Judge: Steven A. Ellis, Case: 20STCV48416, Date: 2025-03-03 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: 20STCV48416    Hearing Date: March 3, 2025    Dept: 29

Burton v. Ebanculla
20STCV48416
Defendants’ Motion to Tax Costs

Tentative

The motion is granted in part and denied in part.

Background

On December 17, 2020, Plaintiffs Brandon John Burton (“Plaintiff”) and Dimitris Casarez filed this action against Bernadette K. Ebanculla and Micah Ebanculla (collectively “Defendants”) for motor vehicle negligence arising out of an automobile accident occurring on March 4, 2020 at Rosecrans Boulevard in Norwalk.

On February 8, 2021, Defendants filed an answer.

On June 14, 2022, the Court, on Plaintiff’s request, dismissed Plaintiff Casarez from this action.

The parties arbitrated the case on December 3, 2024.  On January 2, 2025, an Arbitration Award was served on the parties awarding Plaintiff $40,160.14.  Notice of this Award was filed with the Court on January 21, 2025.

On January 22, 2025, Plaintiff filed a memorandum of costs in the total amount of $30,215.05.  

On February 5, 2025, Defendants filed this motion to tax costs. Plaintiff filed an opposition on February 18, and Defendants filed a reply on February 24.

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).)  Subdivision (b) of section 1033.5 identifies certain items that are generally not allowable as costs.  Subdivision (c) states that 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.)   

Discussion

Defendants moves to tax five of the items in Plaintiff’s memorandum of costs.  The Court considers each in turn.

Item No. 1: Filing and Motion Fees

Plaintiff identifies $535 in filing and motion fees. Defendants move to tax $60 of this amount, arguing that a filing fee for an ex parte to continue trial (because Plaintiff was at the time incarcerated) should not be recoverable.

Reviewing the fee, the Court finds the $60 ex parte filing fee reasonably necessary to the litigation based on Plaintiff’s unavailability to appear for trial.

Accordingly, the motion to tax is denied as to Item No. 1.

Item No. 5: Service of Process

Plaintiff identifies $200 in costs for service of process ($100 for each of the two defendants). Defendants move to tax these costs, arguing a party seeking service of process costs must state how the subpoenas were served, citing Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132. The court in Nelson held that simply providing a verified cost bill was insufficient to support service of process costs as there is no way to determine whether the items are proper.

Here, Plaintiff has provided a bill for service of process with the memorandum of costs, but no other supporting information as to what the service of process was for. Plaintiff merely states the fees are recoverable in his opposition and provides no further information or supporting evidence as to the service of process fees.

Accordingly, the motion is granted as to Item No. 5.  The costs in this item are taxed in full.

Item No. 6: Attachment Expenses

Plaintiff identifies $13,393.85 in attachment costs.  Defendants move to tax these costs, arguing (among other things) that there was no attachment in this case.

An attachment is a prejudgment remedy in which a creditor (usually a contract creditor) obtains an order to secure assets of the debtor so that they are available to satisfy a judgment.  (See Code Civ. Proc., §§ 483.010, et seq.)

There is no evidence presented that Plaintiff obtained an attachment in this matter.

Accordingly, the motion is granted as to Item No. 6.  The costs in this item are taxed in full.

Item No. 8: Expert Fees

Plaintiff identifies $13,050 in expert witness fees.  Defendants move to tax these costs.

A plaintiff may recover expert witness fees when an offer to compromise under Code of Civil Procedure section 998 is rejected by the defendant and the plaintiff obtains a more favorable judgment.  (Code Civ. Proc., § 998, subd. (d); see also, e.g., Gonzalez v. Lew (2018) 20 Cal.App.5th 155, 160.)

Here, Plaintiff did not make an offer to compromise under section 998.  Thus, even if the expert witness fees were reasonably necessary for trial, the fees are not recoverable as an item of costs after trial.

Accordingly, the motion is granted as to Item No. 8.  The costs in this item are taxed in full.

The Court notes that in the Memorandum of Costs (not the worksheet), these costs are listed in Item No. 15 instead of Item No. 8.  The Court’s ruling applies and the costs in this item are taxed in full.

Item No. 14: Fees for Electronic Filing or Service

Plaintiff identifies $108.60 in fees for electronic filing and service.  Defendants move to tax these costs, but electronic filing and service is mandatory and thus reasonably necessary.

Accordingly, the motion to tax is denied as to Item No. 14.

Conclusion

The Court GRANTS in part and DENIES in part Defendants’ motion to tax costs.

The Court GRANTS the motion as to Items Nos. 5, 6, and 8 in the Memorandum of Costs.

The following items remain and are recoverable as costs: Item 1 ($535.00); Item 4 ($2,927.60); and Item 14 ($108.60).  The total recoverable costs are $3,571.20.

Moving party is ordered to give notice.