Judge: Melvin D. Sandvig, Case: 21STCV18579, Date: 2025-04-16 Tentative Ruling

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Case Number: 21STCV18579    Hearing Date: April 16, 2025    Dept: F47

Dept. F47

Date: 4/16/25

Case #21STCV18579

MOTION TO STRIKE AND/OR TAX COSTS

Motion filed on 11/5/24.

MOVING PARTY: Plaintiff Valeria Segoviano Hernandez

RESPONDING PARTY: Defendants The Clorox Company and Walmart Inc.

NOTICE: ok

RELIEF REQUESTED: An order striking the entire Memorandum of Costs filed by Defendants The Clorox Company and Walmart Inc., or in the alternative, striking items from the Memorandum of Costs and taxing them.

RULING: The request to strike the entire Memorandum of Costs is denied.  The request to tax certain items in the Memorandum of Costs is granted, in part, and denied, in part. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of an incident that occurred on 5/25/20 at a Walmart located in Stevenson Ranch, California.  On that date at the Walmart, Plaintiff Valeria Segoviano Hernandez  (Plaintiff) grabbed a bottle of Clorox bleach from the top shelf.  Plaintiff claims that the cap on the bottle was not secured causing it to spill all over her arm causing her injury and permanent scarring. 

Plaintiff’s case went to trial on her Third Amended Complaint against Defendant Walmart Inc. (Walmart) and Defendant The Clorox Company (Clorox) (collectively, Defendants) which contained causes of action for: (1) Strict Liability – Design Defect (against Walmart, Clorox and Does 1-25), (2) Negligence – Failure to Recall (against Clorox and Does 1-25) and (3) Negligence (against Clorox, Walmart and Does 1-25).  On 10/4/24, a jury returned a verdict in favor of Defendants.  (See 10/4/24 Judgment on Special Verdict).  On 10/18/24, Defendants filed and served their Memorandum of Costs which totals $204,144.90.

On 11/5/24, Plaintiff filed and served the instant motion seeking an order striking the entire Memorandum of Costs filed by Defendants The Clorox Company and Walmart Inc., or in the alternative, striking items from the Memorandum of Costs and taxing them.  Defendants have opposed the motion and Plaintiff has filed a reply to the opposition.   

ANALYSIS

Legal Standard

“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).  Costs recoverable by a prevailing party in a civil action include, but are not limited to filing and motion fees; service of process fees; court reporter fees; deposition costs; witness fees; models, blowups and photocopies of exhibits; court interpreter fees; electronic filing fees.  See CCP 1033.5(a).  Items not specifically mentioned as being recoverable or not recoverable may be allowed or denied in the court’s discretion.  See CCP 1033.5(a), (b), (c)(4).  Allowable costs 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.  CCP 1033.5(c)(2), (3).

If items appear to be proper charges, a verified memorandum of costs is prima facie evidence that the costs listed were necessarily incurred by the defendant, and the burden of establishing that an item is not properly chargeable or is unreasonable falls on the party challenging the cost.  Nelson (1999) 72 CA4th 111, 131; Berkeley Cement, Inc. (2019) 30 CA5th 1133, 1141; See also Ladas (1993) 19 CA4th 761, 774.  If items are properly objected to, they are put in issue and the burden of proof is on the party claiming the costs.  Nelson, supra; Ladas, supra.  In ruling on a motion to strike/tax costs, the court must first determine whether CCP 1033.5 expressly allows the challenged item and whether it appears proper on its face.  See Nelson, supra; Ladas, supra.   

Request to Strike Entire Memorandum of Costs

Plaintiff’s request to strike Defendants’ entire memorandum of costs because of her poor financial situation is not supported by statute or case law.  As noted above, pursuant to California statute, Defendants as the prevailing party in this action are entitled to recover certain costs.  CCP 1032(b); CCP 1033.5(a); Nelson (1999) 72 CA4th 111, 129; Crib Retaining Walls, Inc. (1996) 47 CA4th 886, 890.  Even the authority relied on by Plaintiff, LAOSD Asbestos Cases (2018) 25 CA5th 1116, does not support her position as the court actually stated that it was not aware of any authority that held that the language of CCP 1033.5 allowing costs that are “reasonable in amount” and “reasonably necessary to the conduct of the litigation” to mean that the court has the authority to analyze whether the costs are reasonable based on the losing party’s ability to pay.  See LAOSD Asbestos Cases, supra at 1124-1125.

