Judge: Martha K. Gooding, Case: 2020-01146802, Date: 2022-10-17 Tentative Ruling

Motion to Tax Costs – GRANTED IN PART

Defendant Niloufar F. Farschi (“Defendant”) seeks an order taxing certain costs sought by Plaintiff Yvonne Montanez (“Plaintiff”), in the amount of $8,666.80.

There is no dispute this motion is timely served and filed, or that Plaintiff is the prevailing party and entitled to costs.  (Code Civ. Proc., § 1032, subd. (a)(4); Judgment, 3:4-5.) 

“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. 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.”  Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774; see, Thon, 29 Cal.App.4th at 1548 (“To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount.”) 

“[T]he mere filing of a motion to tax costs may be a ‘proper objection’ to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face…However, ‘[i]f the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].’”  (Nelson, 72 Cal.App.4th at 131 [citations omitted].)   

“The court’s first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face…If so, the burden is on the objecting party to show them to be unnecessary or unreasonable.”  (Nelson, 72 Cal.App.4th at 131 [citations omitted].)

Defendant takes issue with the deposition costs for the depositions of Troy Dennis, Parsa Nemati, Dr. Grajewski, and Dr. Morris, the videotaping of the depositions of Daniel Voss (2 sessions), Dr. Coleman, and Dr. Lubow, and two late cancellation fees for the deposition of Daniel Voss. 

“Taking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed” are allowable costs under section 1032.  (Code Civ. Proc., § 1033.5(a)(3)(A); see Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557 [Cost for videotaping a deposition that was not unnecessary or unreasonable, even when the recording was not used at trial, is recoverable.].)

“The recovery of deposition costs does not depend on whether the deponent ultimately testifies at trial…The standard is whether the cost is ‘reasonably necessary to the conduct of the litigation.’”  (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 57.)

Defendant did not meet its burden to show the entire amount of costs related to the depositions of Dennis, Nemati, Dr. Grajewski, and Dr. Morris were unnecessary.  Defendant also did not meet its burden to show the entirety of the costs requested for videotaping the depositions of Daniel Voss, Dr. Coleman, and Dr. Lubow were unnecessary. 

However, it appears Plaintiff’s court reporting services charged fees for delivery and handling, expediting, and uploading deposition transcripts and videos, and a fee for providing a rough transcript for Voss’ deposition.  (Wegman Decl., ROA No. 295, Exhibit 4(e).) 

The Court finds the handling and delivery charges may be properly awarded as discretionary costs under CCP section 1033.5, subdivision (c)(4).    

However, Plaintiff has not shown the costs for expediting, uploading, and providing a rough transcript was necessary.  Accordingly, $2,631.60 of the costs requested shall be taxed. 

In addition, the two late cancellation fees for expert witness David Voss’ deposition in the amount of $735 are not expressly recoverable, nor are they expressly disallowed under subdivision (b) of section 1033.5.  Although the Court may award them as a discretionary cost under section 1033.5, subdivision (c)(4), Plaintiff has not shown the Court should award the late cancellation fees as discretionary costs.  Accordingly, these costs will also taxed.

Defendant’s motion to tax is granted in part.  The total amount of $3,366.60 for the costs for expediting, uploading, providing a rough transcript, and late cancellation fees shall be taxed from Plaintiff’s requested costs. 

Defendant is ordered to give notice.