Judge: Teresa A. Beaudet, Case: 21STCV07352, Date: 2022-08-05 Tentative Ruling

Case Number: 21STCV07352    Hearing Date: August 5, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On February 25, 2021, Plaintiff Falcon Marketing, LLC (“Falcon”) filed this action against Defendant Samantha De Galicia (“Galicia”). The operative First Amended Complaint was filed on March 10, 2021, asserting causes of action for (1) fraud, (2) conversion, (3) intentional interference with a contractual relationship, (4) intentional interference with prospective economic advantage, and (5) negligent interference with prospective economic advantage. On April 30, 2021, Galicia filed an answer to the FAC.

In the FAC, Falcon alleges that in 2020, it commenced discussions with Galicia regarding the retention of her to perform social media services for Falcon and Falcon’s clients. (FAC, ¶ 5.) Falcon alleges that Galicia falsely represented that she had extensive high-level experience in developing and managing social media content, strategies, and campaigns and that she was a social media influencer in various industries which were of value to Falcon. (FAC, ¶¶ 6, 9.) Galicia also allegedly falsely held herself out to be an expert in client relations, creating and maintaining professional relationships with clients, and business development. (FAC, ¶¶ 7, 9.) In reliance on those representations, Falcon retained Galicia’s services as Social Media Manager in late June 2020. (FAC, ¶ 11.) Galicia allegedly failed to provide satisfactory services to Falcon’s clients, and her conduct caused the disruption and cancellation of Falcon’s contractual and/or prospective relationships with numerous clients. (FAC, ¶¶ 13, 14.) Falcon alleges that as a result of Galicia’s behavior during a meeting with Falcon’s business contact on September 18, 2020, Falcon’s relationship with this business contact ended, resulting in Falcon’s inability to secure locations to film social media content. (FAC, ¶ 29.) Falcon also alleges that Yosef Adelman (“Adelman”), its Chief Executive Officer, bought materials for Galicia to use in filming social media content for Falcon’s client, but that Galicia did not use the materials for filming and never returned certain clothing to Falcon. (FAC, ¶ 16.) Galicia subsequently resigned from her employment with Falcon in September 2020. (FAC, ¶ 30.)

 On April 30, 2021, Galicia filed a Cross-Complaint against Falcon and Adelman, asserting causes of action for (1) hostile work environment harassment; (2) quid pro quo sexual harassment; (3) failure to prevent harassment in violation of Gov. Code § 12940(k); (4) wrongful constructive termination in violation of public policy; (5) civil and sexual battery; (6) false imprisonment; (7) intentional infliction of emotional distress; (8) negligence; (9) failure to provide accurate itemized wage statements in violation of Labor Code § 226; and (10) failure to pay overtime and pay all wages due.

On January 3, 2022, Falcon filed a request for dismissal of its complaint, without prejudice. Dismissal was entered as requested on January 6, 2022. On January 18, 2022, Galicia filed a Memorandum of Costs, seeking $4,605.04 in costs.

Falcon now moves to strike Galicia’s costs. Galicia opposes.

Discussion

A prevailing party is entitled to recover costs, including attorneys’ fees, as a matter of right, except as otherwise expressly provided by statute. ((See Code Civ. Proc., §§ 1032(a)(4), 1032(b), 1033.5.) Pursuant to Code of Civil Procedure section 1032, subdivision (a)(4), “‘[p]revailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Emphasis added.) As set forth above, the dismissal of Falcon’s complaint against Galicia was entered on January 6, 2022.

Costs recoverable under section 1032 are restricted to those that are both reasonable in amount and reasonably necessary to the conduct of the litigation. (Code Civ. Proc., §§ 1033.5(c)(2), (3).) Costs “merely convenient or beneficial” to the preparation of a case are disallowed. ((Id., § 1033.5(c)(2)); ((see Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 [expenses for attorney meals incurred while attending local depositions not “reasonably necessary”].)

“A ‘verified memorandum of costs is prima facie evidence of [the] propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.” ((Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486-1487 [italics and brackets omitted].) “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. 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.” ((Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 774.) Costs otherwise allowable as a matter of right may be disallowed if the court determines they were not reasonably necessary, and the court has power to reduce the amount of any cost item to an amount that is reasonable. (See Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245 [finding that “the intent and effect of section 1033.5, subdivision (c)(2) is to authorize a trial court to disallow recovery of costs, including filing fees, when it determines the costs were incurred unnecessarily”].)