As such, Plaintiff’s request to strike Defendant’s entire Memorandum of Costs is denied. 

Request to Strike/Tax Certain Items of Costs

Item 1 – Filing and Motion Fees.  Plaintiff seeks to strike/tax: the $519.15 claimed by Clorox for the 7/16/24 Application to be Admitted Pro Hac Vice, the $77.15 claimed for the 11/8/23 Ex Parte Application to Continue Trial and the $75.00 claimed for an 11/15/23 Ex Parte Application. 

The Court finds that the costs incurred with regard to the 7/16/24 Application to be Admitted Pro Hac Vice and the 11/8/23 Ex Parte Application are recoverable and were reasonably necessary to the conduct of the litigation, rather than merely convenient.  CCP 1033.5(a)(1), (c)(2).  Due to Defendants’ lead co-counsel’s unavailability for the trial date due to her pregnancy and Plaintiff’s unwillingness to continue the trial date, the Court finds that it was reasonably necessary for Defendants to bring on an additional attorney.  Similarly, the 11/8/23 Ex Parte Application to Continue Trial was reasonably necessary considering the status of the case at the time – Plaintiff’s filing of a Second Amended Complaint, propounding discovery – within 3 months of the then trial date.    

The opposition concedes that the $75.00 for an 11/15/23 Ex Parte Application was mistakenly included and should be stricken.  (See Opposition, p.8:1-4).  As such, Item 1 is taxed in the amount of $75.

Item 4 – Deposition Costs. A prevailing party is entitled to recover costs for the: “(A) 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.  (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.”  CCP 1033.5(a)(3). 

In the face of Defendants’ verified cost bill, the Court finds that Plaintiff has failed to meet her burden of establishing that the majority of Defendants’ claimed deposition costs are not properly chargeable or are unreasonable.  See Nelson, supra at 131; Berkley Cement, Inc., supra at 1141; Ladas, supra.  Plaintiff has failed to support her claim that Defendants engaged in an improper “shotgun approach” to taking depositions.  The fact that certain of the deponents were not called as witnesses does not mean that the costs were not reasonably necessary.  As pointed out in the opposition, and not refuted in the reply, many of those witnesses’ depositions were noticed by Plaintiff forcing Defendants to incur the claimed costs.  Plaintiff’s general argument that this item should be taxed because Defendants’ “request is not supported by any evidence to demonstrate the actual costs incurred” is also without merit because there is “no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum.”  (See Motion, p.11:28-p.12:2); Jones 63 CA4th 1267.

However, the Court finds that Plaintiff’s motion is sufficient to place certain charges for unidentified depositions at issue.  Clorox claims $1,290.15 for Veritext – Deposition Transcripts and $1,810.00 for Veritext Video Services on 3/12/24, $6,435.80 for Veritext – Deposition/Transcripts on 8/28/24 and $1,090.30 for Steno Deposition Transcripts on 9/3/24.  Walmart claims $846.20 for Veritext Legal Support Transcripts on 3/12/24, $613.00 for Veritext Legal Support, Video Digitizing & Transcript Synchronization on 3/11/24 and $541.90 for Legal Support Services (Transcripts) on 4/11/24).  It cannot be discerned from the cost bill which depositions these charges relate to and/or whether they are duplicative of the other specific deposition charges in the Item.  The Judicial Council form worksheet provides a space for the name of the deponent to support claimed deposition costs which Defendants have not done with regard to the foregoing charges.  (See Memorandum of Costs Worksheet).  Defendants fail to provide any further explanation regarding such charges in the opposition.  As such, the Court finds that Defendants have failed to meet their shifted burden and strikes the foregoing costs.

As such, Item 4 is taxed in the amount of $12,627.35. 

Item 5 – Service of Process. Service of process charges are recoverable.  CCP 1033.5(a)(4). With regard to service of process charges, the Judicial Council Worksheet form provides a space for the claimant to set forth the name of the person served.  With regard to 18 service of process charges claimed by Clorox, Defendants have merely indicated “To be identified.”  Even if the verified cost bill is sufficient to meet Defendants initial burden, the Court finds that Plaintiffs have properly objected to the item shifting the burden to Defendants to offer further evidence in support of the charges.  Defendant has failed to do so.  As such, the Court strikes the $3,791.45 claimed for these unidentified persons who were purportedly served. 

