Judge: Mel Red Recana, Case: 21STCV15082, Date: 2024-04-05 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: 21STCV15082 Hearing Date: April 5, 2024 Dept: 45
Superior Court of California
County of Los Angeles
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JOHN
PLOENSE vs. |
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Department 45 |
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[Tentative] RULING |
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Action Filed: 04/21/21 Judgment
Entered: 8/30/23 |
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Hearing Date: April 5, 2024
Moving
Responding
Motion to Tax Costs
The court has
considered the moving papers. No opposition has been received.
The court GRANTS in part and DENIES in
part Plaintiff’s motion to tax costs. The court taxes Defendant Mueller’s
memorandum of costs in the amount of $5,500. Thus, the court awards Defendant
Mueller costs in the reduced amount of $9,760.71.
Background
On April 21, 2021,
Plaintiff John Ploense (“Plaintiff”) initiated this action against Defendants
Timothy Mueller (“Mueller”) and Abxtract Tattoo LLC, alleging the following
causes of action: (1) negligence; (2) breach of contract; (3) negligence per
se; (4) intentional infliction of emotional distress; and (5) violation of the
Consumer Legal Remedies Act. The complaint alleges that Plaintiff commissioned
Defendant Mueller to provide him with a specific tattoo design on his arm.
However, the quality of the work fell below Plaintiff’s expectations because it
did not resemble the work agreed upon.
On May 12, 2021,
Plaintiff voluntarily dismissed Defendant Abxtract Tattoo LLC from this action.
Trial commenced on
July 19, 2023 and continued through August 1, 2023. A special verdict was
entered on August 1, 2023 in Defendant Mueller’s favor.
On August 30,
2023, judgment was entered in Defendant Mueller’s favor and against
Plaintiff’s, wherein Plaintiff would take nothing.
On September 6,
2023, Defendant Mueller filed his memorandum of costs, seeking to recovery
$15,260.71 in costs.
On September 21,
2023, Plaintiff filed the instant Motion to Tax Costs, seeking to strike
Defendant Mueller’s claimed costs in the amount of $5,718.
On November 9,
2023, the court denied Plaintiff’s Motion for Judgment Notwithstanding the
Verdict and Motion for New Trial.
As of April 2,
2024, no opposition has been filed to the instant Motion to Tax Costs.
In general, the prevailing
party is entitled as a matter of right to recover costs for suit in any action
or proceeding. (Code Civ. Proc. §1032(b); Santisas v. Goodin (1998)
17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999)
20 Cal.4th 1103, 1108.) Assuming the prevailing party requirements
are met, the trial court has no discretion to order each party to bear his or
her own costs of suit. (Michell v. Olick (1996) 49
Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72
Cal.App.4th 111, 129.) The term prevailing party is defined by statute to
include: The party with a net monetary recovery; a defendant who
is dismissed from the action; a defendant where neither plaintiff nor
defendant recovers anything; and a defendant as against those
plaintiffs who do not recover any relief against that defendant. (Code
Civ. Proc. § 1032(a)(4).)
Allowable costs under Code of Civil
Procedure § 1033.5 must be reasonably necessary to the conduct of the
litigation, rather than merely convenient or beneficial to its preparation, and
must be reasonable in amount. An item not specifically allowable
under § 1033.5(a) nor prohibited under subdivision (b) may
nevertheless be recoverable in the discretion of the court if they meet the
above requirements (i.e., reasonably necessary and reasonable in
amount). 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
Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.) Whereas,
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. (Id.) Whether a cost item
was reasonably necessary to the litigation presents a question of fact for the
trial court and its decision is reviewed for abuse of discretion. (Id.)
However, because the right to costs is governed strictly by statute, a court
has no discretion to award costs not statutorily authorized. (Id.)
Discretion is abused only when, in its exercise, the court exceeds the bounds
of reason, all of the circumstances being considered.
Discussion
As a preliminary matter,
there is no dispute that Defendant Mueller is the prevailing party in this
action as Plaintiff did not recover any relief against him. (Code Civ. Proc. §
1032(a)(4).) Therefore, Defendant Mueller is entailed to recover costs. (Code
Civ. Proc. §1032(b).) The court shall now turn to the merits of Plaintiff’s
motion.
A.
Tax
Costs
Plaintiff seeks to
tax the following categories of Defendant Mueller’s memorandum of costs: (1)
item 8a: ordinary witness fees in the amount of $70; (2) item 8b: expert
witness fees in the amount of $5,500; and (3) item 12: photocopies of exhibits
in the amount of $148.63. The court
shall address each category in turn.
i.
Item 8a: Ordinary Witness Fees
Under Code of
Civil Procedure § 1033.5(a)(7), ordinary witness fees are recoverable
costs.
First, Plaintiff
argues that the ordinary witness fees of Ted Hutman, PhD and Alec Koo, M.D.,
totaling $70, should be taxed because these witnesses never testified at trial.
(Motiona t pg. 3.) However, this argument is not persuasive because, even though those witnesses did not testify
during trial, they had been summoned in good faith, and as a result, their per
diems are proper items of costs. (Prichard v. Southern Pacific Co.
(1935) 9 Cal. App. 2d 704, 706.)
Accordingly, the motion to tax costs is
denied as to item 8a.
ii.
Item 8b: Expert Witness Fees
Expert witness fees are only recoverable
when ordered by the court or a party had submitted an offer to compromise
pursuant to Code of Civil Procedure § 998 and obtained a more favorable
judgment. (Code Civ. Proc. §§ 1033.5(a)(8); 998(c)(1).)
Second, Plaintiff contests that expert
witness costs associated with James T. Long, PhD in the amount of $5,000 and
Samuel Cleghorn in the amount of $500 are improper because Mr. Cleghorn neither
appeared at trial nor testified and the court barred Dr. Long from offering
opinions for Defendant. (Motion at pp. 3-4.) More importantly, there is no
indication that the court ordered the recovery of expert fees in this case or
that Defendant Mueller has submitted an offer to compromise pursuant to Code of
Civil Procedure § 998 to Plaintiff.
Accordingly, the court taxes Defendant
Mueller’s claimed expert fees in their entirety.
iii.
Item
12: Photocopies of Exhibits
Lastly, Plaintiff argues that Defendant
Mueller is improperly seeking to recover costs for five sets of trial exhibits
when only three sets were used. (Motion at pg. 4.) Thus, the claimed charge of
$371.57 for all five sets should be reduced to $222.94. (Id.) However,
this argument is not persuasive. Code of Civil Procedure § 1033.5(a)(13) states
“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.” Whether an exhibit is used at trial is not dispositive; the
proper standard is whether the exhibits “were reasonably helpful to aid the
trier of fact.” (County of Riverside v. City of Murrieta (1998) 65
Cal.App.4th 616, 629.) Also, the costs associated with trial binders are
recoverable. (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 59.) Thus,
the cost associated with all five sets of exhibits are recoverable.
Accordingly, the court declines to tax
Defendant Mueller’s claimed costs for photocopies of exhibits.
Conclusion
Based on the
foregoing, the court GRANTS in part and DENIED in part Plaintiff’s motion to
tax costs. Consequently, Defendant Mueller’s memorandum of costs are taxed in
the amount of $5,500. Thus, the court awards Defendant Mueller costs in the reduced
amount of $9,760.71.
It is so ordered.
Dated: April 5, 2024
_________________________
ROLF M. TREU
Judge of the
Superior Court