Judge Thomas D. Long, Case 19STCV14465 2022-12-08 Tentative Ruling

On October 11, 2022, the Court entered judgment in favor of Defendant Video Tech Services, Inc. and against Florian Vasile Tirsoaga, granting Defendant’s motion for summary judgment and declaring Defendant the prevailing party with regard to the claims between them.

On October 25, 2022, Defendant filed a memorandum of costs, seeking $12,874.89 in costs. On November 7, 2022, Plaintiff filed a motion to tax costs.

“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 (Adams).) “[I]f the correctness of the memorandum is challenged either in whole or in part by the affidavit or other evidence of the contesting party, the burden is then on the party claiming the costs and disbursements to show that the items charged were for matters necessarily relevant and material to the issues involved in the action.” (Oak Grove School Dist. of Santa Clara County v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 699 (Oak Grove).)

Plaintiff moves to strike all costs due to lack of supporting documentation and invoices. (Motion at pp. 2, 9.) Defendant is not required to initially provide documentation; the verified memorandum of costs is prima facie evidence of the costs’ propriety. (Adams, supra, 199 Cal.App.4th at p. 1486.) Additionally, Defendant provided invoices with its opposition. (See Mullis Decl.)

Plaintiff moves to strike the $808.75 filing fee for the Petition for Writ of Mandate. (Motion at pp. 4, 6.) As Plaintiff notes, this is a fee paid to the Court of Appeal, not a filing fee in this action with this court. The Alternative Writ of Mandate did not award costs. The Court deducts $808.75.

Plaintiff moves to strike $8,235.14 in deposition costs. (Motion at pp. 4, 6.) Plaintiff argues that the costs are excessive and were not reasonably necessary because Defendant did not cite all of the depositions in its motion for summary judgment. Costs incurred for taking, recording, and transcribing necessary depositions are allowable costs. (Code Civ. Proc., § 1033.5, subd. (a)(3).) When the Court ruled on the summary judgment motion on June 24, 2022, trial was scheduled for July 25, 2022. Even if Defendant did not cite certain testimony in its motion for summary judgment, that does not mean those depositions were unnecessary in the full context of this action or trial preparation.

Plaintiff moves to strike $1,183.50 in costs for service of process. (Motion at pp. 4, 7-8.) Plaintiff argues that the witnesses were never actually deposed, and “[i]t makes no sense why it cost under $40 to serve one witness, but cost nearly $500 to serve another witness.” (Id. at p. 8.) Defendants can recover the amount actually incurred in effecting service, and it provides supporting invoices. (See Code Civ. Proc., § 1033.5, subd. (a)(4); Mullis Decl., Ex. 11.)

Plaintiff also moves to strike $210.00 for personally serving documents on Plaintiff’s counsel. (Motion at p. 8.) “Messenger fees are not expressly authorized by statute, but may be allowed in the discretion of the court.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.) “Courier and messenger fees are recoverable, at the discretion of the trial court, if they are reasonably necessary to the conduct of the litigation.” (Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 696.) Such costs may be reasonably necessary when litigation is complex and other service options may not be appropriate due to the volume and heavy workload involved in the litigation. (Ibid.; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 858.) Personal service of summary judgment-related materials and discovery responses were not reasonably necessary here, especially when Defendant simultaneously served the summary judgment motion on Plaintiff electronically. The Court deducts $210.00.

Plaintiff moves to strike $1,502.50 in “Other” costs. (Motion at pp. 4, 8.) These costs are identified as an electronic appearance fee on February 14, 2021, plus a $1,487.50 mediation cost. While the Court strongly encouraged remote appearances during the pandemic, section 1033.5, subdivision (a) does not include these types of costs as recoverable. The remote appearance fee is similar to the cost of getting to court to make a personal appearance, such as costs for parking, gasoline, a taxi, ride-sharing, or public transportation. The costs incurred in making an appearance, whether in person or remote, are not included in the statute. Mediation costs are not expressly permitted or prohibited by statute, and thus they are allowable in the court’s discretion. (See Code Civ. Proc., § 1033.5, subd. (c)(4).) The Court did not order mediation, and thus this was a voluntary cost. The Court deducts the $1,502.50 in “Other” costs.

The motion to tax costs is GRANTED IN PART. The Court strikes $808.75 in filing fees, $210.00 in messenger service costs, and $1,502.50 in “Other” costs.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court