Judge Theresa M. Traber, Case 20STCV37586 2023-01-30 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV37586, Date: 2023-01-30 Tentative Ruling

Case Number: 20STCV37586 Hearing Date: January 30, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: January 30, 2023 TRIAL DATE: April 11, 2023

CASE: Rodolfo Sanchez v. Hub Metals and Trading, Inc., et al.

CASE NO.: 20STCV37586

MOTION TO TAX COSTS

MOVING PARTY: Defendant Michael Kovach.

RESPONDING PARTY(S): Plaintiff Rodolfo Sanchez.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for whistleblower retaliation and assault and battery that was filed on October 1, 2020. Plaintiff contends that he was wrongfully terminated in retaliation for complaining because his supervisor pushed him during an argument. Judgment was entered against Plaintiff on his claims against Defendant Michael Kovach on September 30, 2022.

Plaintiff moves to tax select costs in the amount of $4,918.57 in Defendant Michael Kovach’s memorandum of costs.

TENTATIVE RULING:

Plaintiff’s motion to tax costs is GRANTED.

DISCUSSION:

Plaintiff moves to tax select costs in the amount of $4,918.57 in Defendant Michael Kovach’s memorandum of costs.

Legal Standard

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(b); 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.) A defendant who is dismissed from the action is the “prevailing party.” (Code Civ. Proc. §1032(a)(4).) This is so whether the dismissal is voluntary or involuntary. (Santisas, 17 Cal.4th at 606.)

Allowable costs under Section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. An item not specifically allowable under Section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). 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.) 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. (Ibid.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Ibid.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.) Discretion is abused only when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.)

Timeliness of Motion

“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 by mail or email, the period is extended as provided in Code of Civil Procedure section 1013.” (Cal. Rules of Court, rule 3.1700(b)(1).) Here, Defendant served the memorandum of costs by email on October 7, 2022. (Memorandum of Costs p. 2.) 15 days plus two court days places the deadline for this motion on October 26, 2022. The motion was served and filed on October 24, 2022. The motion is therefore timely.

Analysis

Plaintiff moves to tax select costs in the amount of $4,918.57 in Defendant Michael Kovach’s memorandum of costs. Specifically, Plaintiff moves to tax items 1a (for the Answer to the Complaint); 1b (for the Motion for Summary Judgment); 1c (ex parte application to set the hearing on the motion); 4a (for a copy of James Baker’s deposition testimony); 4b (for Plaintiff’s deposition); 4c (for a copy of Richard Paniagua’s deposition testimony); 4d (for a copy of Carolyn Nguyen’s deposition testimony); 4e (for a copy of Defendant’s deposition); 5a (for service of a subpoena to Newport Lexus); 5b (for serving a subpoena to Kulpati Chodha); and 16 (for mediation fees).

Plaintiff contends that the costs relating to the depositions should be taxed because they were ultimately unnecessary to the litigation. Plaintiff argues that, since Defendant Kovach’s success on summary judgment because of the exclusive remedy of workers compensation relied solely on Plaintiff’s admissions in written discovery, the deposition expenditures were superfluous. The Court finds this argument to be without merit. As Defendant states, California precedent holds that the determination of whether the prevailing party’s costs are reasonably necessary should be determined from a pre-trial perspective. (See, e.g., Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.) Plaintiff’s argument in reply that Nelson is distinguishable because it concerned expert testimony rather than the deposition of a lay witness is unpersuasive. The reasoning set forth in Nelson and the precedent on which it relies is that the evaluation of whether a deposition is necessary must be viewed from the pretrial vantage point of a litigant who does not yet know what will be needed to prevail at trial. (See Brake v. Beech Aircraft Corp. (1986) 184 Cal.App.3d 930, 940.) Plaintiff provides no basis for the Court to conclude that the deposition costs did not appear necessary when they were incurred.

Plaintiff’s next argument, however, is more meritorious. Plaintiff also contends that these costs should be taxed because they were brought jointly by both Defendants. Where a prevailing party has incurred costs jointly with another party who is not a prevailing party, the judge must apportion the costs between the parties. (Code Civ. Proc. §§ 1032(a)(4), 1034.) When an objection to listed costs is properly made via a motion to tax costs, the burden is on the party claiming the costs to prove that the costs were reasonably necessary. (Ladas v. California State Automotive Assoc., supra 19 Cal.App.4th at 773-774.) Here, Mr. Kovach had a joint defense with Defendant Hub Metals, which is not a prevailing party at this time. Thus, the burden is on Defendant Kovach to prove that the claimed costs were actually incurred by him, either in whole or in part, and not by Hub Metals. None of Defendant’s opposition papers offer any evidence of any costs that were incurred by Defendant Kovach whatsoever. Absent any proof that he incurred any expenses that should be reimbursed, the costs claimed by Defendant Kovach should be taxed.

As the Court has found an independent basis to grant the motion to tax costs, the Court does not address Plaintiff’s argument that costs should be taxed based on Plaintiff’s low-income status.

CONCLUSION:

Accordingly, Plaintiff’s motion to tax costs is GRANTED.

Moving party to give notice.

IT IS SO ORDERED.

Dated: January 30, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.