Judge: Mark A. Young, Case: SC126872, Date: 2022-09-28 Tentative Ruling
Case Number: SC126872 Hearing Date: September 28, 2022 Dept: M
CASE NAME: Winship, v. Wetherly
Dr. Condominium Assoc. Inc., et al.
CASE NO.: SC126872
MOTION: Motion
to Tax Costs
HEARING DATE: 9/28/2022
BACKGROUND
On December 14, 2021, Defendant filed a memorandum of
costs seeking $82,562.00 in costs.
On December 30, 2021, Plaintiff filed a motion to tax Defendant’s
memorandum of costs. Defendant opposes.
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.)
Analysis
Plaintiff moves to tax the
memorandum in the amount of $8,144.11, targeting the following items.
Item 4(e) – Transcribing of Depositions of Lisa Benya,
D.O. and Sara Korjee, M.D.,
Plaintiff seeks to tax $750.00 from
this item. Plaintiff contends that Dr. Benya was improperly served through her
office. Plaintiff explains that personal service was required. (CCP §
2020.220(b).) Counsel notes their objections at the time and declares that the
subpoenas were never served for the date of the non-appearance (Sept. 20).
(Katz Decl. ¶ 4.) Rather, Plaintiff reasons that this was unreasonably incurred
without a valid subpoena service. The Court finds that Plaintiff has not provided
sufficient evidence showing that the subpoena was invalidly served on a
substantially similar record. Defendant provides that Dr. Korjee was served and
communications with her office set the deposition for September 20, 2021. Dr.
Korjee did not appear. (Safarian Decl., ¶ 5.) Following service on Dr. Benya, defendant’s
office communicated with Dr. Beyna’s office regarding resetting the deposition
for September 20, 2021. Dr. Benya did not appear. (Id. ¶¶ 5-6.) Accordingly,
Plaintiff has not met its burden to show that this item of costs was not
reasonably incurred.
Item 16 – Deposition Subpoenas for Personal Appearance at
Deposition for Nine Witnesses
Plaintiff targets the costs
associated with the deposition subpoenas for personal appearance at deposition
for the nine witnesses, totaling $1,717.25. Plaintiff argued depositions were
noticed for a date after the September 3, 2021 discovery cut-off and,
accordingly, did not go forward. (Katz Decl. ¶ 7.) Since they were set for
after the discovery cut off, the Court does not find that these costs were
reasonably incurred. The Court is therefore inclined to tax this item.
Item 16 – Deposition Subpoenas for Personal Appearance at
Trial for Thirty-One Witnesses
Plaintiff targets $5,676.86 in costs
associated with the subpoenas for personal appearance at trial for the thirty-one
witnesses listed. Even though the docket and transcripts do not reflect that
the motion to quash was granted, Plaintiff promises that the subpoenas were
quashed. As with the attorneys’ fees motion, Plaintiff fails to demonstrate
that the motion to quash was granted. Accordingly, the Court cannot find that
the costs connected to the depositions was unreasonable.
Accordingly, Plaintiff’s motion is
GRANTED in the reduced amount of $1,717.25. $82,562.00 This brings the cost
award to a total of $80,844.75.