Case Name:   Oakes v. Barnes & Noble College Booksellers, LLC, et al.

     

Case No.:       1-11-CV-202029

 

Defendants Barnes & Noble College Booksellers, LLC, West Valley College, and Lori Gaskin filed a cost memorandum in the amount of $23,772.04.  Plaintiff moves to tax costs.

 

1.  Filing fees

 

Defendants’ Cost Memorandum states, with respect to filing fees, “[t]he above filing and motion fees include all costs charged by the attorney service company that filed the documents on Defendants’ behalf.”  (Cost Memorandum, at attachment 1g.)

 

Plaintiff points out that some of the events listed on Defendants’ cost memorandum as involving “filing fees” do not have filing fees associated with them.  Defendants’ response recharacterizes Plaintiff’s argument as addressing “costs associated with filing and delivery” (which is Defendants’ argument, not Plaintiff’s), and then asserts that “Plaintiff ignores that Defendants had to use a messenger….”  (Defendants’ Opposition Memorandum, at 3:15-16, 19.)  Defendants have represented to the court as allowable costs under Code of Civil Procedure section 1033.5(a)(1) (and therefore mandatory, if reasonable) fees which are clearly not filing fees, but are in fact actually messenger fees (and therefore merely discretionary under section 1033.5(c)(4)).  Moreover, since Defendants apparently have added together filing fees and messenger fees, the court is unable to discern what portion of the claimed amount (if any) corresponds to a filing fee.

 

“Where costs are not expressly allowed by statute, the burden is on the party claiming the costs to show that the charges are reasonable and necessary.”  (Nelson v. Anderson (1999) 72 Cal.App.4^th 111, 132.)  Defendants argue that “mailing the documents to the Court would not have guaranteed a timely filing.”  (Defendants’ Opposition Memorandum, at 4:4.)  Other than that conclusion, Defendants provide no factual basis to support their claim that these fees are “reasonably necessary” and not “merely convenient or beneficial”—other than to point out that the attorneys themselves could have driven to San Jose and charged their hourly rates.  (Declaration of Ayse Kuzucuoglu, at 2:9-13.)  Overnight mail would have “guaranteed a timely filing” at a fraction of the cost, generating a non-allowable charge.  (Section 1033.5(b)(3).)  Waiting until the last day may be convenient, but Defendants have not met their burden to show it was reasonably necessary.

 

There is a further challenge to the second summary judgment filing.  Defendants concede that they did not timely serve Plaintiff with the motions. (Declaration of Ayse Kuzucuoglu, at 2:15-16.)  Rather than taking responsibility for their own error, Defendants seek to charge Plaintiff with the second filing fee as “reasonably necessary” because Plaintiff would not agree to remedy the problem Defendants had created.  Defendants have provided no authority to support such a position.  One filing fee was “reasonably necessary” but not two.

 

The full amount of $1,651 challenged by Plaintiff is disallowed.

 

2.  Service of process

 

Defendants claimed $812.23 as “service of process” costs under the mandatory provision of section 1033.5(a)(4).  However, none of the charges in this section relates to service of process.

 

Defendants does not address at all why they claimed these as mandatory costs when they are clearly not.  Instead, Defendants argue that the charges should be included “in the discretion of the court.”  (Defendants’ Opposition Memorandum, at 4:23.)

 

In support of its argument that the expense of six deliveries of documents to Plaintiff’s counsel should be awarded in the court’s discretion, Defendants cite the Declaration of Ayse Kuzucuoglu at pargraphs 6 and 7.  (Defendants’ Opposition Memorandum, at 5:5, 8.)  However, these statements do not provide a factual basis for a finding that these deliveries (rather than mailing) were “reasonably necessary” and not “merely convenient”.

 

The full amount of $812.23 challenged by Plaintiff is disallowed.

 

3. Attorney travel costs

 

Defendants claim attorney travel costs from San Francisco to San Jose to attend depositions: $101.24 for Plaintiff; $213.25 for M. Renzi; and $184.36 for L.Schmit.  Defendants offer no evidence at all that these amounts claimed are reasonable.  (Declaration of Ayse Kuzucuoglu, at 3:16-18.)  A reasonable amount incurred for such travel would have included $20 for parking and $55 for mileage, for a three-trip total of $225.  The excess amount of $273.85 is unreasonable and unsupported by the evidence, and is disallowed.

 

The remaining discretionary travel expenses totaling $1,476.34, are disallowed, as Plaintiff should not be required to bear expenses relating to Defendants’ decision to hire counsel who would incur such expenses.

 

The total amount of travel expenses disallowed is $1,750.19.

 

4. Federal Express costs

 

Federal Express charges are “expressly disallowed as costs unless expressly permitted by law.”  Ripley v. Papadopoulos (1994) 23 Cal.App.4^th 1616, 1627.  In any event, the court would not exercise its discretion in this case to award these costs, for the reasons stated above.

 

The full amount of $119.21 challenged by Plaintiff is disallowed.

 

5.  Lexis database search costs

 

These costs are not recoverable.  Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 776.  Defendants do not address Ladas, nor do they provide any factual basis for a finding.

 

The full amount of $5,869.54 challenged by Plaintiff is disallowed.

 

6.  Copying/document production costs

 

Except for exhibits, these charges are expressly disallowed by section 1033.5(b)(3).  Defendants present no factual basis for the court to determine what portion, if any, of the charge relates to exhibits.  In any event, the court would not exercise its discretion in this case to award these costs, for the reasons stated above.

 

The full amount of $2,230.74 challenged by Plaintiff is disallowed.

 

7.  CourtCall fees and long-distance charges

 

Telephone charges are expressly disallowed by section 1033.5(b)(3).  Defendants present no argument and no evidence in support of this charge, but have not withdrawn it.

 

The full amount of $354.65 challenged by Plaintiff is disallowed.

 

8.  Mediation cancellation fee

 

Defendants do not dispute that it was they who cancelled the mediation.  Whether they did that because they considered Plaintiff’s demand high does not warrant awarding this amount as a discretionary cost.

 

The full amount of $1,000 challenged by Plaintiff is disallowed.

 

9.  Staff overtime costs

 

Without explaining why the charge was included in the Cost Memorandum, Defendants after the filing of Plaintiff’s motion have now withdrawn the charge.

 

The full amount of $143 challenged by Plaintiff is disallowed.