Judge: Virginia Keeny, Case: 23STCV22011, Date: 2025-06-10 Tentative Ruling

Case Number: 23STCV22011    Hearing Date: June 10, 2025    Dept: 45

LARRY TAMAYO vs VIRGILIUS KASPUTIS, et al.

plaintiff’s motion to tax costs

Date of Hearing:        June 10, 2025                                     Trial Date:       None set.

Department:              45                                                        Case No.:        23STCV22011

Moving Party:            Plaintiff Larry Tamayo

Responding Party:     Defendants Daina Kasputis, Nina Kasputis and Virgilius Kasputis

BACKGROUND

This action arises out of a motor vehicle collision that took place on December 5, 2021. On September 13, 2023,Plaintiff Larry Tamayo filed a complaint against Virgilius Kasputis and Daina Kasputis for negligence. On July 11, 2024, Plaintiff named Nina Kasputis as Doe 1.

On March 24, 2025, the jury returned a verdict in favor of Defendants.

[Tentative] Ruling

Plaintiff Larry Tamayo’s Motion to Tax Costs is DENIED IN PART AND GRANTED IN PART.

DISCUSSION

Plaintiff Larry Tamayo moves this court for an order staying determination on Defendants’ Memorandum of Costs or, alternatively, taxing Defendants’ cost bill.  

“The right to recover . . . costs is determined entirely by statute.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.) “In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face.” (Ibid.) “If so, the burden is on the objecting party to show the costs to be unnecessary or unreasonable.” (Ibid. [citation omitted].) Items not expressly allowed or prohibited by Code of Civil Procedure section 1033.5 “may be allowed or denied in the court’s discretion.” (CCP § 1033.5(c)(4).) An award of costs is subject to the limitation that “[a]llowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (CCP § 1033.5(c)(2).) Moreover, costs which are allowed “shall be reasonable in amount.” (CCP § 1033.5(c)(3).)  

“[I]tems on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred, and when they are properly challenged the burden of proof shifts to the party claiming them as costs.” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) “[T]he burden is upon the moving party to establish the illegality of the challenged items; otherwise the amount demanded in the verified cost bill is controlling.” (Wilson v. Nichols (1942) 55 Cal.App.2d 678, 682-83.) “If the items appearing on 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 Auto Assn. (1993) 19 Cal.App.4th 761, 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.) “[T]he mere filing of a motion to tax costs may be a proper objection to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131 [internal quotations omitted].) 

Filing and Motion Fees

Defendants are requesting $1,461.75 in filing and motion fees. Plaintiff objects to the requests on the grounds this item lacks any itemization or any other documents identifying the particular expenses incurred or specifying the dollar amount of such expenses.

In opposition, Defendants note the Memorandum of Costs properly itemizes the claimed costs and since the filing fees are proper on their face, Plaintiff has not met their burden of proof by simply objecting to the claimed costs. The court agrees. Defendants submitted the MOC worksheet concurrently with the MOC summary, which lists $1,309.50 for the first appearance fee for the three defendants plus the $152.25 defendants paid to post jury fees when their answers were filed. (Opp., Exh. H.)

The court denies the request to tax line item 1.

Witness Fees

Defendants are requesting 18,300.00 in witness fees. Plaintiff argues the award of expert witness expenses where there is a failure to accept a pretrial §998 offer is discretionary, not automatic. Accordingly, Plaintiff argues this court should use its discretion to deny or reduce the expert witness fees on the grounds that Plaintiff justifiably proceeded with the trial and believed in good faith that a jury would find Defendants’ negligence contributed to the injuries sustained by Mr. Tamayo. Moreover, this item lacks any breakdown or itemization of the costs charged by the identified experts.

In opposition, Defendants argue that plaintiff has not presented a valid reason to deny defendants their post-998 offer expert costs. Moreover, if a plaintiff does not accept a defendant’s 998 offer and fails to obtain a more favorable judgment, he must pay defendant’s post-offer costs which may include post-offer expert costs.  Defendants’ designated expert, Charles Rosen, M.D., reasonably assisted Defendants in evaluating Plaintiff’s claims and preparing for trial as well also testified for Defendants at trial. The $16,800.00 claimed in item 8b(1) is the amount defendants actually paid Dr. Rosen for services provided after January 21, 2025 and the $1,500.00 claimed in item 8(b)(2) is the expert witness fee Defendants had to pay Dr. Taimoorazy (Plaintiff’s expert) per Code of Civil Procedure section 2034.320 to take his deposition.

In Reply, Plaintiff argues the invoices do not include details, which make it impossible to determine if Defendants are trying to recover costs incurred prior to the § 998 offer date and there is no evidence that these invoices have been paid. Moreover, it is not reasonable for Dr. Rosen to charge $6,000.00 for one hour of trial testimony that was done over the phone. Defendants should not also not be allowed to recover costs for the services of Dr. Rosen when the jury disregarded Dr. Rosen’s testimony at the request of Defendants’ attorney.

The court finds Defendants have sufficiently demonstrated its costs for witness fees. Defendants provide the invoices from Dr. Rosen’s office, which are dated. (Martin Decl., Exh. C.) The declaration from counsel Martin also testifies their office has paid Dr. Rosen this amount. (Martin Decl. ¶4.) However, the court agrees $6,000.00 for half a day of remote testimony is unreasonable.

Accordingly, the strikes $2000 from line item 8.  

Court Reporter Fees

Defendants are requesting $4,040.00 in court reporter fees. Plaintiff argues the parties had agreed court reporter fees were split equally between Plaintiff and Defendants, with each side paying $2,020.00. However, Defendants seek to recover the full amount.

In opposition, Defendants argue Plaintiff failed to look at Attachment 11c of the MOC worksheet. Had he done so, he would have realized that Defendants did in fact claim only one-half of the court reporter’s fee for each of the four days of trial: March 19, 20, 21, and 24, 2025. Specifically, the court reporter charged the parties a total of $2,020.00 for each day of trial meaning every day each side paid the court reporter $1,010.00 for her services for a total of $4,040.00 per side for the entire trial.

The court finds Defendants MOC worksheet sufficiently shows the split costs of courter reporter fees for 3/19, 3/20, 3/21 and 3/24.

The court denies the request to tax line item 11.

Models, Enlargements and Photocopies

Defendants are requesting $1,150.00 for “Video Edit of Deposition Video Plaintiff treating provider, Henrik Dilanchian, DC.” Plaintiff argues while Defendants agreed to reimburse Plaintiff for the cost of the video editing, the bill remains unpaid at the time of this filing and Defendant has not reimbursed Plaintiff any money towards the video editing bill to date.

In opposition, Defendants argue costs “are allowable if incurred whether or not paid” and Defendants in fact incurred the $1,150.00 cost claimed in item 13. (CCP § 1033.5(c)(1).)

The court finds Defendants have sufficiently attested the costs were proper and Plaintiff has not made a sufficient showing that such costs are improper.

Accordingly, the court denies the request to tax line item 13.

Deposition

In Reply, Plaintiff objects to deposition costs in line item 4. Because this was not argued in their moving papers, the court will not address.

Defendant Daina Kasputis

In Reply, Plaintiff objects to the costs associated to Defendant Daina Kasputis on the grounds the parties agreed to dismiss her in exchange for waiver of costs. Plaintiff argues Defendants are still attempting to recover the cost of filing an Answer on her behalf Ms. Kasputis, which is improper.

This was not addressed in the moving papers. Accordingly, it will not be stricken from the memorandum of costs. 

Summary

The court strikes $2000 from the memorandum of costs.  The remaining costs are recoverable.