Judge: Richard J. Burdge, Case: 19STCV11962, Date: 2022-12-06 Tentative Ruling
Case Number: 19STCV11962 Hearing Date: December 6, 2022 Dept: 3
HEARING DATE: December 6, 2022
CASE NUMBER: 19STCV11962
CASE NAME: Akop Pogosyan v. Hegine Yakhszyan and Avetis Barnasyan
MOVING PARTIES: Hegine Yakhszyan and Avetis Barnasyan
OPPOSING PARTY: Akop Pogosyan
TRIAL DATE: Completed
PROOF OF SERVICE: OK
MOTION: Defendants’
Motion to Tax Costs
OPPOSITION: November
15, 2022
REPLY: November
23, 2022
TENTATIVE: Defendants’
motion to tax costs is granted in part.
The cost bill of $62,157.26 is taxed in
the amount of $36,132, so that costs will be allowed in the amount of $26,024.26..
This case arises out of a two-vehicle collision. On October 5,2022, the Court signed a
judgment in the amount of $12,024.00 in favor of the Plaintiff which the Clerk
entered on October 05, 2022. On October 14, 2022, plaintiff filed and served a
Memorandum of Costs in the amount of $ 62,157.26. Defendants’ motion seeks to tax
$54,605.90 of this total. Plaintiff opposed the
motion supported by the Declaration of Natalie H. Suri. Defendants filed a
reply but submitted no declarations or other evidence in support of their
arguments.
The parties agree the Plaintiff is the prevailing party entitled
to seek costs as allowed by law.
After having reviewed the papers submitted by the parties,
the court rules as follows:
Discussion
I.
Legal
Authority
C.C.P. § 1032(b) states that, "[e]xcept as
otherwise expressly provided by statute, a prevailing party is entitled as a
matter of right to recover costs in any action or proceeding." Costs that
a prevailing party may recover include, among other things:
(1) Filing, motion and
jury fees;
(3) Transcripts and
videotape of "necessary" depositions, plus travel expenses to attend
depositions;
(4) Service of process;
(9) Transcripts of court
proceedings ordered by the court;
(11) Court reporter fees
as established by statute;
(13) Models, the
enlargements of exhibits and photocopies of exhibits, if they were reasonably
helpful to aid the trier of fact.
(16) Any other item
required to be awarded by statute as an incident to prevailing in the action at
trial or on appeal. (CCP § 1033.5(a).)
Per C.C.P. § 1033 .5 (c)(2) & (3), of the allowable
costs, only those that are both: “reasonable in amount,” and “reasonably
necessary to the conduct of the litigation” are recoverable. (C.C.P. § 1033 .5
(c)(2) & (3).) Costs "merely
convenient or beneficial to its preparation" are not allowed. (Id.;
Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.) The Court has power to disallow even costs
"allowable as a matter of right" if they were not "reasonably
necessary." (Perko 's Enterprises, Inc. v. RRNS Ente1prises (1992)
4 Cal.App.4th 238, 245.)
Unless expressly authorized by law, a prevailing party
may not recover the cost of “transcripts of court proceedings not ordered by
the court.” (CCP § 1033.5(b)(5).)
Because Plaintiff
is the prevailing party, he is “entitled as a matter of right to recover costs
in any action or proceeding.” (CCP §1032(b); see Acosta v. SI Corp., 129
Cal.App.4th 1370, 1375 (2005) (“If a party fits one of the definitions of
‘prevailing’ listed in C.C.P. 1032(a)(4) . . . that party is entitled as a
matter of law to recover costs.”). This means that the prevailing party is
entitled to all of his costs unless another statute provides otherwise [and
absent] such statutory authority, the court has no discretion to deny costs to
the prevailing party.” (Nelson v. Anderson (1999) 72 Cal.App.4th
111, 129.)
Plaintiff’s verified
memorandum is prima facie evidence of its propriety. (Id. at 131.) Mere
statements in the points and authorities and declaration of counsel are
insufficient to rebut the prima facie showing. (Santantonio v. Westinghouse
Broadcast Co., Inc. (1994) 25 Cal.App.4th 102, 114.) Where the
reasonableness of an item is challenged, conclusory allegations that the item
was “neither necessary nor reasonable” do not satisfy the objecting party’s
burden. (County of Kern v. Ginn (1983) 146 Cal.App.4th 1107, 1113-1114.) A case cited by Defendants states: “the 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. (See Oak Grove School Dist.
v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698-699 [32 Cal.Rptr.
288].) 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].’ (Id., at p. 699; see also Miller v.
Highland Ditch Co. (1891) 91 Cal. 103, 105-106 [27 P. 536].)” (Nelson v. Anderson (1999) 72
Cal.App.4th 111, 131.) Here Defendants
presented no admissible evidence of unreasonable or unnecessary costs, but only
arguments. In many instances, that failed
to satisfy their burden.
II.
