Case Number: MC024111    Hearing Date: July 08, 2014    Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

STEVEN and MELANIE EARLY, )
) Case Number MC 024111
Plaintiff, )
) ORDER AFTER HEARING
V ) ) Date of Hearing:
NORTHROP GRUMMAN ) July 8, 2012
CORPORATION, et al. ) Dept. A-11
) Judge Randolph A. Rogers
Defendants. )
____________________________________)

The motion of Plaintiff Steven Early to tax costs claimed by Defendants Raymond Cho and Thomas J. Lee came on for hearing on July 8, 2014. Defendants Raymond Cho and Thomas J. Lee appeared through their counsel of record, __________________________. Plaintiff Steven Early appeared through his counsel of record, __________________________. The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

The motion of Plaintiff Steven Early to tax costs claimed by Defendants Raymond Cho and Thomas J. Lee is DENIED:

SO ORDERED this the _____ day of July, 2014.

________________________
RANDOLPH A. ROGERS
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

STEVEN and MELANIE EARLY, )
) Case Number MC 024111
Plaintiff, )
) STATEMENT OF DECISION
V ) ) Date of Hearing:
NORTHROP GRUMMAN ) July 8, 2012
CORPORATION, et al. ) Dept. A-11
) Judge Randolph A. Rogers
Defendants. )
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. This is an unlimited jurisdiction negligence, premises liability, and professional negligence case in which Plaintiff Steven Early (“Plaintiff”) sustained injuries on a site controlled by the Northrop Grumman defendants, while operating a vehicle. Plaintiff was taken to defendant Antelope Valley Hospital (“AVH”), and discharged. Plaintiff was later diagnosed with a cervical spine fracture, which required a surgical procedure.

2. Defendants Raymond Cho (“Cho”) and Thomas J. Lee (“Lee,” collectively “Defendants”) are physicians at AVH where Plaintiff was treated for his injuries. Cho appeared to have treated Plaintiff briefly in the emergency room visit, before Plaintiff was brought under the care of another physician. Lee appears to have had no involvement with Plaintiff at all, except that his name was erroneously listed on the Plaintiff’s emergency room charts.

3. On February 21, 2013, Plaintiff filed his complaint for (1) negligence, (2) premises liability, and (3) (professional) negligence (as against non-Northrop defendants). The premises liability cause of action was dismissed with prejudice on January 16, 2014 by Plaintiffs.

4. After discovery, Defendants filed their motion for summary judgment on January 14, 2014. Plaintiff filed his statement of non-opposition to the motion on April 8, 2014. The motions were granted after hearing on April 22, 2014.

5. Defendants filed a memorandum of costs with the Court on May 19, 2014. Plaintiff filed his motion to tax costs on June 6, 2014. Defendants filed their Opposition on June 20, 2014.

6. Motion to tax costs – There is no statute requiring the filing of a motion to tax costs. Cal. Code Civ. Proc. § 1034(a) provides, “Prejudgment costs allowable under this chapter shall be claimed and contested in accordance with rules adopted by the Judicial Council.” In this respect, CRC Rule 3.1700(b) provides, “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013 . . . . [¶] Unless objection is made to the entire cost memorandum, the motion to strike or tax costs 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.”

7. Defendants filed their memorandum of costs on May 19, 2014. Plaintiffs filed his motion to tax costs on June 6, 2014 – within 20 days of Defendant’s filing – and objected to the entire cost memorandum. Accordingly, this court has jurisdiction to tax costs pursuant to Rule 3.1700.

8. Brief overview of relevant case law and statutes – In Davis v. KGO-T.V. (1998) 17 Cal.4th 436, 439, the Supreme Court explained, “The ‘costs’ of a civil action consist of the expenses of litigation, usually excluding attorney fees. Under the common law rule, parties to litigation must bear their own costs. The right to recover any of such costs is determined entirely by statute. ‘It is axiomatic that the right to recover costs is purely statutory, and, in the absence of an authorizing statute, no costs can be recovered by either party.’” Code of Civil Procedure §1032(b) provides, “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”

9. Davis further explained, “Subsequent to the enactment of Government Code section 12965, the Legislature enacted Code of Civil Procedure section 1033.5, to expressly define the term ‘costs’ as used in Code of Civil Procedure section 1032, the principal statute governing the right of a prevailing party to recover costs. Code of Civil Procedure section 1033.5 specifies which costs are ‘allowable’ (id., subd. (a)), which are ‘not allowable . . . , except when expressly authorized by law’ (id., subd. (b)), and which may be allowed or denied in the court’s discretion (id., subd. (c)).” Davis, supra, 17 Cal.4th at 441. Code of Civil Procedure §1033.5(c) provides in part that “(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. [¶] (3) Allowable costs shall be reasonable in amount.” When subdivision (c) is read together with the rest of the costs statute, courts have concluded that if an expense is neither expressly allowable under subdivision (a) nor expressly prohibited under subdivision (b), it may nevertheless be recovered if, in the court’s discretion, it is “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” CCP §1033.5(c); see Science Applications International Corporation v. Superior Court (1995) 39 Cal.App.4th 1095, 1103.

10. As the Court of Appeals stated in Foothill-De Anza Community College Dist. v. Emmerich (2007) 158 Cal.App.4th 11, 29-30, “[i]n 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 or unreasonable.’ [Citation.] Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary. [Citation.] ‘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.’ [Citation.]”

