Judge: Steven A. Ellis, Case: 19STCV31520, Date: 2023-08-21 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 
IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 
ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 19STCV31520    Hearing Date: April 8, 2024    Dept: 29

Motion to Recover Costs filed by Defendant City of Los Angeles
Motion to Tax Costs filed by Plaintiff Juan Ramon Valdez.

Tentative

The motions are granted in part and denied in part.

Background   

On September 5, 2019, Juan Ramon Valdez (“Plaintiff”) filed a complaint against City of Los Angeles, County of Los Angeles (“Defendant”), Los Angeles County Metropolitan Transportation Authority, State of California, Union Pacific Railroad and Does 1 through 50 asserting causes of action for (1) negligence, (2) premises liability, and (3) dangerous condition of public property arising from injuries sustained after Plaintiff was struck by a train on November 14, 2018.

On November 28, 2023, the Court granted Defendant’s motion for summary judgment.

On February 9, 2024, Defendant filed a memorandum of costs.

On March 1, 2024, Defendant filed this motion to recover costs. Plaintiff filed an opposition on March 14, 2024. Defendant filed a reply on March 20, 2024.

On February 23, 2024, Plaintiff filed this motion to tax costs claimed by Defendant. On March 25, 2024, Defendant filed its opposition.

Legal Standard 

Code of Civil Procedure section 1032 provides that, in general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (Code Civ. Proc., § 1032, subd. (b); see Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.)  Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit.  (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.)   

Code of Civil Procedure section 1033.5, subdivision (a) enumerates items that are allowable as costs under section 1032.  These costs must 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, subd. (c)(2) & (c)(3).)  Except as provided in section 1033.5, subdivision (b), other items may be allowed or denied as costs in the discretion of the court.  (Id., subd. (c)(4).)

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, 773-774.)  But once there is a proper objection, the burden of proof is on the party claiming them as costs.  (Ibid.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court.  (Ibid.)   

“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 electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (Cal. Rules of Court, Rule 3.1700(b)(1).)

Code of Civil Procedure section 1038 provides an additional provision for the recovery of certain items.  “In any civil proceeding under the Government Claims Act (Division 3.6 (commencing with Section 810) of Title 1 of the Government Code) or for express or implied indemnity or for contribution in any civil action, the court, upon motion of the defendant or cross-defendant, shall, at the time of the granting of any summary judgment, motion for directed verdict, motion for judgment under Section 631.8, or any nonsuit dismissing the moving party other than the plaintiff, petitioner, cross-complainant, or intervenor, or at a later time set forth by rule of the Judicial Council adopted under Section 1034, determine whether or not the plaintiff, petitioner, cross-complainant, or intervenor brought the proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint, petition, cross-complaint, or complaint or answer in intervention. If the court should determine that the proceeding was not brought in good faith and with reasonable cause, an additional issue shall be decided as to the defense costs reasonably and necessarily incurred by the party or parties opposing the proceeding, and the court shall render judgment in favor of that party in the amount of all reasonable and necessary defense costs, in addition to those costs normally awarded to the prevailing party. An award of defense costs under this section shall not be made except on notice contained in a party’s papers and an opportunity to be heard.” (Code Civ. Proc., § 1038, subd. (a).)

“Defense costs,” as used in section 1038, “shall include reasonable attorney’s fees, expert witness fees, the expense of services of experts, advisers, and consultants in defense of the proceeding, and where reasonably and necessarily incurred in defending the proceeding.” (Id., subd. (b).)

A judge may only impose costs under section 1038 against the plaintiff, not the plaintiff's attorney, even when the attorney lacks reasonable cause and good faith in filing or maintaining the action, because the words “counsel,” “counsel for plaintiff,” or “plaintiff's attorney” are not included in the text of section 1038. (Settle v State (2014) 228 Cal.App.4th 215, 218–219.)

Notice of Lodgment

Defendant filed Notice of Lodgment of Exhibit B, video of incident, with its Motion to Recover Costs.

Discussion 

Motion to Recover Costs

Defendant seeks to to recover costs under Code of Civil Procedure section 1038, contending Plaintiff lacked both reasonable cause and good faith to maintain its action against the Defendant. (Motion, 6:19-20.)

Defendant cites Kobzoff v. Los Angeles County Harbor/UCLA Med. Ctr. (1998) 19 Cal.4th 851 (“Kobzoff”). In Kobzoff, the court held that reasonable cause is found when the public entity shows it did not own or operate the site of where the injury occurred. (Kobzoff v. Los Angeles County Harbor/UCLA Med. Ctr. (1998) 19 Cal.4th 851, 858.)

