Judge: Serena R. Murillo, Case: 21STCV39753, Date: 2023-09-13 Tentative Ruling

Case Number: 21STCV39753    Hearing Date: September 13, 2023    Dept: 31

TENTATIVE

Plaintiff’s Motion to Tax Costs is GRANTED in part and DENIED in part. It is denied as to the request to tax motion and filing fees, deposition costs, and service of process, but granted as to the request to $400 under “other” costs.

Legal Standard

A prevailing party is entitled to recover costs, as a matter of right, in any action or proceeding absent a statute expressly noting otherwise. (Cal Civ. Proc. Code § 1032, subd. (b).) Unless a statute provides otherwise, a court has no discretion to deny costs to a prevailing party. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129).  A prevailing party is (i) a party that receives a net monetary recovery, (ii) a defendant who obtains a dismissal in its favor (iii) a defendant, when neither the plaintiff nor defendant attained any relief and (iv) a defendant, where the plaintiff(s) obtains no recovery from the defendant. (Cal Civ. Proc. Code § 1032, subd. (a)(4).) “If¿any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed,¿may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under¿Section 1034.” (Id.) Cal. Civ. Proc. Code § 1033 sets forth the allowable costs and notes that allowable costs must be reasonably necessary to “the conduct of litigation.”  

A party asserting it is the prevailing party must file a memorandum of costs “within 15 days of notice of entry of judgment or dismissal by the clerk 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.” (California Rules of Court Rule 3.1700.) A party opposing those costs may file a motion to strike to challenge all costs or a motion to tax costs to challenge specific costs listed in the prevailing party’s memorandum of costs. The movant in the motion to strike or tax costs must serve and file its motion within 15 days after service of the cost memorandum. (Id.) If the prevailing party served the cost memorandum by mail or electronically, an extension may be allowed pursuant to a relevant statute. (Id.) 

If the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs to establish that the costs were reasonable and necessary.¿(Ladas v. Calif. State Auto Assn.¿(1993) 19 Cal.App.4th 761, 774.)¿ 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].”¿(Nelson v. Anderson¿(1999) 72 Cal.App.4th 111, 131.)¿ Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.¿ (Id.)¿¿ If the costs have been put in issue via a motion to tax costs, supporting documentation must be submitted, such as attorney declarations.¿(Jones v.¿Dumrichob¿(1998) 63 Cal.App.4th 1258, 1267.) 

Discussion

Plaintiff requests that the Court tax a total of $2,440.70, arguing they constitute impermissible expenditures under CCP §1033.5, and/or those costs which are allowable but which were unreasonably incurred or excessive in amount. The memorandum of costs filed July 12, 2023, requests $5,326.70, which consists of $1,263.75 for filing and motion fees, $1,835.70 for deposition costs, $279 for service of process, and $1,948.70 for “other” costs. (Memorandum of Costs ¶¶ 1, 4, 5,16).

1.     Motion and Filing Fees

Defendant VW seeks $1,263.75 for motion and filing fees. This amount includes $45 for “Stipulation and Protective Order E-filing” and $85 for “Ex Parte Application E-filing.” Plaintiff argues that neither of these fees was reasonably necessary to the defense of this case, and both were merely convenient to Defendant. In summary, Plaintiff argues, the amount of $130.00 in motions and filing fees should be taxed.

Defendant argues that the fee incurred for filing the Stipulation and Protective Order was reasonable and necessary. (Davenport Decl. ¶¶ 6-7, Exs. C-E.) Plaintiff’s discovery sought production of several of Defendant’s confidential and proprietary documents. (Davenport Decl., ¶ 7, Exs. D, E.) The parties met and conferred about production of Defendant’s confidential and proprietary documents. (Id., ¶ 8, Ex. F.) As a result of those efforts, the parties agreed that Defendant would produce the requested documents after the parties executed the Los Angeles Model Stipulation and Protective Order (“SPO”). (Id., ¶ 8, Exs. F, G.)

