Judge: Melvin D. Sandvig, Case: 21STCV04128, Date: 2023-02-03 Tentative Ruling

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Case Number: 21STCV04128    Hearing Date: February 3, 2023    Dept: F47

Dept. F47

Date: 2/3/23

Case #21STCV04128

 

MOTION TO TAX COSTS

 

Motion filed on 11/4/22.

 

MOVING PARTY: Plaintiff Orlee Bakhshizandeh

RESPONDING PARTY: Defendant Crown Castle Fiber LLC (erroneously sued as Crown Castle USA, Inc. and Crown Castle Fiber Holdings Corp.)

NOTICE: ok

 

RELIEF REQUESTED: An order striking Defendant Crown Castle Fiber LLC’s Memorandum of Costs, or in the alternative, taxing costs pursuant to CRC 870(b)(1)*. 

 

*CRC 870 no longer exists and has been replaced by CRC 3.1700.

 

RULING: The request to strike Defendant’s Memorandum of Costs is denied.  The request to tax costs is granted, in part, and denied, in part, as set forth below.     

 

FACTUAL SUMMARY & RELEVANT PROCEDURAL HISTORY

 

This action arose out of a trip and fall incident.  On 8/18/22, the Court granted Defendant Crown Castle Fiber, LLC’s (erroneously sued as Crown Castle USA, Inc. and Crown Castle Fiber Holdings Corp.) (Defendant) motion for summary judgment.  (See 8/18/22 Minute Order).  On 10/3/22, the Court entered judgment in favor of Defendant.  (See 10/3/22 Judgment).  On 10/18/22, Defendant, as the prevailing party, filed and served its Memorandum of Costs.  On 11/4/22, Plaintiff Orlee Bakhshizandeh (Plaintiff) filed and served the instant motion which seeks an order striking Defendant’s Memorandum of Costs, or in the alternative, taxing costs pursuant to CRC 870(b)(1).  (See Motion, p.1:22-23).  Defendant has opposed the motion. 

 

ANALYSIS

 

The Court notes that Plaintiff incorrectly relies on CRC 870(b) as authority for the motion.  CRC 870 is no longer operative and has been replaced by CRC 3.1700. 

 

With regard to claiming costs in the trial court, CRC 3.1700(a)(1) provides:

 

“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs 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.”

 

Here, Defendant timely filed and served its Memorandum of Costs after judgment was entered in its favor.  (See Memorandum of Costs filed on 10/18/22). 

 

With regard to contesting costs, CRC 3.1700(b)(1) provides:

 

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).”

 

Here, Plaintiff timely filed the instant motion to strike, or in the alternative, tax the costs in Defendant’s memorandum of costs. 

 

A verified memorandum of costs is prima facie evidence that the costs claimed were necessarily incurred without the necessity of attaching copies of bills, invoices, etc. to substantiate such costs.  See Jeffers (1955) 134 CA2d 622, 623; Jones (1998) 63 CA4th 1258, 1267. 

 

On a motion to strike/tax costs, if costs are expressly allowed under CCP 1033.5 and appear proper on their face, the party objecting to the costs has the burden of showing the costs were unnecessary or unreasonable.  See Gorman (2009) 178 CA4th 44, 71; Ladas (1993) 19 CA4th 761, 774; CCP 1033.5(a), (b).  Mere statements in the contesting parties points and authorities accompanying its notice of motion to strike a memorandum of costs and the declaration of its counsel are insufficient to rebut the prima facie showing that the costs were necessarily incurred.  Jones, supra at 1266. 

 

Here, Defendant met its initial burden by filing and serving a verified memorandum of costs.  (See Memorandum of Costs filed on 10/18/22).  While Plaintiff timely filed and served the instant motion, Plaintiff has not submitted a declaration in support of the motion.  Even if the motion, without a supporting declaration, is deemed sufficient to put Defendant’s claimed costs at issue, Plaintiff has failed to establish that certain of the claimed costs are not recoverable and/or were unnecessary or unreasonable. 

 

ITEM 1 – FILING & MOTION FEES:

 

The Court notes that Defendant included the $150.00 jury deposit fee under Item 1, when it should have been included under “Item 2 – Jury Fees.”  However, the mistake is merely clerical and has not prejudiced Plaintiff.

 

Filing, motion and jury fees are expressly allowed as recoverable costs.  CCP 1033.5(a)(1).

 

With regard to the $150.00 jury fee deposit, in the motion Plaintiff merely argues, without citing any authority, that the cost is improper and Defendant should file the necessary paperwork with the Court for the refund of jury fees.  (See Motion, p.3:26-p.4:1).  It is not until the reply, that Plaintiff cites CCP 631.3 which provides in relevant part:

 

“(a) Notwithstanding any other law, when a party to the litigation has deposited jury fees with the judge or clerk and that party waives a jury or obtains a continuance of the trial, or the case is settled, none of the deposit shall be refunded if the court finds there has been insufficient time to notify the jurors that the trial would not proceed at the time set. If the jury fees so deposited are not refunded for any of these reasons, or if a refund of jury fees deposited with the judge or clerk has not been requested, in writing, by the depositing party within 20 business days from the date on which the jury is waived or the action is settled, dismissed, or a continuance thereof granted, the fees shall be transmitted to the Controller for deposit into the Trial Court Trust Fund.” 

