Judge: Teresa A. Beaudet, Case: BC565480, Date: 2025-02-11 Tentative Ruling

Case Number: BC565480    Hearing Date: February 11, 2025    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Mostafavi Law Group, APC filed this action on December 2, 2014 against Defendants Larry Rabineau, a Professional Corporation and Larry Rabineau.  

Plaintiffs Mostafavi Law Group, APC and Amir Mostafavi (jointly, “Plaintiffs”) filed the operative Second Amended Complaint (“SAC”) on November 6, 2015. The SAC alleges causes of action for (1) inducing breach of contract, (2) interference with contractual relations, (3) intentional interference with prospective economic relations, (4) negligent interference with prospective economic relations, and (5) defamation per se.[1] 

On May 4, 2018, Law Offices of Larry Rabineau, A Professional Corporation and Larry Rabineau (jointly, “Defendants”) filed a Third Amended Answer to Complaint.

On January 30, 2024, the Court issued an Order in this action granting Defendants’ motion for an order dismissing Plaintiffs’ Complaint.

On April 9, 2024, Defendants filed a Memorandum of Costs.

Plaintiffs now move for an order “reducing or taxing Defendants Law Offices Of Larry Rabineau, and Larry Rabineau (‘Defendants’) costs [sic] that were improper, unreasonable, and/or not reasonably necessary but still set forth in Defendants’ Memorandum of Costs, filed on April 1, 2024.”[2] Defendants oppose.

Discussion

Pursuant to Code of Civil Procedure section 1032, subdivision (b), “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” 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.”

As set forth above, on January 30, 2024, the Court issued an Order granting Defendants’ motion for an order dismissing Plaintiffs’ Complaint.

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, subds. (c)(2), (3).) Costs “merely convenient or beneficial” to the preparation of a case are disallowed. (Code Civ. Proc., § 1033.5, subd. (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”].)

            On April 9, 2024, Defendants filed a Memorandum of Costs, claiming a total of $7,224.57 in costs.

            In the instant motion, Plaintiffs first assert that “Defendants’ Memorandum of Costs should be taxed in its entirety for failure to provide proper itemization of costs, supporting documentation [sic].” (Mot. at p. 4:6-7.) Plaintiffs assert that “[i]n California, filing a Memorandum of Costs (Worksheet) (MC-011) is required when a party seeks to recover costs incurred during litigation…” (Mot. at p. 4:7-8.) But Plaintiffs do not appear to cite to any legal authority stating that Defendants are required to file Form MC-011 in order to recover costs.

Plaintiffs cite to California Rules of Court, rule 3.1700, which provides in part that “[a] prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (Cal. Rules of Court, rule 3.1700, subd. (a)(1).). Plaintiffs do not appear to assert (or show) that Defendants have not complied with this provision.

Moreover, in the opposition, Defendants cite to Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267, where the Court of Appeal noted that “[i]nitial verification will suffice to establish the reasonable necessity of the costs claimed. There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted.”

Next, Item 16 of the Memorandum of Costs indicates that Defendants claim $2,000.00 in costs for private mediation. Plaintiffs assert that the mediation costs were not “reasonably necessary to the conduct of the litigation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).) More specifically, Plaintiffs argue that Defendants “are attempting to recover for the mediation costs, which they requested – only few days prior to commencement of trial – and used improperly in bad faith that eventually prejudiced Plaintiffs because of the passage of time caused by the delays.” (Mot. at p. 5:11-14.) As an initial matter, Plaintiffs do not provide any evidence to support this argument. Moreover, the Court finds that the foregoing argument is confusing. It is unclear why Plaintiffs were allegedly prejudiced by the mediation. It is also unclear why the mediation was purportedly not reasonably necessary to the conduct of the litigation. Accordingly, the Court declines to tax the claimed $2,000.00 in costs for private mediation.[3]