On the other hand, with regard to Walmart’s claimed service of process charges, the Court finds that Defendants’ verified cost bill which identifies the specific person and/or entity served to be sufficient to shift the burden to Plaintiffs to establish the costs are not properly chargeable or unreasonable.  Plaintiff has failed to adequately support her conclusory claim that such costs  were “unnecessary, duplicative, or [for] overzealous discovery efforts on the part of Defendant that were not essential to the preparation of its case.”  (See Motion, p.13:11-13).

Based on the foregoing, Item 5 is taxed in the amount of $3,791.45. 

Item 8b – Expert Witness Fees.  While expert witness fees, not ordered by the court, are generally not recoverable, they may be recoverable under CCP 998 under certain circumstances.  CCP 998 provides, in relevant part:

“. . . in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.”

Plaintiff argues that the Court should strike the expert fees because Defendants’ CCP 998 Offers were mere token offers that Defendants could not have reasonably believed Plaintiff would accept.  It has been held that a party making an offer with no genuine expectation of its acceptance should not be permitted to exploit the offer of compromise statute to obtain the benefits of a no-risk offer made solely for the purpose of later recovering substantial expert witness fees.  Melendrez (2015) 240 CA4th 632.  Here, on 7/24/24, Clorox made a $300,000.00 offer to compromise and eight days later revoked that offer.  (Eagan Decl. ¶¶3-4, Ex.2-3).  Then, approximately one week later, Clorox served a new CCP 998 Offer for $100,000.00 and Walmart served a CCP 998 Offer for $50,000.00.  (Eagan Decl. ¶5, Ex.4-5).  Because Defendants did not provide an explanation for the reduced offer, Plaintiff contends that the offers were not made in good faith and represented a mere token which the Court should invalidate.  See Jones (1998) 63 CA4th 1258, 1263; LAOSD, supra at 1126-1127; Covert (2022) 73 CA5th 821, 834.

Since expert witness fees are not generally recoverable, the Court finds that Plaintiff’s motion constitutes a proper objection which shifted the burden to Defendants to substantiate the item.  The Court finds that Defendants’ have met their burden of establishing that the offers to compromise were not mere tokens considering the evidence at the time, the amounts of the offers which included waivers of costs and the ultimate outcome of the case.  See Melendrez, supra at 647; Jones, supra at 1264.  However, Defendants have not met their burden of establishing that the amounts claimed for the expert fees are reasonable and/or were actually incurred.

The motion complains that the fees are “exorbitant” and “that Defendants have not provided any invoices, evidence, or documents to support the billing claimed[;]” therefore, Plaintiff “cannot reasonably evaluate and consider the veracity of such purported charges” and “the Court should bar the recovery of such costs.”  (See Motion, p.14:6-10).  The  opposition does nothing to address this argument.  Defendants provide no evidence (i.e., invoices or other documents) to support the amount of the expert fees claimed.  (See Opposition, generally; Taylor Decl., generally).

Based on the foregoing, the Court finds that the entire amount of expert fees claimed, $114,600.34 should be stricken/taxed.

Item 11 – Court Reporter Fees. A prevailing party is entitled to recover court reporter fees as established by statute.  CCP 1033.5(b)(11).  As such, Defendants’ verified cost memorandum is prima facie evidence that the costs were necessarily incurred by Defendants and Plaintiff has the burden of establishing the item is not properly chargeable or unreasonable.  See Nelson, supra; Ladas, supra. 

With regard to the court reporter fees, Plaintiff only argues that requiring her to pay for this item would constitute an unreasonable financial burden considering her income and injuries.  However, as noted above, the Court has no discretion to consider such factors when determining whether a prevailing party is entitled to recover statutorily permitted costs.  See LAOSD Asbestos Cases, supra at 1124-1125.

Based on the foregoing, the Court finds that Defendants are entitled to recover the full amount of this item. 

