Case Number: BC426342 Hearing Date: July 20, 2016 Dept: 40

Plaintiff sued Defendants for breach of contract involving an agreement to buy out Plaintiff’s interest in Duwop LLC, a compensation agreement, and others.

On December 22, 2015, the Court entered a judgment after bench trial in Plaintiff’s favor. See February 4, 2016 Notice of Entry of Judgment. The judgment provided, “Plaintiff … shall be entitled to costs … pursuant to a memorandum of cost and subject to any motions to tax costs by defendants.” Judgment 4:7-8.

On March 1, 2016, Defendants ImaStar Corporation, The Lambus Corporation, out the Door, LLC, and LMR Partners, Inc. on one hand and defendant Harry Haralambus in pro per on the other hand filed the instant virtually identical motions to strike or tax costs. (Notably, pro per litigants are “restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts.” Lombardi v. Citizens Nat’l Trust & Sav. Bank (1955) 137 Cal.App.2d 206, 208-209).

Plaintiff opposes.

Defendants’ request made in reply to delay this decision until the pending appeal resolves is denied. Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368 (holding that a stay pending an appeal does not affect the trial court’s power to award costs).
Notably, the Court is not in receipt of the subject costs memorandum, but the parties appear to agree on the operative costs memorandum.
The Court considered the moving, opposition, and reply papers, and rules as follows.
Request for Judicial Notice

Defendants’ request for judicial notice made for the first time on reply is DENIED as irrelevant and untimely.

Motion to Strike or Tax Costs Standard

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).
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.

Verification of the memorandum of costs by the prevailing party’s attorney establishes a prima facie showing that the claimed costs are proper. Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267. “There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum.” Jones, supra, 63 Cal.App.4th at 1267. To overcome this prima facie showing, the objecting party must introduce evidence to support his claim that the costs are not reasonably necessary. The objecting party may do this by way of declaration; but mere conclusory assertions are insufficient to rebut a prima facie showing by the prevailing party. Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.

Court Reporter Fees and Trial Transcripts

Defendants move to tax costs of court reporter fees of $11,845 and trial transcripts of $7,853.66.
Transcripts of court proceedings ordered by the court are allowed. CCP § 1033.5(a)(9). Transcripts of court proceedings not ordered by the court are disallowed. CCP § 1033.5(b)(5). Court reporter fees as established by statute are allowed. CCP § 1033.5(a)(11).
Here, there is no dispute that the Court did not order transcripts. Despite Plaintiff’s arguing transcripts and reporters were reasonably necessary, the statute is clear in explicitly making transcripts not ordered unrecoverable. Further, section 1033.5, subdivision (c)(4), allowing for discretionary recovery, which Plaintiff cites in opposition, is limited to “[i]tems not mentioned in this section ….” and is therefore inapplicable. Additionally, Plaintiff identifies no statute by which reporter fees are allowed.
Therefore, these items are taxed.
Parking Costs

Plaintiff withdraws the request for reimbursement of parking costs. OPP 4:17-18. “Routine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation.” Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775-776.

Accordingly, this item is taxed.

Pro-Rata Allocation

Finally, defendants assert that the total costs requested should be reduced by 37.5 percent because Plaintiff prevailed against some defendants but not others. Defendants offer no authority giving the Court the power to allocate costs in this manner.

When one of multiple, jointly represented defendants presenting a unified defense prevails in the action, the judge has discretion to award or deny costs to this defendant. Textron Fin. Corp. v National Union Fire Ins. Co. (2004) 118 Cal.App.4th 1061, 1075-1076; Wakefield v Bohlin (2006) 145 Cal.App.4th 963, 973 (where, in action against husband and wife who were represented by same attorney and who made same defenses, wife who was found not liable was not prevailing party for purposes of cost award when husband was found liable, and any award to wife was within judge’s discretion and subject to apportionment). Here in contrast, the other Defendants were represented by another attorney, Loyst Fletcher. Judgment 2:17-20.

Therefore, the Court may not apportion costs.

Conclusion

The motions are GRANTED except for defendants’ request to apportion.

Counsel for the corporate Defendants to give notice.