Defendants also seek $2,181.82 in filing and motion fees. (Memorandum of Costs, Item 1.) In the motion, Plaintiffs state that “the requested amount of $2,181.82 seems unreasonable, and therefore objected [sic].” (Mot. at p. 5:20-22.) In support of the opposition, Defendants submit the Declaration of Virginia Narian, their counsel. Ms. Narian states that “[r]elating to OneLegal filing costs, I was able to locate $404.55 in invoices…Attached as Exhibit A to Declaration of Virginia Narian is true and correct copies of the printout invoices from One Legal dated 3/29/2019 through 2/27/2024. Additionally, the printout ‘Search Results’ shows various items made payable to ‘Clerk of the Court’ for filing and motion costs paid directly to the Superior Court. These total $1,690.00. A true and correct copy is attached as Exhibit B. Moreover, the ABC Legal Services invoices total $3,130.00. A true and correct copy is attached as Exhibit E. $404.55 + $1,690.00 + $3,130.00 totals $5,224.55.” (Narian Decl., ¶ 7.)[4]

In the reply, Plaintiffs state that “[a]ccording to Exhibit B attached to Narian’s declaration, the following payments under ‘Clerk of the Court’ is shown: 10/2/2017 - $60; 10/2/2017 - $20; 10/5/2016 - $60; 4/21/2016 - $500; 4/20/2016 - $60; and 12/29/2014 - $435 for total of $1,135. Defendants improperly [sic] seeking additional amount [sic] based on the duplicated items that already included in included in filing and motion fees.” (Reply at p. 3:22-25.) It is unclear to the Court what purported “duplicated items” Plaintiffs are referring to.[5] The Court does not find that Plaintiffs have shown that the $2,181.82 in filing and motion fees should be taxed. Accordingly, the Court declines to tax this amount.

Defendants also seek $150.00 in jury fees. (Memorandum of Costs, Item 2.) Plaintiffs assert that “Defendants failed to provide receipt [sic] or copy of filing [sic] the notice of posting jury fees in this action.” (Mot. at p. 5:23-24.) In the opposition, Defendants state that they “cannot locate the invoice for the jury fees paid.” (Mot. at p. 6:15.) Accordingly, the Court grants Plaintiffs’ motion to tax the $150.00 in jury fees.

            Defendants seek $1,880.75 in deposition costs. (Memorandum of Costs, Item 4.) In the motion, Plaintiffs assert that “the deposition transcripts were not reasonably necessary to the defense of the action and must be taxed.” (Mot. at p. 5:27-28.) In her supporting declaration, Defendants’ counsel states that “Defendants took Amir Mostafavi’s, key witness Nena McMillian’s and key witness Chantal McCoy’s depositions during litigation of this matter. The Court Reporter that was hired was through agency [sic], Atkinson-Baker. Attached as Exhibit B to Declaration of Virginia Narian is a true and correct copy of Search Results Printout that shows 5 charges paid to Atkinson-Baker with the Memorandum of ‘Mostafavi v. Rabineau.’ Attached as Exhibit C is a [sic] true and correct copies of checks and invoices for these deposition charges. These charges are as follows: $403.65, $347.40, $448.30, $504.90, and $176.50. The total is $1,880.75.” (Narian Decl., ¶ 9.)

            In the reply, Plaintiffs assert that “Defendants took depositions of Nena McMillian’s [sic] and Chantal McCoy without the presence of the Plaintiffs or their counsel. The Court granted Plaintiffs’ motion in limine excluding the use of transcripts, or even reference to them, and therefore Defendants’ request for depositions of Chantal McCoy for $448.30 and Nena McMillian $347.40 on 9/1/2016…must be taxed.” (Reply at p. 4:2-4.)[6] But as set forth above, the relevant standard is whether the requested costs are “reasonably necessary to the conduct of the litigation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5, subds. (c)(2)-(3).) Plaintiffs assert that “[w]hen an action is dismissed for lack of prosecution, the defendant’s deposition costs are disconnected from any genuine trial preparation, as the case never reached a stage where the deposition served its intended purpose…Here, the deposition was wasted due to the plaintiff’s failure to proceed, making it unreasonable to impose this expense on the plaintiff.” (Reply at p. 4:14-19.) However, Plaintiffs do not appear to cite to any legal authority demonstrating that a case must reach the trial stage in order for a deposition to be considered “reasonably necessary to the conduct of the litigation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).) The Court does not find that Plaintiffs have shown that the subject depositions were not reasonably necessary to the conduct of the instant litigation.

