Judge: Melissa R. Mccormick, Case: Takai v. FCA US LLC, Date: 2022-08-04 Tentative Ruling
Plaintiff Jeffrey K. Takai’s Motion to Tax Costs
Plaintiff Jeffrey K. Takai moves to tax costs claimed by defendant Mike Thompson Recreational Vehicles (MTRV). For the following reasons, Takai’s motion is denied.
A prevailing party is usually entitled as a matter of right to recover costs in any action or proceeding. Cal. Civ. Proc. Code § 1032(b). If the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-74. The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557; see also Wagner Farms, 145 Cal.App.4th at 777-78. If the claimed items are not expressly allowed by statute and are objected to by a motion to strike or tax costs, the burden of proof is on the party claiming them as costs to show that the charges were reasonable and necessary. Foothill-De Anza Comm. College Dist., 158 Cal.App.4th at 29. Whether a cost item was reasonably necessary to the litigation is a question of fact for the court to determine. Id. at 29-30.
The parties dispute whether Takai or MTRV bears the burden of demonstrating whether particular cost items should be awarded. As noted above, if the items on a verified costs memorandum appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. Foothill-De Anza Comm. College Dist., 158 Cal.App.4th at 29. If an item claimed on a costs memorandum appears from the face of the memorandum to have been unnecessary or otherwise appears improper, the filing of a motion to tax costs shifts the burden to the party claiming the costs to prove the necessity and reasonableness of the costs. Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131. In that case, “the 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.” Id. (citation omitted). If the items claimed in a verified memorandum 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 [claiming party] [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” Id. (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. Id. If so, the burden is on the objecting party to show the item to be unnecessary or unreasonable. Id.
MTRV claims $2,195 in filing and motion fees and $150 in jury fees. California Civil Procedure Code § 1033.5(a)(1) allows reimbursement for filing, motion, and jury fees. Cal. Civ. Proc. Code § 1033.5(a)(1). Takai bears the burden of showing that the claimed filing, motion, and jury fees were unnecessary or unreasonable. As noted above, the party challenging costs does not meet its burden by arguing that the costs were not necessary or reasonable; the objecting party must present evidence and prove that the costs are not recoverable. Seever, 141 Cal.App.4th at 1557; see also Wagner Farms, 145 Cal.App.4th at 777-78. Takai has not presented evidence demonstrating that these costs are not recoverable or were unnecessary. Moreover, MTRV has submitted evidence substantiating these costs. Mann Decl. ¶¶ 3-9 & Exs. 2-9. Takai’s motion to tax $2,195 in filing and motion fees and $150 in jury fees is denied.
MTRV claims $2,645.50 in deposition costs. Section 1033.5(a)(3)(A) allows reimbursement for 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. Cal. Civ. Proc. Code § 1033.5(a)(3(A). Takai has not presented evidence demonstrating that these costs are not recoverable or were unnecessary. Moreover, MTRV has submitted evidence substantiating these costs. Mann Decl. ¶¶ 10-12 & Exs. 10-14. Plaintiff’s motion to tax $2,645.00 in deposition costs is denied.
MTRV claims $10,191 in expert witness fees consisting of 33.7 hours of expert time at $300 per hour (33.7 * $300 = $10,110) plus $81 in mileage reimbursement ($10,110 + $81 = $10,191). The claimed expert fees are for work performed by MTRV’s expert Michael Stapleford.
MTRV served plaintiff with a section 998 offer to compromise on February 3, 2021. Mann Decl. ¶ 13 & Ex. 15. MTRV offered to pay Takai $7,501 in exchange for Takai’s dismissal of his claims against MTRV. Id. Ex. 15. Takai did not accept MTRV’s section 998. MTRV prevailed at trial. If a defendant’s section 998 offer is not accepted and the plaintiff fails to obtain a more favorable judgment, the trial court may in its discretion require the plaintiff to pay a reasonable amount to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in the preparation for trial or during trial of the case by the defendant. Cal. Civ. Proc. Code § 998(c)(1).
All of MTRV’s claimed expert witness fees postdate MTRV’s February 3, 2021 section 998 offer. See Mann Decl. Ex. 16. MTRV’s expert testified at trial. Indeed, MTRV’s expert was the only expert witness who testified at trial, and was one of three trial witnesses. MTRV’s expert was certainly “reasonably necessary” during trial of the case by MTRV. The court has reviewed the invoices and other evidence MTRV submitted regarding the claimed expert expenses. See Mann Decl. ¶ 14 & Ex. 16. The court finds the amounts claimed were actually incurred and are reasonable for the services provided by this type of expert witness. Takai’s motion to tax $10,191 in expert witness fees is denied.
MTRV claims $27,559 in court reporter fees for a summary judgment hearing and the trial. Section 1033.5(a)(11) allows reimbursement for court reporter fees as established by statute. Cal. Civ. Proc. Code § 1033.5(a)(11). Fees for transcripts of court proceedings not ordered by the court are not allowed. Id. § 1033.5(b)(5). None of the claimed court reporter fees is for transcripts. Mann Decl. ¶ 15. Government Code § 68086(d)(2) provides that if an official court reporter is not available, a party may arrange for, at the party's expense, the presence of a certified shorthand reporter to serve as an official pro tempore reporter. “The fees and charges of the certified shorthand reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law.” Id.; see also Cal. Rule of Court 2.956(c)(1). Takai has not presented evidence demonstrating that these costs are not recoverable or were unnecessary. Moreover, MTRV has submitted evidence substantiating these costs. Mann Decl. ¶ 15 & Ex. 17. Takai’s motion to tax $27,559 in court reporter fees is denied.
MTRV claims $926.50 in fees for electronic filing or service fees. Pursuant California Civil Procedure Code § 1033.5, “[f]ees for the electronic filing or service of documents through an electronic filing service provider” may be awarded if a court requires or orders electronic filing or service of documents. Id. § 1033.5(a)(14). Orange County Superior Court requires electronic filing of documents in civil actions. See, e.g., Cal. Civ. Proc. Code §1010.6; Cal. R. Ct. 2.253(b)(2); Orange County Superior Court L.R. 352. Takai has not presented evidence demonstrating that these costs are not recoverable or were unnecessary. Moreover, MTRV has submitted evidence substantiating these costs. Mann Decl. ¶ 16 & Exs. 3, 4, 5, 6, 7, 9 & 18. Takai’s motion to tax $926.50 in electronic filing or service fees is denied.
MTRV to give notice.