Judge: Michelle C. Kim, Case: BC720451, Date: 2024-09-05 Tentative Ruling

Case Number: BC720451    Hearing Date: September 5, 2024    Dept: 78

 

Superior Court of California 

County of Los Angeles 

Department 78 

¿ 

JASON P. RUBIN, Trustee etc., 

Plaintiff(s), 

vs. 

WARREN J. KESSLER, individually and as Trustee, et al., 

Defendant(s). 

Case No.: 

BC720451 

Hearing Date: 

September 5, 2024 

 

 

[TENTATIVE] ORDER GRANTING IN PART MOTION TO TAX COsts 

 

I. BACKGROUND 

Plaintiff Jason P. Rubin, Trustee of The Jason P. Rubin Revocable Trust, dated February 7 ,2014 (“Plaintiff”) filed this action against defendants, Warren J. Kessler, et al. alleging causes of action for an injunction and damages for interference with an easement and nuisance.   

On April 15, 2024, the court issued a tentative decision, in which it found in favor of Plaintiff as to the causes of action for interference with easement and nuisance, but that Plaintiff suffered nominal damages of $1 pursuant to California Civil Code Section 3360. The court found in favor of Plaintiff with respect to the breach of contract cause of action, finding that $768,000 was a reasonable amount of attorney’s fees apportioned to cover fees incurred as a result of defendants’ breaches of the settlement agreement. Lastly, the court found a basis for a permanent injunction against Joan and Warren Kessler, individually and as trustees of the Kessler Family Trust of 1990 and their successors in interest. (Min. Order, April 15, 2024.) 

On May 20, 2024, the court adopted the proposed statement of decision issued on April 14, 2024, and entered judgment in Plaintiff’s favor. 

On June 4, 2024, Plaintiff filed and served his Memorandum of Costs seeking total costs of $145,207.15. 

On June 21, 2024, defendants Joan Kessler and Warren Kessler ("Defendants") filed a motion to tax the Memorandum of Costs as to Item 4 (Deposition Costs), Item 12 (Models, Enlargements, and Photocopies of Exhibits, and Item 16 (Other). 

On August 21, 2024, Plaintiff filed his opposition and provided a revised Memorandum of Costs reducing the total costs to $140,178.95 by removing a deposition cost, and categorically moving certain items from deposition costs to court reporter and exhibit costs due to misallocation. 

On August 28, 2024, Defendants filed a reply. 

 

 

II. 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 

“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 cost memorandum was served electronically on June 4, 2024. The instant motion to tax costs was filed on June 21, 2024 and is therefore timely. 

“In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face.¿If so, the burden is on the objecting party to show the costs to be unnecessary or unreasonable.” (Foothill De Anza Cmty. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 2930.) “Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court.” (Ladas v. Cal. State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)¿ 

“Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” (Cal. Rules of Court, rule 3.1700, subd. (b)(2).) Defendants move to tax costs on Item 4 (Deposition Costs), Item 12 (Models, Enlargements, and Photocopies of Exhibits, and Item 16 (Other). 

  1. Item 4: Deposition Costs 

Pursuant to Code of Civil Procedure § 1033.5(a)(11), court reporter fees are recoverable as costs. (See also Gov’t Code § 68086(d)(2).) However, other related fees are only recoverable when ordered by the court. (Code Civ. Proc. § 1033.5(a)(9), (b)(5).)   

Defendants argue Plaintiff seeking deposition costs of $61,130.68 for taking eight depositions is excessive, because Plaintiff’s counsel served and filed copies of deposition invoices and attorney’s fees invoices, which Defendants aver contain the amount of costs actually incurred for depositions in this matter. They argue that the invoices evidencing the actual costs of depositions invoiced to Plaintiff and paid by Plaintiff’s counsel demonstrates $23,607.89 in deposition costs, not $61,1130.68. (Treadwell Decl. ¶ 5-7; Exhs. 2 & 3.) 

In opposition, Plaintiff avers that he misallocated $8,287.33 in court reporter fees as deposition costs, and that $20,556.08 in exhibit costs were also misallocated as deposition costs. Additionally, Plaintiff’s counsel avers $3,000 was included inadvertently by the attorney assisting Plaintiff’s counsel, and it has been removed. Plaintiff argues that he incurred $30,948.25 in costs, and that the costs are not only for “appearance” depositions, but also for “records only” depositions, which he argues is recoverable in reliance on Naser v. Lakeridge Athletic Club (2014) 227 Cal. App. 4th 571. 

In reply, Defendants argue that Plaintiff should not be allowed to re-write and re-verify a new memorandum of costs to take second bite at the apple, and to add further costs. 

Here, Defendants have rebutted the presumption that a verified costs memorandum is proper and necessary, and Plaintiff acknowledges the errors in the cost memorandum. Indeed, Naser provides that a deposition subpoena seeking only business records is a “deposition” within the plain meaning of the Civil Discovery Act, and a recoverable cost. However, the Court does not appreciate Plaintiff substantively changing the cost memorandum in opposition. Courts have discretion to allow a supplement to a memorandum of costs, based upon a showing of excusable neglect. (Pacific Southwest Airlines v. Dowty-Rotol, Ltd. (1983) 144 Cal.App.3d 491, 495.) No such excusable neglect was demonstrated here. As such, the Court will base the costs and any reductions to it upon the initial verification; the Court separately reviews the receipts provided to determine recoverability. The Court has reviewed each invoice and receipt provided by Plaintiff and finds that following listed in Attachment 4 as part of the revised cost memorandum are absent from the evidence: “12/21/22 Gonzales $397.50; 12/21/22 Myrick $332.50; 02/14/22 Gallo $815.45; 04/14/22 Joan Kessler Video $980.00; 04/28/21 Titan Legal Services $178.65.” Included within the series of invoices and receipts are costs not accounted for on the list provided, which the Court will not consider. Therefore, Plaintiff has only demonstrated he actually incurred deposition costs of $28,244.15. 