Analysis
A. Unreasonable
costs or costs not allowed under CCP section 1033.5
1. Filling and motion fees [Item 1]: $849.72.
AMOUNT TO BE TAXED: $168.90:
Defendants
request that $168.90 be struck on the grounds that the Plaintiff has already
claimed jury fees and this amount is a duplication of jury fee amounts claimed
in Item 2. Plaintiff contends that
Plaintiff advanced jury fees, as is required under C.C.P. § 631, in the amount of $168.90. ¶ A receipt of
this charge in the amount of $151.75 supporting Item 1 was attached to Natalie
H. Suri's Declaration as Exhibit 1. (NS Decl. ¶ 6.) The exhibit supports the
cost charged, which is different from the other jury fees claimed in that this
is a required fee when demanding a jury trial.
Item 5 only includes the fees charged during trial. So this item will not be taxed.
2. Deposition
costs [Item 4]: $10,409.20. Amount to be taxed: $7,367.00
Defendants
contend that only “standard” fees for depositions that are reasonably necessary
are recoverable. They appear not to
contend that any depositions were not necessary, but they contend that the fees
paid to experts at their depositions are not expressly authorized by law. (Mot. 5:8-18; Reply 5:8-18.) They also contend that the amount of the
charges for transcribing are not supported by invoices. Plaintiff responds that all the depositions
were reasonably necessary and the court sees no evidence to the contrary. C.C.P. § 2034.430(b) requires the party
deposing an expert to pay the expert’s reasonable and customary hourly or daily
fee, which constitutes legal authorization to pay those fees. Therefore, those amounts are allowed. Also, there is no evidence supporting the
conjecture that the transcription fees are not accurate or include
non-allowable charges. Those costs will
be allowed as well.
3. Service
of process [Item #5]: $624.0 . Amount to be taxed: $624.00.
Plaintiff in his Opposition
agreed to the Defendants’ objection of $126 for the service on Defendants.
Defendants still object to the $498.00 for serving his own treating physicians because
such service was unnecessary on his own doctors and they were not called to
testify at trial In response, Plaintiff argues
the trial subpoenas served in this case were necessary to compel Plaintiff’s
physicians presence at trial. Just because the physicians did not appear at
trial does not mean the subpoenas were unnecessary and unreasonable. (Opp. 7:14-18; NS Decl. ¶ 9.) The court
concludes that those steps were reasonable and necessary to ensure the
witnesses would be available if called.
In conclusion,
Item 5 will be taxed in the amount of $126.
4. Expert
fees (per Code of Civil Procedure section 998) [Item #8]: $35.683.00.
Defendants
contend Code of Civil Procedure section 1033.5(b)(l) disallows recovery of “Fees of expert not ordered by the court,”
“except when expressly authorized by law.” (C.C.P. §
1033.5(b).) C.C.P. § 998 allows for the recovery of expert witness fees under
certain circumstances where and offer is made and not accepted. Defendants claim Plaintiff did not make a 998
offer, so the amount of $35,683.00 should be taxed. Plaintiff’s opposition does not contend a 998
offer was made. Instead, he asks the
court to authorize the fees as reasonable and necessary in its discretion. (Opp.
7:22-8:9.) Given the specific
statutory language relating to expert fees and 998 offers, the court doubts it
has discretion to award those fees. In
any event, it will not exercise that discretion. Commonly, the parties bear their own expert
costs in the absence of a 998 offer.
They will do so in this case.
5. Court
reporter’s fees (as established by statute) [Item 12]: $13,608.00. Amount to be taxed: $ 13,608.00.
Defendants
contend these fees should not be allowed as they represent transcript fees that
are not allowed under 1033.5(b)(5). Plaintiff
responds that court reporter fees are allowable as costs under 1033.5(a)(11). Plaintiff contends Defendants have copies of
those invoices. (Opp. 8:11-19) In reply, Defendants contend they cannot
evaluate these fees without invoices. That
is an insufficient factual showing to disallow the fees. They will not be taxed.
6. Other
Costs [Item #16]: $323.00. Amount to be taxed: $323.00.
Defendants argue
that Plaintiff may not recover travel expenses as not reasonably necessary and
may not recover for the preparation of photocopies of trial exhibit binders in the
absence of bills for those expenses.
Plaintiff argues that travel “charges are specifically allowed by statute.
(C.C.P. § 1033.5(a)(3).” (Opp. 8:23.) Plaintiff further states those expenses “are
limited the parking costs associated with trial.” (Opp. 8:25.)
In reply, Defendants correctly point out that 1033.5 authorizes travel
expenses in connection with depositions.
(Rep. 7:10-11. ) It says nothing
about allowing parking for trial as a cost.
Therefore, those costs will be taxed.
With regard to
the preparation of trial binders, exhibit binders and deposition binders, some
of those costs would be allowed; however, neither the memorandum of costs, the
Opposition nor the supporting declaration sets out the amount of those costs,
so they will be taxed as well, making $323.00 the amount taxed under this category.
Conclusion