Judge: Monica Bachner, Case: 20STLC07157, Date: 2022-09-14 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 20STLC07157    Hearing Date: September 14, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendants Gary Manukyan’s and Liliya Manukyan’s motion to tax costs is granted in the reduced amount of $7,087.51.  Plaintiffs are therefore entitled to costs in the reduced total amount of $5,561.08.

Defendants Gary Manukyan (“Gary”) and Liliya Manukyan (“Liliya”) (collectively, “Defendants”) move to tax or strike all costs in items 9 ($7,087.51) and 16 ($3,398.95) totaling $10,486.46 from the $12,648.59 costs requested by Plaintiffs Kay V. Hostetler (“Hostetler”) and Nancy K. Smith (“Smith”) (collectively, “Plaintiffs”).  (Notice of Motion, pg. 2, Exh. 1.) 

Background

On May 31, 2022, the Court entered Judgment in favor of Plaintiffs and against Defendants Gary and Liliya, Arcstone Financial, Inc., and Chicago Title Company.  (Judgment, pg. 3.)  This Court held trial for an action to quiet title as to a prescriptive easement on September 13, 14, 16, and 22, 2021.  (Judgment, pg. 2.)  After post-closing briefs were filed in October 2021, the Court issued its Statement of Intended Decision on January 7, 2022, and held hearings on February 18 and March 21, 2022, as to Plaintiffs’ objections to the Statement of Intended Decision.  (Judgment, pg. 3.)  The Court entered its Final Statement of Decision on March 22, 2022.  (Judgment, pg. 3.)  On June 15, 2022, Plaintiffs filed a Memorandum of Costs seeking $12,648.59 in total costs.  (Memorandum of Costs, pg. 1.)  On June 28, 2022, Defendants Gary and Liliya filed this motion.

Motion to Tax Costs

“‘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. 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.’” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

“[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]” (Id.)

“The court’s first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. [Citation] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. [Citation]” (Id.)

A prevailing party is entitled as a matter of right to recover costs in any action or proceeding, except as otherwise expressly provided by statute. (C.C.P.  §1032(b).)  California law recognizes three types of litigation costs: allowable, not allowable, and discretionary.  (C.C.P. § 1033.5(a), (b), (c)(4).)  Items not specifically allowable as costs under C.C.P. §1033.5(a), and not specifically prohibited under §1033.5(b), may be allowed as costs at the discretion of the trial court if reasonably necessary to the conduct of the litigation. (Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 506, citing Ladas v. California State Auto Association (1993) 19 Cal.App.4th 761, 774.)  For allowable costs, C.C.P. §1033.5(c) provides:

(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.

(3) Allowable costs shall be reasonable in amount.

(C.C.P. §1033.5(c)(2)–(3).)  

To the extent Defendants challenges costs, they must be challenged as costs that were not, “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” or not “reasonable in amount.”  (C.C.P. §1033.5(c)(2)–(3).)  As discussed above, Plaintiffs are the prevailing party in this action, and as such, are entitled to costs pursuant to C.C.P. §1032(b).

Item No. 9 (Court-ordered Transcripts)

Defendants argue that Plaintiffs are not entitled to their request $7,087.51 in costs for court-ordered transcripts because the Court never ordered any transcripts to be produced and Plaintiffs chose to hire their own court reporter.  (Motion, pgs. 2–3.) C.C.P. §1033.5(b)(5) prohibits recovery of the costs of “[t]ranscripts of court proceedings not ordered by the court.”  Defendants acknowledge that while the Court requested Plaintiffs to lodge transcripts with the Court if such transcripts were referenced in Plaintiffs’ briefs, the Court never explicitly ordered such transcripts.  (Motion, pg. 3.)  In the event the Court allows Plaintiffs’ recovery of costs for transcripts that were not court-ordered, Defendants argue the costs should be taxed on the basis that the amount demanded is “outrageous.” (Motion, pg. 3.) Defendants calculate, per the California Association of Court Reporters, that the 322 total pages of the transcript at a statewide average statutory per-page rate of $3.22/page for an original and two copies would translate to a reasonable expense of $1,036.84.  (Motion, pg. 3.)

In opposition, Plaintiffs argue that court-ordered transcripts to be prepared at or after trial for use in post-trial brief are explicitly recoverable under C.C.P. §1033.5(a)(9) and the recovery of “court reporters fees as established by statute” is also allowable.  (Opposition, pgs. 1–2; C.C.P. § 1033.5(a)(11).)  However, Section 1033.5(a)(9) explicitly only allows for costs of “[t]ranscripts of court proceedings ordered by the court” and Section 1033.5(a)(11) only provides for, “court reporter fees [not transcripts] as established by statute.” As the prevailing party, Plaintiffs are entitled to recover court reporter fees.  (C.C.P. §1032(b).)  Notably, the authorities cited by Plaintiffs involve the prevailing party’s right to recover court reporter fees, not ordered transcripts, which are distinguished as a different type of fee. (Opposition, pg. 2; Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58 [“These charges are not for transcripts. They are for court reporter fees, an entirely different expense. The parties have to pay the court reporter regardless of whether anyone orders transcripts.”].)  Plaintiffs contend that the fact Court minute orders cited to transcripts and that the Court extended the briefing timeline to allow for preparation of transcripts demonstrates that fees for transcripts should be recoverable.  (Opposition, pg. 2; Decl. of Zepeda ¶3 Exhs. A, B [pgs. 70-71].) However, a review of the hearing transcript indicates the Court inquired whether there would be transcripts, to which Plaintiffs’ counsel indicated transcripts would be acquired.  The Court did not order transcripts in this case.  While Plaintiffs are entitled to court reporter fees, invoices submitted do not itemize the fees, as each indicates “this invoice represents your half of the per diem and the certified copy of the transcript,” and as such, there is no way to determine whether each invoice’s fees include costs for transcripts, which are not allowed, as opposed to appearance fees by Plaintiffs’ court reporter.  (Decl. of Zepeda ¶4, Exh. C.)

