ISMAEL ROSAS VS FLAVORCHEM CORPORATION

Case Number: BC400974 Hearing Date: September 30, 2014 Dept: 307

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

ISMAEL ROSAS, ET AL.,

Plaintiff,
vs.

FLAVORCHEM CORPORATION, ET AL.,

Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
) Case No.: BC400974

[TENTATIVE] ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF ISMAEL ROSAS’ MOTION TO TAX PORTIONS OF DEFENDANT EMORAL, INC.’S MEMORANDUM OF COSTS

Hearing Date: September 30, 2014
Time: 9:30 a.m.
Dept.: 307

Plaintiff Ismael Rosas (“Rosas”) moves to tax portions of Defendant Emoral, Inc.’s memorandum of costs submitted on June 18, 2014 after the Court granted summary judgment in Emoral’s favor. However, after Plaintiff moved to tax, Emoral filed the operative second amended memorandum of costs on September 2, 2014, and the Court’s analysis centers on the costs asserted in the operative second amended memorandum of costs. Emoral opposes. For the reasons stated below, the Court GRANTS Rosas’ request to tax $7,338.15 in Emoral’s costs from the second amended memorandum of costs. The motion is otherwise DENIED.
I. Standard of Review

Pursuant to Code of Civil Procedure section 1032, generally “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc. § 1032(a)(4).) “This means that the prevailing party is entitled to all of his costs unless another statute provides otherwise. [Citation.] Absent such statutory authority, the court has no discretion to deny costs to the prevailing party.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.) However, “not all required costs are recoverable. Only those costs which are specified in the statute are allowable as a matter of right under section 1033.5, subdivision (a).” (Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 600.) Where a particular cost is not expressly allowed (but also not expressly prohibited) by statute, it “may be allowed or denied in the court’s discretion.” (Code Civ. Proc. § 1033.5(c)(4).)

Costs permitted by statute are allowable so long as they were “reasonably necessary to the conduct of the litigation” and “reasonable in amount.” (Code Civ. Proc. § 1033.5(c)(2), (c)(3).) The reasonableness of any particular cost is assessed at the time the cost was incurred. (See Brake v. Beech Aircraft Corp. (1986) 184 Cal.App.3d 930, 940.) “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 Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Cost items in a memorandum of costs which appear on their face to be allowed by statute are prima facie evidence that the costs were reasonable and necessary to the litigation. (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 699.) “[I]t is not enough for the losing party to attack submitted costs by arguing that he thinks the costs were not necessary or reasonable. Rather, the losing party has the burden to present evidence and prove that the claimed costs are not recoverable.” (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.) A party’s “mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of its counsel are insufficient to rebut the prima facie showing.” (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.) Conversely, if the cost items appear on their face to be items not expressly allowed by statute, “the burden of proof is on the party claiming them as costs.” (Ladas, supra, 19 Cal.App.4th at 774.)

II. Individual Cost Items

Emoral served its original memorandum of costs on June 18, 2014, claiming $80,460.38 in costs. On July 1, 2014, Rosas filed his motion to tax costs, addressing Emoral original cost memorandum. On August 12, 2014, Emoral served an amended memorandum of costs, reducing its claimed costs to $64,016.49. After additional meet and confer efforts between counsel for Rosas and Emoral, Emoral filed the operative second amended memorandum of costs on September 2, 2014, again reducing its cost bill to $54,341.18 (a $26,119.20 reduction from Emoral’s original cost bill). In addition to reducing the costs claimed for many of the depositions at issue, Emoral’s second amended cost memo excludes entirely the following deposition items to which Rosas objects in the motion:

• Georjean Adams (8/26/12)
• Frank Bruno (4/30/09
• Harvey Cohen (8/9/12 & 8/10/12)
• Dan Cox (8/27/12)
• Nathan Dorris (10/12/11 & 8/31/12
• Jose Esparza (6/10/10)
• Brent Finley (1/23/14
• David Galbraith (8/21/12)
• John Hallagan (3/23/11 & 9/17/12)
• John Henshaw (10/18/11 & 8/20/12)
• Robert C. James (8/25/12)
• Mark Katchen (8/29/12)
• Janet Kester (10/12/11 & 8/31/12)
• Craig E. Luebeck (8/24/12)
• Kenneth Malinowski (7/20/12)
• Richard Pisano (3/15/12)
• David Ross (9/4/12 & 9/9/12)
• Howard Sandler (8/27/12 & 9/19/12)
• John Spencer (8/30/12)
• Howard Spielman (8/23/12)
• Jorge Wecer (5/7/12)
• Bernard Weintraub (8/8/12)
• Gordon Yung (9/20/12)
The Court does not address arguments related to these depositions (including the arguments relating to the depositions of Mr. Luebeck and Mr. Spencer at Mtn., p. 12 and Decl. of Miller, Exh. G) further. And in light of Emoral’s agreement to withdraw costs associated with electronic service (see Opp., p. 8), the Court does not address Plaintiff’s contention that such costs are disallowed. (See Mtn., p. 13.)

Although Emoral’s second amended memorandum of costs lists two separate categories of costs, Rosas only moves to tax portions of one of those categories: deposition costs. Rosas does not move to tax the $880 Emoral claims in filing and motion fees. Filing and motion fees are expressly allowed as costs by statute (Code Civ. Proc. §1033.5(a)(1)) and Emoral’s memorandum of costs is prima facie evidence that those costs were reasonable. The Court does not discuss Emoral’s claim of filing and motion fees further.

As to the deposition costs at issue, Rosas does not dispute that the costs of “[t]aking, video recording, and transcribing necessary depositions” and “travel expenses to attend depositions” are expressly allowed by statute. (Code Civ. Proc. §1033.5(a)(3).) Rather, Rosas contends that many of the deposition and travel costs Emoral claims are unrelated to this action or were not “necessary” to defend against Rosas’ claims in this case. Emoral opposes.

A. Depositions Taken in Velasquez

Rosas first moves to tax costs associated with a number of depositions Rosas contends were taken in the related action Velasquez v. FEMA (BC370319) and Ortiz v. FEMA (BC364831). (Mtn., pp. 4-8; Decl. of Miller, Exh. A.) Rosas notes that he was not a party to the Velasquez or Ortiz actions, and that Emoral cannot be considered a “prevailing party” entitled to costs as to Rosas in those cases. (See Mtn. p. 5.) Moreover, Rosas asserts, Emoral settled with the plaintiffs in Velasquez and Ortiz and signed cost waivers agreeing to bear its own costs vis-à-vis the plaintiff in those actions. (Id.) There is little doubt that Emoral is not a “prevailing party” as to Rosas in the Velasquez and Ortiz actions, but that isolated fact is of little use to Rosas here. The relevant question which the Court must engage is one set forth in the Code of Civil Procedure: whether the depositions at issue were relevant and necessary to this action. (Code Civ. Proc. §1033.5(a)(3) [“necessary” depositions are allowable costs]; 1033.5(c)(2) [“Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation”]; see also Cal. R. Ct., Rule 3.1700(a)(1) [memorandum of costs must include statement by party or attorney that costs “were necessarily incurred in the case”].)

