Judge: Upinder S. Kalra, Case: 19STCV06135, Date: 2022-08-31 Tentative Ruling

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Case Number: 19STCV06135    Hearing Date: August 31, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   August 31, 2022                                             

CASE NAME:            Elizabeth Acosta, D.C. v. State of California, acting by and through its Department of Consumer Affairs, et al.

CASE NO.:                19STCV06135

PLAINTIFF’S MOTION TO STRIKE/TAX COSTS

MOVING PARTY: Plaintiff Elizabeth Acosta  

RESPONDING PARTY(S): Defendant First Hospital Laboratories, Inc., dba First Source Solutions

REQUESTED RELIEF:

1.       An order striking, or alternatively, taxing, the Defendant’s Memorandum of Costs

TENTATIVE RULING:

1.      Motion to Tax/Strike Costs is DENIED, in part, as to Items 1, 5, 12, and 14.

2.      Motion to Tax/Strike Costs is GRANTED, in part, as to Item 16.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On February 22, 2019, Plaintiff Elizabeth Acosta, D.C. (“Plaintiff”) filed a complaint against Defendants State of California, acting by and through its Department of Consumer Affairs, Board of Chiropractic Examiners, First Hospital Laboratories, Inc. dba Firstsource Solutions, Inc. (“Defendants”). The complaint alleges five causes of action based on the Violation of Information Practices Act, violations of confidential medical information and consumer records act. Plaintiff’s complaint alleges that she was ordered to participate in mandatory occupation testing and screening by the Board of Chiropractic Examiners. However, an email was sent to other participants, which contained Plaintiff’s identifying information and status as a participant in the FSsolutions recovery management program. This information was sent without her consent.

On April 29, 2022, Plaintiff filed a Request for Dismissal as to the entire cause of action with prejudice. The Request that the Plaintiff and Defendant State of California waived recovery of fees and costs.

On May 5, 2022, Defendant First Hospital Laboratories, Inc., filed a Memorandum of Costs.

Plaintiff’s motion to Tax/Strike Costs was filed on May 24, 2022. Defendant First Hospital Laboratories, Inc. filed an Opposition on August 15, 2022.

LEGAL STANDARD

A “prevailing party” entitled to costs: In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. CCP § 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. The term “prevailing party” for costs purposes is defined by statute to include: 

·         The party with a net monetary recovery; 

·         A defendant who is dismissed from the action; 

·         A defendant where neither plaintiff nor defendant recovers anything; and 

·         A defendant as against those plaintiffs who do not recover any relief against that defendant.  (CCP § 1032(a)(4).) 

If the party does not fall within one of these four express categories, the court may exercise its discretion to award or deny costs.  See Lincoln v. Schurgin (1995) 39 Cal.App.4th 100, 105. 

“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.  Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989.  “A party’s mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of counsel are insufficient to rebut the prima facie showing that the costs were necessarily incurred.”  Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266. 

The losing party may dispute any or all of the items in the prevailing party’s memorandum of costs by a motion to strike or tax costs. CRC Rule 3.1700(b). Technically, a motion to strike challenges the entire costs bill whereas a motion to tax challenges particular items or amounts. 

California Rules of Court Rule 3.1700 provides that: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing 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.”  CCP § 1033.5 provides the items that are allowable as costs under CCP § 1032. 

ANALYSIS:

Plaintiff moves to tax the costs requested by Defendant First Hospital Laboratories, Inc., dba First Source Solutions (“FSS”). Plaintiff contends that the claimed costs are not allowable under CCP § 1033.5. This statute provides the list of costs that are allowable and those which aren’t.

A “properly verified memorandum of costs is considered prima facie evidence that the costs listed in the memorandum were necessarily incurred.”  (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308.)  The memorandum of costs need not contain invoices, billings, or statements.  (Id.)  (See also CRC Rule 3.1700(a)(1) [only verification required].) 

1.       Item 1: Court Reservation Fee, Filing Fee, First Appearance Filing Fee:

Item 1 requests a total of $661.55 for filing and motion fees. This is based on four different papers filed, including the Court Reservation Fee for $61.65, the Filing Fee for $81.00, the First Appearance Filing Fee for $457.25, and the Court Reservation Fee for $61.65. Plaintiff first contends that the court reservation fee does not have an explanation or date. There is a Make a Reservation attachment, but does not confirm that this charge is the requested one. Additionally, there are two requests for the same amount. Second, the $81.00 filing fee contains no date or explanation. Lastly, the First Appearance Filing Fee also does not contain an explanation or date. There was no Answer filed by Defendant; Plaintiff argues it is unclear whether this is related to the demurrer to Plaintiff’s complaint or in response to the State’s cross-complaint.

