Stanley Vincent vs The State of California et al
Case No: 16CV05500
Hearing Date: Fri Oct 04, 2019 9:30

Nature of Proceedings: Motion for New Trial; Motion: Notwithstanding the Verdict; Motion: Tax Costs

TENTATIVE RULING: The motion is granted in part and denied in part, as articulated below, and plaintiff’s counsel is requested to verify for the court the nature of the court reporter fees sought, in the amount of $1,695, as explained below.

Background: After succeeding at trial, plaintiff submitted a Memorandum of Costs seeking $101,364.94 in costs. Through the filing of an errata which reflected the updated and accurate jury fees, once plaintiff was able to obtain the information from the court, the Jury Fee request was increased from the $3,516.60 reflected on the Memorandum of Costs, to $4,253.88, an increase of $737.28. As a result, the total amount of costs sought by plaintiff increased to $102,102.22.

Defendant has filed a motion to tax the claimed costs, seeking to reduce the total costs to be claimed by $63,573.94, for a total permissible cost recovery of $38,528.28 (that figure reflecting the adjusted cost claim, as increased by plaintiff’s filed errata). Plaintiff has opposed the motion.

ANALYSIS: Summary ruling. The motion is granted in part and denied in part, as outlined herein. The Court will tax the total amount of $28,564.34, which includes $500 from Item 1; $2,110.00 from Item 3; and the $25,954.34 in personal attorney expenses from Item 16.

Plaintiff’s counsel is requested to provide clarification to the Court with respect to the court reporter fees sought in Item 9, verifying, as an officer of the court, whether the court $1,695 sought for court reporter fees were for trial services or for transcripts. If they were for transcripts, the motion will be granted as to these fees; if they were for court reporting of the trial proceedings, the costs would be allowable by statute, and the motion will be denied.

In all other respects, the motion is denied.

To the extent the court reporter fees are for trial testimony, the resulting total fee award would be $73,537.88. To the extent the court reporter fees were for transcripts, the resulting total fee award would be $71,842.88.

Motion analysis. The right to recover costs is purely statutory, and, in the absence of an authorizing statute, no costs can be recovered by any party. (Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, 439.) Except as otherwise provided by statute, the prevailing party in any action or proceeding is entitled as a matter of right to recover their costs. (Code Civ. Proc., § 1032, subd. (b).) “Prevailing party” is defined to include the party with a net monetary recovery. (Code Civ. Proc., § 1032, subd. (a)(4).)

Certain items of costs are allowable if incurred by the prevailing party, whether or not such costs have been paid. (Code Civ. Proc., § 1033.5, subds. (a) and (c)(1).) Recoverable costs are limited, however, to costs that are both reasonable in amount, and reasonably necessary to the conduct of the litigation. (Code Civ. Proc., § 1033.5, subds. (c)(2) and (3).) Costs which are “merely convenient or beneficial to its preparation” are disallowed. (Code Civ. Proc., § 1033.5, subd. (c)(2).)

Certain items of costs are expressly not allowable as costs, except when otherwise expressly authorized by law. (Code Civ. Proc., § 1033.5, subd. (b).) Items neither specifically allowable nor specifically prohibited may be allowed or denied in the court’s discretion. (Code Civ. Proc., § 1033.5, subd. (c)(4); Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 773-774.)

Costs are obtained by the timely service and filing of a verified memorandum of costs. (Cal. Rules of Court, Rule 3.1700, subd. (a)(1).) Claimed costs may be challenged by the filing of a motion to strike or tax costs. (Cal. Rules of Court, Rule 3.1700, subd. (b)(1).) Unless the objection is made to the entire cost memorandum, the motion must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the Memorandum of Costs, and must state why the item is objectionable. (Cal. Rules of Court, Rule 3.1700, subd. (b)(2).)

Where the items appear on their face to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 774.) Items that are properly objected to are put in issue, and the burden of proof is on the party claiming them as costs. (Id.) Whether an item listed on the cost bill was reasonably necessary is a question of fact for the trial court. (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989.)

Defendant has challenged a significant number of the various costs claimed by plaintiff in this action. As required of a motion to tax (see Cal. Rules of Court, Rule 3.1700, subd. (b)(2)), they will be addressed in the order they appear on the Memorandum of Costs.

