Judge: Michael E. Whitaker, Case: 19STCV46595, Date: 2022-12-13 Tentative Ruling

Case Number: 19STCV46595    Hearing Date: December 13, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Defendant Davi Dardon (Defendant) prevailed against Plaintiff Brownie Sibrian (Plaintiff) in trial in which the jury found Defendant was not negligent.  Defendant filed a memorandum of costs on September 7, 2022.  Plaintiff moves to tax Defendant’s claimed costs for the second deposition of expert witness, Dr. Kilroy.  

ANALYSIS

Code of Civil Procedure section 1033.5, subdivision (a) sets forth items that are allowable as costs.  Allowable costs under Section 1033.5 must be “reasonably necessary to the conduct of this litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5, subds. (c)(2)-(3).)  “Items not mentioned in [Section 1033.5] and items assessed upon application may be allowed or denied in the court’s discretion.” (Id., subd. (c)(4).)

On a motion to tax, “[i]f 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. On the other hand, 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.  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.  However, because the right to costs is governed strictly by statute a court has no discretion to award costs not statutorily authorized.”  (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774, internal citations omitted.)  “The court’s first determination, therefore, is whether the statute expressly allows the item, and whether it appears proper on its face.  If so, the burden is on the objecting party to show them to be unnecessary or unreasonable.”  (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, internal citations omitted.)  The objecting party 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.  (Litt v. Eisenhower Med. Ctr. (2015) 237 Cal.App.4th 1217, 1224; Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.)

As Plaintiff did not “recover any relief against” Defendant, Defendant is the prevailing party in this action.  (Code Civ. Proc., § 1032, subd. (a)(4).)  Defendant is therefore entitled to recover its costs.

Plaintiff objects to Defendant’s claimed costs of $550.65 for the second deposition of Dr. Kilroy on the grounds that Defendant was ordered to pay for Dr. Kilroy’s second deposition due to a lack of their own diligence in defending the case. 

In opposition, Defendant does not contest the fact that he was ordered to pay the costs of Dr. Kilroy’s second deposition and clarifies that he is not seeking any costs related to Dr. Kilroy’s second deposition session but rather is seeking the cost for the transcript of Dr. Kilroy’s first deposition taken by Plaintiff’s counsel on April 27, 2022.  Defendant advances a copy of the billing statement paid for the costs for the transcript of Dr. Kilroy’s April 27, 2022 deposition which reflect a cost of $550.65, the same amount requested in Defendant’s memorandum of costs.  (See Declaration of Darrell J. Chun, Exhibit 1.)  Defendant’s recovery of claimed costs for taking, video recording, and transcribing necessary depositions are permitted by Section 1033.5.  (Code Civ. Proc., § 1033.5, subd. (a)(3)(A).) 

Further, Defendant’s claimed cost for the deposition of Robert Kilroy appears to the Court to be proper on its face.  Thus, the burden falls upon Plaintiff to present evidence showing the cost to be unnecessary or unreasonable.  Plaintiff has not proffered any arguments or evidence to suggest that the cost of the initial deposition transcript of Dr. Kilroy to be unnecessary or unreasonable. 

CONCLUSION AND ORDER

Plaintiff’s objection to Defendant’s claimed cost for the initial deposition transcript of Dr. Kilroy in the amount of $550.65 is unfounded.  Consequently, the Court denies Plaintiff’s motion to tax costs. 

Plaintiff shall provide notice of the Court’s ruling and file proof of service of such.