Judge: Stephen P. Pfahler, Case: BC698355, Date: 2024-02-13 Tentative Ruling

Case Number: BC698355    Hearing Date: February 13, 2024    Dept: 68

Dept. D-68

Date: 2-13-24 c/f 2-9-24

Case: BC698355

Trial Date: N/A

TAX COSTS

MOVING PARTY: Plaintiff, Odious Knight III

RESPONDING PARTY: Defendant, Moonlight Rollerway, Inc., et al.

RELIEF REQUESTED

Motion to Tax Costs

SUMMARY OF ACTION

On December 14, 2023, the court granted the motion of defendants Moonlight Rollerway, Inc., Dominic Cangelosi, and Andienne Van Houten for directed verdict. The court entered judgment on December 14, 2023.

RULING: Granted in Part/Denied in Part.

Plaintiff Odious Knight III moves to tax certain items the memorandum of costs filed by defendants Moonlight Rollerway, Inc., Dominic Cangelosi, and Andienne Van Houten. Plaintiff moves on grounds that the costs were not reasonably and necessarily incurred. Defendants in opposition maintains the items were necessarily and reasonably incurred; the motion fails to establish any unreasonableness; and, Plaintiff otherwise concedes to the validity of the jury fees and service of process costs with the lack of any challenge to said items. The court electronic filing system shows no reply at the time of the February 5, 2024, filing due date or late filing prior to the tentative ruling publication cutoff.

California Rule of Court, Rule 3.1700 requires that “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended” to 20 days. (CRC, Rule 3.1700(b)(1).) Additionally, “[T]he court may extend the times for serving and filing the cost memorandum or the notice of motion or tax costs for a period not to exceed 30 days. (CRC, Rule 3.1700(b)(3).) 

Defendants filed and electronically served their memorandum of costs listing a total of $36,178.02 on December 22, 2023. The instant motion to tax filed and served on January 10, 2024—19 days later. The court considers the motion as it was filed within 30 days of the memorandum of costs filing date.  

Code of Civil Procedure section 1033.5 sets forth the costs recoverable by the prevailing party. To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount. (Perko’s Enterprises, Inc. v. RRNS Enterprises (l992) 4 Cal.App.4th 238, 244.) In reviewing a motion to tax costs, a guiding principle is that all costs must be “reasonably necessary to the litigation” and “reasonable in need and amount.” (Acosta v. SI Corporation (2005) 129 Cal.App.4th 1370, 1380.)

If an item of cost 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 were unnecessary or unreasonable. (Ibid.; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131-132.) 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 Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.)  On the other hand, 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. (Id.) “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.” (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308.) Costs not expressly permitted under Code of Civil Procedure section 1033.5, subdivision (a), but not expressly denied under Code of Civil Procedure section, subdivision (b), may be recovered in a court’s discretion. (Science Applications International Corporation v. Superior Court (1995) 39 Cal.App.4th 1095, 1103.) 

Courts have discretion to disallow costs that were unreasonably incurred. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1201.)  Cost awards are reviewed under an abuse of discretion standard.  (El Dorado Meat Co. v. Yosemite Meat and Locker Service, Inc. (2007) 150 Cal.App.4th 612, 616; Gibson v. Bobroff (1996) 49 Cal.App.4th 1202, 1209.)

Plaintiff challenges items 1, 4, 11 and 12: filing and motion fees, deposition costs, court reporter fees, and Models, Enlargements, and Photocopies of Exhibits adding up to $33,594.11. Unchallenged items include jury fees, and service of process costs totaling $2,583.91.

Item 1: Filing and Motion Fees, $1,482.65

Plaintiff challenges the entire entry as lacking documentary proof of the incurred costs, and the $20 fee for the motion to continue the summary judgment was not reasonably incurred. Defendant relies on the legal standard regarding the listing of the costs as a “prima facie” showing, and counters that the motion lacks any valid challenge to the reasonableness. On the rescheduled summary judgment, Defendants maintain the motion was reserved, but required a continuance in order to complete discovery. Defendants also present a series of exhibits as proof of payments. [Declaration of Sanaz Cherazaie, Ex. G.]

The court finds all items were filed, as demonstrated by the actual filing of the documents with the court. Thus, barring a showing the court allowed the filing of the documents without payment, the court declines to make a finding of insufficient documentary proof in support of the filing fees. The court also finds the continuance of the motion for summary judgment reasonable given the purported state of the case at the time of the initially scheduled motion. The motion to tax is therefore DENIED as to this item.

Item 4, Deposition Costs, $12,956.73

Plaintiff again challenges the lack of documentary evidence establishing actual proof of costs. Defendants again refer to the series of exhibits as proof of payment. [Cherazaie Decl., Ex. G.] The invoices from Hines Reporters, Kusar Legal Services, Inc., Saddleback Attorney Service, Inc., and Magna Legal Services, substantially conform to all listed represented items. The declaration lacks actual receipts, but accepts the invoices as proof of expense barring an actual factually supported argument from Plaintiff demonstrating incorrect arithmetic in totaling the amounts, non-payment of the invoiced amounts, or otherwise some form of discounted payment of the billed invoices. The motion is DENIED as to this item.

Item 11: Court Reporter Fees, $15,900.15

Plaintiff challenges the item on grounds court reporter fees were not ordered by the court.  Defendants in opposition concede to the lack of any court order, but maintains a right to recover as a prevailing party.

Court reporter fees are only recoverable by statute. The memorandum of costs and opposition to the motion lacks any citation to a statutory basis for recovery of fees. The court records show no court order requiring the hiring of a reporter. The arguments in opposition relying on recovery pursuant to Code of Civil Procedure section 998 remains inapposite to the subject action. (Anthony v. Xiaobin Li (2020) 47 Cal.App.5th 816, 821-824; Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 53-55.) The motion to tax this item is GRANTED.

Item 12, Models, Enlargements, and Photocopies of Exhibits, $3,254.58

Plaintiff again challenges the lack of documentary evidence establishing actual proof of costs. Defendants again refer to the series of exhibits as proof of payment. [Cherazaie Decl., Ex. G.] The invoice from Suite Trial Services, LLC, conforms to the listed represented item. The declaration lacks actual receipts, but again, the court accepts the invoices as proof of expense also again barring an actual factually supported argument from Plaintiff demonstrating non-payment or discounted payment of the billed invoices. The motion is DENIED as to this item.

The motion to tax is therefore granted as to item 11 for $15,900.15, and denied as to the remainder of the identified items. Defendant to recover the remainder of the unchallenged fees listed in the memorandum of costs, due to the lack of any timely challenge.

Defendant to give notice.