Plaintiff has objected on various grounds to the chart attached to defendant’s motion, which he contends sets forth more costs to be stricken or taxed than are set forth in the motion. The chart is never referenced or explained in the motion, and is not authenticated or explained in a declaration of counsel in any way. Indeed, defendant presents no declarations whatsoever in support of their motion or reply which, as will become apparent in the Court’s analysis, gives rise to issues and problems with respect to several of the claims made by the motion. To the extent the specific costs or types of costs (e.g., motion filing fee, are referenced in the motion itself, the Court has considered them in connection with the motion. To the extent the chart may reference costs never discussed in the motion, either specifically or generally, the Court has not considered the chart.

Filing fees—Line 1 (corresponds to the item on the Memorandum of Costs).

Filing fees are expressly allowed as recoverable costs. (Code Civ. Proc., § 1033.5, subd. (a)(1).) However, defendant seeks to strike the duplicate filing fees for the original filing of this action in the San Francisco Superior Court ($450), and the $50 fee charged by the Santa Barbara Superior Court when the action was transferred from San Francisco. Defendant also seeks to reduce a $90 claimed civil filing fee from April 4, 2018, to $60, which is listed as the filing fee for a motion.

The Court will grant the motion as to the filing fees in the San Francisco Superior Court, and the $50, transfer fee, but will deny the motion as to the $30 defendant seeks to strike from a civil filing fee on April 4, 2018.

The Register of Actions obtained from the San Francisco Superior Court does not reflect the filing of a motion for change of venue, contrary to defendant CHP’s contention. Rather, venue was transferred to Santa Barbara pursuant to a stipulation and order. However, the allegations of the original complaint simply attempted to establish venue in San Francisco by stating that the CHP has offices and conducts business there. In opposition to the motion to tax costs, plaintiff presented no evidence to support his contention that venue was proper in the County of San Francisco. Further, venue was proper on the face of the complaint for Santa Barbara County. Because it therefore appears to the Court that the action was originally filed in the County of San Francisco for no reason other than the convenience of plaintiff’s counsel, where counsel’s office is located, the Court will grant the motion as to these costs, in the total amount of $500.

In opposition to the challenge to the $30 fee, plaintiff attaches his invoice showing a $90 court filing fee. The Court will also direct defendant to the Statewide Civil Fee Schedule for Superior Courts within California, (https://www.courts.ca.gov/documents/filingfees.pdf), wherein at Item # 65, a $30 fee is authorized for court reporting services in civil proceedings lasting one hour or less. It is this $30 fee that is charged by the court in conjunction with the motion filing fee, when a motion such as plaintiff’s motion to quash subpoenas (filed on 4/6/18), is filed. The $30 fee was properly charged and paid, and is a recoverable cost. Consequently, the motion to tax that portion of the filing fee is denied.

Deposition costs—Line 3.

For purposes of clarification, the Court will note that defendant did not challenge any of the deposition-related travel or expenses, within the motion’s discussion of items sought in Line 3 (“Deposition costs”), only seeking to have such costs removed to the extent it is successful in seeking to tax the costs of certain depositions it believes were unnecessary.

A. Video deposition costs.

Plaintiff’s memorandum of costs seeks the expenses of taking, video recording, and transcribing of necessary depositions. Pursuant to Code of Civil Procedure section 1033.5(a)(3(A), the taking, video recording, and transcribing of necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed, are expressly allowed as recoverable costs. Because the claimed costs therefore appear on their face to be proper charges, the burden is on defendant to show that they were not reasonable or necessary. (See Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 774.)

In this case, defendant seeks to tax $9,412.00 for the video recording of depositions of 12 deponents. Of the 12 deponents whose depositions were videotaped, only 4 were called at trial, and only one video was played at trial. Defendant contends that the cost of videotaping these depositions was not reasonable or necessary. Defendant argues that videotaping a deposition is only necessary when the witness being deposed is ill, infirm, or is otherwise unable to attend trial, citing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2012) ¶ 8:659.)