            Next, Plaintiffs assert that “Defendants seek to recover the cost for transcribing the audio recording between Plaintiffs and Nena McMillian…The cost of transcribing audio is not a recoverable cost under section 1033.5 or reasonably necessary…” (Reply at p. 4:5-8.) The Court notes that Exhibit C to Ms. Narian’s declaration includes an invoice dated October 30, 2019, in the amount of $403.65, for the Item “Audio transcription of the recording of the Phone Coversation [sic] between Amir Mostafavi and Nena McMillian, taken 12/4/2014.” (Narian Decl., ¶ 9, Ex. C.) Such costs do not appear to pertain to the transcription of a deposition. In addition, Defendants do not appear to cite to any legal authority demonstrating that such costs are allowable. Thus, the Court grants Plaintiffs’ motion to tax costs in the amount of $403.65.

            Defendants seek $562.00 in costs for service of process. (Memorandum of Costs, Item 5.)

Plaintiffs assert that “[t]here is no evidence supporting that Defendants made the service of process (summons, subpoenas, etc.).” (Mot. at p. 6:3-4.) In her declaration, Defendants’ counsel states that “[a]ttached as Exhibit D to Declaration of Virginia Narian is a true and correct copy of a printout from Calwest Attorney Services, which is an attorney service company that handled various service of process assignments on the instant matter. With Work Order Numbers, the list shows 4 messenger deliveries and 3 service of process assignments. Additionally, the actual work orders are attached verifying these assignments are related to the instant action. These items total $562.00.” (Narian Decl., ¶ 10.)

            In the reply, Plaintiffs argue without providing any supporting evidence that the “[p]arties served pleadings and discovery themselves without incurring any out-of-pocket expenses.” (Reply at p. 5:4-5.) Plaintiffs also assert that “Defendants confuse the permitted recovery of…Service of Process under C.C.P. §1033.5(a)(4) with Messenger Service costs that are not recoverable.” (Reply at p. 5:6-7.) However, it is unclear what specific “messenger service costs” Plaintiffs are objecting to, and why such costs are objectionable. Pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(4), items that are allowable as costs include “[s]ervice of process by a public officer, registered process server, or other means,” as specified in Code of Civil Procedure section 1033.5, subdivision (a)(4). The Court does not find that Plaintiffs have shown that the $562.00 in claimed costs for service of process should be taxed. Accordingly, the Court declines to tax this amount.

            Lastly, Defendants seek $450.00 in costs for “[m]odels, enlargements, and photocopies of exhibits.” (Memorandum of Costs, Item 12.) Code of Civil Procedure section 1033.5, subdivision (a)(13) provides that “(a) The following items are allowable as costs under Section 1032:…(13) Models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.”

Plaintiffs assert that “[d]uring the course of the litigation, Defendants did not use any not [sic] models, blow-ups and therefore, are not entitled to a recovery. Also, there was no photocopies of exhibits was used [sic] or presented to aid the trier of fact in this case.” (Mot. at p. 6:11-14.) However, Plaintiffs do not submit any evidence to support these assertions. In addition, as set forth above, Ms. Narian’s declaration provides that “$450.00 was the amount paid for the creation of FSC binders and Exhibits binders which were done several times gearing up for trial.” (Narian Decl., ¶ 11.) Thus, the Court declines to tax the claimed $450.00 in costs requested in Item 12 of the Memorandum of Costs. The Court finds that these costs are reasonable.

Conclusion

Based on the foregoing, the Court grants Plaintiffs’ motion to tax costs in part and denies the motion in part. The Court reduces the total requested costs of $7,224.57 by $553.65 ($150.00 + $403.65). Thus, Defendants’ costs are reduced to the amount of $6,670.92.

The Court orders Plaintiffs to give notice of this ruling.

DATED:  February 11, 2025                          ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court