Judge Ronald F. Frank, Case 19TRCV00363 2023-04-21 Tentative Ruling

Judge: Ronald F. Frank, Case: 19TRCV00363, Date: 2023-04-21 Tentative Ruling

Case Number: 19TRCV00363 Hearing Date: April 21, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: April 21, 2023

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CASE NUMBER: 19TRCV00363

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CASE NAME: Lesley Dunlap, et al. v. Kinsale Insurance Company, et al.

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MOVING PARTY: Plaintiffs, Lesley Dunlap and Amir Ettekal

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RESPONDING PARTY: Defendant, Stillwater Insurance Company

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JUDGEMENT ENTERED: October 5, 2022

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MOTION:¿ (1) Plaintiff’s Motion to Tax Stillwater’s Costs

Tentative Rulings: (1) Denied in part, granted in part. $450 of the mediator fee is taxed.

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I. BACKGROUND¿¿

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Defendant Stillwater prevailed on a motion for summary judgment and filed a cost bill.

On February 10, 2023, Plaintiffs filed a Motion to Tax Costs On April 10, 2023, Defendant filed an opposition to Plaintiff’s Motion to Tax Costs. To date, no reply brief has been filed. 3 items of claimed costs are at issue: COR depositions, a court reporter fee, and a mediation fee.

II. ANALYSIS¿

B. Legal Analysis

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the costs memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013.” (Cal. Rules of Court, rule 3.1700(b)(1).) The failure to timely file a motion to tax or strike costs constitutes a waiver of the right to object to costs, unless the Court in its discretion grants relief under Code of Civil Procedure Section 473, such as based upon a finding of excusable neglect. (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289; see also Cal. Rules of Court, rule 3.1700(b)(3) [“The party claiming costs and the party contesting costs may agree to extend the time for serving and filing the cost memorandum and a motion to strike or tax costs. This agreement must be confirmed in writing, specify the extended date for service, and be filed with the clerk. In the absence of an agreement, the court may extend the times for serving and filing the cost memorandum or the notice of motion to strike or tax costs for a period not to exceed 30 days.”].)

A prevailing party claiming costs must file and serve a memorandum of costs either (1) within 15 days after the date of service of a notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5, (2) 15 days after the service of written notice of entry of judgment or dismissal, or (3) within 180 days after entry of judgment, whichever is first. (Cal. Rules of Court, rule 3.1700, subd. (a).) Any motion to strike or tax costs must be served and filed 15 days after service of the memorandum, plus an additional 5 days if served by mail or 2 days if served electronically. (Cal. Rules of Court, rule 3.1700, subd. (b)(1).) “Unless objection is made to the entire cost memorandum, the 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.” (Cal. Rules of Court, rule 3.1700, subd. (b)(2).)

California Code of Civil Procedure section 1033.5, subdivision (a), sets forth items allowable as costs. And section 1033.5, subdivision (b) lists the items that are not allowable as costs. The court has discretion to allow costs that are not barred by subdivision (b), but are not listed under subdivision (a). (Science Applications International Corporation v. Superior Court (1995) 39 Cal.App.4th 1095, 1103.) If an item of costs is expressly allowed by statute and if items appear on their face to be proper, the verified memorandum of costs is prima facie evidence of their propriety, shifting the burden of proof to the objecting party to show that the items are not “reasonably necessary to the conduct of the litigation” or “reasonable in amount.” (Benach v. County of L. A. (2007) 149 Cal.App.4th 836, 855; (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131-32 [“trial court erred in requiring additional proof from” the party claiming costs, where the party attacking costs had the burden]; Santantonio v. Westinghouse Broad. Co. (1994) 25 Cal.App.4th 102, 116, 121 [after a prima facie showing based on verified cost memorandum, objecting party has the burden to prove costs should be disallowed]; Ladas v. Cal. State Auto. Assn. (1993) 19 Cal.App.4th 761, 773.) But if an item of cost does not appear proper on its face, the burden of showing that it is reasonable and necessary shifts to the party claiming the cost. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267; but see Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308 ["Only after such costs are challenged by a motion to tax do the parties need to justify their claims by submitting documentation of the costs they have incurred."].)Accordingly, the court must determine whether section 1033.5 expressly allows the particular item and whether it appears proper on its face. (See Nelson, supra, 72 Cal.App.4th at 131.)

Plaintiff has requested that this Court seek an order taxing Stillwater’s claimed costs as follows:

(1) Item No. 4 – Deposition costs: Amount Demanded: $2,594.04. Plaintiffs assert that this was not incurred for depositions taken in this action by Plaintiffs, is unnecessary, and is barred as investigation expenses.

(2) Item No. 11 – Court reporter fees as established by statute: Amount Demanded: $750. Plaintiffs argues that this is unreasonably high because it exceeds the maximum established by statute, and is unclear as to which proceeding the costs apply.