11. Claimed statutory costs (filing, motion, and jury fees and deposition expenses)¬ – Plaintiffs move to tax both the $1,870 claimed in filing and motion fees and the $5,505 in deposition expenses claimed by Defendants.

12. Code of Civil Procedure §1033.5(a)(1) allows for filing, motion, and jury fees as allowable costs. Subdivision (a)(3) further includes as allowable costs those involved in “[t]aking, videotaping, and transcribing 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, and travel expenses to attend depositions.”

13. There is no contest that Defendants are the prevailing party vis-à-vis Plaintiff. There is also no contention that the costs incurred were not statutorily authorized. Rather, Plaintiff argues that neither of these costs should be permitted because, with the exclusion of $870 as the first appearance fee, all other costs were not reasonably necessary for the conduct of the litigation. Further, Plaintiff argues that the first appearance fee should also be taxed in response to the allegedly improper “hardball tactics” Defendants employed in the proceedings.

14. As a preliminary matter, neither party can or does dispute that the first appearance fee of $870 was reasonably necessary for the conduct of the litigation. Instead, Plaintiff asks the Court to disallow Defendants’ recovery of such fees “based on their conduct throughout this litigation.” Motion at 11:1-2. Because Plaintiff has not demonstrated any conduct by Defendants to justify imposing what amounts to a punishment levied against them, at a bare minimum, the motion to tax costs with respect to the $870 first appearance fee is not well taken.

15. As to all the other costs claimed in the memorandum of costs, Plaintiff contends that they were not reasonably necessary to the conduct of the litigation because Defendants could have accepted Plaintiff’s offer to have them dismissed voluntarily, without prejudice, and with the caveat that the statute of limitations with regards to the Defendants be tolled so as to allow Plaintiff to bring them back in to the case should discovery indicate this is necessary. Motion, Exhibit 1.

16. To begin with, there is a clear, substantive difference between a party who exits litigation because of a voluntary dismissal “without prejudice, with an agreement they can be renamed without objection” and one who exits because a summary judgment motion was granted in his favor. Under the first, the party remains vulnerable to being dragged back in to the litigation at some future point in time so long as no ultimate resolution of the entire lawsuit is had. The party must, essentially, remain shrouded by the ever possible risk of a return to court. A party prevailing on a summary judgment motion, however, enjoys the protection of a final judgment on the merits, such that the doctrines of res judicata and collateral estoppel, if nothing else, will come to his aid should the specter of litigation return to haunt him. A party cannot be punished for seeking to conclusively settle a dispute over accepting a pale-imitation of imperfect settlement.

17. The litigation in question here concerned the liability of Defendants to Plaintiff for the alleged treatment and care they gave Plaintiff. At least as to Lee, who rendered no services whatsoever to Plaintiff, being dismissed from the case subject to the ever-present possibility that he may be dragged back in to the litigation cannot possibly be considered in rough parity with prevailing on a motion for summary judgment. Though perhaps less clear-cut than for Lee, the situation is much the same for Cho. As to Defendants, the conduct of the litigation should certainly include necessary discovery and law and motion in order to finally adjudicate the case against them on the merits. In this regard, the fact finding and motions necessary to finally resolve the claims levied against them clearly involved the depositions claimed, as well as the motions for summary judgment.

18. Plaintiff does not cite, and research has not revealed, any authority which stands for the proposition that a party who insists on a determination on the merits is precluded from recovering costs of the litigation because it refused to compromise in a way that left it vulnerable to the exact same liabilities it faced in the lawsuit.

19. Plaintiff’s citation to Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238 is unavailing. Plaintiff’s own characterization of Perko reveals it does not support his position. As Plaintiff explains, an ex parte application was opposed by opposing counsel, which was denied. Counsel thereafter filed a formal opposition with memorandum of points and authorities to the application that was already denied. Motion at 9:10-17. From this alone, Perko’s is already distinguishable. The formal motion in Perko’s was entirely unnecessary to the litigation: the issue involved by the motion had already been decided on the merits; bringing the motion, or opposition as it were, served no purpose in advancing the litigation to a decision on the merits. In contrast, Plaintiff’s offer to dismiss involved no resolution on the merits, and indeed, left open the very real possibility that Defendants must continue to labor under the threat of continued, future, or resumed litigation. Such a contrast cannot be inconsequential.

20. Moreover, in deciding Perko’s, the appellate court never addressed the question of whether the costs involved were reasonably necessary. Instead, the Court merely noted the trial court’s mistaken view that filing fees were mandatory costs recoverable without regard to necessity and stated that “[w]hen a trial court is mistaken about the scope of its discretion, even if the mistake is reasonable, an action taken in accord with that mistaken view is error.” Perko’s, supra, 4 Cal.App.4th at 245. As such, the Court remanded the issue to the trial court to determine questions of reasonableness.

21. Plaintiff has not shown how the actions of Defendants were not reasonably necessary to the conduct of the litigation. Plaintiff demonstrated no opportunity in the litigation to fully and completely resolve the issues as between Plaintiff and Defendants, cites no authority that would justify taxing costs in such a circumstance, and provides no basis as to why the costs claimed are unreasonable.

22. Accordingly, Plaintiff’s motion to tax costs is DENIED.

SO ORDERED AND ADJUDGED this the ______ day of July, 2014.

______________________________
RANDOLPH A. ROGERS, JUDGE