2012-00134178-CU-FR

Patrick LeMieux vs. Xiansheng Bing Fan Yeyoung

Nature of Proceeding: Motion to Tax Costs

Filed By: Poire, Alfonso L.

Plaintiff/Cross-defendant Patrick LeMieux’s Motion to Tax Costs is granted in the
amount of $150 for the jury fee (as agreed by defendant) and granted in the amount of
$697.98 (“Other”) The total amount being taxed is $847.98, which shall be deducted
from the total costs claimed. The motion is otherwise denied.

Defendant Yeyoung is the prevailing party on the Complaint, which was voluntarily
dismissed by the plaintiff. The cross-complaint is still pending. Ordinarily, the
prevailing party in a civil action is entitled to recover costs from the losing party as a matter of right. ( § 1032, subd. (b).)

Plaintiff challenges the following costs: $150 Jury Fees, $1,518.80 deposition costs for
non-party witnesses Meekins and Zeits, service of process fees for Meekins, Zeits,
and another non-party witness, Anne Woodyard in the amount of $200, witness fees in
the amount of $150 for Meekins and Zeits, and photocopying costs for exhibits in the
amount of $697.98.

CCP § 1033.5 sets forth the items allowable as costs under CCP § 1032. These
items include, among others: filing and motion fees (CCP § 1033.5(a)(1)), jury fees
(CCP § 1033.5(a)(1)), deposition costs (CCP § 1033.5(a)(3)), service of process (CCP
§1033.5(a)(4)(B)), witness fees (CCP § 1033.5(a)(7)). CCP § 1033.5(b)(3) specifically
prohibits photocopying charges “except for exhibits.”

However, the photocopies of exhibits are only allowed if the exhibits were reasonably
helpful to aid the trier of fact. See CCP 1033.5(a)(13). Therefore, because the
photocopies of the exhibits were only used for convenience of defendant at the
depositions, they were not helpful to the trier of fact and the costs of photocopying
these exhibits is denied.

Any award of costs pursuant to CCP § 1032 and CCP § 1033.5 must be “reasonably
necessary to the conduct of the litigation rather than merely convenient or beneficial to
its preparation” and “reasonable in amount.” CCP § 1033.5(c)(2) and (3). Whether a
cost item was reasonably necessary to the litigation presents a question of fact for the
trial court. (Ladas v. California (1993) 19 Cal.App.4th 761, 774; see also Gorman v.
Tassajara Devel. Corp. (2009) 178 Cal.App.4th 44, 71.)

In awarding costs, the 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 them to be unnecessary or unreasonable.” Benach v.
Cnty. of Los Angeles (2007) 149 Cal. App. 4th 836, 855 (internal citations omitted). “[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.
However, ‘[i]f the items appear to be proper charges the verified memorandum is prima
facie evidence that the
costs, expenses and services therein listed were necessarily incurred by the
defendant, and the burden of showing that an item is not properly chargeable or is
unreasonable is upon the [objecting party].'” Id. at 856 citing Nelson v. Anderson
(1999) 72 Cal. App. 4th 111, 131 (internal citations omitted).

Plaintiff’s motion contends that the depositions of the two non-party witnesses was not
necessary and intended only to harass the plaintiff. However, the Court denied
plaintiff’s motion for a protective order concerning theses depositions. The Court finds
that the depositions of Meekins and Zeits were reasonably necessary to the litigation.
Plaintiff has not met his burden to show that these depositions were not reasonably
necessary for the litigation.

The notice of motion does not provide notice of the Court’s tentative ruling system, as
required by Local Rule 1.06(D). Counsel for moving party is directed to contact
counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the
Court’s tentative ruling procedure. If counsel for moving party is unable to contact
counsel for opposing party prior to hearing, counsel for moving party shall be available at the hearing, in person or by telephone, in the event opposing party appears without
following the procedures set forth in Local Rule 1.06(B).

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.