The implication of Rosas’ argument is that any deposition noticed in the Velasquez and Ortiz actions is irrelevant per se in the Rosas action. Notably, Rosas cites no authority for this blanket proposition. To the contrary, “[w]hether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court … .” (Ladas v. Cal. State Auto. Ass’n., supra, 19 Cal.App.4th at 774.) If a deposition was relevant and necessary in both Velasquez Ortiz and was also reasonably necessary to defend Rosas action, Emoral (as a prevailing party in the Rosas case) is entitled to costs associated with that deposition as a matter of statutory right. (Code Civ. Proc. §1033.5(a)(3).) And though not necessarily required by law, in the second amended cost memo Emoral voluntarily reduced many of its claimed deposition costs associated with those other actions Rosas and Velasquez actions to reflect the fact that those depositions served multiple uses.

The second amended memorandum of costs is, itself, prima facie evidence that the depositions listed were relevant and necessary to the litigation of the Rosas action. (Oak Grove School Dist. v. City Title Ins. Co., supra, 217 Cal.App.2d at 699.) “[I]t is not enough for the losing party to attack submitted costs by arguing that he thinks the costs were not necessary or reasonable.” (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.) To the extent Rosas believed that any individual deposition was not reasonably necessary to litigate the Rosas action, he was required to “present evidence and prove that the [deposition] costs are not recoverable.” Instead, he offered various charts identifying the costs counsel summarily declares were not reasonable or necessary. Such argument and conclusory declarations are insufficient to meet Rosas’ burden of proof. (Rappenecker v. Sea-Land Serv., Inc., supra, 93 Cal.App.3d at 266 [“mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of its counsel are insufficient to rebut the prima facie showing.”].)

In reply, Rosas also argues that the transcription costs associated with a number of cross-over experts who adopted their opinions from Velasquez in the Rosas matter were unnecessary because Rosas’ counsel gave Emoral copies of those earlier transcripts as part of their experts’ reliance materials in the Rosas action. (See Reply, p. 2; Decl. of Miller ISO Reply, ¶5.) Even if the Court accepts the representation of Plaintiffs’ counsel (unsupported by any evidence) that Rosas provided Emoral with copies of the deposition transcripts at issue, that does not lead to the inevitable conclusion that it was unnecessary or unreasonable for Emoral to separately order copies of the transcripts. Plaintiffs offer no evidence to suggest when they provided the transcripts, by what means, or in what form. Even if Rosas eventually provided Emoral with transcripts, for example, it may yet have been reasonable for Emoral to separately order transcripts if Rosas unnecessarily delayed delivery. Likewise, Rosas does not submit any evidence demonstrating whether he provided preliminary transcripts, final transcripts alone, paper transcripts, digital transcripts, all of the above, or some combination thereof. Again, depending on the circumstances, it certainly may have been reasonable for Emoral to separately request transcripts if for some reason the transcripts Rosas provided were inadequate to reasonably litigate the action. The second amended memorandum of costs is prima facie evidence that the asserted transcription costs were reasonably necessary, and Rosas cannot meet his burden to overcome that evidence by inviting the Court to merely speculate about what might have happened. Rosas can only overcome that burden with evidence, which he does not submit.

With respect to the depositions of Mr. Velasquez, however, Rosas fares better. While it is true that Rosas himself designated Mr. Velasquez as a percipient witness in interrogatory responses (see Decl. of Tarango ISO Centrome’s Opp. to Mtn. to Tax Centrome’s Costs, Exh. 1, p. 23), those responses were served May 31, 2011, more than two years after Mr. Velasquez’ first eight depositions. And Emoral does not offer anything to suggest why it was reasonably necessary to conduct nine separate depositions of a single percipient witness. Such an exorbitant number of depositions for one of Rosas’ many co-workers is unreasonable on its face, particularly in light of the fact the vast majority of co-worker depositions Emoral claims lasted one day. Rosas’ motion to tax the $3,609.67 in costs asserted in the memorandum of costs for the first eight days of deposition for Mr. Velasquez is GRANTED.

B. Depositions of Co-Plaintiffs

Rosas next moves to tax the $2,786.95 in deposition costs Emoral claims associated with the depositions of co-plaintiffs Regulo Arredondo and Gustavo Gomez. (Mtn., pp. 8-10; Decl. of Miller, Exh.) Rosas cites no authority to suggest that Emoral is not entitled to costs vis-à-vis Rosas merely because Arredondo’s and Gomez’ testimony was also relevant to their own claims. As noted above, the need for a deposition must be assessed from the vantage point of the deposing party at the time they noticed the deposition. (Brake v. Beech Aircraft Corp., supra, 184 Cal.App.3d at 940.) “The need for a deposition must be viewed from the pretrial vantage point of a litigant who does not yet know” the substance of a deponent’s testimony. (Id.) In addition to their roles as independent litigants, Rosas expressly identified both Arredondo and Gomez as percipient witnesses to his own claims in written interrogatory responses. (See Decl. of Tarango ISO Centrome’s Opp. to Mtn. to Tax Centrome’s Costs, Exh. 1, p. 23.) Rosas offers no argument or evidence to prove that it was unreasonable or unnecessary for Emoral to depose individuals who Rosas himself identified as percipient witnesses to his claims. (Compare Nelson v. Anderson, supra, 72 Cal.App.4th at 132 [deposition of losing party’s expert inherently reasonable after losing party designated witness as an expert].)

However, while it may have been reasonably necessary for Emoral to depose both Arredondo and Gomez as percipient witnesses to Rosas’ independent claims, that does not imply that three days of deposition for each witness were reasonably necessary to litigate Rosas’ claims (as distinct from Arredondo’s and Gomez’ independent claims). As the Court has already noted, every other co-worker deposition Emoral claims lasted only one day, and Emoral offers nothing to suggest why two extra days of deposition of Arredondo and Gomez were necessary to litigate Emoral’s claims against Rosas. On its face, one day of deposition seems more than sufficient. The motion to tax is GRANTED as to the $1,591.82 Emoral claims for days two and three of Arredondo’s deposition and days two and three of Gomez’ deposition.

