Judge: Stephen P. Pfahler, Case: BC717512, Date: 2024-08-21 Tentative Ruling

Case Number: BC717512    Hearing Date: August 21, 2024    Dept: 68

Dept. 68

Date: 8-21-24

Case: BC717512

Trial Date: 2-18-25

TAX COSTS

MOVING PARTY: Plaintiff, Louis Acosta

RESPONDING PARTY: Defendant, Mas Realty, LLC, et al.

RELIEF REQUESTED

Motion to Tax Costs

SUMMARY OF ACTION

On March 27, 2024, the court entered judgment after remittitur, whereby the court entered judgment in favor of Defendants Mas Realty, LLC, and Athena Management, Inc. against Plaintiff Louis Acosta. The appellate court awarded costs on appeal.

RULING: Granted in Part/Denied in Part.

Plaintiff Louis Acosta moves to tax certain items the memorandum of costs filed by Defendants Mas Realty, LLC, and Athena Management, Inc. on April 18, 2024. The subject memorandum of costs was filed after the Memorandum of Costs on Appeal filed on Marcy 7, 2024.

Plaintiff moves on grounds that the costs are not authorized, lack sufficient support, and were therefore not reasonably and necessarily incurred. Defendants in opposition maintains the motion is untimely, and the items were necessarily and reasonably incurred. Plaintiff in reply contends the motion was timely given electronic filing extends the response time by two (2) days. Plaintiff reiterates the necessity of the identified items.

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.” (Cal. Rules Court, rule, 3.1700(b)(1).) The time for filing is extended for mail or electronic service pursuant to either Code of Civil Procedure sections 1010.6, subdivision (a)(4) or 1013. Additionally, “[t]he 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.” (Cal. Rules Court, rule, 3.1700(b)(3).)

The memorandum of costs was filed and served on April 18, 2024, by electronic service. “Any document that is served electronically between 12:00 a.m. and 11:59:59 p.m. on a court day shall be deemed served on that court day. Any document that is served electronically on a noncourt day shall be deemed served on the next court day.” (Code Civ. Proc., § 1010.6, subd. (a)(4).) The motion was filed on May 7, 2024—19 days after service—and is therefore untimely. The court, however, in its discretion, considers the motion as it was filed within 30 days of the memorandum of costs filing date. (Cal. Rules Court, rule, 3.1700(b)(3).)

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.)

The memorandum of costs lists the following items:

1. Filing and motion fees, $2,259.93

2. Jury fees, $785.27

4. Deposition costs, $40,665.12

11. Court reporter fees as established by statute, $2,148.64

12. Models, enlargements, and photocopies of exhibits, $2,148.64

14. Fees for electronic filing or service, $504.75

16. Other, $2,949.80

TOTAL COSTS of $61,840.36.

The right to recovery of costs remains unchallenged. Plaintiff only challenges the reasonableness to all but two categories. Plaintiff therefore concedes to the right to recovery of filing and jury fees.

The court addresses the remaining, challenged items.

1. Filing and motion fees, $2,259.93

Plaintiff only challenges the subject items:

a. MSJ- MAS Realty ($513.75)

b. MSJ- Athena Management ($513.75)

c. Ex Parte to Continue Trial ($30)

d. Ex Parte re Page Limit ($68.91)

e. Motion to Tax Costs ($61.65)

f. Stipulation re Protective Order ($27.81)

g. Total reduction: ($1,215.87)

h. Original total: $2,259.93

i. NEW TOTAL: $1,044.06

Plaintiff maintains the ex parte fees were unnecessarily incurred, as it in no way related to the defense of the matter. The summary judgment fees were also unnecessary given Defendant lost the motion. The motion to tax was unnecessary, as upon reversal by the court of appeals, Defendant was relieved of any obligation to pay costs. The motion lacks any address of the stipulation. Defendants offer a general challenge to the necessity with the only specific challenge on the motion to tax in the introduction.