Defendant contends that here, Plaintiff was injured not on property Defendant owned or controlled. (Motion, 7:23-24.)

The Court denies this motion under section 1038 for two separate and independent reasons.

First, the motion is not timely.  A motion under section 1038 must be made “before the discharge of the jury or entry of judgment.”  (Code Civ. Proc., § 1038, subd. (c).)  Here, the Court issued an order granting Defendant’s motion for summary judgment on November 28, the Court entered judgment in favor of Defendant on December 21, 2023, and Defendant did not file this motion until more than two months later, on March 1, 2024.  Although there is other language in subdivision (a) regarding additional time being provided by a rule of the Judicial Council, no party has identified that any such rule has been adopted, and, in any event, no sufficient excuse is offered  for the delay of more than two months.  (See Gamble v. Los Angeles Dept. of Water and Power (2002) 97 Cal.App.4th 253, 259.)  The Court declines to follow the improperly cited unpublished opinion and admonishes counsel for Defendant for violating the Rules of Court. (Cal. Rules of Court, rule 8.1115(b).)

Second, and independently, even on the merits, the Court finds that Plaintiff brought this action with reasonable cause and in a “good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint.”  Defendant prevailed on summary judgment, but that does not mean that the there was no reasonable cause or good faith belief sufficient to support the filing of the complaint.  Moreover, Defendant continues to mischaracterize the nature of Plaintiff’s claims as against Defendant: in bringing his claim against Defendant, Plaintiff alleged that his injury was caused by a dangerous condition on Defendant’s property adjacent to the railroad tracks, not that the dangerous condition existed only on the property (not owned by Defendant) on which the railroad tracks were located. 

Therefore, Defendant’s motion under section 1038 is DENIED.

Motion to Tax Costs

Plaintiff specifically seeks to tax the following costs from Defendant’s Memorandum of Costs:

(1)  Item 1, filing and motion fees for jury fees;

(2)   Item 4, deposition costs;

(3)  Item 11, court reporter fees;

(4)  Item 16, other costs for expert fees and subpoenas of records;

(5)  And all costs Defendant has failed to provide any supporting documentation for.

Plaintiff contends Item 1, request for $229.25 for filing fee for filing of jury fees should be stricken as this matter never proceeded to trial and the fee for jury fees is $150.00 not $229.25. (Motion, 6:12-16.)  Plaintiff further argues Item 4, deposition costs, should be stricken as the costs are unreasonable at $2,873.55. (Id., 6:18-19.) Plaintiff also contends court reporter fees, Item 11, should be stricken. (Id., 7-8:25-27,1-2.) Plaintiff states Item 16, Expert Fees, should be removed as Defendant never served an offer to compromise pursuant to Code of Civil Procedure section 998. (Id., 8:7-9.) Lastly, Plaintiff contends the costs for subpoenas of medical and other records, again Item 16, is excessive. (Id., 8:19-20.)

Defendant contends that Item 1 includes the jury fee and cost of electronic filing. (Ekpezu Decl., ¶ 5.) Second Defendant states the deposition costs cover the fact Plaintiff failed to appear four times, with Defendant taking a notice of non-appearance at one of these instances, and later taking Plaintiff’s deposition. (Id., ¶ 6.) Defendant states it was reasonably necessary to obtain transcripts of the depositions of Shaoli Xu, Max Rendon and Kenneth Tom. (Id.) Defendant states the court reporter fees are reasonably incurred for the hearings on Defendant’s summary judgment motion of August 21, 2023 and September 6, 2023. (Id., ¶ 7.)

Defendant argues the other costs include the subpoenas for records, which was a reasonable and necessary cost for litigating this case, as well as expert fees for an accident reconstruction expert to opine on the location of the accident in relation to Defendant’s property; Defendant states these fees are allowed under Code of Civil Procedure section 1038. (Id., ¶ 9.) Defendant provides invoices for charges as Exhibit A.

The Court finds that all of the requested costs are allowed under Code of Civil Procedure sections 1033.5, with the exception of the expert fees.  (Code Civ. Proc., § 1033.5, subd. (b)(1).)  All other items are authorized by law, reasonable in amount, and reasonably necessary to the conduct of the litigation (rather than merely convenience or beneficial to its preparation). 

The Court awards costs to Defendant, as the prevailing party, in the amount of $7,052.96 (the requested amount of $18,569.96 minus the expert fees of $11,517.00)

Conclusion 

The Court DENIES Defendant’s motion to recover defense costs under Code of Civil Procedure section 1038.

The Court AWARDS Defendant costs under Code of Civil Procedure section 1033 and 1033.5 in the amount of $7,052.96.

Moving party is ordered to give notice.