C. Apportionment

Rosas also contends that Emoral “is not entitled to the full amount of the costs of these depositions as Defendant was not the ‘prevailing party’ with respect to each Plaintiff in relation to whom these depositions were taken and the full amount of these depositions were not ‘reasonably necessary’ to Defendant’s conduct in this case.” (Mtn., p. 10.) Rosas notes that courts “have the authority to apportion costs pursuant to C.C.P. §1032(a)(4), and to reduce the amount of any cost item to that which is ‘reasonable.’” (Mtn., p. 10 [citing Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.app.4th 238, 245.) That may be true as far as it goes, but Rosas offers no evidence with respect to any of the challenged depositions to suggest why that deposition was unreasonable or unnecessary as to Rosas’ claims. It is undisputed that Emoral was a prevailing party on Rosas’ claims, and whether the costs identified in Exhibits C, D, and E to the Miller declaration were also relevant to Emoral’s defense of co-Plainitff Arredondo’s and Gomez’ claims, or the claims in the related Velasquez and Ortiz actions, is not the question at hand. The operative question is whether those costs were reasonably necessary to Rosas’ claims in this case. It was Rosas’ burden to prove otherwise as to each deposition at issue. He did not do so.

Instead, Rosas urges the court to enter a blanket order apportioning those costs based on the sole fact that there were three plaintiffs in this action, two of whom settled with Emoral, and two related actions with overlapping witnesses. “However, an across-the-board reduction based upon the number of plaintiffs, without regard to the reason the costs were incurred, is not a determination of the necessity or reasonableness of the costs.” (Nelson v. Anderson, supra, 72 Cal.App.4th at 130.) Rosas makes “no attempt here to distinguish between costs incurred as a result of the actions or tactics of one plaintiff as opposed to another” and “does little to prove that two-thirds of [Emoral’s] costs were not incurred in defense of [Rosas’] claims in the action.” (Id.) Apportionment is especially problematic here because:

“A defendant prevailing against multiple plaintiffs who joined together and sued on a single theory of recovery (e.g., product liability) is not required to file separate costs memoranda against each plaintiff or otherwise apportion its costs among the plaintiffs. Rather, defendant may file a single memorandum of costs for which all plaintiffs would be jointly and severally liable.

(Wegner, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group, 2014), ¶17:108.1 [emphasis added].)

“The costs are joint and several because the plaintiffs joined together (represented by the same attorney) in a single theory of liability against a defendant who prevailed. It is up to the plaintiffs in a motion to tax costs to point out that some costs are not related to the joint theory of liability, but are specific to a particular plaintiff, and it is therefore not fair to include these in a joint award. Plaintiffs did not do so here.”

D. Cost Increases in the Second Amended Memorandum of Costs

In reply, Rosas also objects to several cost increases Emoral included in its second amended memorandum of costs (which was filed after Rosas brought the original motion. (Reply, pp. 6-7.) In filing the second amended memorandum of costs, Emoral increased the amount of costs it claimed for the depositions of Robert DeSimone (8/2/12) and Alejandro Diaz (7/30/12) above and beyond the costs Emoral claimed in its original memorandum of costs. Emoral offers no explanation for the increase. As Rosas correctly observes, however, Emoral was required to claim all costs within 15 days of notice of the entry of judgment. (Cal. R. Ct., Rule 3.1700(a)(1).) Emoral’s second amended memorandum of costs was not served until September 2, 2014, well after the time to claim any additional costs had passed. By failing to timely claim those additional costs, Emoral waived its right to do so. (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 929.) The motion to GRANTED as to the $941.53 Emoral claims in the second amended cost memorandum for the depositions of Robert DeSimone and Alejandro Diaz that was not included in the original cost memorandum.

III. Conclusion

In light of the foregoing, Rosas’ motion is GRANTED IN PART and DENIED IN PART. As stated in section II.A, the motion is GRANTED as to the first eight depositions of Wilfredo Velasquez, and the court taxes the $3,609.67 in costs associated with those depositions in the second amended memorandum of costs. And per the Courts analysis in section II.B, the Court motion is GRANTED as to the $2,786.95 in costs asserted in the second amended memorandum of costs for the second and third days of deposition for co-Plaintiffs Arredondo and Gomez. Finally, as discussed in section II.D, the motion is further GRANTED as to the $941.53 Emoral claims in the second amended cost memorandum for the depositions of Robert DeSimone and Alejandro Diaz that was not included in the original cost memorandum. The motion is otherwise DENIED. Emoral is awarded costs consistent with the $7,338.15 in reductions from the second amended memorandum of costs discussed herein.

Dated: ____________ ___________________________________
AMY D. HOGUE
JU

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

ISMAEL ROSAS, ET AL.,

Plaintiff,
vs.

FLAVORCHEM CORPORATION, ET AL.,

Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
) Case No.: BC400974

[TENTATIVE] ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF ISMAEL ROSAS’ MOTION TO TAX PORTIONS OF DEFENDANT BASF CORP.’S MEMORANDUM OF COSTS

Hearing Date: September 30, 2014
Time: 9:30 a.m.
Dept.: 307

Plaintiff Ismael Rosas (“Rosas”) moves to tax portions of Defendant BASF Corp.’s memorandum of costs submitted on May 20, 2014 after the Court granted summary judgment in BASF’s favor. However, after Plaintiff moved to tax, BASF filed the operative second amended memorandum of costs on July 31, 2014, and the Court’s analysis centers on the costs asserted in the operative second amended memorandum of costs. BASF opposes. For the reasons stated below, the Court GRANTS Rosas’ request to tax $6,896.65 in BASF’s costs from the second amended memorandum of costs. The motion is otherwise DENIED.
I. Standard of Review

II. Individual Cost Items

BASF served its original memorandum of costs on May 20, 2014, claiming $136,059.49 in costs. On June 4, 2014, BASF served an amended memorandum of costs, reducing its claimed costs to $123,109.80. On June 6, 2014, Rosas filed his motion to tax costs, addressing BASF’s original cost memorandum. After extensive meet and confer efforts between counsel for Rosas and BASF, BASF filed a second amended memorandum of costs on July 31, 2014, again reducing its cost bill to $86,236.65 (a $49,882.84 reduction from BASF’s original cost bill). In addition to reducing the costs claimed for many of the depositions at issue (most reduced by half, some by more than half), BASF’s second amended cost memo excludes entirely the following deposition items to which Rosas objects in the motion:

• Avedesa Quirino – (5/14/12)
• Harvey Cohen – Volumes 1 (8/9/12) & 2 (8/10/12)
• Howard Spielman (8/23/12)
• Craig E. Luebeck (8/24/12)
• Robert James (8 25/12 & 9/18/12)
• Dan Cox (8/27/12)
• David Ross – Volumes 1 (9/4/12) & 2 (9/9/12)
• Carol Hyland (9/10/12)
• Christopher Cooper – Volumes 1 (9/13/12) & Volume 2 (9/26/12)
• Scott Hardy (9/17/12)
• Gordon Yung (9/20/12)
• Blanca Gomez – (5/2/13)
• Maribel Maria Castro – (6/24/13)
Additionally, the second amended cost memo omits the three duplicative entries noted in Exhibit F to the Declaration of Kimberly Miller. The Court does not address arguments related to these depositions further.