 

Even if the foregoing statute had been cited in the moving papers, Plaintiff fails to show that it applies as this case as against Defendant was not settled or dismissed and there is no indication that Defendant waived a jury or obtained a continuance of trial.  Further, Plaintiff provides no authority for the proposition that Defendant must take steps to obtain such a refund as the prevailing party in the action, rather than claim the jury fees as costs. 

 

With regard to the $973.10 claimed for “Answer to Complaint,” Plaintiff merely states that “[i]t is unclear how $973.10 was calculated for the Answer when they simply filed one answer on behalf of two clients.  This amount should be stricken as inaccurate.”  (See Motion, p.3:25-26).  Since the Answer was filed on behalf of Crown Castle USA, Inc. and Crown Castle Fiber Holdings Corp., Defendant was required to pay an appearance fee for each of the defendants/entities.  (See Zwarg Decl., Ex.A, pp.10-17).  However, the evidence provided by Defendant indicates that Defendant was charged $872.25 for the filing of the Answer, not $973.10 as claimed in the memorandum of costs.  As such, $100.85 is taxed from this item.

 

Based on the foregoing, Item 1 is reduced to $1,522.25 ($1,623.10 - $100.85).

 

ITEM 4 – DEPOSTION COSTS:

 

Plaintiff argues that all of the deposition costs claimed should not be recoverable because they were neither necessary nor reasonable.  Additionally, Plaintiff complains that Defendant did not provide any documentary evidence to support the costs.  Defendant has submitted copies of invoices for the deposition transcripts claimed as costs under this item.  (See Zwarg Decl., Ex.A, pp.8, 9, 18-19). 

 

CCP 1033.5(a)(3)(A) provides that costs for the “[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.” 

 

Plaintiff claims without any supporting evidence that her deposition was noticed by the City of Los Angeles, not Defendant.  (See Motion, p.4:11-12).  Even if true, the costs for a transcript of such a deposition is not prohibited under CCP 1033.5(b).  Further, CCP 1033.5(c)(4) provides that “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”  The Court finds that Defendant costs for obtaining a transcript of Plaintiff’s deposition were reasonably necessary and reasonable in amount.  CCP 1033.5(c)(2), (3).  The Court also finds that the costs for the deposition transcripts of Defendant’s PMQs were also reasonably necessary for the conduct of the litigation and reasonable in amount.    

 

Based on the foregoing, Defendant is entitled to recover all of the costs ($1,969.05) claimed in Item 4.

 

ITEM 14 – FEES FOR ELECTRONIC FILING OR SERVICE OF DOCUMENTS THROUGH AN ELECTRONIC FILING SERVICE PROVIDER:

 

CCP 1033.5(a)(14) provides that “[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” are recoverable. 

 

Plaintiff contends that these fees were unnecessary.  Without any supporting evidence or authority, Plaintiff goes on to confusingly state that “any service done by Defendant was to be done electronically at a minimum cost through LASC. Defendant is attempting to dip into every jar. They are attempting to have their filing fees reimbursed and attorney fees to have a company file (and seemingly two documents). The costs should be no more than $13 dollars. It is unclear what these amounts are for in this instance as there is basis for attorney’s fees or convenience to an attorney under this category.”  (See Motion, p.4:25-p.5:3). 

 

In the opposition, Defendant notes that such costs are recoverable under CCP 1033.5(a)(14).  Defendant then contends that the mandatory e-filing service provider’s charges to Defendant for all filings in this case are documented in Exhibit A to the Zwarg declaration.  (See Opposition, p.6:11-14).  The only “documentation” which is seemingly offered in support of these costs is the first page of Exhibit A to the Zwarg declaration.  (See Zwarg Decl., Ex.A, p.4).  However, the documentation is merely an email from “Lex Wyatt” which includes an “updated breakdown of costs on this matter.”  It is not clear who Lex Wyatt is or exactly which of the costs in the breakdown are attributable to electronic filing and/or service fees.  If it is the costs designated as “Filing Service Fees,” such costs total only $560.45, not the $1,196.10 claimed for this item.  Since the Court cannot determine which costs Defendant is attempting to recover under this item and since no invoices from the electronic filing servicer provider have been submitted to substantiate such costs, this item is taxed in its entirety.   

 

Based on the foregoing, Item 14 is reduced to $0.

 

CONCLUSION

 

Based on the foregoing, Defendant is entitled to recover a total of $3,491.30.