The referenced section does not support that contention, and in fact defendant’s argument is a substantial misrepresentation of the comments made therein. Paragraph 8:659 contains an extended discussion of the effectiveness and benefits of video-recording depositions. In the course of its discussion of one of those benefits—in providing a far better record of the examination than any transcript or audio recording—Rutter notes that a video-taped deposition is clearly the best way to preserve the testimony of a witness who is ill or feeble and may be unavailable to testify at trial, or of a key witness living in another state or country who is unwilling or unable to testify in person at trial, and then proceeds to note that it records the witness’ nonverbal responses, which undeniably influence juries. Nowhere does Rutter state that videotaping a deposition is only necessary when a witness is ill, infirm, or unable to attend trial; rather the provision in fact tends to establish the opposite, in extolling at some length the benefits of videotaped depositions, including that it cuts down on abuses by counsel during the deposition (something which this Court had opportunity to note was a definite issue in this case, including and particularly with respect to former CHP attorney-of-record Franco, as reflected in its May 11, 2018 analysis of plaintiff’s motion for protective order), it tends to make witnesses more candid, and it allows a deponent to be requested to demonstrate an act, among benefits.

The fact that some witnesses were not called at trial, and only excerpts of one videotaped deposition were played at trial, do not, without more, establish that it was not reasonable or necessary for the depositions to have been videotaped. (See, e.g., Seever v. Copley Press, Inc.(2006) 141 Cal.App.4th 1550, 1557.) Plaintiff asserts that videotaping was reasonably necessary to prepare for opening statements and as impeachment, to allow the co-trial counsel to gauge the demeanor of witnesses he had not met in order to prepare for cross-examination, that plaintiff repeatedly attempted to present video at trial, that the videotaping served to deter defendant from calling certain witnesses based on the bias and demeanor preserved on video and prepared for use as impeachment. Further, the defendant itself videotaped the third day of plaintiff’s deposition. While defendant contends that plaintiff cited no authority to support his contentions that such uses rendered the videotaping reasonably necessary, in fact the Seever case does so. The Court finds that defendant has failed to meet its burden of establishing that these costs which appear on their face to be proper charges to not have been reasonable or necessary, and further that plaintiff has established the contrary.

Defendant contended further that there were duplicative billings for the same video recordings. In opposition, plaintiff presented evidence that there were no duplicate charges, and that he had paid all of the invoices presented for videotaping. The Court has examined some of the invoices for the billings which defendant contends are duplicative. It is apparent to the Court that there are a wide variety of charges involved in the videotaping of depositions, which are separately set forth in the invoices. Most of the invoices appear to be proper and set forth recoverable costs for videotaping. The only invoice the Court questions is Invoice 7606, dated December 13, 2018, in the amount of $2,807.50. Only a partial copy of the invoice is attached (the amounts set forth on the single page attached do not add up to $2,807.50), although it appears that the second page of the invoice is located after Invoice 6932, in the documents attached to plaintiff’s counsel’s declaration. With the exception of one videographer charge and a corresponding DVD charge for the same deposition (totaling $697.50), the Invoice only relates to copies of deposition DVDs for depositions previously taken. Further, other invoices exist related to the taking of those deposition, which also reflect charges for the DVDs of the depositions. As a result, with the exception of the $697.50 charge, Invoice 7606 appears to cover what would most likely have been a request for additional copies of the DVDs, in preparation for trial. Because there has been no showing that additional copies of the DVDs were reasonably necessary to the litigation, and not simply convenient, the Court will tax the amount of $2,110.00 from Invoice 7606.

Finally, defendant challenges a cost not sought under Item 3 (“Deposition costs”), but which is actually sought under Item 12 (“Models, enlargements, and photocopies of exhibits”), a category never challenged by the motion, contrary to the requirements of California Rules of Court, Rule 3.1700(b)(2). In support of the challenge, defendant speculates that the $4,500 charge from Clara Dudley-Trial Technology might have included video clips from the deposition recordings which were not used at trial. In opposition, plaintiff pointed out that the cost is challenged only as a deposition cost, and explained that Dudley is a narrative graphics technician, who provided trial tech support and created and prepared electronic exhibits and video and evidence and exhibit compilation graphics for presentation during trial.

Because the charge from Clara Dudley-Trial Technology was not a deposition cost, and because defendant has not properly objected to the cost under Item 12 (“Models, enlargements, exhibits”), where it was claimed, and for which it was supported by plaintiff, the motion is denied as to this cost.

