of the complaint (and in any event are not recoverable).
Espinosa does not defend any of these costs.
$2,549.09 + $15,700 + $2,720 + $32.95 + $1,289.06 +
$600 + $172.25 + $105 + $70.17 + $3,437.33 = $26,675.85.
Amount to be taxed from Item 16: $26,675.85
IV. CONCLUSION
AND ORDER
As reflected above, Defendants’ motion to tax costs is
granted in part and denied in part. Of the total amount of $155,561.08 in costs
requested, the sum of $43,323.77 is taxed. Therefore, the adjusted amount of allowed
costs is $112,237.31. The Clerk is
directed to interlineate the Judgment to reflect this amount.
Moving party Steed is ordered to give notice.
Dated: _______________________________
MARGARET OLDENDORF
JUDGE
OF THE SUPERIOR COURT