Judge: Mark C. Kim, Case: NC061566, Date: 2023-03-07 Tentative Ruling

Case Number: NC061566    Hearing Date: March 7, 2023    Dept: S27

1.     Trial

This habitability case commenced trial on 2/28/22 and concluded trial on 3/10/22.  The trial was bifurcated, with issues of liability going forward first and the issue of amount of punitive damages to go second, if necessary.  At the conclusion of trial, the jury returned a special verdict.  It found Defendant liable for various failures in connection with the property, and awarded special damages in the amount of $223,091.45.  It also found Defendant acted with fraud, malice, or oppression. 

However, after extensive briefing on the issue, the Court found Plaintiff had not adequately prepared her case for punitive damages, and declined to impose punitive damages. 

2.     Motion to Strike or Tax Costs

a.     Procedural History of Costs

The Court entered judgment on 6/23/22.  The Clerk gave notice the same day.  Plaintiff filed a memorandum of costs on 7/11/22, seeking to recover costs in the amount of $106,277.69.  On 7/21/22, Defendant filed a motion to strike or tax costs, arguing that (a) Plaintiff failed to include the required costs worksheet with her memorandum, and (b) Plaintiff is not entitled to recover expert costs because she was not awarded a judgment in excess of her §998 offer. 

On 9/06/22, Plaintiff filed an amended memorandum of costs, seeking to recover costs in the amount of $95,718.30.  On 9/16/22, Defendant filed this motion to strike or tax costs. 

Any opposition to the motion was due on or before 12/29/22.  The Court did not receive timely opposition, but Plaintiff did file untimely opposition on 1/05/23, and Defendant filed a reply on 1/06/23.  The Court continued the hearing on the motion to consider the opposition and reply documents.  The Court permitted Defendant time to file a supplemental reply if it chose to do so, but Defendant did not do so. 

b.     Timeliness of Amended Memorandum of Costs

Defendant does not challenge the amended memorandum on the ground that it was not timely filed.  The Court notes, however, that CRC 3.1700(a)(1) requires a memorandum of costs within fifteen days after notice of entry of judgment.  It is not clear that the amended memorandum was timely filed.  Because the amended memorandum reduces the amount of costs sought, and because Defendant did not challenge the amended memorandum on this ground, the Court will consider the amended memorandum timely for purposes of this ruling. 

c.     Costs Worksheet

Plaintiff did not include a costs worksheet with her first memorandum of costs.  Oddly, even after Defendant challenged the first memorandum by way of a motion to tax costs, she also did not include a costs worksheet with her second memorandum of costs. 

The Court could not find authority specifically requiring the costs worksheet to be filed and served with the memorandum.  Defendant did not cite any such authority either.  It is, however, common practice to do so, and Defendant cannot meaningfully evaluate the costs claimed without the worksheet.

Pursuant to Ladas v. California State Auto. Ass’n (1993) 19 Cal.4^th 761, 774-776, if items appear on their face to be proper charges, the verified memorandum is prima facie evidence of their propriety, and the burden is on the party challenging the costs to show that they are not reasonable or necessary.  Once the challenging party places those costs at issue, the burden shifts to the party claiming the costs to show they are properly claimed.

In this case, Plaintiff arguably did not meet even the prima facie requirement to show that the costs were proper, as Plaintiff did not file the required worksheet.  Even if she did meet that initial burden, Defendant placed the costs at issue, such that she has the burden to justify the costs. 

d.     Costs Items 1, 2, 4, 11, 14, and 16 

While Defendant challenges each of these costs in its motion on the ground that Plaintiff failed to detail them by way of a worksheet, Defendant’s reply is silent concerning these costs.  The Court finds the documentation submitted with the opposition is sufficient to justify these costs, and in the absence of a reply in this regard, the motion to tax them is denied.

e.     Service of Process

Defendant moves to tax $10,683.97 in service of process costs (item 5) on the ground that there is no worksheet detailing these costs.  Plaintiff, in opposition to the motion, provides evidence to support the costs.  In reply, Defendant only challenges $1515.18 in service of process costs, contending Plaintiff’s attached invoice shows this money was for copying records, which is not a recoverable cost. 

Exhibit 7 to the opposition details service of process costs.  The Court has reviewed the exhibit and has confirmed that it contains substantial copying charges.  CCP §1033.5(b)(3) makes clear that photocopying charges are not recoverable.  The motion to tax item 5 is granted in part; the claimed cost is reduced from $10,693.97 by $1515.18 to $9178.79.

f.      Witness Fees

Defendant moves to tax item 8, witness, fees, on the ground that expert witness fees are recoverable if and only if the plaintiff makes an offer, the defendant fails to obtain a move favorable judgment, and the Court deems such fees recoverable in an exercise of its discretion. 

Plaintiff served an offer in the amount of $299,999.  She obtained a judgment in the amount of $223,091.45.  Her judgment can only exceed $299,999 if her claimed attorneys’ fees are included in her total judgment.  However, on 1/12/23, the Court denied her motion for attorneys’ fees.  She therefore failed to achieve a more favorable judgment than her §998 offer. The request for expert fees is denied. 

g.     Models, Enlargements, and Photocopies of Exhibits

Plaintiff claimed $17,206.21 in costs for models, enlargements, and photocopies of exhibits.  Defendant moves to tax these costs on the ground that they were not detailed in a costs worksheet.  Plaintiff, in opposition to the motion, provides details concerning the costs.  Defendant, in reply, argues the costs are excessive because (a) they include costs for lunch, mileage, and parking in excess of $400, and (b) they include copying charges for over 6000 pages and preparing binders.  Defendant concludes $8000 of the costs should be taxed.

Defendant does not, in reply, meaningfully articulate why $8000 should be taxed or how it reached this conclusion.  $400 for lunch, parking, and mileage is not objectively unreasonable for a trial, especially where it is itemized.  Defendant failed to show 6000 pages of exhibits constituted an unreasonable number of pages and/or that the pages were unnecessary, and failed to show that making the pages into a binder was unreasonable.  The motion to tax this cost is denied. 

Defendant is ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.