Judge: Richard Y. Lee, Case: 30-2021-01233806, Date: 2022-08-04 Tentative Ruling
Defendants, Wayne Iwamoto, Susan Iwamoto, aka Susan-James Iwamoto (collectively “Defendants”) move for an order striking and/or taxing costs claimed by Plaintiff, Kowen Lai (“Plaintiff”) in his amended Memorandum of Costs served on May 2, 2022.
Defendants initially argue that the Court should exercise its discretion and inherent authority under CCP section 128 and strike the entire Memorandum of Costs as every item of costs in wrong. In the alternative, Defendants argue that the Court should strike all of the $6,955.20 sought for “Models, enlargements and photocopies of exhibits” or alternatively tax $4,600 in costs for “slide presentations” and $1,330 of the $1,575.20 for trial exhibits. Defendants also argue that the Court should tax $960.25 sought for filing and motion fees because this total is wrong as the items listed in Plaintiff’s worksheet total $691.75, not $960.25, and that $691.75 should be taxed because Plaintiff seeks to recover for motions and filing that were vexatious and not necessary and/or for which Plaintiff did not prevail, such as Defendants’ default. In addition, Defendants argue that the Court should tax all of the $450 that Plaintiff seeks for service of process as the calculation appears incorrect as only two people were served, or tax $300 of the $450 sought. Finally, Defendants argue that to the extent that Plaintiff later asserts additional costs that he omitted from his original Memo of Costs and Second Memo of Costs, or seeks to “correct” the wrong and misleading dollar amounts itemized, such costs should not be allowed based on later-offered evidence.
Plaintiff contends that the motion should be denied as Plaintiff is the prevailing party and is entitled to recover his costs as a matter of right under Code of Civil Procedure section 1032(b) in the amount of $8,509.45 since the costs incurred by Plaintiff were both reasonable in amount and reasonably necessary to the conduct of the litigation, not merely convenient or beneficial to its preparation. Plaintiff argues that models, blowups and photocopies of exhibits are recoverable as a matter of right under Code of Civil Procedure section 1033.5(a)(12); that there was a powerpoint presentation, and that Plaintiff prepared four trial exhibits books, each containing 358 pages, plus about 709 pages of other trial documents at the cost of $1.10 per page. Plaintiff also contends that $960.25 in costs for filing and motion fees is allowable under Code of Civil Procedure section 1033.5(a)(1), and recoverable, and that Plaintiff had to take Defendants’ default. Plaintiff additionally contends that $450 in costs for service of process is allowable under Code of Civil Procedure section 1033.5(a)(4) and reasonable, that Defendants falsely argue that “All other occupants,” are not actual people and no service was necessary, and that the registered service process server served them and provided a proof of service. Lastly, Plaintiff asserts that there is no wrong or misleading statement in the Memorandum of Costs, and that a First Amended Memorandum of Costs was filed to add additional descriptive information.
Service of Opposing Papers
As a threshold matter, the Court notes that the proof of service attached to the opposing papers indicates that they were served by U.S. mail and fax. (ROA 419.)
All papers opposing a motion “shall be served by personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing or reply papers, as applicable are filed.” (Code Civ. Proc. §1005(c).)
Service by mail is not reasonably calculated to ensure delivery to the other party not later than the close of the next business day are the time the opposing papers are filed.
As to fax service, service by fax is permitted only where the parties have agreed to this method of service and a written confirmation to that effect is made. (Code Civ. Proc. § 1013(e); California Rules of Court (“CRC”), rule 2.306(a).)
Here, there is no indication that the parties agreed to fax service and that a written confirmation to that effect was made. The proof of service state, “I caused to be transmitted via facsimile to attached facsimile numbers” but nothing is attached to the proof of service. In addition, the proof of service does not set forth the sending fax number, the fax machine telephone number of the persons served, does not include a statement that the document was sent by fax transmission and that the transmission was reported as complete and without error, does not attach a copy of the transmission report, and does not declare that the transmission report was properly issued by the sending fax machine. Thus, service by fax is ineffective.
However, as a reply which addresses the arguments raised in opposition has been filed, the Court will consider the opposition.
Timeliness of Motion
“A party’s right to recover costs is governed entirely by statute. [Citation.]” (Boonyarit v. Payless Shoesource, Inc. (2006) 145 Cal.App.4th 1188, 1192.) “To obtain costs, a party must comply with the applicable rules of court. [Citation.]” (Ibid.)
Code of Civil Procedure section 1034 states, in part: “Prejudgment costs allowable under this chapter shall be claimed and contested in accordance with rules adopted by the Judicial Council.” (CCP § 1034(a).) Code of Civil Procedure section 1032 provides, in part, that ‘[n]othing in this section shall prohibit the parties from stipulating to alternative procedures for awarding costs in the litigation pursuant to rules adopted under Section 1034.” (CCP § 1032(c).)
