Judge: William A. Crowfoot, Case: 20STCV12211, Date: 2022-08-19 Tentative Ruling

Case Number: 20STCV12211    Hearing Date: August 19, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

BACKGROUND

On March 27, 2020, Plaintiff Shahnaz Amirtalesh (“Plaintiff”) filed a Complaint alleging causes of action for (1) negligence, (2) dangerous condition of public property, and (3) nuisance, against Defendants City of Beverly Hills, Feriel Z. Posner, Zomorodi Trust, Diana Guy, and Diana Guy Children Trust.

On February 22, 2021, Plaintiff dismissed Defendants Diana Guy and Diana Guy Children Trust.

On May 12, 2022, the Court granted Defendant City of Beverly Hills’ (“Defendant”) motion for summary judgment.

On June 23, 2022, Defendant gave notice of the ruling in the City’s motion for summary judgment.

On July 15, 2022, Defendant filed a memorandum of costs.

On July 20, 2022, Plaintiff filed a Motion to Tax Costs.  The Motion was served on Defendant on July 21, 2022.

On July 22, 2022, Plaintiff filed a Motion for Relief pursuant to CCP § 473(b) seeking relief to file the Motion to Tax Costs because it was not timely served on Defendant.

MOTION FOR RELIEF

I.            LEGAL STANDARD

“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 electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).”  (CRC Rule 3.1700(b)(1).)  “Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days.”  (CCP § 1010.6(a)(4)(B).)

II.          DISCUSSION

Based on the date that Defendant’s memorandum of costs was filed and served, Plaintiff had to file the Motion to Tax costs no later than July 22, 2022.  As set forth above, the Motion was filed with the Court on July 20, 2022, and served on Plaintiff on July 21, 2022.  Accordingly, the Motion to Tax costs is timely, and the Motion for Relief is unnecessary.

Thus, Plaintiff’s Motion for Relief is MOOT.

/ / /

III.        CONCLUSION

Plaintiff’s Motion for Relief is MOOT.

MOTION TO TAX COSTS

I.            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.) 

          Allowable costs under CCP 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.)  A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred.  (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal. App. 3d 256, 266.)  A party seeking to tax costs must provide evidence to rebut this prima facie showing.  (Jones v. Dumrichob (1998) 63 Cal. App. 4th 1258, 1266.)  Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred.  (Id.)

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.)

II.          DISCUSSION

Plaintiff does not dispute that Defendant was the prevailing party.  Instead, Plaintiff takes issue with specific costs sought by Defendant.  Those costs will be discussed below.

          Deposition of CoWorx Staffing Services, CNA (“CoWorx”)

          Plaintiff contends that Defendant should not be able to recover the $841.36 in costs incurred for the deposition of CoWorx’s PMK, who was Plaintiff’s employer at the time of the subject incident.  Plaintiff contends that the costs incurred for CoWorx’s PMK were not reasonably necessary to the conduct of litigation because CoWorx’s PMK did not appear for deposition, and Defendant failed to confirm that CoWorx’s PMK would appear for the deposition, which led to a cost of $425 for a certificate of non-appearance.

          Defendant contends that the deposition notice was properly served, and that it attempted to contact CoWorx but they were unresponsive.  Defendant represents that if CoWorx’s PMK would have appeared for deposition, the transcript would have likely been used in Defendant’s motion for summary judgment.

          The Court finds that the deposition costs for CoWorx’s PMK were not reasonably necessary to the conduct of the litigation, as the certificate of non-appearance was not used by Defendant in the motion for summary judgment.  In addition, Defendant had not received a response from CoWorx regarding the production of its PMK, and, accordingly, Defendant was aware that it was highly likely that CoWorx’s PMK would not be produced for deposition.  Defendant should have confirmed that CoWorx was going to produce its PMK before incurring unnecessary costs for that deposition.

          Thus, Defendant’s item 4 will be reduced by $841.36.

          Depositions of Robert Sahagun (“Sahagun”) and Plaintiff

          Plaintiff seeks to tax the $1,217 for Sahagun’s deposition and $1,318.07 for Plaintiff’s deposition because the costs were excessive.

          Plaintiff contends that the costs for his deposition are unreasonable because his own bill from Veritext for his deposition totaled only $396.50, as compared to the $1,217 incurred by Defendant.  Defendant represents that as the noticing party, it must pay administrative fees, which Plaintiff was not required to pay.  A review of the costs reveal that Defendant incurred costs for ordering the original transcript, a certified copy of Plaintiff’s deposition transcript, and additional administrative fees as represented by Defendant.  (Mem. Costs No. 4)  The Court finds that these costs were reasonably necessary to the conduct of litigation, as Plaintiff is a party to the litigation, and Plaintiff’s deposition transcript was used in Defendant’s motion for summary judgment, and necessary to prepare for trial.  Accordingly, the Court will not reduce the costs for Plaintiff’s deposition.

          Plaintiff contends that Defendant should not be able to recover for the costs incurred for Sahagun’s deposition because his transcript was not used in the motion for summary judgment.  Defendant represents that the Sahagun deposition was reasonably necessary to the conduct of litigation because he is its Street Services Manager and oversees the maintenance and repair of Defendant’s sidewalk, and served as Defendant’s most qualified witness about Plaintiff’s trip and fall.  Defendant contends that while Sahagun did not provide testimony used in the motion for summary judgment, his testimony may have been helpful in other phases of the cases, including trial.  The Court finds that that Sahagun deposition was reasonable necessary to the conduct of litigation because Defendant took his deposition to prepare for trial.  While Defendant did not use Sahagun’s testimony in its motion for summary judgment, his testimony related directly to circumstances and events surrounding Plaintiff’s trip and fall, and could have been used in other phases of the case if the motion for summary judgment had not been granted.  Accordingly, the Court will not reduce the costs for the deposition of Sahagun.

          Thus, Plaintiff’s Motion to Tax the costs for his deposition and Sahagun’s deposition is DENIED.

          Subpoenaed Records

          Plaintiff contends that Defendant should not be able to recover the $4,845.60 in costs incurred for the subpoenas to obtain Plaintiff’s medical records, billing records, and employment records because those costs are barred as investigation expenses under CCP § 1033.5(b)(2).

          The Court finds that Plaintiff’s contention that Defendant is barred from recovering the costs for the subpoenas is misguided.  A defendant may recover costs for service of process of subpoenas that are necessary to prepare its defense of a case. (Lowry v. Port San Luis Harbor District¿(2020) 56 Cal.App.5th 211, 222 [no abuse of discretion where trial court held that defendant could recover expenses incurred for service of process of subpoenas for medical records]; Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 578 [a party may recover the costs incurred for subpoenas to obtain business records in preparation for trial.])

          In Reply, Plaintiff also contends that even if the costs are allowable that Defendant inefficiently issued the subpoenas to Plaintiff’s medical providers because Defendant issued several subpoenas to the same medical provider.

          The Court has reviewed the subpoenas at issue and finds that while in some instances they were issued to the same medical providers, they were issued to different locations of those medical providers.  In addition, each production was not duplicative, as a different number of documents were provided on each occasion.  While Defendant did not use the subpoenaed records for its motion for summary judgment, it was entitled “to conduct discovery necessary to prepare for trial and to recover those costs.”  (Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 578.)

          Thus, Plaintiff’s Motion to Strike Defendant’s costs for subpoenaed records is DENIED.

III.      CONCLUSION

          Thus, Plaintiff’s Motion to Tax Costs is GRANTED in part and DENIED in part as specified above.

Moving party to give notice. 

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.