B. Unnecessary depositions.

Defendant contends that the depositions of Asmussen, Regan, Hutsell, and Sturges were unnecessary, and seeks to tax $4,085 for the costs of videotaping the deposition, $7,916.96 for transcripts of the depositions, and $1,228.76 in travel costs. No evidence was submitted in support of the motion, and no attempt was made to explain or show how or why these depositions were unnecessary. Plaintiff responded, through declaration testimony of his counsel, that each of these witnesses were identified by defendant as potential critical witnesses, and designated on its trial witness list. Hutsell was specifically designated by defendant as the person most knowledgeable regarding the reasons by plaintiff was fired, and he wrote plaintiff’s termination notice. Sturges was D’Arelli’s boss, and CHP had repeatedly argued that it was Sturges, not D’Arelli, who authorized the retaliatory conduct. The CHP relied on interviews with Officer Asmussen to substantiate allegations of dishonesty and evidence policy violations against plaintiff. The evidence was discredited at trial, and was further exposed by Asmussen’s video deposition. He was not called at trial, likely because of video impeachment evidence from the deposition. Finally, as plaintiff’s direct supervisor, Regan was a critical witness who plaintiff had to deposed to properly prepare for trial, and his animus and motive were visible in his video deposition. During trial, the AG notified the court and counsel that defendant’s first two witnesses in its case-in-chief would be Hutsell and Sturges, and that Sturges would testify in person or via the videotaped deposition, yet then failed to call either them or Asmussen and Regan, likely because of the videotaped impeachment evidence obtained from the depositions.

The Court finds that the deposition costs were proper on their face, and consequently the burden of showing that they were not reasonably necessary was on defendant. (See Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 774.) The “reasonable necessity” of a deposition cannot be assessed in hindsight, after the trial of the cause has already concluded, or be based solely upon whether deposition was used at trial. Rather, “reasonable necessity” must be evaluated as of the time the deposition was taken. Defendant failed to meet its burden of showing that the depositions were not reasonably necessary, and in fact the information provided by plaintiff establishes that they were, in large part, critically important to the litigation of the action. The Court will deny the motion to tax these costs.

Service of process—Line 5.

Defendant seeks to tax $627.50 for serving five subpoenas on CHP employees for the January 11, 2019 “trial setting conference,” and the $500 charge for “Farrow, Hutsell Service Depo Subpoenas” which is dated 12/21/18 on the Memorandum of Costs, since those depositions occurred months earlier on 8/8/18. Defendant further contends that the $500 should also be taxed because the costs were not reasonably or necessarily incurred. Plaintiff opposes, contending that he made a ministerial error in the designation of the invoice on his memorandum of costs for the $500 invoice (apparently in designating it as for deposition subpoena service), but that it was in fact for service of a subpoena (apparently relating to trial). With respect to the service of subpoenas on CHP employees for the January 2019 trial date, plaintiff states that the parties stipulated to the January 11, 2019 trial date, and set a pre-trial briefing schedule. Plaintiff believed that the trial would proceed in early January, and therefore served trial subpoenas on the CHP witnesses for whom the Attorney General refused to accept service.

The Court notes that, contrary to defendant’s characterization of the January 11, 2019 hearing as a “trial setting conference,” it was in fact a “Trial Confirmation Conference.” Trial was originally scheduled for November 11, 2017, and was continued by stipulation and order to October 19, 2018. In October 2018, the parties again stipulated to continue “the trial date” to January 11, 2019. Their stipulation further set forth a briefing schedule for motions in limine, and a date by which trial briefs, witness lists, exhibit lists, proposed jury instructions, and any pretrial stipulations, joint statement of the case, and proposed jury questionnaire would be filed, in anticipation of that date. Defendant has provided no declaration of counsel or any other form of evidence in support of its challenge to the fees for service of trial subpoenas, and has not refuted the evidence presented by plaintiff to show that (a) defense counsel refused to accept service on behalf of CHP employees, (b) the parties anticipated that trial would, in fact, proceed in January. As a result, the service of trial subpoenas upon CHP witnesses for the January 2019 trial date was entirely justified and proper, and the Court will deny the motion to tax these costs.