The motion to tax costs from Item 4 is granted in part and reduced accordingly to $28,244.15. 

  1. Item 11: Court Reporter Fees 

Defendants did not initially challenge this Item in its moving papers. However, as Defendants point out, Plaintiff substantially altered the court reporter fees costs from $2,714.85 to $10,775.75 by providing a revised cost memorandum seeking to correct misplaced costs by shifting amounts between items. It is unfair to Defendants for Plaintiff to significantly alter this amount. Thus, the Court finds it appropriate to allow costs for the court reporter fees as initially sought in the amount of $2,714.85. 

Item 11 shall be kept as the original stated amount of $2,714.85.  

  1. Item 12: Models, Enlargements, and Photocopies of Exhibits 

Code of Civil Procedure § 1033.5(a)(13) states “Models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.” Whether an exhibit is used at trial is not dispositive; the proper standard is whether the exhibits “were reasonably helpful to aid the trier of fact.” (County of Riverside v. City of Murrieta (1998) 65 Cal.App.4th 616, 629.) These costs are not recoverable if the materials were not presented to the trier of fact. (Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 665.) However, the courts have discretion under Code Civ. Proc., section 1033.5(c)(4) to allow the costs if they were reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (Ibid.) 

Defendants argue that Plaintiff seeking costs of $65,491.11 in this category is exorbitant, because the attorney’s fee invoices previously served and filed by Plaintiff demonstrates only one entry for trial copies of exhibits “Array - document service - trial binders 03120123 X65583” in the amount of $24,149.52. Defendants contend even this amount is excessive, because Defendants’ own trial exhibit binders, with a maximum of 9,628 pages in those binders, for the court, the witness, the clerk, and counsel, amounted to a total of $1,267.06 at thirteen cents a page. (Treadwell Decl. ¶ 8; Exh. 4.) 

In opposition, Plaintiff reallocated costs previously placed in Item 4 to Item 12, raising the initial costs of $65,491.11 to $82,639.44. Plaintiff argues he has provided proof that he incurred $82,639.44 in photocopies of exhibits. 

In reply, Defendants argue that Plaintiff has sneaked in an invoice for over $33,000 for “Pre-Trial and In Trial Support” for services and excessive costs for exhibits from only a three-day bench trial. 

Indeed, the Court has reviewed the individual invoices, and questions the need for many items. Plaintiff has not provided any detail as why these costs were reasonably necessary, as opposed to merely convenient or beneficial to Plaintiff in preparation. For example, there does not appear to be any reasonable necessity for Plaintiff to have ordered “Trial Binders x 10” in the amount of $22,545.71 or for “Pre-Trial and In-Trial Support” for a brief bench trial in the amount of $33,618.12. The Court finds it appropriate to tax costs that were purportedly “misallocated” (i.e. 02/14/23 Array $2,146.67; 05/31/23 Array $5,596.90; 06/29/23 Array $12,578.31), in addition to taxing the “Pre-Trial and In-Trial Support” because Plaintiff has not been demonstrated that this was reasonably necessary, and reducing the trial binders cost for March 20, 2023 to one-quarter (i.e. $6,037.38) as this cost appears excessive on its face. 

The motion to tax Item 12 is granted in part and reduced to $11,383.77. 

  1. Item 16: “Other” 

Defendants argue that it is not possible to know what “other” costs of $8,287.33 relate to and whether they are items allowable as costs and must therefore be taxed in its entirety. 

In opposition, Plaintiff argues that costs may be recoverable in the court’s discretion, and that the costs are for a court ordered discovery referee and mediation. Plaintiff argues these costs were reasonably necessary to the conduct of the litigation pursuant to Code Civ. Proc. § 1033.5(c)(4). In reply, Defendants do not appear to respond to this, and argue still that there is no way to know what “other” costs are, even though Plaintiff has provided explanation and receipts for these costs. 

Nonetheless, the Court reviews the history of this matter. On December 13, 2022, the court at the time found it necessary to appoint a discovery referee, wherein the costs would be split equally between Plaintiff and Defendants. (Order, Dec. 13, 2022.) Considering that the Court ordered Plaintiff to pay his fair share, it is inappropriate for Plaintiff to recoup costs for the discovery referee. The Court does not appreciate this attempt to circumvent a prior Court order. Further, in terms of the mediation, mediation costs are not expressly permitted by statute, but neither are they expressly disallowed. (See Code Civ. Proc., § 1033.5, subd. (a).) The Court finds it appropriate to tax both the discovery referee and mediation costs. 

The motion to tax Item 16 is granted in its entirety. 

 

IV. CONCLUSION 

Defendants’ motion to tax costs is GRANTED IN PART.¿ 

Based on the original cost memorandum filed on June 4, 2024, the Court orders the following be stricken: $32,886.53 from Item 4 (Deposition Costs), $54,107.34 from Item 12 (Models, Enlargements, and Photocopies of Exhibits), and $8,287.33 from Item 16 (Other). Plaintiff is therefore awarded costs in the amount of $49,925.95. 

 

Moving Party is ordered to give notice. 

 

DATED: September 4, 2024 

__________________________ 

Hon. Michelle C. Kim 

Judge of the Superior Court 

 

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 SMCDEPT78@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.