Judge: Maurice A. Leiter, Case: 20STCV08916, Date: 2023-08-29 Tentative Ruling

Case Number: 20STCV08916    Hearing Date: January 8, 2024    Dept: 54

Hearing Date: January 8, 2024

Department 54, Judge Maurice Leiter

Motion to Strike or Tax Costs

Moving Party: Defendant City of West Covina

Responding Party: Plaintiff Larry Whithorn

T/R:     THE MOTION TO STRIKE OR TAX COSTS IS GRANTED.

            PLAINTIFF’S COSTS ARE TAXED BY $55,504.77.

DEFENDANT CITY OF WEST COVINA TO NOTICE.

            The Court considers the moving papers, opposition, and reply.

Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (CCP § 1032(b).) “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.)

A.      Notice

On September 14, 2023, Whithorn filed a Memorandum of Costs (Summary) seeking a total of $92,434.79 in costs, following the Court’s denial of Defendant’s Motion for Judgment Notwithstanding the Verdict and Motion for Reconsideration. On September 28, 2023, Defendant City of West Covina served by email the notice of motion and motion to strike or tax costs. The notice of motion and motion to strike or tax costs are timely per CRC, Rule 3.1700(b)(1) because they were served 15 days after service of the cost memorandum.

B.      Motion to Strike or Tax Costs

Defendant argues the filing and motion fees of $2,452.60 are unsubstantiated because Whithorn does not provide corresponding dates for any of the filing fees listed. Defendant also asserts many of the documents for which Whithorn seeks filing fees are identified only by generic titles like “Notice,” “Reply,” and “Opposition,” while others claimed costs are labeled as “One Legal LLC.” Defendant argues this category of claimed costs should be reduced to the $435.00 incurred for filing the Complaint.

Defendant argues that $950.00 for “Legal Video Solutions” for deposition costs was unnecessary for trial preparation. Defendant says Whithorn did not present any footage from a videotaped deposition at trial and did not include any deposition footage in his exhibits.

Defendant argues that costs of over $2,480.60 for service of process are unsupported by any details. Whithorn does not identify which documents were associated with each service of process fee, the dates on which the fees were incurred, or the method by which the documents were served.

            Defendant argues that Whithorn’s request for expert fees of $17,903.85 is unsupported by receipts or documentation. Defendant also argues that Whithorn appears to improperly request fees for a jury consultant, Claire Plotkin, retained by his counsel to investigate and/or research juror in preparation for trial in the amount of $3,418.10. Defendant asserts these costs are expressly excluded as recoverable costs under the Code of Civil Procedure, as is $882.00 for the deposition of Defendant’s  expert economist, Austin Nelson.

Defendant contends that $2,675.80 in costs related to trial exhibits, depositions, binders, and tabs are not recoverable because they are photocopying charges. Defendant contends all the exhibits Whithorn presented at trial were shown to the jury electronically, so the photocopies were not reasonably helpful to the jury. Similarly, Defendant argues that court reporter fees in the amount of $7,678.00 and $248.00 are unsupported.

Lastly, Defendant argues Whithorn fails to demonstrate how $43,323,46 in other costs are allowable and necessary to conduct the litigation. Defendant contends $10,450.00 requested for mediation fees should be rejected because the parties expressly agreed to split evenly the cost of mediation. And Defendant says these costs are not recoverable by Whithorn: (1) CourtCall costs in the amount of $45.00; (2) costs of travel, meals, and hotel rooms in the amount of $12,680.67; (3) costs for trial support in the amount of $20,000.00; and (4) fees for unspecified records in the amount of $87.39 and LASC documents in the amount of $60.40.

In opposition, Whithorn requests costs of $83,219.40 based on the following adjustments: (1) Category Five – Service Process: Minus $211.45, for a total award of $2,269.15; (2) Category Eight – Expert Witness Fees: Minus $3,418.10, for a total award of $14,485.75; (3) Category Twelve – Court Reporter Fees: Minus $7,926.00 in its entirety; and (4) Category Sixteen – Other: Plus $3,418.10, for a total award of $45,663.62. Whithorn argues even costs not expressly allowed are recoverable at the discretion of the court under Code of Civil Procedure § 1033.5(c)(4). Whithorn argues that filing and motion fees are recoverable as a matter of right and submitted invoices show the specific nature of the fees and filing of the invoices. Whithorn argues that deposition costs and service of process fees are expressly authorized by Code of Civil Procedure §1033.5(a)(3)-(a)(4).

Whithorn also argues it was necessary for him to call his experts at trial as well as retain experts for his case, and he has submitted sufficient documentationWhithorn contends $3,418.10 for jury consultant Claire Plotkin was inadvertently requested as expert witness fees, and subsequently removed.

Whithorn asserts the process of publishing documents for the jury’s use, as well as being able to provide physical copies for witnesses and court is reasonable. As for the mediation costs, Whithorn requests the court use its discretion to award these fees because he participated in mediation in good faith. Whithorn waives fees associated with telephonic appearances, i.e., Court Calls in the amount of $45.00. Whithorn withdraws all meal charges incurred in the total amount of $1,032.94 but argues he lived in Irvine, CA at the time of trial, so the trial added three hours to his commute time and his counsel’s hotel stay lasted through the night of the verdict for a total of $11,647.73. Whithorn contends he incurred costs in the amount of $20,000.00 from retaining the services of Blue Light Inc., dba Imagine Court Reporting, which were reasonable and necessary throughout trial. Finally, Whithorn argues costs incurred in connection with obtaining copies of records relevant to the litigation are recoverable because Whithorn’s counsel used them for trial preparation and impeachment purposes. Whithorn contends the court in its discretion should award these costs in the amount of $147.79.

The Court finds the following fees and costs were not reasonable and/or necessary for this litigation: (1) filing and motion fees; (2) deposition costs; (3) service of process fees; and (4) models, photocopies, and blow-ups of exhibits. Filing and motion fees are unreasonable as to hearings that were never held, withdrawn subpoenas, and the vague descriptions of filing fees. Deposition video footage and excerpts were not used at trial and Whithorn offers no reasonable argument to support the amount requested. Service of process fees relate to service of dismissed defendants, withdrawn subpoenas, and duplicative service of the same documents, and Whithorn provides no explanation as to why these costs are reasonable. Models, photocopies, and blow-ups of exhibits fees are unreasonable because only a handful of the exhibits prepared were admitted into evidence. The following fees and costs are not expressly recoverable and Whithorn provides no legal authority or court order to support allowing these costs to be awarded: (1) expert fees; (2) travel expenses; (3) mediation fees; and (3) trial support.

The Court has calculated the appropriate amounts to be taxed based on these rulings. Plaintiff’s costs are taxed by $55,504.77.