Although BASF’s second amended memorandum of costs lists two separate categories of costs, Rosas only moves to tax portions of one of those categories: deposition costs. Rosas does not move to tax the $1,084 BASF claims in filing and motion fees. Filing and motion fees are expressly allowed as costs by statute (Code Civ. Proc. §1033.5(a)(1)) and BASF’s memorandum of costs is prima facie evidence that those costs were reasonable. The Court does not discuss BASF’s claim of filing and motion fees further.

As to the deposition costs at issue, Rosas does not dispute that the costs of “[t]aking, video recording, and transcribing necessary depositions” and “travel expenses to attend depositions” are expressly allowed by statute. (Code Civ. Proc. §1033.5(a)(3).) Rather, Rosas contends that many of the deposition and travel costs BASF claims are unrelated to this action or were not “necessary” to defend against Rosas’ claims in this case. BASF opposes.
///
///
///
///
A. Depositions Taken in Velasquez

Rosas first moves to tax costs associated with a number of depositions Rosas contends were taken in the related action Velasquez v. FEMA (BC370319). (Mtn., pp. 4-8; Decl. of Miller, Exh. A.) Rosas notes that he was not a party to the Velasquez action, and that BASF cannot be considered a “prevailing party” entitled to costs as to Rosas in the Velasquez action. (See Mtn. p. 5.) Moreover, Rosas asserts, BASF settled with the plaintiff in Velasquez and signed a cost waiver agreeing to bear its own costs vis-à-vis the plaintiff in Velasquez. (Id.) There is little doubt that BASF is not a “prevailing party” as to Rosas in the Velasquez action, but that isolated fact is of little use to Rosas here. The relevant question which the Court must engage is one set forth in the Code of Civil Procedure: whether the depositions at issue were relevant and necessary to this action. (Code Civ. Proc. §1033.5(a)(3) [“necessary” depositions are allowable costs]; 1033.5(c)(2) [“Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation”]; see also Cal. R. Ct., Rule 3.1700(a)(1) [memorandum of costs must include statement by party or attorney that costs “were necessarily incurred in the case”].)

The implication of Rosas’ argument is that any deposition noticed in the Velasquez action is irrelevant per se in the Rosas action. Notably, Rosas cites no authority for this blanket proposition. To the contrary, “[w]hether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court … .” (Ladas v. Cal. State Auto. Ass’n., supra, 19 Cal.App.4th at 774.) If a deposition was relevant and necessary in both the Velasquez and Rosas actions, BASF (as a prevailing party in the Rosas case) is entitled to costs associated with that deposition as a matter of statutory right. (Code Civ. Proc. §1033.5(a)(3).) And though not necessarily required by law, in the second amended cost memo BASF voluntarily reduced its claimed deposition costs associated with both the Rosas and Velasquez actions by half (or more) to reflect the fact that those depositions served dual uses.

In reply, Rosas also argues that the transcription costs associated with a number of cross-over experts who adopted their opinions from Velasquez in the Rosas matter were unnecessary because Rosas’ counsel gave BASF copies of those earlier transcripts as part of their experts’ reliance materials in the Rosas action. (See Reply, p. 2; Decl. of Miller ISO Reply, ¶5; Exh. H.) Even if the Court accepts the representation of Plaintiffs’ counsel (unsupported by any evidence) that Rosas provided BASF with copies of the deposition transcripts at issue, that does not lead to the inevitable conclusion that it was unnecessary or unreasonable for BASF to separately order copies of the transcripts. Plaintiffs offer no evidence to suggest when they provided the transcripts, by what means, or in what form. Even if Rosas eventually provided BASF with transcripts, for example, it may yet have been reasonable for BASF to separately order transcripts if Rosas unnecessarily delayed delivery. Likewise, Rosas does not submit any evidence demonstrating whether he provided preliminary transcripts, final transcripts alone, paper transcripts, digital transcripts, all of the above, or some combination thereof. Again, depending on the circumstances, it certainly may have been reasonable for BASF to separately request transcripts if for some reason the transcripts Rosas provided were inadequate to reasonably litigate the action. The memorandum of costs is prima facie evidence that the asserted transcription costs were reasonably necessary, and Rosas cannot meet his burden to overcome that evidence by inviting the Court to merely speculate about what might have happened. Rosas can only overcome that burden with evidence, which he does not submit.

With respect to the depositions of Mr. Velasquez, however, Rosas fares better. While it is true that Rosas himself designated Mr. Velasquez as a percipient witness in interrogatory responses (see Decl. of Tarango ISO Centrome’s Opp. to Mtn. to Tax Centrome’s Costs, Exh. 1, p. 23), those responses were served May 31, 2011, more than two years after Mr. Velasquez’ first eight depositions. And BASF does not offer anything to suggest why it was reasonably necessary to conduct nine separate depositions of a single percipient witness. Such an exorbitant number of depositions for one of Rosas’ many co-workers is unreasonable on its face, particularly in light of the fact the vast majority of co-worker depositions BASF claims lasted one day. Rosas’ motion to tax the $3,981 in costs asserted in the memorandum of costs for the first eight days of deposition for Mr. Velasquez is GRANTED.

B. Depositions of Co-Plaintiffs

Rosas next moves to tax the $3,647.28 in deposition costs BASF claims associated with the depositions of co-plaintiffs Regulo Arredondo and Gustavo Gomez. (Mtn., pp. 8-9; Decl. of Miller, Exh.) Rosas cites no authority to suggest that BASF is not entitled to costs vis-à-vis Rosas merely because Arredondo’s and Gomez’ testimony was also relevant to their own claims. As noted above, the need for a deposition must be assessed from the vantage point of the deposing party at the time they noticed the deposition. (Brake v. Beech Aircraft Corp., supra, 184 Cal.App.3d at 940.) “The need for a deposition must be viewed from the pretrial vantage point of a litigant who does not yet know” the substance of a deponent’s testimony. (Id.) In addition to their roles as independent litigants, Rosas expressly identified both Arredondo and Gomez as percipient witnesses to his own claims in written interrogatory responses. (See Decl. of Tarango ISO Centrome’s Opp. to Mtn. to Tax Centrome’s Costs, Exh. 1, p. 23).) Rosas offers no argument or evidence to prove that it was unreasonable or unnecessary for BASF to depose individuals who Rosas himself identified as percipient witnesses to his claims. (Compare Nelson v. Anderson, supra, 72 Cal.App.4th at 132 [deposition of losing party’s expert inherently reasonable after losing party designated witness as an expert].)
However, while it may have been reasonably necessary for BASF to depose both Arredondo and Gomez as percipient witnesses to Rosas’ independent claims, that does not imply that three days of deposition for each witness were reasonably necessary to litigate Rosas’ claims (as distinct from Arredondo’s and Gomez’ independent claims). As the Court has already noted, every other co-worker deposition BASF claims lasted only one day, and BASF offers nothing to suggest why two extra days of deposition of Arredondo and Gomez were necessary to litigate BASF’s claims against Rosas. On its face, one day of deposition seems more than sufficient. The motion to tax is GRANTED as to the $2,304.47 BASF claims for the costs of attending and transcribing days two and three of Arredondo’s deposition and days two and three of Gomez’ deposition.

