Judge: Mark A. Young, Case: BC589025, Date: 2024-01-04 Tentative Ruling

Case Number: BC589025    Hearing Date: January 11, 2024    Dept: M

CASE NAME:           Davis v. Bacal, et al.

CASE NO.:                BC589025

MOTION:                  Motion to Tax Costs

HEARING DATE:   1/11/2024

Legal Standard

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606.) “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. (CCP § 1032 (a)(4).)

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

            Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and state why each item is objectionable. (CRC rule 3.1700(b)(2).) Any grounds not stated are waived. (Boyd v. Oscar Fisher Co. (1989) 210 Cal. App. 3d 368, 383.)

Analysis

Plaintiff Ryan Davis moves to tax the cost memorandum filed by Defendant Sotheby’s International Realty on August 15, 2023. The memorandum of costs claims a total of $80,837.49 in costs, broken down as follows:

1.     Filing and motion fees -                                              $1,316.35

9.     Court-ordered transcripts -                                         $184.00

10.  Attorney Fees -                                                           $76,574.07

12.  Models, enlargements, and photocopies of exhibits -       $2,352.66

16.  Other -                                                                         $410.41

Plaintiff objects to each item.

As to item 1, Plaintiff explains that the item includes improper costs for Court Calls, which are not filing fees at all. The Court concurs that the court calls are not filing fees. As such, the Court will tax these claimed costs in the amount of $543.65. Plaintiff also argues that the item includes filing fees greater in amount than the actual filing fees charged for the cited motions. Plaintiff shows that $356.70 of the claimed costs should only amount to $180.00, absent further explanation. Sotheby’s does not respond to this argument and explain why the fees are greater than the fees charged by the court. The Court will therefore tax item 1 in the amount of $720.35. This leaves $596.00 remaining in item 1.

As to item 9, Plaintiff observes that there were no court ordered transcripts. Indeed, there were no court ordered transcripts. Sotheby’s claims that this was for the transcript of the December 8, 2016, demurrer and motion to strike. Sotheby’s does not cite any court order for these transcripts. Therefore, the item is taxed in the full amount.

Item 10 pertains to attorneys’ fees incurred and is subject of a Motion for Attorneys’ Fees set for hearing August 1, 2024. The Court will determine attorneys’ fees at the August 1, 2024, hearing.

Item 12 pertains to models, enlargements and photocopies of exhibits “if they were reasonably helpful to aid the trier of fact.” Here, there was no trial on the merits, and no trier of fact. These exhibits could not have aided any trier of fact. Sotheby’s explains that there were many exhibits assembled for pleadings, motion, hearings, and in preparing for arbitration. Sotheby’s also claims that the costs are minimal considering eight years of litigation. However, neither argument tends to demonstrate that the costs are recoverable. Therefore, the item is taxed in the full amount.

Item 16 refers to any other item that is required to be awarded to the prevailing party. The Court has the discretion to allow reasonable costs which were reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation. (CCP § 1033.5(c).) The cost memorandum shows that the $410.31 is for postage, parking, and mileage charges. While these are not disallowed costs, Sotheby’s fails to show that the postage, parking or milage charges would be “reasonably necessary to the conduct of the litigation, rather than merely convenient.” The Court regards such charges as for conveniences, rather than necessities. Therefore, the Court is inclined to tax the item fully.

Accordingly, the motion is GRANTED. Costs are allowed as follows:

2.     Filing and motion fees -                                              $596.00

11.  Attorney Fees -                                                           TBD