Defendant asserts that the $61.65 fees were for the two demurrer hearings, and the other two fees for $457.25 and $81.00 in first appearance filing and filing fees were for the demurrer papers. These fees are included in the February 14, 2022, invoice from Norton Rose Fullbright, No. 9495177890 as well as the Journal Technologies Court Portal invoice.

Under CCP § 1033.5(a)(1), filing, motion, and jury fees are allowable as costs. Despite Plaintiff’s argument that there is no invoice attached, these need not be attached as stated above. Even so, the attached invoices and “Make a Reservation” document indicate that these fees were proper. As such, the Motion to Tax Costs as to Item 1 is DENIED.  

2.       Item 5: Courtesy Copies to Judge of Service of Process

Item 5 requests $45.50 for service of process, based on two different fees of $22.75. Plaintiff asserts that these are not recoverable as there is no invoices attached, but rather general references to servie of copies. While fees effecting service of process are recoverable, Plaintiff asserts that these costs are “unrelated to filing, if not duplicative.” (Motion 7: 1-2.) Defendant contends that these costs were included in the $872.76 and $146.95 costs, evidence in the February 14, 2022, invoice from Norton Rose Fullbright, No. 9495177890.

Under CCP § 1033.5(a)(5), service of process by a public officer, registered process server, or other means are allowable as costs. Here, these fees are based on service of process. Again, an invoice need not be attached; a verified memorandum of cost is sufficient. Here, Spencer Persson has verified the memorandum of costs. Even so, the invoices provided indicate that these service of process fees were included. As such, the Motion to Tax Costs as to Item 5 is DENIED.

3.       Item 12: Court reporters Fees

Items 12 requests $1,215.95 in fees. This total is broken down in two different amounts, $591.80 and $624.80. Plaintiff argues that these are based on a demurrer in September 2019 and a law and motion hearing in January 2020. These are not recoverable under CCP § 1033.5(b)(5), which does not allow for transcripts that were not court ordered. Defendant asserts that only $21.80 and $38.15 of the two different fees were for transcripts. The other amounts were for hiring of court reporters, which is allowed under CCP § 1033.5(a)(5).

Under CCP § 1033.5(a)(11), court reporter fees are allowable as costs. Here, the requested fees are $591.80 and $624.15. The reporter fee, as established in the invoice from Norton Rose Fulbright, is $525. Included in the invoice total are fees for court parking for $16.00, transcript fees for $21.80 and $38.15, and production and repository $45.00 for each invoice. The $525 for the court reporter fee is allowable. Under CCP § 1033.5(c)(4), the court may allow costs in its discretion. Here, the other request fees are reasonable, as these fees were incurred by the reporter. Therefore, the Motion to Tax Costs as to Item 12 is DENIED.

4.       Item 14: Electronic Filing Fees

Items 14 requests $408.56 for electronic filing. Plaintiff argues that the “nature, purpose, need and date(s) for the charge(s) cannot be ascertained from the memorandum.” Additionally, there is no court order attached requiring an electronic filing service provider. Defendant asserts that these costs are recoverable under CP 1033.5(a)(14). E-filing became mandatory for unlimited civil cases on January 2, 2019.

Under CCP § 1033.5(a)(14), electronic filing fees are allowable if the court so requires. The Court require e-filing. Therefore, Motion to Tax Costs as to Item 14 is DENIED.

5.       Item 16: Other – Transportation to/from Court 

Item 16 requests $11.21 in transportations costs for Ahmed Jinnah. Plaintiff argues that the memorandum does not identify who this person is. Further, this claim is non-recoverable under CCP § 1033.5(c)(2) as it is convenient or beneficial to litigation, not reasonably necessary to the conduct of the ligiation; there is no reason provided as to why Mr. Jinnah could not have attended the Case Management Conference remotely. Defendant argues that these costs are reasonable; even so, CourtCall costs are more than the requested $11.21. Additionally, Defendant asserts these are allowed via Court’s discretion under CCP § 1033.5(c)(4).

Under CCP § 1033.5(c)(4), the court may allow costs in its discretion. While a request for $11.21 is reasonable, Plaintiff’s argument is appropriate. Nothing provided indicates who Mr. Jinnah is or why transportation was necessary. As the Court has discretion to allow certain costs, the $11.21 are not recoverable. The Motion to Tax Costs is GRANTED, as to Item 16.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

            Motion to Tax/Strike Costs is DENIED, in part, as to Items 1, 5, 12, and 14.

            Motion to Tax/Strike Costs is GRANTED, in part, as to Item 16.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             August 31, 2022                      _________________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court