C. Apportionment

Rosas also contends that BASF “is not entitled to the full amount of the costs of these depositions as Defendant was not the ‘prevailing party’ with respect to each Plaintiff in relation to whom these depositions were taken and the full amount of these depositions were not ‘reasonably necessary’ to Defendant’s conduct in this case.” (Mtn., p. 10.) Rosas notes that courts “have the authority to apportion costs pursuant to C.C.P. §1032(a)(4), and to reduce the amount of any cost item to that which is ‘reasonable.’” (Mtn., p. 10 [citing Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.app.4th 238, 245.) That may be true as far as it goes, but Rosas offers no evidence with respect to any of the challenged depositions to suggest why that deposition was unreasonable or unnecessary as to Rosas’ claims. It is undisputed that BASF was a prevailing party on Rosas’ claims, and whether the costs identified in Exhibit C to the Miller declaration were also relevant to BASF’s defense of co-Plainitff Arredondo’s and Gomez’ claims, or the claims in the related Velasquez and Ortiz actions, is not the question at hand. The operative question is whether those costs were reasonably necessary to Rosas’ claims in this case. It was Rosas’ burden to prove otherwise as to each deposition at issue. He did not do so.
Instead, Rosas urges the court to enter a blanket order apportioning those costs based on the sole fact that there were three plaintiffs in this action, two of whom settled with BASF, and two related actions with overlapping witnesses. “However, an across-the-board reduction based upon the number of plaintiffs, without regard to the reason the costs were incurred, is not a determination of the necessity or reasonableness of the costs.” (Nelson v. Anderson, supra, 72 Cal.App.4th at 130.) Rosas makes “no attempt here to distinguish between costs incurred as a result of the actions or tactics of one plaintiff as opposed to another” and “does little to prove that two-thirds of [BASF’s] costs were not incurred in defense of [Rosas’] claims in the action.” (Id.) Apportionment is especially problematic here because:

(Wegner, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group, 2014), ¶17:108.1 [emphasis added].)

D. Travel Costs

Finally, Rosas attacks $17,077.75 in travel expenses BASF claims for attending various depositions. As discussed above, the Court has already taxed $1,206.65 in travel costs associated with the various depositions of Mr. Velasquez as well as $195.08 in deposition travel costs associated with the second and third days of co-Plaintiffs’ depositions. In opposition, BASF agrees to tax an additional $611.18 in travel costs associated with the depositions of Stephen Weigt and Mark Katchen below the amounts asserted in the second amended cost memo. (Decl. of Stimeling, ¶¶26, 29.)

As for the remaining travel costs asserted in the second amended cost memo, however, Rosas offers no evidence to suggest that BASF’s costs were unreasonable or unnecessary to the litigation. And despite the fact that BASF submits detailed travel receipts for each of the deposition travel costs claimed in opposition, in reply (see Reply, p. 7) Rosas fails to identify any specific travel expense that was unreasonable or unnecessary. (Acosta v. SI Corp, supra, 129 Cal.App.4th at 1380 [“SI filed a detailed verified memorandum of costs. The memorandum ran 181 pages, and included detailed invoices for depositions; reports and receipts for hotels, meals and other expenses; the expense section of bills submitted by counsel to SI and other documentation. It provided sufficient support for the cost memorandum.”].)
III. Conclusion

In light of the foregoing, Rosas’ motion is GRANTED IN PART and DENIED IN PART. As stated in section II.A, the motion is GRANTED as to the first eight depositions of Wilfredo Velasquez, and the court taxes the $3,981 in costs associated with those depositions in the second amended memorandum of costs. And per the Courts analysis in section II.B, the Court motion is GRANTED as to the $2,304.47 in costs asserted in the second amended memorandum of costs for the second and third days of deposition for co-Plaintiffs Arredondo and Gomez. And in light of BASF’s concession, the motion to tax travel costs in the second amended memorandum of costs associated with the depositions of Stephen Weigt and Mark Katchen is granted in the amount of $611.18. The motion is otherwise DENIED. BASF is awarded costs consistent with the $6,896.65 in reductions from the second amended memorandum of costs discussed herein.

Dated: ____________ ___________________________________
AMY D. HOGUE
JUDGE OF THE SUPERIOR COURT
DGE OF THE SUPERIOR COURT

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

ISMAEL ROSAS, ET AL.,

Plaintiff,
vs.

FLAVORCHEM CORPORATION, ET AL.,

Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
) Case No.: BC400974

[TENTATIVE] ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF ISMAEL ROSAS’ MOTION TO TAX PORTIONS OF DEFENDANT O’LAUGHLIN INDUSTRIES, INC.’S MEMORANDUM OF COSTS

Hearing Date: September 30, 2014
Time: 9:30 a.m.
Dept.: 307

Plaintiff Ismael Rosas (“Rosas”) moves to tax portions of Defendant O’Laughlin Industries, Inc.’s (“O’Laughlin”) memorandum of costs submitted on May 20, 2014 after the Court granted summary judgment in O’Laughlin’ favor. O’Laughlin opposes. For the reasons stated below, the Court GRANTS Rosas’ request to tax $2512.79 in O’Laughlin’ costs. The motion is otherwise DENIED.
///
///
///
I. Standard of Review

II. Individual Cost Items

O’Laughlin served its memorandum of costs on May 20, 2014, claiming $67,684.61 in costs. On June 6, 2014, Rosas filed his motion to tax costs. Rosas moves to tax only two categories of O’Laughlin’s costs: (1) deposition costs; and (2) other costs. Rosas does not move to tax the $3,131.00 that O’Laughlin claims in filing and motion fees and the $68.50 it claims in service of process fees. Filing and motion fees and service of process fess are expressly allowed as costs by statute (Code Civ. Proc. §1033.5(a)(1),(2)) and O’Laughlin’s memorandum of costs is prima facie evidence that those costs were reasonable. The Court does not discuss O’Laughlin’s claim for filing and motion fees and service of process fees any further.