Still within the portion related to Line 4, Service of Process, the motion proceeds to vaguely attack certain appearance fees and witness fees. To the extent these fees may only be addressed by defendant within this section of its motion, doing so is in violation of Rule 3.1700(b)(2), and the motion to tax them will be denied. To the extent the costs are properly objected to within the appropriate sections of the motion, they will be addressed in the Court’s analysis of costs claimed in such sections.

Witness fees—Line 8.

The motion seeks to challenge two separate $275 witness fees for the deposition and trial appearance of Joel Asmussen, and two separate $275 witness fees for the deposition and trial appearance of Russell Regan. The motion asserts that neither witness testified at trial, and concludes without explanation that each was an unnecessary witness.

Because the claimed costs therefore appear on their face to be proper charges, the burden is on defendant to show that they were not reasonable or necessary. (See Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 774.) The Court has already found that defendant’s claim that these witnesses were unnecessary was unsupported, and in fact refuted by plaintiff, with respect to the necessity of taking their depositions. Further, plaintiff explained the position of each of these individuals with respect to the case.

Interestingly, these witness fees were, at defense counsel’s insistence, in the form of checks made payable to the CHP itself, required to be remitted with service of a subpoena upon the officer (such service required because defense counsel refused to accept service on their behalf). Further, the fact that a witness was not ultimately called to testify at trial does not automatically mean that it was not reasonably necessary to subpoena them for such testimony (and pay the witness fee the CHP insisted upon). Because the costs appear on their face to be proper charges, defendant has failed to meet the burden of showing that that the witness fees were not reasonably necessary to the conduct of the litigation, by failing to provide any evidence in support of its contention. The motion is therefore denied as to the witness fees.

Court-ordered transcripts—Line 9.

The Memorandum of Costs claimed $1,695.00 in Line 9, for “Court ordered transcripts.” In the attachment to the Memorandum of Costs, however, the costs are identified as “Trial Court Reporter Fees.” They reflect dates of July 22, 2019 and July 24, 2019, which were dates during trial of the action.

Defendant seeks to tax the fees, contending that there were no court-ordered transcripts in this case, and the costs were undoubtedly for daily transcripts from trial testimony, which is not an allowable cost.

Plaintiff’s opposition does not address the issue of court-ordered transcripts. Rather, plaintiff’s opposition contends that a prevailing party is statutorily entitled to recover court reporter fees under Section 1033.5(a)(11), and Benach v. County of Los Angeles (2007) 149 Cal.App.4th 386, 858. Plaintiff then cites Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58, for the propositions that the prevailing party can recover court reporter costs billed to and paid by it, and that parties have to pay the court reporter regardless of whether anyone orders transcripts.

Plaintiff’s arguments are perplexing. Certainly, a prevailing party is entitled to court reporter fees as established by statute. (Code Civ. Proc., § 1033.5, subd. (a)(11).) This would necessarily include the services of a court reporter at trial, in recording the proceedings as they occur. However, plaintiff did not claim the court reporter’s fees under Item 11 [Court reporter fees as established by statute]. Rather, plaintiff claimed these fees pursuant to Item 9 [Court-ordered transcripts]. Transcripts are only allowable as recoverable costs when they are ordered by the court. (Code Civ. Proc., § 1033.5, subd. (a)(9).)

In its reply, defendant states that it does not dispute that plaintiff is entitled to the court reporter fees incurred during trial, and did not move to tax them. However, court reporter fees were not claimed by plaintiff at any place in the Memorandum of Costs other than at Item 9.

It therefore is unclear whether the fees were simply erroneously set forth in Item 9, when they should have been set forth in Item 11. If the court reporter fees were for transcripts, they are not recoverable costs, because there is no evidence that this Court ever ordered the preparation of any transcripts. If they were for the court reporter’s services in reporting trial proceedings, they are recoverable, as acknowledged by defendant.

The Court requests that plaintiff’s counsel verify at the hearing of this motion, as an officer of the court, whether the court $1,695 sought for court reporter fees were for the court reporting of trial proceedings or for transcripts.

Interpreter fees—Line 13.

