Judge: Mark A. Young, Case: BC691517, Date: 2024-12-10 Tentative Ruling

Case Number: BC691517    Hearing Date: December 10, 2024    Dept: M

CASE NAME:           Le, et al., v. Saldivar

CASE NO.:                BC691517

MOTION:                  Motion to Tax/Strike Costs

HEARING DATE:   12/10/2024

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. (Id.) 

Analysis

Defendant Jovon Mitchell moves to strike the memorandum of costs submitted by Plaintiff Sandy Le. On July 26, 2024, Plaintiff filed a cost memorandum, claiming $52,828.46 in costs.

There is no reasonable dispute that Plaintiff is owed costs as the prevailing party in this action. Defendant accepted Plaintiff’s 998 offer without securing a waiver of costs. Plaintiff obtained a $50,000.00 payment from Defendant. Plaintiff is therefore the prevailing party and entitled to costs as a matter of right.

Defendant argues that the cost bill should be stricken in its entirety due to Plaintiffs' failure to provide breakdown of her claimed costs. Plaintiff provides sufficient foundation for the costs with the declaration attached to the cost memorandum and the declaration presented in opposition, except where otherwise noted. (Marchino Decl.) Defendant also argues that costs should be denied unless attributable to the prosecution of the case against himself only and not all the defendants. Defendant proffers no legal authority for such a proposition. Defendant chose to settle the action without first resolving the allocation of costs, risking a substantial cost award against himself.

Defendant cites no authority that the April 2019 letter constituted a Code of Civil Procedure section 998 offer which would limit Plaintiff’s claimed costs. This was not a compliant 998 offer because the letter was sent to the firm Filippo Marchino after Plaintiff was not represented by that firm. The April 2019 letter was sent to Eagan Avenatti LLP in Newport Beach after it had withdrawn as counsel for Le and been replaced by her current firm, the X-Law Group, P.C., more than six months before the letter. (Marchino Decl. ¶¶ 2-3.) Plaintiff did not apparently have notice of this letter. Thus, this letter cannot equitably undercut Plaintiff’s right to costs.

The majority of the items of costs are expressly allowable, including items 1, 2, 4 and 5. (CCP § 1033.5(a).) These costs are properly charged.  On the other hand, the “Other” category of costs is properly taxed. Plaintiff claims the following items as part of the “Other” item of costs:

a. Collision and Injury Dynamics - Mitchell accident reconstruction: $13,397.48

b. Gammill Law - Investigation re Criminal Sentencing Mitchell: $13,250.00

c. Lupin Solutions LLC - Medical Records re Drugs & Alcohol (Mitchell): $15,250.00

d. Los Angeles Private Detectives - Investigative & service of process (Mitchell): $9,125.00

f. USPS Service - Reply of Motion to Compel Mitchell Depo: $7.35

g. FedEx - Motion to Compel Mitchell Service: $21.62

Total “Other” costs: $51,051.45.

Each of these sub-items will be taxed. The costs for “accident reconstruction” are expressly disallowed by Code of Civil Procedure section 1033.5(b)(1)-(2) as expert witness fees and investigation expenses. Likewise, section 1033.5(b) disallows the costs related to the “investigation re sentencing,” “medical records re Drugs & Alcohol,” and costs for “private detective” investigations for the same reasons. These sub-items would either be either an expert witness fee, investigation expense, or an attorneys’ fee, which are expressly not allowed as costs. Only the service-related items (f and g) are potentially discretionary costs. However, as these were not requested as a part of item one (costs of motion fees), the Court assumes that these are for additional services related to service of the motion to compel (e.g., overnight service), and not for any court-required filing fees. Plaintiff does not explain why the USPS and FedEx service fees were reasonably necessary for the litigation. Thus, these costs were not “reasonably necessary” for the litigation, but rather, merely convenient to its preparation.

Accordingly, the motion is GRANTED in part. The Court taxes the costs memorandum in the amount of $51,051.45.