Judge: Mel Red Recana, Case: 19STCV10899, Date: 2024-02-21 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Case Number: 19STCV10899    Hearing Date: March 19, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing Date:             March 19, 2024

Moving Party:             Defendant Patrick Ryan

Responding Party:      Plaintiffs Maynard Matthews and Tanis Matthews

Motion to Tax Costs

The court considered the moving, opposition, and reply papers.

Defendant’s motion to tax costs is GRANTED in the amount of $757,251.09 and DENIED as to all other amounts. 

Background

This case involves a motor vehicle accident. Plaintiffs Maynard Matthews and Tanis Matthews filed this action on March 29, 2019 against defendant Patrick Ryan, alleging causes of action for (1) Negligence; and (2) Loss of Consortium. The Complaint alleges that plaintiff Maynard Matthews was operating a 2014 Mercedes E 350 on August 3, 2018 on Zoo Drive, approximately 300 feet each of Griffith Park Drive. (Compl., ¶ 8.) Defendant allegedly negligently operated a 2003 Mercedes CLK430 so as to cause a collision with Plaintiff. (Id.)

This action went to trial on August 7, 2023 and concluded on August 31, 2023. Judgment was entered in favor of Plaintiffs and against Defendant on October 10, 2023.

Defendant Ryan filed this motion to tax costs on November 9, 2023.  Plaintiffs filed an opposition on March 6, 2024.  Defendant filed a reply on March 12, 2024. 

Legal Standard

            To obtain costs, the prevailing party must file and serve a memorandum of costs, which “must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (Cal. Rules of Court, rule 3.1700(a).)

            Copies of bills, invoices, statements, or other documentation need not be attached to the memorandum (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267), but the memorandum must provide enough detail to determine the cost sought is statutorily awardable (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.)  If the items on the face of the cost memorandum appear to be proper charges, the verified cost memorandum is prima facie evidence of their propriety, and it is the challenging party who bears the burden to show the costs were not reasonable or necessary.  (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)  The only identifiable requirement for a memo of costs is that it set forth the costs claimed and be verified.  (CRC 3.1700(a)(1).) 

            The mere filing of a motion to tax costs may be a proper objection to an item if the necessity of that item appears doubtful, does not appear to be proper on its face (Nelson, supra, 72 Cal.App.4th at p. 131), or presents a legal question (Fennessy v. Deleuw-Cather Corporation (1990) 218 Cal.App.3d 1192, 1195–1996 (motion to tax questioning entitlement to deposition costs incurred by all six defendants represented by the same counsel was sufficient to place the cost at issue without additional declarations or affidavits).)  If section 1033.5 expressly allows the particular item and it appears proper on its face, the burden is on the objecting party to show the costs to be unnecessary or unreasonable. (Nelson, supra, at 131.)

            If costs are properly placed at issue, the burden of proof shifts to the party seeking costs to justify them by providing evidence and supporting documentation that the costs were reasonable and necessarily incurred. (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 774; see Jones v. Dumrichob, supra, 63 Cal.App.4th at p. 1267.)

Discussion

            Defendant Ryan moves to tax Plaintiffs’ memo of costs filed on October 25,

2023.  Ryan’s initial briefing moved to tax on grounds that Plaintiffs failed to provide any documentation in support of their motion to tax costs.  Ryan also moved to tax individual items as follows:  (1) Item 1-Filing Fees in the amount of $1,650; (2) Item 4—Deposition costs in the amount of $13,826.43; (3) Item 5—Service of Process Costs in the amount of $811.98; (4) Item 8—Witness Fees in the amount of $216,796.33; (5) Item 11—Models, Enlargements, Photocopies in the amount of $8,545.63; (6) Item 12—Reporter’s Transcript Costs in the amount of $76,903.77; and (7) Item 16—Other Costs in the amount of $720,890.