The memorandum of costs seeks $2,877.70 in Interpreter fees. The total is comprised of a $1,737.50 charge by Daniel Laurent for translation services for Dr. Malary in Haiti, between July 2018 and October 2018; a $190.00 charge by Angela Zawadzki on 8/29/18 for translation services for a call, letters, and MSJ declaration for Dr. Malary; and a $960.20 charge by Klara Rabinowitsch for translation of Dr. Malary’s trial testimony.

Defendant accepts the propriety of the $960.20 charge for an interpreter for Dr. Malary’s trial testimony. However, defendant seeks to tax the remaining $1,917.50 in interpreter fees, because they are not recoverable under Section 1033.5(a)(12), which permits recovery of interpreter fees for a qualified court interpreter authorized by the court for an indigent person represented by a qualified legal services project, or a pro bono attorney, and plaintiff does not fall within these requirements. Defendant further contends that the $1,917.50 was unnecessary, because plaintiff is fluent in French, and is an interpreter.

In opposition, plaintiff urges the court to exercise its discretion to award the costs, contending that not only were interpreter services necessary for critical trial witness testimony, they were also necessary for critical declarations used in the litigation, and documents and exhibits at trial, which had to be translated into English by a court-certified, non-party to the action. Plaintiff contends that the provision relied upon by defendant to deny the recoverability of the costs is inconsistent with Section 1033.5 subdivisions (c)(2) and (a)(3)(B).

The Court notes further that, as discussed above, costs neither expressly recoverable, nor expressly prohibited, may be allowed or denied in the court’s discretion (Code Civ. Proc., § 1033.5, subd. (c)(4)), as long as they are reasonable in amount (Code Civ. Proc., § 1033.5, subd. (c)(3)), and reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation (Code Civ. Proc., § 1033.5, subd. (c)(2)). The Court agrees with plaintiff that not only interpreter services at trial, but also interpreter services at other stages and the translation of documents and declarations from French to English, were all reasonably necessary to the conduct of the litigation, given the circumstances under which the action arose. Consequently, the Court will exercise its discretion and allow the full amount of interpreter and translator fees requested by plaintiff, and will deny the motion to tax the fees incurred prior to trial.

7. “Other” fees—Line 16.

Defendant seeks to tax the entire $29,590.53 in non-statutory costs which plaintiff seeks in this category. While such costs are allowable in the court’s discretion, defendant cites Jones v. Union Bank of California (2005) 127 Cal.App.4th 542, 551, for the proposition that where costs other than those allowed by Section 1033.5 are sought, they must be specifically pleaded and proved at trial rather than included in a memorandum of costs. Defendant contends that since plaintiff did not plead or prove these costs, he cannot recover them.

Defendant’s contention is incorrect. Jones expressly related to a contract that provided that the award of costs to a prevailing party shall not be limited to taxable costs. The Court’s ruling was simply that while Code of Civil Procedure section 1032(c) permits parties to agree to “procedures” for awarding costs, it does not expressly authorize the parties to expand by agreement the items that are allowable as prevailing party costs. It held that because such additional costs were sought pursuant to the terms of the contract, and were not based on statute, they must be pleaded and proved at trial rather than included in a memorandum of costs.

That is not the situation here. Indeed, Code of Civil Procedure section 1033.5(c)(4) expressly states that items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion. Such costs must, of course, have been reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation, and reasonable in amount. (Code Civ. Proc., § 1033.5, subd. (c)(2) and (c)(3).) Such costs are properly sought in the Memorandum of Costs, and properly challenged through a motion to strike or tax. See, e.g., Applegate v. St. Francis Lutheran Church (1994) 23 Cal.App.4th 361, 363-364; Van de Kamp v. Gumbiner (1990) 221 Cal.App.3d 1260, 1290-1293.)

Such “other” costs need not, in this case, have been pleaded or proven at trial. However, they must be shown to have been reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation, and reasonable in amount. It is under that standard that the specific expenses will be evaluated by the Court.

A. Attorney personal expenses

Defendant seeks to tax amounts claimed lodging, meals, travel, and expenses incurred for plaintiff’s attorney(s) to attend hearings, to conduct trial preparation, and to attend trial, contending that the expenses for an attorney to attend trial are personal costs, not costs of litigation, citing Cooley v. Miller & Lux (1909) 156 Cal.510, 525-526.

