Case Number: KC064701    Hearing Date: August 04, 2014    Dept: J

Re: Daniel Divelbiss v. Lorraine S. Divelbiss, etc., et al. (KC064701)

MOTION TO TAX COSTS

Moving Party: Plaintiff Daniel Divelbiss

Respondents: Defendants James Prchal, Katherine Prchal and Lorraine S. Divelbiss

This is a case involving an alleged bad faith breach of contract by Defendant Lorraine Divelbiss (Plaintiff’s mother) and tortious interference with that contract by Defendants James Prchal and Katherine Prchal (Plaintiff’s sister and brother-in-law). Plaintiff alleged that Defendant Lorraine Divelbiss first had a contract to sell the subject property to Plaintiff on certain terms favorable to Plaintiff, but that after interference with this contract by the Prchal Defendants, Defendant Lorraine Divelbiss chose instead to enter into a new and subsequent contract with the Prchal Defendants on the same terms as the original contract with Plaintiff. On 6/17/14, a judgment was entered in favor of Defendants and against Plaintiff following a court trial.

Plaintiff Daniel Divelbiss (“Plaintiff”) now moves to tax the Memorandum of Costs filed by Defendants James Prchal, Katherine Prchal and Lorraine S. Divelbiss (collectively “Defendants”) pursuant to California Rules of Court, Rule 3.1700 and CCP § 1033.5, et seq.

The procedures for claiming prejudgment costs are governed by statute and Judicial Council Rules. (CCP §§ 1034(a), 1034.5; and CRC 3.1700, 3.1702, 3.2000.) To obtain a costs award, the prevailing party must serve and file a memorandum of costs (commonly referred to as a “costs bill”). (CRC 3.1700(a).) The costs memorandum must be served and filed within the earlier of 15 days after the clerk’s mailing of notice of entry of judgment or dismissal (under CCP § 664.5); or 15 days after any party’s service of such notice; or 180 days after entry of judgment. (CRC 3.1700 (a)(1).) 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 CCP § 1013. (CRC Rule 3.1700(b)(1).)

The “prevailing party” is entitled as a matter of right to recover costs of suit in any action or proceeding. (CCP § 1032(b).) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ibid.)

TIMELINESS:

Plaintiff’s motion filed on June 16, 2014 appears to be based on the Memorandum of Costs that was rejected by the court because it was submitted before the judgment was signed by the court. A second Memorandum of Costs was filed on June 27, 2014 and accepted by the court. (Motion, Spitz Decl. ¶ 5, Exh. 10.) Plaintiff did not move to tax the Memorandum of Costs filed on June 27, 2014. However, unless counsel for Defendants notified counsel for Plaintiff that the initial Memorandum of Costs was rejected by the court, the court will deem this motion to be directed toward the latter Memorandum and will address it on its merits.

FILING AND MOTION FEES:

Filing, motion and jury fees are allowable costs if incurred by the prevailing party. (CCP § 1033.5(a)(1).)

Plaintiff seeks to tax the $180.00 filing fee in connection with three motions to compel on or about September 27, 2013, on the grounds that the motions were denied in part and the court declined to award monetary sanctions.

Defendants contend that had the motions not been filed, Plaintiff would have continued to maintain his meritless position that further responses were not required. Defendants submit evidence that the court found that further responses were necessary and thus directed the parties to stipulate in court as to the further responses that would be provided by Plaintiff. (Opposition, Spitz Decl. ¶¶ 7-9, Exh. 2.)

The costs appear to be reasonable and necessary. Thus, the motion to tax filing fees of $180.00 is denied.

DEPOSITION COSTS FOR DELFINO BANUELOS AND ANTHONY HAAN:

Transcripts and videotape of “necessary” depositions, plus travel expenses to attend depositions, are allowable costs. (CCP § 1033.5 (a)(3); Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1549—includes travel expenses incurred by out-of-town counsel in attending local depositions; Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557, 1560,—court awarded costs of videotaping depositions even though depositions were not used at trial and awarded deposition travel costs at 37 cents/mile.)

Plaintiff contends that these depositions were not reasonably necessary to the court in this bench trial and that the amounts sought are not reasonable in amount.

Defendants, in opposition, explain that the deposition of Delfino Banuelos, the PMK of JP Morgan Chase regarding the loan applications submitted to JP Morgan Chase by Plaintiff, was necessary for the defense of the Defendants to determine whether Plaintiff was in fact ready and able to tender the purchase money to Lorraine S. Divelbiss by August 30, 2012. Defendants seek $1,400.00 for four hours (at $350.00 an hour) of their attorney’s time in the taking of the deposition of Delfino Banuelos, and $670.50 for transcribing the deposition.

Defendants also explain that the deposition of Anthony Haan, Plaintiff’s expert witness, was necessary to prepare for the trial. Defendants seek $1,400.00 for four hours (at $350.00 an hour) of their attorney’s time in the taking of the deposition of Delfino Banuelos, and $349.45 for transcribing the deposition.