Falcon contends that the subject costs are not allowable, as they were incurred by Galicia for the prosecution of her Cross-Complaint, and not in defense of Falcon’s complaint.

Galicia’s costs are itemized as follows:

(1)    Filing and motion fees - $515.00

(4)    Deposition costs - $3,834.25

(14) Fees for electronic filing or service - $255.79

Item 4 (deposition costs) concern the deponent “Yoseph Adelman” (“Adelman”).   Falcon objects to Item 4 on the grounds that Adelman’s deposition was taken for the purpose of proving Galicia’s allegations in the Cross-Complaint. On October 14, 2021, Galicia took the deposition of Adelman, who appeared both in his individual capacity and as Falcon’s Person Most Knowledgeable (“PMK”). (Chackel Decl., ¶¶ 18-19, Ex. 3.) Galicia notes that the PMK Deposition Notice included 33 topics, 30 of which they contend pertain to the allegations in the FAC. (Chackel Decl., ¶¶ 19-20, Ex. 3.) In addition, Galicia asserts that although the deposition would eventually cover the topics raised in her Cross-Complaint, the vast majority of the first day of deposition on October 14, 2021 (at issue here) was devoted to addressing the FAC. (See Opp’n at pp. 5:1-7:20; Chackel Decl., ¶¶ 21, 25, 30.)

In the reply, Falcon contends that “[t]he entirety of the October 14, 2021 deposition of Yosef Adelman relate to allegations contained in De Galicia’s Cross Complaint.” (Reply at        p. 3:7-8). Falcon then references portions of Adleman’s deposition it asserts relate to the allegations of the Cross-Complaint. (Reply at p. 3:13-4:26.) The Court disagrees that the entirety of Adleman’s deposition relates solely to the allegations contained in the Cross-Complaint. In addition, the Court finds that the excerpts of the deposition testimony referenced by Falcon in the reply could be relevant to Galicia’s defense of the FAC. Thus, the Court declines to strike the $3,834.25 in deposition costs.  

As to Item 1 (filing and motion fees), Galicia’s Memorandum of Costs lists fees for: (a) “Answer to Complaint - (4/30/21)” in the amount of $435.00; (b) “Proposed Order and Stip re Protective Order (7/8/21)” in the amount of $20.00; and (c) “Motion to Compel Yosef Adelman’s Attendance at Depo (8/27/21)” in the amount of $60.00, for a total of $515.00. Falcon indicates that it objects to Item 1 “in the amount of $515.00 on the basis that this cost was incurred for the filing of the Answer and for the Cross Complaint which is still pending.” (Mot. at p. 5:17-18.) The Court does not see how Item 1(a) “Answer to Complaint - (4/30/21),” was incurred in Galicia’s prosecution of the Cross-Complaint. As Galicia notes, she filed an answer to Falcon’s FAC on April 30, 2021. The Court finds that these costs are compensable.

As to Items 1(b) and 1(c), Galicia asserts that these items are directly related to her discovery into the FAC. She indicates that the protective order entered in this case was required by Falcon as a condition to producing documents[1], and that she was forced to file a motion to compel attendance of Falcon at deposition. (Chackel Decl., ¶¶ 14, 16.) The Court does not find that these costs were not reasonably necessary to Galicia’s defense of the FAC, and declines to strike them.

Lastly, Falcon objects to Item 14 (fees for electronic filing or service) on the grounds that these fees relate to Galicia’s Cross-Complaint. The Court finds that Galicia has demonstrated that the costs outlined in Item 14 were incurred to defend against Falcon’s FAC. (See Chackel Decl., ¶¶ 37-48.) In addition, the Court notes that Falcon does not present any objections to specific costs in Item 14, rather, it concludes without any analysis that “these items were incurred for filing of discovery and motions related to Defendant’s Cross Complaint.” (Mot. at  p. 5:25-26.) Based on the foregoing, the Court declines to strike the $255.79 in fees for electronic filing or service. 

Conclusion

Based on the foregoing, the Court denies Falcon’s motion to strike costs in its entirety.   

Galicia is ordered to give notice of this ruling.

DATED:  August 5, 2022                                                      

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Hon. Teresa A. Beaudet