Judge William A. Crowfoot, Case Number: 22STCV13792, Date: 2024-12-05 Tentative Ruling

Judge: William A. Crowfoot, Case: 22STCV13792, Date: 2024-12-05 Tentative Ruling

Plaintiff Rosevianney C. Ogumsi filed this action against defendant Richard Dale Gentile, D.D.S. (“Defendant”) on April 26, 2022. On September 16, 2024, the Court entered judgment in favor of Defendant following his motion for summary judgment. On October 7, 2024, Defendant filed a memorandum of costs and served it on Plaintiff via mail.

On October 21, 2024, Plaintiff filed this motion to tax costs. Plaintiff moves to strike: (a) $3,060 in expert fees, (b) $1,662 for “records subpoena service”, (c) $1,566 for attorney services, and (d) $150 for jury fees.

Code of Civil Procedure section 1032 (all statutory references to follow are to the Code of Civil Procedure except when otherwise indicated) provides for recovery of costs by a prevailing party. 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 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.)¿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.) 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, if so, the burden is on the objecting party to show the costs to be unnecessary and unreasonable. Where costs are not expressly allowed by statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.

Plaintiff objects to Defendant’s claimed cost of $3,060 for the expert witness fees of Barry Vilkin, D.M.D. (“Dr. Vilkin.”) Expert witness fees are allowed as costs if they are ordered by the Court or authorized by some other statute, such as Code of Civil Procedure section 998. Otherwise, they are prohibited as costs. (Code Civ. Proc., § 1033.5, subd. (a)(8), (b)(1).)

There is no indication from the record that Dr. Vilkin was an expert ordered by the Court or that an offer to compromise pursuant to section 998 was made, nor does Defendant assert that a 998 offer was made (or that any other statute authorizes the recovery of expert witness fees). Therefore, the Court GRANTS Plaintiff’s motion to strike the expense of $3,060 for expert witness fees.

Plaintiff moves to strike Defendant’s claimed costs of $1,662.36 and $1,566.31 for “Records Subpoena Service” and “Attorney Service”, respectively. Plaintiff argues that these two items were not reasonably necessary to the conduct of the litigation or helpful to the trier of fact. (Motion, pp. 4-5.) In opposition, Defendant argues that the subpoenas were necessary for obtaining necessary discovery and attaches copies of the receipts issued for preparing and serving multiple subpoenas on Plaintiff’s medical providers for her medical records. The cost to serve subpoenas is recoverable as costs pursuant to section 1033.5 (a)(4). And, even if they were not expressly identified as recoverable, the cost to issue and serve these subpoenas appear to be reasonable in amount and necessary to the litigation because Plaintiff’s medical records were eventually used in preparation for Defendant’s motion for summary judgment. (Opp., p. 4.) Therefore, the motion to tax the costs for the subpoenas is DENIED.

As for the attorney service fees, Defendant argues that they are allowable under the Court’s discretion pursuant to section 1033.5(c) because they were necessary for electronically filing documents with the Court. (Opp., p. 4.) Also, since Los Angeles County Superior Court requires electronic filing, the fees for the electronic filing or service of documents through an electronic filing service provider are allowable as costs. (Code Civ. Proc., § 1033.5(a)(14).) Defendant attaches receipts of the attorney service charges for each filing as well as the receipts for the cost of each electronically filed document. Plaintiff does not dispute the necessity of the filings or the cost charged by the attorney service. Accordingly, the motion to tax the attorney service fees is DENIED.

Jury fees are expressly recoverable by statute. (Code Civ. Proc., § 1033.5, subd. (a)(1).) Although Plaintiff cites to section 631 as authority for the proposition that jury fees are not recoverable if the case does not proceed to trial, the statute does not state anything to support that position. Therefore, the motion to tax jury fees is DENIED.

Plaintiff’s motion to tax costs is GRANTED in part. The amount taxed from Defendant’s memorandum of costs is $3,306, leaving $5,705.32 as recoverable costs.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court 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.