However, attorney’s fees are allowable only when authorized by contract, statute, or law (CCP § 1033.5(a)(10)); and unless Defendants are seeking attorney’s fees pursuant to a statute, they must bring a noticed motion to seek such fees (CCP § 1033.5(c)(5)).

Thus, $2,800.00 is taxed from the costs sought.

SERVICE OF PROCESS ON JP MORGAN CHASE:

Service of process by a public officer, registered process server, or other means are allowable as costs. (CCP § 1033.5(a)(4).)

An item neither specifically allowable under CCP § 1033.5(a) nor prohibited under § 1033.5(b) may nevertheless be recoverable in the court’s discretion. (CCP § 1033.5(c)(4); Ladas v. California State Auto. Ass’n (1993) 19 Cal.App.4th 761, 773–774.) In any event, such discretionary costs must be reasonable in amount and “reasonably necessary to the conduct of the litigation.” (CCP § 1033.5(c)(2),(3); Davis v. KGO–T.V., Inc. (1998) 17 Cal.4th 436, 44.)

Plaintiff contends that the amount sought is high and unreasonable under the circumstances.

Defendants, in opposition, submit evidence that they incurred $318.69 in connection with deposition subpoenas issued to JP Morgan Chase. (Opposition, Spitz Decl. ¶¶ 16-18, Exh. 6.) It appears that the costs are reasonable in amount and reasonably necessary to the conduct of the litigation. Thus, motion to tax $318.69 is denied.

EXPERT FEES FOR NOBLE TUCKER AND ANTHONY HAAN:

Fees of expert witnesses ordered by the court are allowable as costs. (CCP § 1033.5(a)(8).) Fees of experts not ordered by the court are not allowable as costs, except when expressly authorized by law. (CCP § 1033.5(b)(1).)

If plaintiff turns down defendant’s § 998 offer and fails to obtain a “more favorable” judgment at trial: (1) plaintiff cannot recover court costs incurred after the offer was made (pre-offer costs are still recoverable, however, if plaintiff is the prevailing party); (2) plaintiff must pay defendant’s post-offer court costs (if these exceed plaintiff’s verdict, a judgment will be entered against plaintiff for the balance); and (3) the court has discretion to order plaintiff to pay reasonable expert witness fees incurred by defendant in preparing for and/or during trial of the case. (CCP § 998(c),(e); Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, 532–533—expert witness fees incurred before and after offer allowed. Section 998 gives trial courts discretion to award defendant’s expert fees, regardless of whose witness the expert is if plaintiff fails to obtain a more favorable judgment or award. (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 55—pursuant to § 998(c), P had to pay fees incurred by D to depose P’s expert.)

Plaintiff contends that neither Nobel Tucker nor Anthony Haan appeared at the trial by order or appointment of the court, and therefore, their expert fees should be denied.

Defendants, in opposition, submit evidence that they are entitled to the requested fees because Plaintiff turned down an offer to compromise pursuant to CCP § 998 that was made on April 14, 2014. (Opposition, Spitz Decl. ¶¶ 19-20, Exh. 7.) Thus, the motion to tax expert fees in the amount of $932.00 is denied.

MODEL, BLOWUPS AND PHOTOCOPIES AT TRIAL:

Expenses for models, blowups, photocopies, etc. that are “reasonably helpful to aid the trier of fact” are recoverable as costs. (CCP § 1033.5(a)(12); see Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 90–91—costs award for exhibits and blowups used at trial; Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1623—rental of overhead projector used at trial was recoverable cost item.) Expenses for computerized forms of models or blowups, such as imaging documents and video and graphic exhibit boards, are likewise recoverable. (See American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1057.)

Plaintiff contends that if any amount is awarded, the costs should be reduced to at least half because Defendant Lorraine Divelbiss lost on her Cross-Complaint and many of the exhibits were used in the defense of the Complaint and in prosecution of the Cross-Complaint

Defendants, in opposition, submit evidence that they incurred $407.45 as costs, but that they rounded down the costs to $400.00, and that the costs were reasonably incurred. (Opposition, Spitz Decl. ¶¶ 21-23, Exhs. 1 and 8.) It appears that the costs are reasonable in amount and reasonably necessary to the conduct of the litigation. Thus, motion to tax $400.00 is denied.

COURT REPORTER FEES:

Transcripts of court proceedings not ordered by a court are specifically disallowed under CCP § 1033.5(b)(5). Court reporter fees as established by statute are allowed under CCP § 1033.5(a)(11).

Plaintiff contends that the court did not order the transcript, so the cost is not recoverable.

Defendants, in opposition, submit evidence that they incurred $920.50 in court reporter fees. (Opposition, Spitz Decl. ¶ 24, Exh. 9.) It appears that the costs are reasonable in amount and reasonably necessary to the conduct of the litigation. Thus, motion to tax $920.50 is denied.