Plaintiff opposes the motion, contending that both of his attorneys live in San Francisco, and both had to attend trial in Santa Barbara, requiring that they incur expenses for accommodations, travel, etc. He contends his request for lodging expenses is both necessary to the litigation and reasonable, as were the meal expenses during trial. He further contends that counsel’s travel to attend trial and multiple hearings was necessary and essential to the litigation.

The Court will grant the motion, and will strike these costs from the Memorandum of Costs. Certainly, from a practical standpoint, it was necessary for plaintiff’s attorneys to attend trial. Additionally, plaintiff is entitled to be represented by the attorney of his choice. However, when a plaintiff chooses to be represented by attorneys located distant from the county in which the action is venued, that does not automatically render their need to travel to attend trial to be “necessary to the litigation,” rather than “merely convenient.” It may be necessary to their representation of the plaintiff, but it is not necessary to the litigation itself, within the meaning of Section 1033.5. The same is true of their rental of office space during the trial.

The Court will therefore grant the motion as to all non-deposition travel, lodging, and related expenses for counsel. By the Court’s calculation, referencing the items set forth in Attachment 16 to plaintiff’s Memorandum of Costs, this finding will result in the reduction of the claimed costs in the total amount of $25,954.34.

B. Witness expenses

Defendant asserts that pursuant to Code of Civil Procedure section 1033.5(a)(7), plaintiff is limited to ordinary witness fees pursuant to Government Code section 68093, which provides that, except as otherwise provided by law, witness’ fees for each day’s actual attendance when legally required to attend a civil action in the superior courts, are $35/day, and actual mileage traveled, both ways, at $0.20/mile. On this basis, defendant challenges the witness expenses claimed in Item 16, involving the costs incurred for airfare for Dr. Malary in both January 2019 and July 2019 (characterized in the memorandum of costs as relating to a flight to attend trial when it was scheduled in 1/19, and the change fees incurred to bring Dr. Malary for the July trial), totaling $1,741.98; the travel reimbursement made to Joseph Farrow for airfare, hotel, and car rental incurred for trial testimony, totaling $844.70; and the travel reimbursement made to Sheri Jones for mileage and hotel for trial testimony, totaling $307.00.

In opposition, plaintiff asserts that travel expenses for witnesses are permitted in the court’s discretion, and that these costs were reasonably necessary for the litigation. None of these witnesses live in Santa Barbara County. Dr. Malary was required to travel form Haiti to attend trial, and his presence was essential to establish several key elements of plaintiff’s case. Plaintiff asserts that the $1,633 sought to bring him to testify and provide lodging while he was here was reasonable. Comm. Joseph Farrow, who lives in Sacramento, was on both parties’ witness lists, and defendants spent significant time at trial examining him to bolster their contention that plaintiff’s termination was legitimate. Finally, Sgt. Sheri Jones was plaintiff’s supervisor, and her appearance was necessary to rebut defendant’s contention that plaintiff was a dishonest, insubordinate, and irredeemable police officer. Although the Attachment to the Memorandum of Costs identified the $307 cost as consisting of both mileage and lodging, plaintiff’s opposition clarifies that no mileage was sought, and the amount was just for one night of lodging.

As noted above, ordinary witness fees of $35/day and mileage at $0.20/mile, both ways, are permitted for a required appearance in a civil proceeding. (Code Civ. Proc., § 1033.5, subd. (a)(7).) However, costs neither expressly recoverable, nor expressly prohibited, may be allowed or denied in the court’s discretion (Code Civ. Proc., § 1033.5, subd. (c)(4)), as long as they are reasonable in amount (Code Civ. Proc., § 1033.5, subd. (c)(3)), and reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation (Code Civ. Proc., § 1033.5, subd. (c)(2)).

The Court finds that all of these costs are reasonable in amount, including the additional costs to change Dr. Malary’s flight when the trial did not commence in January 2019. The Court further finds that all of these costs were not only reasonably necessary to the conduct of the litigation, but were in fact of great importance to the litigation. Consequently, the Court will exercise its discretion to allow plaintiff to recover these costs, and will deny the motion to strike or tax them.