Judge Theresa M. Traber, Case Number: BC495977, Date: 2023-08-07 Tentative Ruling

Judge: Theresa M. Traber, Case: BC495977, Date: 2023-08-07 Tentative Ruling

Case Number: BC495977 Hearing Date: April 11, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: April 11 2024 VERDICT: September 19, 2023

CASE: Troy Williams v. Ralphs Grocery Co., et al.

CASE NO.: BC495977

MOTION TO TAX COSTS

MOVING PARTY: Defendant Ralphs Grocery Co.

RESPONDING PARTY(S): Plaintiff Troy Williams

CASE HISTORY:

· 11/20/12: Complaint filed.

· 02/14/17: Judgment entered on special verdict.

· 04/20:17: Appeal filed by Plaintiff.

· 04/27/17: Appeal filed by Defendant Ralphs Grocery Co

· 12/09/19: Remittitur received, reversing in part and remanding.

· 09/19/23: Special verdict entered.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a wrongful termination action. Following an appeal, the remaining claims are FEHA claims for failure to accommodate and engage in the interactive process and a defamation claim.

Defendant moves to tax the memorandum of costs filed by Plaintiff.

TENTATIVE RULING:

Defendant’s Motion to Tax Costs is GRANTED IN PART. Plaintiff’s Memorandum of Costs is taxed in the following amounts:

· Item 5 in the amount of $976.30

· Item 8 in the amount of $116,144.50.

· Item 11 in the amount of $88,043.20.

· Item 12 in the amount of $34,828.36,

· Item 16 in the amount of $11,973.29.

Based on these rulings, Plaintiff is awarded a total of $96,981.41 in litigation costs.

DISCUSSION:

Defendant moves to tax the memorandum of costs filed by Plaintiff.

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 the item meets 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.) Because the right to costs is governed strictly by statute, however, 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, Plaintiff served the memorandum of costs by electronic service on January 26, 2024. (Memorandum of Costs POS.) This motion was filed and served on February 16, 2024, outside the 15-day period. However, the parties signed a joint stipulation filed with the Court on February 13 extending the deadline for Defendant’s motion to February 16, 2024. (Joint Stipulation.) The motion is therefore timely.

Specificity of Challenged Costs

Defendant does not specifically identify in the Notice of Motion which costs it seeks to challenge, as required by California Rule of Court 3.1700(b). The Court would therefore be within its discretion to deny the motion in its entirety. However, the Court observes that Defendant’s memorandum of points and authorities refers to (1) witness fees; (2) court reporter fees; (3) “other” costs; (4) service of process; and (5) models, blowups, and photocopies of exhibits, which mirror Items 8, 12, 16, 5, and 11, respectively, in the Memorandum of Costs. (See Memorandum of Costs filed January 26, 2024.) As Plaintiff has not objected to the notice of motion on this basis, the Court will overlook Defendant’s error and consider the motion on its merits.

Challenged Costs

Defendant challenges five sets of claimed costs in Plaintiff’s January 26, 2024 Memorandum of Costs: (1) witness fees; (2) court reporter fees; (3) “other” costs; (4) service of process; and (5) models, blowups, and photocopies of exhibits.

1. Witness Fees (Item 8)

Defendant seeks to tax Plaintiff’s request for expert witness fees in the amount of $116,114.50, including $103,894.50 in expert witnesses under Item 8b and $10,250 in costs pertaining to Dr. Gregory Marusak, the Psychiatrist Qualified Medical Examiner in Plaintiff’s worker’s compensation action. Plaintiff agrees to withdraw this cost request. Item 8 should therefore be taxed in the amount of $116,144.50.

2. Court Reporter Fees (Item 11)

Defendant next challenges Plaintiff’s request for “Court Reporter Fees” totaling $96,006.40 as actually seeking transcript costs not ordered by the Court. Transcripts not ordered by the Court are not recoverable costs. (Code Civ. Proc. § 1033(b)(5).) As Defendant states, court reporter fees are a separate expense from transcript costs because “[t]he parties have to pay the court reporter regardless of whether anyone orders transcripts.” (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58-59.) Here, Attachment 12c of the Memorandum of Costs plainly discloses that the bulk of the costs claimed under this item, accounting for $88,043.20, are costs for transcripts, which are improper, while the remaining fees are described as Court Reporter fees. (See Memo of Costs Attach. 12c.) Plaintiff concedes that the transcript costs are not recoverable and agrees to withdraw those costs. In reply, Defendant contends that Plaintiff has not justified the remaining $7,963.20 as properly pertaining to court reporter fees. Defendant offered no basis in either its moving papers or its reply for disputing costs under this item beyond the facial impropriety of transcript costs. The Court therefore finds that Defendant has not put the remaining costs under this item at issue. Item 12 should therefore be taxed in the amount of $88,043.20.