Item 12 – Models, Enlargements, and Photocopies of Exhibits.  The prevailing party may recover the costs for models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, if they were reasonably helpful to aid the trier of fact.  CCP 1033.5(a)(13).  Costs for exhibits prepared for, but not ultimately used at trial are recoverable in the court’s discretion.  CCP 1033.5(c)(4); Segal 12 C5th 651, 668; Rojas (2023) 93 CA5th 860, 901.

Based on the opposition argument regarding recovering the costs for exhibits not ultimately used a trial, Defendants seem to concede that they did not use all of the exhibits at trial for which they seek to recover costs.  As such, Plaintiff’s motion properly put this item in issue.  The Court finds that Defendants did not meet their shifted burden on this item.  Defendants merely cite authority which allows the Court discretion to award such costs.  Defendants have not explained which exhibits were used at trial and which were not, and why not.  Additionally, Defendants have not provided any further evidence (i.e., invoices) in support of this item.  (See Opposition, generally; Taylor Decl., generally).

Based on the foregoing, the Court finds that the entirety of Item 12 should be stricken/taxed. 

Item 13 – Interpreter Fees.  A prevailing party is entitled to recover court interpreter fees for a qualified court interpreter authorized by the court for an indigent person represented by a qualified legal services project, as defined in Section 6213 of Business and Professions Code, or pro bono attorney, as defined in Section 8030.4 of the Business and Professions Code.  See CCP 1033.5(a)(12).  Since court interpreter fees are only permitted under the foregoing circumstances, the Court finds that Plaintiff’s motion was sufficient to place this item in issue.    

Defendants have failed to establish that either of the foregoing circumstances, which allow for the recovery of court interpreter fees, apply in this case.  (See Opposition, generally; Taylor Decl., generally).  The worksheet accompanying the cost memorandum shows that Defendants are seeking, in part, to recover costs associated with an interpreter for depositions, not a court interpreter.  Interpreter fees relating to depositions should have been included under Item 4.  See CCP 1033.5(a)(3)(B).  Due to the lack of evidence submitted by Defendants, the Court cannot determine whether some of those fees are duplicative of the fees set forth in Item 4. 

Based on the foregoing, the Court finds that the entirety of Item 13 should be stricken/taxed.    

Item 14 – Fees for electronic filing or service.  A prevailing party may recover fees 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.  CCP 1033.5(a)(14).  Since there is no specific, pre-set amount for such fees and Plaintiff is claiming the fees in this item are excessive, the Court finds that Plaintiff’s motion is a proper objection and sufficient to place the item in issue. 

The Court finds that Defendants have failed to meet their burden of justifying the amounts claimed.  The Los Angeles Superior Court website indicates that there is a $9.45 efiling service provider fee plus 2.75% of any Court filing fee.  Defendants have not explained how the foregoing relates to the charges claimed in their cost memorandum.  Nor have Defendants provided any other evidence to support the charges.

As such, the Court finds that the entirety of Item 14 should be stricken/taxed.

CONCLUSION

The request to strike Defendants’ entire Memorandum of Costs is denied.  The request to strike/tax certain items in Defendants’ Memorandum of Costs is granted, in part, and denied, in part, as set forth below.

Item 1 – Filing and Motion Fees in the amount of $1,765.70 are taxed in the amount of $75.00 leaving $1,690.80 to be recovered by Defendants.

Item 4 – Deposition Costs in the amount of $36,639.33 are taxed in the amount of $12,627.35 leaving $24,011.98 to be recovered by Defendants.

Item 5 – Service of Process in the amount of $6,633.08 is taxed in the amount of $3,791.45 leaving $2,841.63 to be recovered by Defendants.

Item 8b – Expert Witness Fees in the amount of $114,600.34 are taxed in their entirety leaving $0 to be recovered by Defendants.

Item 11 – Court Reporter Fees in the amount of $31,543.98 are NOT taxed in any amount and permitted in their entirety.

Item 12 – Models, Enlargements, Photocopies of Exhibits in the amount of $2,642.39 are taxed in their entirety leaving $0 to be recovered by Defendants.

Item 13 – Interpreter Fees in the amount of $6,103.45 are taxed in their entirety leaving $0 to be recovered by Defendants.

Item 14 – Electronic Filing or Service Fees in the amount of $1,855.41 are taxed in their entirety leaving $0 to be recovered by Defendants.