            In opposition, Plaintiff submitted over 500 pages of documentation to support its memo of costs.  Plaintiff also conceded that $738,362.20 in costs should be taxed.  Plaintiff conceded to taxing the following cost items:  (1) attorney’s fees in the amount of $720,890; (2) record retrieval of $3,010.02; and (3) prejudgment interest to the extent the Court strikes the item without prejudice to a future motion for recovery of prejudgment interest. 

            Plaintiffs maintain they are entitled recover the remaining costs.  Plaintiff argues the costs were reasonable and necessary and supported by documentation provided in opposition. 

            In reply, Defendant maintains the disputed items are subject to being stricken as being unnecessary and/or unreasonable.  Defendant maintains the following costs items should be taxed:  (1) Item 1—$1,128; (2) Item 4—Deposition Costs in the amount of $93,100.10; (3) Item 5—Service of Process Costs in the amount of $1,555.24; (4) Item 8—Witness Fees in the amount of $170,241.05; (5) Item 12—Reporter Transcripts in the amount of  $62,441.59; (6) Item 16—Record Transcript Costs in the amount of $62,4541.59; (7) Item 16—T
Record Retrieval in the full amount; (8) Item 16—travel expenses in the full amount or $7,810.26.

(1) Item 1 Filing Fees—DENY

            Motion to tax filing fees is denied.  Filing fees are expressly recoverable under CCP §1033.5(a)(1). 

            The messenger fees included in Item 1 are also recoverable to the extent reasonably necessary and at the court’s discretion per CCP §1033.5(c)(4).  (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132 (messenger fees not allowed where party failed to show charges were reasonable or necessary); Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 858 (messenger costs recoverable because of complexity of legal issues involved, sheer volume of motions and pleadings filed and served, and heavy workload maintained by two attorneys assigned to case which prevented them from filing documents in advance of court deadlines).)  A declaration by counsel attesting to the use of messenger fees relating to trial preparation, filing documents, complying with discovery demands and transportation of exhibits to and from the courtroom is substantial evidence of these charges were reasonably necessary.  (Ladas, supra, 19 Cal.App.4th at 776.)  Counsel submits a declaration attesting to the reasonable necessity of the messenger fees to deliver trial documents and to deliver courtesy copies required by the Court.  (Opposition, Douglass Dec., ¶3.) 

            Per CCP §1033.5(a)(14) allows for recovery of “[f]ees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.”  The Los Angeles Superior Court mandated electronic filing as of 1-2-19.  Plaintiffs’ electronic filing fee costs are therefore recoverable under CCP §1033.5(a)(14). 

(2) Item 4 Deposition costs—DENY

            CCP 1033.5(a)(3)(A) allows for recovery of the costs for “[t]aking, 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. (B) Fees of a certified or registered interpreter for the deposition of a party or witness who does not proficiently speak or understand the English language. (C) Travel expenses to attend depositions.”  Charges to expedite a transcript are permitted within the discretion of the Court when the charge was reasonably necessary to the conduct of litigation. (Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330, 1342.)

            On reply, Defendant limits the request to tax deposition costs to $4,440.78 in fees to expedite six deposition transcripts.  Plaintiffs submit a declaration explaining the need to expedite the deposition transcripts as a result of the pending trial date and the late dates on which certain witnesses were produced.  (Opposition, Douglass Dec., ¶8.)  Trial was set for August 7, 2023, and the fees objected to by Defendants were incurred for deposition within approximately three months of the trial date.  The expedited fees were reasonably necessary.

(3) Item 5 Service of Process Costs—DENY

            Costs for service of process by a public officer, registered process server, or other means” are recoverable under CCP §1033.5(a(4)).  On reply, the only remaining service of process costs in dispute are $368 for service of deposition notices on four witnesses who were never deposed due to scheduling conflicts. The mere fact that they were ultimately not deposed does not establish that their depositions were not reasonably necessary in preparing the case for trial.  (Opposition, Douglass Dec., ¶10.)  The motion to tax is denied as to the service of process costs. 