“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (CRC, rule 3.1700(a)(1).) Thus, the entry of a dismissal or judgment is a predicate to a costs award. (Boonyarit v. Payless Shoesource, Inc. (2006) 145 Cal.App.4th 1188, 1192.)
Here, Notice of Entry of Judgment was filed by Plaintiff on 4/19/22, and served on 4/19/22, by U.S. mail and fax. (ROA 224.) Plaintiff filed a Memorandum of Costs on 4/29/22, which was served by mail on that same date, and claimed $8,509.45 in costs. (ROA 252.) Thereafter, on 5/2/22, Plaintiff filed a First Amended Memorandum of Costs, that was served by mail on that same date, and claimed the same amount for $8,509.45. (ROA 262.) Although the parties may refer to this as the “Second Memo of Costs,” the Court will refer to the operative memorandum of costs as First Amended Memorandum of Costs.
15 days after Notice of Entry of Judgment was served on 4/19/22 is 5/4/22. Thus, the Memorandum of Costs was timely filed and served on 4/29/22, and the First Amended Memorandum of Costs was timely filed and served on 5/2/22.
Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum, and is extended as provided in Code of Civil Procedure section 1013 (mail), and in Code of Civil Procedure section 1010.6(a)(4) (electronic). (CRC, rule 3.1700(b)(1).)
Here, as noted above, Plaintiff served the First Amended Memorandum of Costs on 5/2/22. 15 days after 5/2/22 is 5/17/22. The instant motion was filed on 5/17/22 such that it is timely. (ROA 334.)
Procedural Issues
A 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, unless objection is made to the entire cost memorandum. (CRC, rule 3.1700(b)(2).)
Here, Defendants do not refer to each item objected to by the same number and the items objected to do not appear in the same order as the corresponding cost item claimed on the First Amended Memorandum of Costs. Despite this deficiency, the Court will address the merits of the motion in the order in which they appear in the Memorandum of Costs.
Merits
The right to recover costs of suit is determined entirely by statute. (Code Civ. Proc. § 1032.) The prevailing party is entitled to costs as a matter of right in any action or proceeding. (Code Civ. Proc. § 1032(b).) Therefore, the prevailing party is entitled to all of his costs unless another statute provides otherwise. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.)
Code of Civil Procedure section 1033.5, subdivision (a) sets forth the items that are allowable as costs. Costs are allowable if incurred, whether or not paid, and allowable costs shall be reasonable in amount and “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc. § 1033.5(c)(1)-(3).)
“If items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266 (“Jones”).) Statements in points and authorities and declaration of counsel are insufficient to rebut the prima facie showing. (Id. at p. 1266.) For items that are properly objected to, the burden of proof is on the party claiming them as costs. (Ibid.)
“There is no requirement that copies of bills, invoices, statements, or any such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted. [Citation.] Once this occurs, the issue becomes whether the required documentation must be of evidentiary quality.” (Jones, supra, 63 Cal.App.4th at p. 1267.)
Whether an item listed on the memorandum was reasonably necessary is a question of fact to be decided by the trial court, and its decision is reviewed for abuse of discretion. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) The trial court, having heard the entire case, is in the best position to evaluate the importance of expert witnesses at trial, and therefore is in the best position to evaluate the reasonableness of the expert witness fees listed in the memorandum of costs. (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1487.)
Item No. 2: Filing and Motion Fees
Code of Civil Procedure section 1033.5(a)(1) expressly allows costs for filing and motion fees. The court has discretion to reduce the amount of this cost if the court determines that it was not reasonably necessary. (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245 [“intent and effect [of section 1033.5(c)(2)] is to authorize a trial court to disallow recovery of costs, including filing fees, when it determines the costs were incurred unnecessarily”].) Costs are awarded for unsuccessful motions. (Parker v. State of California (2013) 221 Cal.App.4th 340, 372-373.)
Initially, there is no dispute that Plaintiff is the prevailing party. Plaintiff claims filing and motion fees in the amount of $960.25. Defendants contend the claimed amount is incorrect as the items listed total $691.75. Plaintiff does not address any error in calculating the total amount of claimed filing and motion fees.
Defendants correctly contend that $960.25 is not supported by the breakdown of filing and motion fees set forth in the First Amended Memorandum of Costs. However, Defendants’ calculation of $691.75 is also incorrect.
Per the Court’s calculations, the listed papers that were filed amount to $697.75. The motion argues that the amount should be taxed because Plaintiff seeks to recover for motions and filing that were vexatious and not necessary and/or for which Plaintiff did not prevail, such as Defendants’ default. However, Defendants do not show that filings fees related to the default were not reasonable or necessary as Defendants’ arguments and reference to pretrial events related to the request for default and failure to file the mandatory cover sheet of which the Court may take judicial notice are insufficient to rebut a verified memorandum of costs. Defendants also appear to argue that the First Amended Memorandum of Costs shows separate filing fees for certain filings, and that One Legal e-filing service charges only one fee per filing no matter how many documents are filed based upon Defendants’ counsel’s own experience with One Legal. It is not clear what specific filing fee Defendants are objecting to, and Defendants do not properly object on this ground.