Based on the foregoing, Defendants’ motion to tax Item No. 9 is granted in the requested amount of $7,087.51.

Item No. 16 (“Other” Expenses)

Defendants argue Plaintiffs’ request for $3,398.95 in “other” costs are not recoverable by statute. (Motion, pg. 3.) 

1. Remote Appearances

    

   Defendants argue that Plaintiffs’ costs for remote appearances much be stricken because, while they are convenient, they are not necessary to the conduct of litigation.  (Motion, pg. 3.)  Plaintiffs argue in opposition CourtCall fees are a permissible cost under C.C.P. §1033.5.  (Opposition, pg. 4; Landwatch San Luis Obispo County v. Cambria Community Services District (2018), 25 Cal.App.5th 638, 645.)  Plaintiffs provided evidence that remote appearance fees and services such as CourtCall have become standard practice in the COVID-19 era of litigation, and during litigation, Los Angeles Superior Court encouraged remote appearances as a safer vehicle to promote judicial efficiency and economy.  (Opposition, pg. 4; Decl. of Zepeda ¶8.)  Here, Plaintiffs demonstrate that the costs of remote appearances were reasonable and necessary.

    

   Based on the foregoing, Defendants’ motion to tax $91.00 from item No. 16 is denied.

    

2. Messenger Services

    

   Defendants argue that Plaintiffs’ costs for “messenger services” are not reasonably necessary because the listed expenses “lack specificity are not supported by any explanation or evidence provided by the Plaintiff[s]” and “must be stricken due to their ambiguity.” (Motion, pg. 4; Decl. of Antonyan ¶8.) Defendants argue that Plaintiffs could have used a less expensive courier service, such as the United States Postal Service, and while near instant delivery by a messenger service may be beneficial and convenient, utilization of such a service is unlikely to be deemed reasonably necessary by the court.  (Motion, pg. 4; Decl. of Antonyan ¶8.)

    

   In opposition, Plaintiffs argue that messenger services fees when reasonably necessary are costs that courts have deemed recoverable.  (Opposition, pg. 3; Doe v. Los Angeles County Department of Children and Family Services (2019) 37 Cal.App.5th 675, 696; Ladas, supra, 19 Cal.App.4th at 774.) Plaintiffs presented evidence that all messenger fees in the Memorandum of Costs Worksheet reflect the messengering of necessary items pertaining to trial, including delivery of documents to the court, delivering trial boxes and binder, and envelopes of exhibits that were needed for trial.  (Decl. of Zepeda, ¶ 7.) Here, Plaintiffs establish the costs were actually incurred and reasonable to prosecute the action.

    

   Based on the foregoing, Defendants’ motion to tax $842.95 from item No. 16 is denied.

    

3. Surveyor Map/Easement Calculations/Legal Description of Easements/Proposed Judgment

    

   Defendants move to tax $2,465.00 in costs for a surveyor map, easement calculations, and legal description of easements because “there is no relevant statute as to such cost being recoverable, especially where the Plaintiff did not prevail in obtaining all aspects of the purported easement.”  (Motion, pg. 4.) 

    

   In opposition, Plaintiffs state that the surveyor map, easement calculations, and legal description of easements are all reasonable costs that are recoverable because they were court ordered.  (Opposition, pg. 3.)  Plaintiffs cite to the March 22, 2022, Minute Order that states, “Plaintiffs are ordered to prepare, serve, and submit a proposed Judgment, including legal descriptions and survey illustrations of the property lines and easement granted, in Department 71 within 10 days.”   (Opposition, pg. 3; Decl. of Zepeda ¶5, Ex. E, pg. 6.)  Plaintiffs argue that the legal descriptions and survey map of the prescriptive easement were integral to the resolution of the litigation were incorporated into the judgment entered by the court. (Opposition, pg. 3.) Plaintiffs also argue that the $77.20 messenger fee to deliver a courtesy copy of the survey map and proposed legal description to the Court was appropriate because the Court requested such a lodging. Accordingly, since these costs were necessary to the resolution of the litigation, these costs were reasonably necessary and should not be taxed.  (Opposition, pg. 3; Decl. of Zepeda ¶¶5–6.)

    

   Based on the foregoing, Defendants’ motion to tax $2,465.00 from item No. 16 is denied.

    

   Conclusion

    

   Based on the foregoing, Defendants’ motion to tax costs is granted in the reduced amount of $7,087.51.  Plaintiff is therefore entitled to costs in the reduced total amount of $5,561.08.

    

    

   Dated: September _____, 2022

                                                                                                                          

   Hon. Monica Bachner

   Judge of the Superior Court