Judge Michelle C. Kim, Case Number: 19STCV40021, Date: 2023-10-17 Tentative Ruling

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CASSANDRA CADWELL,

Plaintiff(s),

vs.

HEIDI KOUNS, ET AL.,

Defendant(s).

)

CASE NO: 19STCV40021

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTIONS TO TAX COSTS

Dept. 31

1:30 p.m.

October 17, 2023

I. Background

Plaintiff, Cassandra Cadwell (“Plaintiff”), filed this action against Defendants, Heidi Kouns (“Heidi”) and Kathryn Kouns (“Kathryn”) (collectively, “Defendants”) for damages arising from a motor vehicle incident.

On February 15, 2023, Defendants served Plaintiff with an offer to compromise per CCP §998 in the amount of $50,000.

On February 27, 2023, the Court dismissed Defendant Heidi with prejudice.

Plaintiff did not accept the CCP §998 offer, and the case went to trial. On March 2, 2023, the jury found in favor of Plaintiff and awarded Plaintiff $40,000. Plaintiff then filed a memorandum of costs for $22,217.27, wherein Defendants moved to tax said costs. Defendants’ motion was granted, and Plaintiff was awarded costs of $9,417.72. On June 23, 2023, the Court signed the amended judgment to add $9,417.72 to the jury award of $40,000.

On June 27, 2023, the Clerk mailed notice of entry of judgment to counsel for Plaintiff and Defendants.

On July 11, 2023, Defendants filed a Memorandum of Costs seeking total costs of $33,554.66.

Plaintiff moves to tax memorandum of costs. Defendants oppose the motion, and Plaintiff filed a reply.

II. Motion to Tax Costs

Timeliness of Motion

“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 electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (Cal. Rules of Court, Rule 3.1700(b)(1).) The Clerk mailed notice of entry of judgment on June 27, 2023, and Defendants filed their memorandum of costs on July 11, 2023. Defendants’ motion is therefore timely.

Legal Standard

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP, §1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.)

Allowable costs under CCP Section 1033.5 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. An item not specifically allowable under Section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). If 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. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.) 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. (Ibid.) 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. (Ibid.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.) Discretion is abused only when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.)

Furthermore, whether or not an item is “reasonably necessary” is not the same as “merely convenient of beneficial to its preparation.” (Ladas, supra, 19 Cal.App.4th at 774.) Once proper objections are asserted, the burden of proof rests with the party seeking to recover its costs. (Ibid.) When items are properly challenged by a motion to tax costs and do not appear on their face to be proper and necessary, or if necessity is doubtful, the burden of establishing necessity is on the party claiming those items of costs. (Ibid.) “[T]he 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. [Citation.] However, ‘[i]f the items 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 defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].’ [Citations.]” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

III. Discussion

If a plaintiff rejects a defendant’s settlement offer under Code of Civil Procedure section 998 and the plaintiff fails to obtain a more favorable judgment, the plaintiff may not recover his post-offer costs and must pay the defendant’s costs from the time of the offer. (Code Civ. Proc., § 998, subd. (c)(1).) The court may also award the defendant his reasonable costs for expert witnesses. (Ibid.)

Plaintiff moves to tax costs on Item 2 (Jury Fees), Item 8 (Costs), and Item 11 (Court Reporter Fees).

Item 2 (Jury Fees)

Plaintiff contends the request for jury fees of $778.81 is not an allowable item because it is not a reasonable amount and not reasonably necessary to the conduct of litigation. In opposition, Defendants argue Plaintiff did not meet her burden of proof that the cost was improper, and that jury fees were necessarily incurred after February 15, 2023, when the CCP 998 Offer to Compromise was served.

CCP Section 1033.5(a)(1) provides that “filing, motion, and jury fees” are allowable as costs under Section 1032. Further, evidence is generally required in order to support an objection, and the mere submission of conclusions or bare allegations typically does not justify taxing costs. (See County of Kern v. Ginn (1983) 146 Cal.App.3d 1107) (bare allegation that depositions were neither necessary nor reasonable insufficient to overcome right to costs).

“[T]he verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285.) Evidence is generally required in order to support an objection, and the mere submission of conclusions or bare allegations typically does not justify taxing costs. (See County of Kern v. Ginn (1983) 146 Cal.App.3d 1107) (bare allegation that depositions were neither necessary nor reasonable insufficient to overcome right to costs). Allegations are sufficient, however, if they depend upon undisputed facts where nothing more needed to be, or could have been, added by additional declarations or affidavits. (Fennessy v. Deleuw-Cather Corp. (1990) 218 Cal.App.3d 1192, 1196.)

Plaintiff fails to meet her burden to challenge Defendants’ costs, as she challenges the cost in a conclusory fashion. Accordingly, Plaintiff’s request to tax jury fees is DENIED.

Item 8 (Costs)

Plaintiff contends that any expert fees and witness costs should be excluded if they occurred before February 14, 2023, because Defendants served their 998 Offer to Compromise on February 15, 2023. Plaintiff contends Defendants are only entitled to post-offer costs.

Defendants do not argue that they are limited to post-offer costs, and aver that Plaintiff’s assumption that Defendants’ expert costs may have been incurred before February 15, 2023 is incorrect. Defendants declare that the expert costs claimed in Item 8 are already limited to costs incurred after service of Defendants’ 998 offer. Plaintiff’s argument that expert fees should still be taxed just because Defendants retained experts before February 2023, even though the experts were paid after trial, is not persuasive. Furthermore, the Court will not consider new arguments raised in the reply, such as the unsupported contentions that the 998 offer was made in bad faith.

Accordingly, Plaintiff’s request to tax witness fees is DENIED.

Item 11 (Court Reporter Fees)

For the same reasons as provided for jury fees, Plaintiff’s argument that the court reporter fees are in an unreasonable amount, and that the court reporters were not for the purpose of aiding in litigation, does not overcome the prima facie presumption that the memorandum of costs is proper. Defendants aver that Plaintiff had stipulated to use of a court reporter, and the fee paid to the court reporter was for appearing and recording court proceedings for each day of trial. Plaintiff’s conclusory allegations, without more, does not justify taxing court reporter fee costs.

Accordingly, Plaintiff’s request to tax court reporter fees is DENIED.

Moving party is ordered to give notice.

PLEASE TAKE NOTICE:

Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿
Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿
If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿

Dated this 16th day of October 2023


	Hon. Michelle C. Kim Judge of the Superior Court