The court specifically declines to strike the unarticulated stipulation challenge, and finds the motion to tax was also proper in that when Defendants filed the motion it was still years before any action by the Court of Appeal. The subsequent reversal in no way unwinds the necessity of the motion to tax at the time. On this same note, the denial of the motion for summary judgment, while denied and not identified as part of the record by the appellate court, presumably raised valid arguments on peculiar risk doctrine. The two ex parte motions apparently addressed preparation of the action for trial as well. The court therefore denies the motion as to Item 1 in its entirety.

4. Deposition costs, $40,665.12

a. Sheung Tsam Kam ($991.50)

b. Kevin Ashby Vol. I ($1,939.11)

c. Kevin Ashby Vol. II ($712.30)

d. Jeffrey Tan Ho, DO Video ($323.91)

e. Enrique Vega Video ($327)

f. Francis Ferrante MD Video ($451.68)

g. Fardad Mobin MD Video ($540)

h. John Bobis Video ($787.50)

i. Tedy Norohian Transcribing ($600)

j. Brad Avrit Video ($1112.50)

k. Eric Russell Transcribing (461.35)

l. Deposition Subpoenas ($810.13)

m. Total reduction: ($9,056.98)

n. Original total: $40,655.12

o. NEW TOTAL: $31,598.14

Plaintiff presents a summary argument based on the lack of use of said deposition testimony at trial in any capacity, and therefore not necessary for the litigation. Defendants maintain the costs were associated with 24 depositions used for both preparation and for presentation to the jury. The court cannot rely on summary dismissal of validity simply based on use at trial. The standard is reasonably necessary for litigation not just trial. Nothing in the motion establishes the depositions were any way unnecessary. The court declines to speculate, or make the arguments for Plaintiff, and therefore finds Plaintiff fails to shift the burden on lack of propriety. The motion is denied as to this item.

11. Court reporter fees as established by statute, $ 12,526.65

a. Reporter Candace Myers ($11,126.65)

b. Reporter Suzanne Onuki ($5900)

c. Reporter Irene Kubert ($500)

d. Total reduction: ($12,526.65)

e. Original total: $12,526.65 f. NEW TOTAL: $0

Plaintiff summarily denies any statutory authority for the fees on grounds that it cannot be determined whether the fees were for transcripts or a disallowed item. Defendants counter the costs were jointly paid for the trial, since the court no longer provides court reporters in civil trials. The court issued an order allowing for their appearance.

Court reporter fees still require a supporting statute. A voluntary agreement to share fees in no way entitles later recovery when party prevails. An order allowing a reporter into the courtroom in no way constitutes an equivalent order for an ordered court reporter. While the transcript undoubtedly proved critical for prevailing on the appeal, nothing establishes a basis of support. The motion to tax is granted.

12. Models, enlargements, and photocopies of exhibits, $2,148.64

a. Blow ups, Exhibit Binders ($2,148.84)

b. Total Reduction: ($2,148.84)

c. Original total: $2,148.84

d. NEW TOTAL: $0

Again, the challenge only constitutes assumptions and summaries of what might have been admitted into trial, with a concession to photocopied records. Defendants maintain numerous amounts of records were reviewed. Photocopies of records used for preparation of the action for trial, including exhibits and binders for the court, remains allowable. The court cannot otherwise distinguish any wrongful charges. The motion is denied.

16. Other, $2,949.80

a. Messenger Fees ($1,059.68)

b. FedEx Fees ($95.82)

c. Private Investigator ($1,749.30)

d. Total reduction: ($2,904.80)

e. Original total: $2,949.80

f. NEW TOTAL: $45

The parties dispute the reasonableness. The court in its discretion finds messenger and FedEx fees unnecessary and without justification in this case. The court also finds a lack of support for recovery of “private investigator” fees. The motion to strike is granted as to the listed items.

The motion is therefore denied as to Items 1, 4, and 12. The motion is granted as to the identified items in numbers 11 and 16.

Bench trial on the cross-complaint for set for February 18, 2025.

Plaintiff to give notice.