3. Other Costs (Item 16)

Defendant seeks to tax for categories of costs claimed under this cost item: $7,768.40 in IT Video Services from Trial Electronics Direct (Memo of Costs p. 11); $4,164.89 in travel and meal expenses (pp. 11-12); $40 for legal research costs; and $700 for focus group costs.

Defendant first claims that Plaintiff’s counsel has fabricated an invoice to manufacture fictitious costs for renting equipment which Plaintiff’s counsel already owns. In 2017, Plaintiff claimed the same costs after the original trial verdict in this action (later reversed in part on appeal), presenting an invoice from Trial Electronics Direct for rental equipment in that amount. (Declaration of Joshua Waldman ISO Mot. Exh. 2 p.104.) Plaintiff presents the same invoice here. (Declaration of Mahru Madjidi Exh. 4.) In 2017, Defendant’s counsel, Daniel J. Kessler, presented public records showing that Trial Electronics Direct was a fictitious business name owned by a non-existent LLC, that its physical address was actually the address for a hotel in downtown Los Angeles, and the P.O. Box given on the invoice is actually owned by Plaintiff’s counsel, Shegerian & Associates. (Declaration of Daniel J. Kessler ISO 2017 Reply ¶¶ 4-5, Exhs. C-F; attached as Waldman Decl. Exh. 3.) Plaintiff merely states that these accusations are “baseless and absurd,” and presents no further evidence establishing the genuineness of these costs beyond a check for the same amount made out to Trial Electronics Direct. (See Madjidi Decl. Exh. 4.) This meager showing is not sufficient to carry Plaintiff’s burden in the face of Defendant’s showing that these costs are improper. The Court therefore finds that this cost item should be taxed.

Defendant also challenges $4,164.89 in travel and meal expenses as travel costs unrelated to depositions. Travel expenses to attend depositions are expressly permitted. (Code Civ. Proc. § 1033.5(a)(3).) However, contrary to Plaintiff’s assertion, Ladas v. California State Auto Association expressly and categorically states that “Routine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775–76.) The Court therefore concurs that this cost item should be taxed.

As to the $700 in focus group costs, Defendant asserts without explanation or citation to authority that focus groups are not “reasonably necessary to the conduct of litigation.” Conclusory assertions do not suffice to place these costs at issue, and the Court declines to tax this cost item.

Finally, with respect to the request for legal research costs, Plaintiff concedes that this cost item is improper.

The Court therefore taxes Item 16 in the amount of $11,973.29.

4. Service of Process (Item 5)

The parties agree that this item should be taxed in the amount of $976.30 in costs withdrawn by Plaintiff.

5. Models, Blow-Ups, and Photocopies (Item 12)

Defendant challenges the entirety of Plaintiff’s request under this cost item totaling $61,650.25 in costs for exhibits. As Defendant states, Plaintiff sought reimbursement of $55,362.50 in identical costs in 2017, and the Court previously taxed $34,828.36 in costs as not reasonably necessary to the litigation. (See Waldman Decl. Exh. 9.) Neither party offers any basis for the Court to depart from that previous ruling. Item 12 should therefore be taxed in the amount of $34,828.36.

CONCLUSION:

Accordingly, Defendant’s Motion to Tax Costs is GRANTED IN PART. Plaintiff’s Memorandum of Costs is taxed in the following amounts:

· Item 5 in the amount of $976.30

· Item 8 in the amount of $116,144.50.

· Item 11 in the amount of $88,043.20.

· Item 12 in the amount of $34,828.36,

· Item 16 in the amount of $11,973.29.

Based on these rulings, Plaintiff is awarded a total of $96,981.41 in litigation costs.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: April 11, 2024 ___________________________________

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.