As to the deposition costs at issue, Rosas does not dispute that the costs of “[t]aking, video recording, and transcribing necessary depositions” and “travel expenses to attend depositions” are expressly allowed by statute. (Code Civ. Proc. §1033.5(a)(3).) Rather, Rosas contends that many of the deposition and travel costs that O’Laughlin claims are unrelated to this action or were not “necessary” to defend against Rosas’ claims in this case. O’Laughlin opposes.
///
///
///
///
A. Expert Depositions Taken in Velasquez

Rosas first moves to tax $5,659.05 in costs associated with a number of expert depositions that Rosas contends were taken in the related action Velasquez v. FEMA (BC370319). (Mtn., pp. 4-8; Decl. of Miller, Exh. A.) Rosas notes that he was not a party to the Velasquez action, and that O’Laughlin cannot be considered a “prevailing party” entitled to costs as to Rosas in the Velasquez action. (Mtn., p. 5.) Moreover, Rosas asserts, O’Laughlin settled with the plaintiff in Velasquez and signed a cost waiver agreeing to bear its own costs vis-à-vis the plaintiff in Velasquez. (Id.) There is little doubt that O’Laughlin is not a “prevailing party” as to Rosas in the Velasquez action, but that isolated fact is of little use to Rosas here. The relevant question which the Court must engage is one set forth in the Code of Civil Procedure: whether the depositions at issue were relevant and necessary to this action. (Code Civ. Proc. §1033.5(a)(3) [“necessary” depositions are allowable costs]; 1033.5(c)(2) [“Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation”]; see also Cal. R. Ct., Rule 3.1700(a)(1) [memorandum of costs must include statement by party or attorney that costs “were necessarily incurred in the case”].)

The implication of Rosas’ argument is that any deposition noticed in the Velasquez action is irrelevant per se in the Rosas action. Notably, Rosas cites no authority for this blanket proposition. To the contrary, “[w]hether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court … .” (Ladas v. Cal. State Auto. Ass’n., supra, 19 Cal.App.4th at 774.) If a deposition was relevant and necessary in both the Velasquez and Rosas actions, O’Laughlin (as a prevailing party in the Rosas case) is entitled to costs associated with that deposition as a matter of statutory right. (Code Civ. Proc. §1033.5(a)(3).)

In opposition, O’Laughlin argues that the expert deposition costs are entirely proper because, although these depositions were taken in Velasquez, they were directly applicable to the Rosas action, and would have been take in the Rosas action, irrespective of whether they were taken in Velasquez. (Opp., p. 4.) In Velasquez, these experts specifically testified that their opinions in Velasquez would apply to Rosas’ action. Therefore, these depositions were necessary and directly applicable to the Rosas matter. Further, Rosas identified depositions and/or materials from other cases as relating to his claims as relevant and necessary, and announced his intentions to rely on the depositions and and/or materials. Indeed, these experts’ deposition testimony in Velasquez was specifically referred to and/or relied upon in the Rosas matter. The Court finds that Rosas has not provided any evidence to effectively rebut O’Laughlin’s prima facie showing that the expert deposition costs were reasonable and necessary.

Further, the memorandum of costs is, itself, prima facie evidence that the depositions listed were relevant and necessary to the litigation of the Rosas action. (Oak Grove School Dist. v. City Title Ins. Co., supra, 217 Cal.App.2d at 699.) “[I]t is not enough for the losing party to attack submitted costs by arguing that he thinks the costs were not necessary or reasonable.” (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.) To the extent Rosas believed that any individual deposition was not reasonably necessary to litigate the Rosas action, he was required to “present evidence and prove that the [deposition] costs are not recoverable.” Instead, he offered various charts identifying the costs counsel summarily declares were not reasonable or necessary. Such argument and conclusory declarations are insufficient to meet Rosas’ burden of proof. (Rappenecker v. Sea-Land Serv., Inc., supra, 93 Cal.App.3d at 266 [“mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of its counsel are insufficient to rebut the prima facie showing.”].)

In reply, Rosas also argues that the transcription costs associated with a number of cross-over experts who adopted their opinions from Velasquez in the Rosas matter were unnecessary because Rosas’ counsel gave O’Laughlin copies of those earlier transcripts as part of their experts’ reliance materials in the Rosas action. (See Reply, p. 2; Decl. of Miller ISO Reply, ¶5; Exh. H.) Even if the Court accepts the representation of Plaintiffs’ counsel (unsupported by any evidence) that Rosas provided O’Laughlin with copies of the deposition transcripts at issue, that does not lead to the inevitable conclusion that it was unnecessary or unreasonable for O’Laughlin to separately order copies of the transcripts. Plaintiffs offer no evidence to suggest when they provided the transcripts, by what means, or in what form. Even if Rosas eventually provided O’Laughlin with transcripts, for example, it may yet have been reasonable for O’Laughlin to separately order transcripts if Rosas unnecessarily delayed delivery. Likewise, Rosas does not submit any evidence demonstrating whether he provided preliminary transcripts, final transcripts alone, paper transcripts, digital transcripts, all of the above, or some combination thereof. Again, depending on the circumstances, it certainly may have been reasonable for O’Laughlin to separately request transcripts if for some reason the transcripts Rosas provided were inadequate to reasonably litigate the action. The memorandum of costs is prima facie evidence that the asserted transcription costs were reasonably necessary and Rosas cannot meet his burden to overcome that evidence by inviting the Court to merely speculate about what might have happened. Rosas can only overcome that burden with evidence, which he does not submit. The motion to tax costs of $5,659.05 is DENIED as to the expert depositions taken in Velasquez.
///
///
B. Depositions of Co-Plaintiffs

Rosas next moves to tax the $3,250.06 in deposition costs that O’Laughlin claims are associated with the depositions of co-plaintiffs Regulo Arredondo and Gustavo Gomez. (Mtn., p. 8; Decl. of Miller, Exh. B.) Rosas cites no authority to suggest that O’Laughlin is not entitled to costs vis-à-vis Rosas merely because Arredondo’s and Gomez’ testimony was also relevant to their own claims. As noted above, the need for a deposition must be assessed from the vantage point of the deposing party at the time they noticed the deposition. (Brake v. Beech Aircraft Corp., supra, 184 Cal.App.3d at 940.) “The need for a deposition must be viewed from the pretrial vantage point of a litigant who does not yet know” the substance of a deponent’s testimony. (Id.) In addition to their roles as independent litigants, Rosas expressly identified both Arredondo and Gomez as percipient witnesses to his own claims in written interrogatory responses. (See Decl. of Tarango ISO Centrome’s Opp. to Mtn. to Tax Centrome’s Costs, Exh. 1, p. 23).) Rosas offers no argument or evidence to prove that it was unreasonable or unnecessary for O’Laughlin to depose individuals who Rosas himself identified as percipient witnesses to his claims. (Compare Nelson v. Anderson, supra, 72 Cal.App.4th at 132 [deposition of losing party’s expert inherently reasonable after losing party designated witness as an expert].)

