Case Number: GC043433    Hearing Date: November 07, 2014    Dept: NCE

Motion of cross-defendants Aurora Las Encinas, LLC and Signature Healthcare Services, LLC to tax costs claimed by the County of Los Angeles is granted in part and denied in part.
The court finds that cross-defendant Robert Mier was a prevailing party entitled to costs.

Motion to tax Item 4, Deposition costs, is denied. Cross-complainant has established that they were incurred in the course of attending “necessary depositions.”

Motion to tax Item 13, Other, is granted. The moving papers have placed in issue whether these costs are appropriately claimed as costs, and whether they were actually incurred by the party claiming them. In response, the County has failed to submit evidence establishing that these costs were in fact incurred (such as through invoices) and has failed to provide any legal authority under which mediation expenses are recognized as recoverable costs. Where a cost item is properly objected to, it is put in issue and the burden of proof is on the party claiming the cost to demonstrate it is incurred and is reasonable. See Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761. Cross-complainant has failed to meet this burden, and the costs claimed are accordingly stricken. Costs claimed of $2,875 are reduced to $0.

Total costs awarded: $13,604.22 ($16,479.22 less $2,875)

Motion of cross-defendants Aurora Las Encinas, LLC and Signature Healthcare Services, LLC to strike or tax costs claimed by cross-complainant Robert Meir is granted in part and denied in part. The court finds that cross-defendant Robert Meir was a prevailing party entitled to costs.

Motion to tax Item 4, Deposition Costs, is denied. The reply concedes that the invoices directed to counsel for Meir are attached to the Supplement to Motion for Attorney’s Fees at Ex. 2, that these invoices have been paid and withdraws the challenge on this point. Costs are awarded in the sum of $8,422.

Motion to tax Item 10, Attorney fees, is granted. Attorneys’ fees in this matter must be sought pursuant to noticed motion. See CRC Rule 3.1702(a), which provides that unless a party is entitled to statutory or contractual fees that are fixed without the necessity of a court determination, “claims for statutory attorney’s fee and claims for attorney’s fees provided for in a contract” must be claimed by “notice of motion.” Since the amount of the recoverable fees here clearly require a court determination, a motion is required to establish the amount recoverable. Attorney’s fees as costs are taxed. Costs claimed of $293,570 are reduced to $0, but are subject to being awarded and entered once the appropriate amount is determined pursuant to motion.

Total costs awarded: $8,422 ($301,992 less $293,570)

Motion of cross-complainant Robert Meir for attorneys’ fees is continued one last time to ___________, 2014 to permit filing of proper documentation meeting the concerns expressed below. A supplemental opposition may be filed by ____________, 2014. Any reply may be filed by __________________, 2014.

Meir seeks attorney’s fees under an indemnity provision providing “Contractor [Aurora] shall indemnify, defend and hold harmless County, and its … employees, and agents from and against all liability, including by not limited to demands, claims, actions fees, costs and expenses (including attorney and expert witness fees), arising from or connected with the Contractor’s acts and/or omissions arising from and/or relating to this Agreement.” Under Civil Code section 2778,
“In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears:

1. Upon an indemnity claim against liability, expressly, or in other equivalent terms, the person indemnified is entitled to recover upon becoming liable;

2. Upon an indemnity against claims, or demands, or damages, or costs, expressly, or in other equivalent terms, the person indemnified is not entitled to recover without payment thereof;

3. An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in good faith, and in the exercise of a reasonable discretion…”

Accordingly, it is the moving party’s burden to show that Meir is actually liable for the fees and costs sought and that the costs of defense were incurred in good faith and in the exercise of reasonable discretion. The fees awardable here may not exceed the amount necessary to reimburse a party for the fees it has paid or has become liable to pay or the fees actually incurred. However, the invoices submitted do not indicate what sums were actually billed, or what was actually paid by the client. In addition, the opposition submits the declaration of attorney Rina Matheson submitted in March of 2011 in connection with a motion to compel a deposition that states she will bill her client at the agreed rate of $155.00 per hour [Ex. A, p. 7], but the corresponding billing statements submitted with this motion bill the time for that same task at $325 per hour [Ex. 1, p. 18]. This raises concern that the sums sought here do not represent the true rates billed and are not the sums actually incurred or properly billed. Moving party will be permitted one last chance to submit proper documentation to meet its burden to establish properly recoverable fees.