Judge: Randolph M. Hammock, Case: 19STCV37114, Date: 2023-08-24 Tentative Ruling
Case Number: 19STCV37114 Hearing Date: September 8, 2023 Dept: 49
Julia Lim, et al. v. Looking Toward the Future, Inc.
DEFENDANT’S MOTION TO STRIKE, OR IN THE ALTERNATIVE, TO TAX COSTS
MOVING PARTY: Defendant Looking Toward the Future, Inc.
RESPONDING PARTY(S): Plaintiffs
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS
Plaintiffs Julia Lim, Gina J. Fergas, and Koby Lopez, worked in retail for Defendant, Looking Toward the Future, Inc. Plaintiffs alleged various wage and hour violations under the Labor Code. Plaintiffs also brought a cause of Action for civil penalties under the Private Attorneys General Act.
The matter proceeded to a bench trial from January 17, 2023, to January 19, 2023. Thereafter, this court entered judgment in Plaintiffs’ favor on March 29, 2023.
Plaintiffs filed a Memorandum of Costs on June 16, 2023. Defendant now moves to strike the cost memorandum, or in the alternative, to tax costs.
The matter initially came for hearing on August 24, 2023. Plaintiffs had not filed an opposition. At the hearing, Plaintiffs’ counsel represented it had not filed an opposition under the mistaken belief the motion was stayed as a result of the Notice of Stay of Proceedings filed by Plaintiffs on 08/17/2023. The court therefore continued the hearing to this date and allowed an opposition and reply. The parties also stipulated to hear the motion on its merits and to waive any “timeliness” issues as to either party.
TENTATIVE RULING:
Accordingly, Defendant’s Motion to Tax is GRANTED IN PART, as stated herein. The costs incurred for (1) deposition summaries, (2) converting emails and other documents; and (3) lodging and parking are ordered taxed. All other items of costs are allowed, and the motion to tax those costs is DENIED.
Plaintiff to submit an Amended Judgment consistent with this ruling and give notice of same.
DISCUSSION:
Motion to Tax Costs
A. Legal Standard
In general, the prevailing party is entitled as a matter of right to recover costs for suit in any action or proceeding. (Code Civ. Proc., §1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.)
Allowable costs under Code of Civil Procedure 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). (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.)
When the items on the verified cost bill appear to be proper, the burden of proof is on the contesting party. (Fennessy v. Deleuw-Cather Corp., 218 Cal. App. 3d 1192, 267 Cal. Rptr. 772 (1st Dist. 1990)). However, when items claimed as costs do not appear on their face as proper and necessary and the items are properly challenged by a motion to tax costs, the burden of establishing the necessity of the items is on the party claiming them as costs. (Whitney v. Whitney, 164 Cal. App. 2d 577, 330 P.2d 947 (1st Dist. 1958)).
B. Background
Plaintiffs Julia Lim, Gina Fergas, and Koby Lopez brought this action against Defendant Looking Toward the Future, Inc., for wage and hour violations under the Labor Code, and for civil penalties under the Private Attorneys General Act on behalf of other aggrieved employees.
A bench trial was held on January 17, 2023, to January 19, 2023. The trial lasted less than eight (8) hours. On March 13, 2023, this court issued its Informal Statement of Decision. This court found that each Plaintiff met their burden of proof to establish liability against Defendant for meal and rest break violations. (See Informal Statement of Decision, 03/13/2023.) The court awarded Plaintiff Julie Lim $30,000.00; Plaintiff Koby Lopez $20,000.00; and Plaintiff Gina Fergas $19,000.00. (Id.)
This court also found that Plaintiffs who worked at Defendant’s Beverly Hills location met their burden to establish PAGA violations at that location; Plaintiffs, however, failed to meet their burden as to Defendant’s Montrose or San Luis Obispo locations. (Id.) Thus, this court awarded Plaintiffs PAGA penalties and interest for aggrieved employees in the Beverly Hills location in the total sum of $50,000.00. (Id.) The award included reasonable attorney’s fees and costs as allowed by law, per noticed motion.
C. Analysis
As a preliminary matter, it is noted that Plaintiffs filed a notice of appeal on August 10, 2023. Generally, the filing of a notice of appeal “divests the trial court of further jurisdiction in the cause.” (Avenida San Juan P'ship v. City of San Clemente (2011) 201 Cal. App. 4th 1256, 1267.) However, a trial court retains jurisdiction to entertain “collateral” matters, such as attorney’s fees and costs. (See People v. Bhakta (2008) 162 Cal. App. 4th 973, 981 [stating it was “quite clear that the trial court had jurisdiction to hear and determine the issues of attorney fees and costs”].) The court therefore considers this motion.
Plaintiffs filed a Memorandum of Costs on June 16, 2023, seeking costs of $34,441.46. Defendant now moves to strike the cost memorandum, or in the alternative, to tax costs. Plaintiffs opposed.
As stated in the court’s August 24, 2023, Minute Order, the parties stipulated at the first hearing on this motion to hear the motion on its merits and to waive any “timeliness” issues as to either party. (See 08/24/2023 Minute Order.)
Each of Defendant’s specific objections are addressed below.
1. Item 9, Court ordered transcripts in the amount of $4,965.10
Transcripts of court proceedings ordered by the court are recoverable. (CCP 1033.5(a)(9). Transcripts not ordered by the court are not recoverable. (CCP 1033.5(b)(5).)