However, while it may have been reasonably necessary for O’Laughlin to depose both Arredondo and Gomez as percipient witnesses to Rosas’ independent claims, that does not imply that three days of deposition of both co-plaintiffs was reasonably necessary to litigate Rosas’ claims (as distinct from Arredondo’s and Gomez’ independent claims). O’Laughlin deposed similarly situated co-workers for only one deposition session. O’Laughlin offers nothing to suggest why two extra days of depositions of both co-plaintiffs was necessary to litigate O’Laughlin’s claims against Rosas, where only one day of deposition was required to depose similarly situated co-workers. On its face, one day of deposition seems more than sufficient. The motion to tax is GRANTED as to the $1,907.38 that O’Laughlin claims for the costs of attending and transcribing days two and three of co-plaintiffs’ depositions.

C. Apportionment

Next, Rosas challenges $26,904.98 in deposition costs incurred for depositions taken simultaneously in different cases in relation to the claims of multiple plaintiffs. Rosas contends that O’Laughlin “is not entitled to the full amount of the costs of these depositions as Defendant was not the ‘prevailing party’ with respect to each Plaintiff in relation to whom these depositions were taken and the full amount of these depositions were not ‘reasonably necessary’ to Defendant’s conduct in this case.” (Mtn., p. 9.) Rosas notes that courts “have the authority to apportion costs pursuant to C.C.P. §1032(a)(4), and to reduce the amount of any cost item to that which is ‘reasonable.’” (Mtn., p. 9 [citing Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.app.4th 238, 245.) That may be true as far as it goes, but Rosas offers no evidence with respect to any of the challenged depositions to suggest why that deposition was unreasonable or unnecessary as to Rosas’ claims. It is undisputed that O’Laughlin was a prevailing party on Rosas’ claims, and whether the costs identified in Exhibit C to the Miller declaration were also relevant to O’Laughlin’s defense of co-plaintiffs Arredondo’s and Gomez’ claims, or the claims in the related Velasquez and Ortiz actions, is not the question at hand. The operative question is whether those costs were reasonably necessary to Rosas’ claims in this case. It was Rosas’ burden to prove otherwise as to each deposition at issue. He did not do so.

Instead, Rosas urges the court to enter a blanket order apportioning those costs based on the sole fact that there were three plaintiffs in this action, two of whom settled with O’Laughlin, and two related actions with overlapping witnesses. “However, an across-the-board reduction based upon the number of plaintiffs, without regard to the reason the costs were incurred, is not a determination of the necessity or reasonableness of the costs.” (Nelson v. Anderson, supra, 72 Cal.App.4th at 130.) Rosas makes “no attempt here to distinguish between costs incurred as a result of the actions or tactics of one plaintiff as opposed to another” and “does little to prove that two-thirds of [O’Laughlin’] costs were not incurred in defense of [Rosas’] claims in the action.” (Id.) Apportionment is especially problematic here because:

(Wegner, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group, 2014), ¶17:108.1 [emphasis added].)

D. Duplicate Deposition Costs

Rosas contends that O’Laughlin is not entitled to $201.01 in deposition costs for a deposition that never occurred on June 7, 2013 for Sidney Arfa, who was only deposed on one day, May 20, 2013. (Mtn., p. 10, Exh. E.) O’Laughlin acknowledges that this cost should be eliminated because it was inadvertently included twice in its memorandum of costs. (Opp., p. 2.) Because the costs are duplicative, the Court GRANTS the motion to tax costs of $201.01 for duplicate deposition costs.

E. Travel Costs

Rosas attacks $15,386.23 travel expenses related to depositions of various witnesses. Rosas argues that O’Laughlin was required “under the relevant statutory and case law” to establish that its travel costs were necessary or reasonable in amount, and its failure to do so evidences that its costs are unreasonable on their face and should be taxed in their entire amount. (Mtn., p.3.) However, O’Laughlin’s memorandum of costs is, itself, prima facie evidence that the travel costs listed were necessarily incurred. The burden is on Rosas to prove that the travel cost were unreasonable and/or unnecessary. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) Rosas, however, offers no evidence to suggest that O’Laughlin’s costs were unreasonable or unnecessary to the litigation.

In opposition, O’Laughlin argues that Ladas v. California State Automobile Association, the case on which Rosas relies, only held that attorney meals consumed while attending local depositions could not be justified as “necessary to the conduct of the litigation.” (Ladas, supra, 19 Cal.App.4th 761, 774-75.) Meal expenses may be reasonably necessary where an out of state attorney must travel to the deposition. (Howard v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 541.) O’Laughlin contends that it only sought costs for meals incurred when out-of-state travel was required, and did not seek any costs for meals incurred by local attorneys for local depositions. (Opp., pp. 11-12.) O’Laughlin further argues that “‘travel expenses incurred by out-of-town counsel to attend depositions [are] an allowable cost.’” (Howard, supra, 187 Cal.App.4th at 541.) Further, Section 1033.5(a)(3) “‘does not limit reimbursement for deposition travel to travel by attorneys practicing in the court’s jurisdiction’” or to local travel. Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548.

Despite the fact that O’Laughlin submits detailed travel receipts for each of the deposition travel costs claimed in opposition (Decl. of Sullivan, ¶ 14, Exh. L), in reply (see Reply, p. 6-7) Rosas largely fails to identify any specific travel expense that was unreasonable or unnecessary. (Acosta v. SI Corp, supra, 129 Cal.App.4th at 1380 [“SI filed a detailed verified memorandum of costs. The memorandum ran 181 pages, and included detailed invoices for depositions; reports and receipts for hotels, meals and other expenses; the expense section of bills submitted by counsel to SI and other documentation. It provided sufficient support for the cost memorandum.”].) Consequently, Rosas’ motion to tax $15,386.23 in O’Laughlin’s incurred travel expenses is DENIED.