Nevertheless, due to the miscalculation of Plaintiff, the Court taxes $262.50 of the total amount of $960.25 claimed, and awards $697.75 in filing and motion fees which appear to be reasonable in amount and reasonably necessary to the conduct of the litigation.
Item No. 5: Service of Process
Allowable costs include service of process by a public officer, registered process server, or other means as set forth in Code of Civil Procedure section 1033.5, subdivision (a)(4). (Code Civ. Proc. § 1033.5(a)(4).)
Plaintiff claims $450 for service of process. The breakdown provided indicates that Wayne Iwamoto, Susan Iwamoto, and “All Other Occupants” were served by a registered process server, and that each such service cost $75. There is no indication that each person served was served twice, such that the claimed amount of $450 appears incorrect and the verified memorandum of costs only support an amount of $225 ($75 x 3).
Defendants argue that the only persons served were Wayne and Susan Iwamoto; however, this argument, which is not supported by any citation to evidence, is insufficient to rebut the verified memorandum of costs which supports service of process fees in the amount of $225.
Based on the breakdown of the service of process fees, the Court taxes $225 of the total amount of $450 claimed, and awards $225 in service of process fees which appears to be reasonable in amount and reasonably necessary to the conduct of the litigation.
Item No. 12: Models, Enlargements and Photocopies of Exhibits
Code of Civil Procedure section 1033.5(a)(13) allows for the recovery of costs for “[m]odels, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, . . . if they were reasonably helpful to aid the trier of fact.”
Costs for exhibits that were not used at trial may be allowed as costs. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 856.) In addition, exhibit costs that may not be authorized by Section 1033.5(a)(13), may still be allowed in the trial court’s discretion pursuant to Code of Civil Procedure section 1033.5(c)(4). (Applegate v. St. Francis Lutheran Church (1994) 23 Cal.App.4th 361, 363-364.) Items not mentioned in Code of Civil Procedure section 1033.5 may be allowed or denied in the court’s discretion. (Code Civ. Proc. § 1033.5(c)(4).) “An item not specifically allowable as costs under Code of Civil Procedure section 1033.5, subdivision (a), and not specifically prohibited under subdivision (b), may be allowed as costs at the discretion of the trial court if reasonably necessary to the conduct of the litigation. [Citation.]” (Landwatch San Luis Obispo County v. Cambria Community Services District (2018) 25 Cal.App.5th 638, 645-646.)
Here, Plaintiff claims $6,955.20 in costs for models, enlargements, and photocopies of exhibits, which consists of “[t]rial exhibits (358 x4) = 1432 @ $1.10 Per Page plus $4,600.00 in slide presentations.”
Initially, Defendants correctly note that the claimed total for $6,955.20 is incorrect. Instead, the total based upon the amounts specified in the First Amended Memorandum of Costs is $6,175.20 ($1,575.20 for trial exhibits plus $4,600 in slide presentations).
As to costs for trial exhibits in the amount of $1,575.20 the Court finds a rate of $1.10 per page for copy costs unreasonable and egregious. A reasonable rate for copies is $0.19 per page for copy costs for trial exhibits in the amount of $272.08 (1432 @ $0.19). The Court therefore taxes $1,303.12.
To the extent that the opposition contends that there was an additional 709 pages of other trial documents which should be included, this is not included in the First Amended Memorandum of Costs, Plaintiff does not seek to further amend the memorandum of costs, and no evidence in presented to support the additional 709 pages of trial documents.
As to the $4,600 for slide presentations, Defendants’ counsel states, “[a]s the Court is aware, Lai did not utilize or even offer any slides or slide presentation during the trial or in any pre-trial hearing.” (Declaration of Larry Rothman, ¶ 2.) Though not supported by a declaration, Plaintiff’s opposition argues that his closing argument was entirely based on slide presentations. The Court has no recollection of Plaintiff using slides at trial that would warrant or justify reimbursement of costs in the amount of $4,600, and as Plaintiff does not provide any evidence to support the use or costs of a slide presentation in this case, the Court taxes $4,600 claimed for slide presentations.
Based on the foregoing, from the claimed amount of $6,955.20, the Court taxes $780 due to the miscalculation by Plaintiff, taxes $1,303.12 for copy costs, and taxes $4,600 for slide presentations. Thus, the Court taxes a total of $6,683.12 and awards $272.08 in copy costs for trial exhibits
Defendants to give notice.