Defendant moves to tax this category, arguing the Court did not order transcripts. In opposition, Plaintiff clarifies that “this cost is for the deposition transcripts for Plaintiffs’ depositions,” and should have been included in the deposition costs category. (Opp. 4: 6-7.)
The “taking, video recording, and transcribing [of] necessary depositions” is an allowable cost. (CCP § 1033.5(a)(3)(A). Upon review of Plaintiffs’ Cost Memorandum and attached Exhibit 1, the court finds the depositions were reasonably necessary and therefore awards the costs sought.
2. Item 16, “Other,” in the amount of $7,973.66
Defendant moves to tax this category, arguing Plaintiffs have failed to identify these costs, or provide documentation to support their request for $7,973.46 in “other costs.”
It is unclear from Exhibit 1 attached to Plaintiffs’ cost memorandum which entries they attribute as “other costs.” In opposition, Plaintiffs say they “have determined that this section amount should be reduced to $7460.26.” (Opp. 4: 17-18.) Plaintiffs go on to identify the following as “other” recoverable costs: (1) costs of deposition summaries in the amount of $2,169.00; (2) costs of converting emails and other documents into “convenient formats,” (3) costs of lodging parking near the courthouse in the amount of $1,505.73; (4) costs of remote appearances during the Covid-19 pandemic in the amount of $45.00; and (5) trial exhibits in the amount of $2,370.50.
In reply, Defendant objects to the deposition summaries, contending they were not reasonably necessary. The court agrees and therefore taxes these particular costs.
Defendant also objects to the costs of converting emails. Plaintiffs provide little to support their assertion that these costs were reasonably necessary. The court therefore taxes this cost.
Defendant objects to the cost of lodging and parking near the courthouse. The court finds these costs are generally not recoverable costs, and as such, those costs are taxed.
Defendant objects to the costs of remote appearances, arguing Plaintiffs fail to provide any documentation or averment establishing that this cost was actually incurred. Plaintiffs’ Memorandum and Exhibit 1 included an entry for “Vcourt (06/02/2021) (03/02/2021) (01/06/2021)” in the amount of $45.00. The court finds these costs established and reasonably necessary to the litigation. As such, they are not taxed.
Finally, Defendant objects to the costs of the trial exhibits. “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.” (CCP 1033.5(a)(13.) While this entry should have been included in the Cost Memorandum’s Paragraph 12 as “Models, enlargements, and photocopies of exhibits,” the court ignores the error and finds these costs are recoverable. As such, they are not taxed.
3. Item 4, Deposition costs in the amount of $13,692.63; Item 11, Court reporter fees established by statute in the amount of $6024
Defendant apparently seeks to challenge these categories by including them in its Notice of Motion as costs that should be taxed. However, Defendant then fails to address these categories at all in its motion. Defendant has therefore failed to put these costs at issue and has failed to meet its burden of proof that they were unrecoverable and/or unreasonable. As such, they are not taxed.
Dated: September 8, 2023 ___________________________________
Randolph M. Hammock
Judge of the Superior Court
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MOTION TO BE RELIEVED AS COUNSEL
MOVING PARTY: Tyson & Mendes, LLP (Counsel for Defendants Looking Toward the Future, Inc., and Anne Frankel)
RESPONDING PARTY(S): None.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS
Plaintiffs Julia Lim, Gina J. Fergas, and Koby Lopez, worked in retail for Defendant, Looking Toward the Future, Inc. Plaintiffs alleged various wage and hour violations under the Labor Code. Plaintiffs also brought a cause of Action for civil penalties under the Private Attorneys General Act.
The matter proceeded to a bench trial from January 17, 2023, to January 19, 2023. Thereafter, this court entered judgment in Plaintiffs’ favor on March 29, 2023.
Tyson & Mendes LLP and its attorneys Susan L. Mason and Berta A. Blen now move to be relieved as counsel for Defendants. No opposition was filed.
TENTATIVE RULING:
Counsel’s Motion to be Relieved as Counsel for individual Defendant Anne Frankel is GRANTED.
Moving party to give notice, per Paragraph 5 a of the Order Granting Attorney’s Motion to be Relieved as Counsel – Civil.
DISCUSSION:
Motion to be Relieved as Counsel
A. Legal Standard
For a motion to be relieved as counsel under CCP section 284, subdivision¿(2), California Rules of Court rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel – Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under CCP section 284(2) is brought instead of filing a consent under CCP section¿284(1) (made on the Declaration in Support of Attorney’s Motion to Be Relieved as Counsel – Civil form (MC-052)); (3) service of the notice of motion and motion, declaration, and proposed order on the client and on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney’s Motion to be Relieved as Counsel – Civil form (MC-053)).¿ (Cal. Rules of Court, rule 3.1362.)¿
The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)
B. Analysis
Counsel filed Civil forms MC-051, MC-052, and MC-053. Counsel personally served the moving papers on the clients. (See MC-052, ¶ 3; 08/21/2023 Proof of Service.)
Counsel provides that the clients have “failed to comply with the terms of the Representation Agreement for this matter.” (MC-052, ¶ 2; Felderman Decl. ¶ 2.)
There is no opposition to this motion. “Good cause” has been adequately demonstrated by Counsel. In addition, there is no obvious prejudice to Defendants if counsel is relieved at this time.
Accordingly, Counsel’s Motion to be Relieved as Counsel for individual Defendant Anne Frankel is GRANTED.
IT IS SO ORDERED.
Dated: September 8, 2023 ___________________________________
Randolph M. Hammock
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
