Judge: Michael Shultz, Case: 22CMCV00347, Date: 2023-08-08 Tentative Ruling

Case Number: 22CMCV00347    Hearing Date: January 11, 2024    Dept: A

22CMCV00347 Kimberly King, et al v. Venice Family Clinic, et al.

[TENTATIVE] ORDER DENYING  PLAINTIFFS’ MOTION TO TAX COSTS

       The Third Amended Complaint (“TAC”) alleges that Defendants vaccinated Plaintiff’s daughter, Bella King-Harvey, against COVID-19 without King’s permission. Plaintiffs alleged 14 causes of action for negligence, intentional infliction of emotional distress, fraudulent concealment, failure to obtain informed consent, and other tort and statutory violations.

       On August 11, 2023, the Court entered judgment in favor of Defendants after sustaining Defendants’ demurrers without leave to amend.  On September 5, 2023, Defendants filed their memorandum to recover costs of $3,079.31, consisting of filing and jury fees.

       Plaintiffs move to strike certain filing fees for documents that Plaintiffs contend were not necessary or were never incurred. Defendants did not file an opposition by November 13, 2023 (nine court days before the hearing). (Code Civ. Proc., § 1005 (b).)

       On November 28, 2023, the Court continued the hearing to permit Plaintiffs to serve the motion again at defense counsel’s correct address. The Court has considered the supplemental declaration of Vincent Unuorakpor confirming that the motion was served at an e-mail address confirmed by defense counsel. No opposition has been filed.

       As the parties in whose favor dismissal was entered, Defendants are the prevailing parties and are entitled to recover costs as a matter of right. (Code Civ. Proc., § 1032, subd. (b).) Section 1032 of the Code of Civil Procedure “is the fundamental statutory authority for awarding costs in civil actions.” (Leiper v. Gallegos (2021) 69 Cal.App.5th 284, 297.) Section 1033.5 “is a list of what is, and is not, allowable as a cost, [and] similarly is trial-court-oriented, with items exclusively related to trial court proceedings (e.g., references to jury fees, taking depositions, process servers, etc.).” (Stratton v. Beck (2018) 30 Cal.App.5th 901, 910.)”

       However, items not expressly mentioned as a recoverable cost "and items assessed upon application may be allowed or denied in the court's discretion, subject to the limitation that costs allowed “shall be reasonably necessary to the conduct of the litigation.” (Code Civ. Proc., § 1033.5, subd., (b)(4), 5.) Accordingly, broad discretion is conferred on the trial court to determine whether costs should be allowed.

DISCUSSION

Item 1.c. Declaration in Support of Automatic Extension: $57.20 and $44.15

       Plaintiffs contend that Defendants unnecessarily filed more than one declaration in support of an automatic 30-day extension to respond to a pleading, while only one was necessary. However, Defendants were required to file the declarations affirming their efforts to meet and confer prior to filing a demurrer or motion to strike a pleading or amended pleading. (Code Civ. Proc., § 430.41, Code Civ. Proc., § 435.5.)

       Thus, defense counsel filed the required declaration on November 9, 2022, prior to demurring to the complaint on behalf of Venice Family Clinic (“Clinic”); on July 3, 2023, two declarations on behalf of Defendant Mendez prior to filing the demurrer and motion to strike the third amended complaint; and on July 11, 2023, two declarations on behalf of the Clinic prior to its demurrer to Plaintiff’s third amended complaint and motion to strike. As the declarations were statutorily required, the request to strike this item is DENIED.

Item 1.c. Attachment 1g. Motion for Summary Judgment reservation $413.75

       Plaintiffs contend that Defendants did not file a Motion for Summary Judgment, therefore, this was an unnecessary cost. Defendants incur filing fees at the time a motion is reserved. Filing fees are expressly recoverable, and reasonably necessary to the conduct of the litigation if Defendants intended to preserve their right to timely file a dispositive motion pursuant to Code Civ. Proc., § 437c. Code Civ. Proc., § 1032(a).

       Plaintiffs do not cite any authority for the proposition that filing fees are recoverable only if the motion was actually heard. The cost memorandum is prima facie evidence of the propriety of costs. It is the opposing party’s burden to demonstrate the costs are unreasonable or unnecessary. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) Accordingly, this item is recoverable.

       Based on the foregoing, Plaintiffs’ motion to tax costs is DENIED.