(4) Item 8 Witness Fees—DENY

            On reply, Defendant continues to maintain $46,555.28 in expert witness fees for Daniel Voss, Anand Shah, MD and Enrique Vega, MD should be stricken as excessive.  Plaintiff’s counsel submits a declaration explaining that Voss was required to review the analysis of Defendant’s three accident reconstruction experts.  (Opposition, Douglass Dec., ¶¶14-15.) 

            Defendant’s initial objection to the fees of Shah and Vega were limited to Plaintiffs’ failure to submit documentation.  Plaintiffs cured this objection by submitted the invoices for all listed experts, including Shah and Vega.  (Opposition, Douglass Dec., Ex. H.) 

            Defendant raises a new objection to Shah and Vega on reply, arguing that their charges were double the charges incurred by Defendant for the same type of expert.  The court will not consider the argument as it was raised for the first time on reply.  Moreover, the mere fact that the fees for Plaintiffs’ experts were approximately double the fees of Defense experts does not alone establish that the costs were not reasonably necessary to the litigation. 

(5) Item 11 Models, Enlargements, Photocopies—DENY

            “Models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.”  (CCP §1033.5(a)(13).) 

            On reply, Defendant no longer objects to these costs.  Defendant’s initial objection based on lack of invoices and supporting documentation was cured by Plaintiffs’ submission of supporting documentation.  (Opposition, Douglass Dec., Ex. I.) 

(6) Item 12 Reporter’s Transcript Costs— GRANT as to $14,462.18

            Plaintiffs agrees to $14,462.18 of the $62,441.59 in transcript costs should be taxed.  On reply, Defendant accepts this concession and does not assert any other objections to Item 12.

(7) Item 16 Other Costs—GRANT as to $742,788.91

            Attorney’s fees and record retrieval.  Plaintiffs agree that (1) attorney’s fees in the amount of $720,890 and (2) $3,010 in records retrieval costs should be taxed. 

            Prejudgment interest.  Plaintiffs also agree that the prejudgment interest should be stricken without prejudice to Plaintiffs filing a separate motion for prejudgment interest.  Defendant’s motion to strike the prejudgment interest from the memo of costs is granted on grounds that prejudgment interest per CCP §998 should not be included as a cost item per CCP §998 but pursuant to noticed motion. 

            Travel, Food and Lodging Costs.  “The only travel expenses authorized by section 1033.5 are those to attend depositions. (§ 1033.5, subd. (a)(3).) Routine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation.”  Ladas, supra, 19 Cal.App.4th at 775–776; see also Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 72.  CCP 1033.5(a)(3) “clearly contemplates recovery of travel costs incurred by counsel to attend depositions.  By negative implication, this statute does not provide for recovery of local travel expenses by attorneys and other firm employees unrelated to attending depositions nor does it allow recovery for meals eaten while attending local depositions.”  (Gorman, supra, 178 Cal.App.4^th at 73.) 

            On its face, Defendant’s request for meal costs incurred during the course of the litigation are not recoverable as “reasonably necessary to the conduct of the litigation.”  Counsel was required to eat lunch and dinner regardless of the litigation and eating at restaurants nearby was merely convenient.  Likewise, Defendant’s local travel expenses unrelated to depositions, including parking fees and mileage/parking fees for attorneys and paralegals are not recoverable per Ladas and Gorman. 

            Defendant moved to tax Plaintiffs’ travel, food and lodging costs.  Defendant asks that the Court either tax these costs in their entirety or limit Plaintiffs recovery to $4,750 for lodging, $1368 for food, $1,365.81 for travel and $326.54 for parking. 

            Plaintiffs fail to establish that they are entitled to recover these costs under CCP §1033.5(a)(4) as reasonably necessary at the Court’s discretion.  Defendant’s motion to tax is granted as to Item 16 for Lodging, Trial Related Travel and Conference Room during Trial in the amount of $18,888.91. 

Based on the foregoing, Defendant’s motion to tax costs is GRANTED in the amount of $757,251.09 and DENIED as to all other amounts. 

It is so ordered.

Dated: March 19, 2024

_______________________

ROLF M. TREU

Judge of the Superior Court