(3) Item No. 16 – Other (mediator’s fee): Amount: $2,450. Plaintiff argues that this is inaccurate because Stillwater’s share in the mediation fee was $2,000, and that it is not reasonably necessary to the conduct of the litigation of this action, and that Stillwater did not offer, nor did it have the intention of offering a dime.

Item 4: Deposition Costs

“Taking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed.” (Code Civ. Proc., § 1033.5, subd. (a)(3)(A).) Here, Plaintiffs argue that Stillwater did not take any depositions in this action. Instead, Plaintiff asserts that the depositions Stillwater lists were taken in the Underlying Action except for the October 7, 2-2- deposition of Craig Maples, during which Stillwater’s counsel was present but did not ask any questions or otherwise participate. (Dunlap Decl., ¶ 3.) Further, Plaintiffs contend that Stillwater did not rely on any deposition testimony from the underlying action in its successful demurrer to Plaintiffs’ First Amended Complaint or Motion for Summary Judgment.

In opposition, Stillwater argues that Plaintiffs incorrectly assert that the depositions Stillwater identifies in its memorandum of costs worksheet were taken in the Underlying Action. Instead, Stillwater asserts that Plaintiffs misunderstand the costs sought, which are all for the recovery of costs associated with the business record subpoenas to the parties identified in Attachment 4(e) to the worksheet. Stillwater notes that all of those subpoenas were issued – and the corresponding costs incurred – in this case. (See declaration of Zachariah E. Moura (“Moura Decl.”) ¶ 2; Exh. A.) The Court finds Stillwater has met its burden of proof showing that it reasonably incurred these costs in the coverage case, not the Underlying Action. The Motion to tax the deposition costs is DENIED.

Item 11: Court Reporter Fees as Established by Statute

Under Code of Civil Procedure § 1033.5, subd. (a)(10), Court reporter fees as established by statute, are recoverable.

Here, Plaintiffs argue that Stillwater’s cost memorandum does not specify the proceedings for which it is claiming court reporter’s fees – and instead, simply puts the sum of $750. Plaintiffs note that the Court’s online case information shows that only three (3) reporters were appointed as official reporters pro tempore in this action. Plaintiffs argue that even if each reporter provided a full day of court reporting, the total allowable fees would be $165. (citing Gov’t Code § 69948(a) (“The fee for reporting testimony and proceedings in contested cases is fifty-five dollars ($55) a day, or any fractional part thereof”.)

In opposition, Stillwater notes that Government Code §68086(a)(5)(b) provides “[t]hat if an official court reporter is not available, a party may arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter, the costs therefore recoverable” as a taxable cost. The court reporter’s statutory fee for reporting is recoverable up to the amount actually paid. (Code Civ. Proc., § 1033.5(a)(11); Gov. Code, § 69953; see Heppler v. J.M. Peters Co., Inc. (1999) 73 Cal.App.4th 1265, 1298.) Stillwater asserts that it seeks recovery of the $750 paid to retain a reporter for the October 24, 2022 hearing on Stillwater’s Motion for Summary Judgment. (Moura Decl., ¶ 3, Ex. B.) The invoice paid for that hearing is attached to the Opposition. The Court finds Stillwater has met its burden of proof showing that it reasonably incurred these costs ifor the lengthy hearing on the date specified. The Motion to tax the court reporter costs is DENIED.

Item 16: “Other”

Plaintiffs assert that this Court should tax any costs Stillwater claims for participating in an unsuccessful mediation in this action. Plaintiffs cite to Code of Civil Procedure section 1033.5 noting that it does not expressly permit recovery of costs for participating in mediation, nor does it expressly forbid it. Plaintiff contends that the parties equally shared in the mediation cost of $2,000 per party. Plaintiffs also note that Stillwater’s role in the mediation was not to make any contribution to induce Plaintiffs to accept the mediator’s proposal in the Underlying Action. As such, Plaintiffs argue that Stillwater’s participation in the mediation was not “reasonably necessary to the conduct of the litigation” in this case.

In opposition, Stillwater argues tat the award of Mediator fee is appropriate here, because the mediation in this matter, for which Stillwater seeks recovery costs, took place on December 1, 2020, well after the conclusion of the Underlying Action, and was aimed at resolving the present case. (Moura Decl., ¶ 4.) Stillwater contend that it paid more than $2,000 for its share of the mediation costs, per its attached invoice. (Moura Decl., ¶ 4, Ex. C.) Lastly, Stillwater correctly points out that there is no requirement that the mediation must have been successful to recover costs. After weighing the parties evidence and considering that mediation costs are discretionary rather than mandatory costs, the Court GRANTS IN PART the motion to tax and reduces the allowable amount to $2,000, taxing the additional $450.

IV. CONCLUSION¿¿

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For the foregoing reasons, Plaintiff’s Motion to tax costs is GRANTED in the amount of $450 for that portion of mediation fee in excess of what Plaintiffs paid. The motion is otherwise DENIED.

Stillwater is ordered to give notice.¿¿¿¿

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