As to the ex parte filing costs, Defendant argues that one of the reasons it had to seek a trial continuance via Ex Parte Application was because Plaintiff failed to provide dates for Plaintiff’s deposition until March 6, 2023, despite Defendant’s attempts to take the deposition for months. (Davenport Decl. ¶ 9, Ex. H.) The testimony and documents obtained at Plaintiff’s deposition established multiple grounds for Defendant’s Motion for Summary Judgment/Adjudication. (Id.)

The Court finds that the filing and motion fees incurred by Defendant was reasonably necessary to the conduct of the litigation and are therefore recoverable. Accordingly, the motion to tax the $130 in costs for filing and motion fees is DENIED.

2.     Deposition Costs

A prevailing party may recover costs for “[t]aking, video recording, and transcribing necessary depositions ….”  (Civ. Code Proc., § 1033.5 subd. (a)(3)(A).)

VW seeks $1,835.70 in deposition costs associated with the deposition of Plaintiff. However, Plaintiff argues that VW provides no itemization, receipts or invoices for this claimed amount, so it is impossible to tell whether the amounts sought are reasonable or what, specifically, they were for. Indeed, VW failed to check box 4e on its Memorandum of Costs (Worksheet) and failed to include Attachment 4e to provide needed additional information about the deposition costs sought. Therefore, Plaintiff argues the entire amount of $1,835.70 should be taxed.

Defendant argues that attachment 4e is necessary only if the claimant is seeking costs for more than 4 depositions, since the Memorandum of Costs only provides space to list four depositions, i.e. 4a-4d. Because Defendant only claimed costs for one deposition, Attachment 4e was not necessary.

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Since the deposition costs are proper charges, the burden is on Plaintiff to show that the costs are not reasonable or necessary. Here, Plaintiff only argues that Defendant fails to support or justify this aggregate amount as required and not excessive. Thus, Plaintiff has not shown these costs are unnecessary.

Accordingly, the court denies Plaintiff’s request to tax $1,835.70 in deposition costs.

3.     Service of Process

Recovery for the cost of service of process fees is allowable under Code of Civil Procedure section 1033.5. (Civ. Code Proc., § 1033.5 subd. (a)(4).)

Here, Plaintiff argues VW fails to document or otherwise explain why two different identical process fees to “LASC Dept. 31,” each undated and in the amount of $75.00, were needed. Plaintiff therefore requests that the Court disallow one of these seemingly duplicate $75.00 fees as unjustified and excessive.

Defendant argues it incurred $75.00 for delivering a courtesy copy of the Ex Parte Application to Continue Trial to Department 31, $75.00 for delivering a courtesy copy of the Motion for Summary Judgment to Department 31, and $129.00 in costs for personally serving the Motion for Summary Judgment. (Davenport Decl. ¶ 12, Ex. J.) The two $75.00 charges are not duplicative. (Id.) As is shown by the fact that the both the Ex Parte Application and the Motion for Summary Judgment were granted and resulted in this action being dismissed in favor of VWGoA, these costs were reasonable and necessary.

Plaintiff argues in reply that even if the two $75 costs listed are not duplicative, as VW posits in its Opposition, the $75 cost incurred for VW’s ex parte Application to Continue Trial should be taxed and/or stricken for the same reason that the $85 ex parte application e-filing cost (see: Item 1, above) should be taxed and/or stricken – VW has not adequately established that the ex parte application, and hence the $85 filing fee, were matters of convenience to VW that should not be charged to Plaintiff.

The Court finds that the $75 service of process fee for the ex parte application incurred by Defendant was reasonably necessary to the conduct of the litigation and are therefore recoverable.

4.     Other

Plaintiff objects to a late cancellation fee for the deposition of Ryan Warner Late under “Other” as unjustified or not necessary to the litigation. Plaintiff argues that Defendant fails to justify or otherwise explain how or why this claimed “late cancellation” fee was incurred, nor does Defendant articulate the reason for the alleged cancellation. This fee should be taxed.

Defendant concedes that the $400 Late Cancelation fee should be stricken because the cost was incurred due to certain technical limitations.

As such, the Court grants the motion to tax $400 in costs for the late cancellation fee.

Conclusion

Based on the foregoing, the Motion to Tax Costs is GRANTED in part and DENIED in part as set forth above.

Moving party is ordered to give notice.