Judge: Richard J. Burdge, Case: BC597908, Date: 2022-09-07 Tentative Ruling
Case Number: BC597908 Hearing Date: September 7, 2022 Dept: 3
HEARING DATE: September 7, 2022
CASE NUMBER: BC597908
CASE NAME: Priscilla Vaccarezza, et al. v. Vincent A.
Baker, D.V.M., et al.
MOVING PARTY: All Plaintiffs
OPPOSING PARTY: All Defendants
TRIAL DATE: Completed
PROOF OF SERVICE: OK
MOTION: Plaintiffs’
Motion to Tax the costs of Defendants
OPPOSITION: August
24, 2022
REPLY: August
30, 2022
TENTATIVE: Plaintiffs’
motion to tax costs is granted in part.
The cost bill of $18,360.40is taxed in
the amount of $2,915.16, so that costs will be allowed in the amount of
$15,445.24.
The judgment
appealed from was filed herein on March 12, 2022. Defendants filed their Notice
of Intention to Move for New Trial and their Notice of Motion for Judgment
Notwithstanding the Verdict on April 1, 2022. The Superior Court entered its
order denying the defendants’ motion for new trial, and its order granting
defendants’ motion for judgment notwithstanding the verdict, on May 26, 2022.
Judgment notwithstanding the verdict was entered on June 16, 2022; notice of
entry of judgment notwithstanding the verdict was mailed by the clerk, also on
June 16, 2022. Plaintiffs’ Notice of Appeal from the judgment notwithstanding
the verdict was filed July 15, 2022.
On or about July 1, 2022, Defendants filed a summary Memorandum of Costs, seeking total costs from Plaintiffs
in the amount of $18,360.40. On or about July 12, 2022, Plaintiffs filed a
motion to tax costs challenging several items on the cost bill. Defendants opposed the motion and submitted
numerous receipts in support of the claimed costs.
After having reviewed the papers submitted by the parties
and considered the arguments at the hearing, 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.
(8) Fees of expert
witnesses ordered by the court.
(9) Transcripts of court
proceedings ordered by the court.
(11) Court reporter fees
as established by statute.
(16) Any other item
required to be awarded by statute as an incident to prevailing in the action at
trial or on appeal. (C.C.P. § 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 Defendants
are the prevailing party, they are “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.)
Defendants’
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.)
II.
Analysis
A. Hearsay
Objection and Issues Raised Only in Reply
In reply to the
opposition, Plaintiffs objected for the first time to the summary Memorandum of Costs as lacking foundation and
further objected to the Declaration of George Wallace in support of the Memorandum
of Costs and the Memorandum of Costs Worksheet. (See Obj. & Reply B.1.) The Reply and Objections do not accurately
state the basis for the summary Memorandum of Costs
and the matters stated in the Wallace Declaration.
The
summary Memorandum of Costs does not contain a
verification based on personal knowledge.
It states “I am the attorney, agent, or party who claims these costs. To
the best of my knowledge and belief this memorandum of costs is correct and
these costs were necessarily incurred in this case.” That is standard language on an optional
Judicial Counsel Form. That is because a
cost memorandum us typically prepared by one of the attorneys involved in the
case from the business records of the attorneys. Mr. Wallace was listed on the caption of all
the trial documents one of the attorneys of record and he signed the post-trial
motions. It does not state that he has
personal knowledge of all the work that was done in the case. In addition, the court takes notice that
virtually all the depositions for which costs are sought were used
extensively. Accordingly, the court
overrules the objection to the summary Memorandum of Costs.
As
to the Wallace Declaration, he declares that he is a partner in the firm that
served as attorneys for Defendants. He
also states that he prepared the Memorandum of Costs Worksheet, which is not
made under penalty of perjury. As to the
Worksheet, he states that “itemizes the depositions as to which defendants seek
to recover their costs.” (Wallace Decl. ¶
4.) He goes on to state that “true and
correct copies of the underlying invoices and receipts confirming the claimed amounts are attached to this
Declaration.” (Id.) The copies
are attached and are business records of the law firm. The fact that he did not take the depositions
does not make those statements hearsay or lacking in foundation. Those objections are overruled as well.
Plaintiffs
claim that they should not be charged for the travel expenses of Ms. Brown for
depositions in Florida, because she was in Tampa for personal reasons from June
2 to 5, when she moved to Fort Lauderdale for depositions on June 6-9. A review of her invoices and credit card
receipts show that she did not charge for any expenses in Tampa. Thus, the charges for that travel are
reasonably recoverable. The tip charge
for the car to and from the airport was part of the bill and does not appear to
be an optional expenditure. It is not
unreasonable for such a trip. Those
charges will be allowed as recoverable costs as well.
B. Fees
for Expert Witnesses Attending their Depositions.
Plaintiffs object
to costs of $1,640.00 listed under category 4e of the Memorandum of
Costs Worksheet (see Wallace
Declaration, Ex. A), contending that fees for experts at deposition are
not recoverable. (See Mot. Part
I.) Defendants concede this argument is
correct, so those costs will be disallowed.
(See Opp. Part I.)
C. Partial
Trial Transcripts and Copies for Expert Preparation
Plaintiffs argue that they
should not be required to pay costs listed under Attachment 16 to the Memorandum
of Costs Worksheet, which include “other” costs of copying deposition exhibits
for expert preparation and partial trial transcripts. (See Wallace
Declaration, Ex. A.) Those costs totaled
$1,275.16. Plaintiffs argue that trial
transcripts are not recoverable costs unless ordered by the court. (See Mot. Part II; C.C.P. §§
1033.5(a)(9) &1033.5(b )(5).) They also argue that copies of deposition
transcripts for expert preparation are not photocopies specifically allowed
under C.C.P. §§ 1033.5(a)(13) &1033.5(b )(3) and are not reasonably
necessary to the conduct of the litigation.
(See Mot. Part III.)
Defendants argue
that these expenses are recoverable, as they are reasonable in amount and necessary
to the conduct of the litigation. (See
Opp. Part II.) However, their
opposition shows why they are not recoverable:
“An item not specifically allowable under subdivision (a) nor
prohibited under subdivision (b) may nevertheless be recoverable in the
discretion of the court if ‘reasonably necessary to the conduct of the
litigation rather than merely convenient or beneficial to its preparation.’
(§1033.5, subd. (c)(2).)” (See Mot. 4:3-7 (emphasis added).) As pointed out by Plaintiffs, those charges
are prohibited under 1033.5(b)(3) and (b)(5).
Therefore, the
court will not allow those costs.
Conclusion