F. Mediation, Investigation and Other Costs

Finally, Rosas seeks to tax $3,625.27 (incorrectly calculated by O’Laughlin in its memorandum of costs to be $5,970.99) in mediation costs, investigation costs, and costs for ordinary e-service of documents. Rosas argues that none of these costs are authorized by statute. As to the $1,279.55 mediation costs, the Court, in its discretion, may award after trial to the prevailing party, reasonably necessary expenses incident to a Court ordered mediation. (Section 1033.5(c)(4); Gibson v. Bobroff (1996) 49 Cal.App.4th 1202, 1207-08.) As to the $400.40 in costs for obtaining discoverable documents, the Court finds these costs to be investigation costs that are specifically not covered under the statute. (Section 1033.5(b)(2).) As to the $1945.32 in cost incurred to electronically serve documents, the Court finds that this cost is permissible under Section 1033.5(c)(4). Consequently, the motion to tax is GRANTED as to the $400.40 that O’Laughlin claims in other costs.

III. Conclusion

In light of the foregoing, Rosas’ motion is GRANTED IN PART and DENIED IN PART. As stated in section II.A, the motion is DENIED as to the expert depositions taken in Velasquez. As per the Court’s analysis in section II.B, the motion is GRANTED for $1,907.38, the amount that O’Laughlin claims as costs of attending and transcribing days two and three of co-plaintiff’s depositions. As per the Court’s analysis in II.C., the motion is DENIED as to apportionment of costs incurred for multiple plaintiffs’ claims. As per the Court’s analysis in II.D., the motion to tax costs of $201.01 for duplicate deposition costs is GRANTED. As per the Court’s analysis in II. E., the motion to tax travel costs is DENIED. Finally, the motion to tax $404.40 in other costs for obtaining discoverable documents from Plaintiff is GRANTED.

Dated: ____________ ___________________________________
AMY D. HOGUE
JUDGE OF THE SUPERIOR COURT

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

ISMAEL ROSAS, ET AL.,

Plaintiff,
vs.

FLAVORCHEM CORPORATION, ET AL.,

Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
) Case No.: BC400974

[TENTATIVE] ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF ISMAEL ROSAS’ MOTION TO TAX PORTIONS OF DEFENDANT CITRUS & ALLIED ESSENCES, LTD’S MEMORANDUM OF COSTS

Hearing Date: September 30, 2014
Time: 9:30 a.m.
Dept.: 307

Plaintiff Ismael Rosas (“Rosas”) moves to tax portions of Defendant Citrus & Allied Essences, LTD’s (“Citrus”) memorandum of costs submitted on May 20, 2014 after the Court granted summary judgment in Citrus’ favor. Citrus opposes. For the reasons stated below, the Court GRANTS Rosas’ request to tax $8,516.58 in Citrus’ costs. The motion is otherwise DENIED.
///
///
///
I. Standard of Review

II. Individual Cost Items

Citrus served its memorandum of costs on May 20, 2014, claiming $89,017.95 in costs. On June 6, 2014, Rosas filed his motion to tax costs. Rosas moves to tax only one category of Citrus’ costs: deposition costs. Rosas does not move to tax the $100 Citrus claims in filing and motion fees and the $150 it claims in jury fees. Filing and motion fees are expressly allowed as costs by statute (Code Civ. Proc. §1033.5(a)(1)) and Citrus’ memorandum of costs is prima facie evidence that those costs were reasonable. The Court does not discuss Citrus’ claim of filing and motion fees further.

As to the deposition costs at issue, Rosas does not dispute that the costs of “[t]aking, video recording, and transcribing necessary depositions” and “travel expenses to attend depositions” are expressly allowed by statute. (Code Civ. Proc. §1033.5(a)(3).) Rather, Rosas contends that many of the deposition and travel costs Citrus claims are unrelated to this action or were not “necessary” to defend against Rosas’ claims in this case. Citrus opposes.

A. Expert Depositions Taken in Velasquez

Rosas first moves to tax $22,360.31 in costs associated with a number of expert depositions that Rosas contends were taken in the related action Velasquez v. FEMA (BC370319). (Mtn., pp. 4-8; Decl. of Miller, Exh. A.) Rosas notes that he was not a party to the Velasquez action, and that Citrus cannot be considered a “prevailing party” entitled to costs as to Rosas in the Velasquez action. (Mtn., p. 5.) Moreover, Rosas asserts, Citrus settled with the plaintiff in Velasquez and signed a cost waiver agreeing to bear its own costs vis-à-vis the plaintiff in Velasquez. (Id.) There is little doubt that Citrus is not a “prevailing party” as to Rosas in the Velasquez action, but that isolated fact is of little use to Rosas here. The relevant question which the Court must engage is one set forth in the Code of Civil Procedure: whether the depositions at issue were relevant and necessary to this action. (Code Civ. Proc. §1033.5(a)(3) [“necessary” depositions are allowable costs]; 1033.5(c)(2) [“Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation”]; see also Cal. R. Ct., Rule 3.1700(a)(1) [memorandum of costs must include statement by party or attorney that costs “were necessarily incurred in the case”].)

The implication of Rosas’ argument is that any deposition noticed in the Velasquez action is irrelevant per se in the Rosas action. Notably, Rosas cites no authority for this blanket proposition. To the contrary, “[w]hether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court … .” (Ladas v. Cal. State Auto. Ass’n., supra, 19 Cal.App.4th at 774.) If a deposition was relevant and necessary in both the Velasquez and Rosas actions, Citrus (as a prevailing party in the Rosas case) is entitled to costs associated with that deposition as a matter of statutory right. (Code Civ. Proc. §1033.5(a)(3).)

In opposition, Citrus argues that the expert deposition costs are entirely proper because, although these depositions were taken in Velasquez, they were directly applicable to the Rosas action, and would have been take in the Rosas action, irrespective of whether they were taken in Velasquez. (Opp., p. 4.) In Velasquez, these experts specifically testified that their opinions in Velasquez would apply to Rosas’ action. Therefore, these depositions were necessary and directly applicable to the Rosas matter. Further, Rosas identified depositions and/or materials from other cases as relating to his claims as relevant and necessary, and announced his intentions to rely on the depositions and and/or materials. Indeed, these experts’ deposition testimony in Velasquez was specifically referred to and/or relied upon in the Rosas matter. Rosas cannot now refuse to acknowledge their relevance and necessity when it comes time to pay the bill. The Court agrees.

In reply, Rosas also argues that the transcription costs associated with a number of cross-over experts who adopted their opinions from Velasquez in the Rosas matter were unnecessary because Rosas’ counsel gave Citrus copies of those earlier transcripts as part of their experts’ reliance materials in the Rosas action. (See Reply, p. 2; Decl. of Miller ISO Reply, ¶5; Exh. H.) Even if the Court accepts the representation of Plaintiffs’ counsel (unsupported by any evidence) that Rosas provided Citrus with copies of the deposition transcripts at issue, that does not lead to the inevitable conclusion that it was unnecessary or unreasonable for Citrus to separately order copies of the transcripts. Plaintiffs offer no evidence to suggest when they provided the transcripts, by what means, or in what form. Even if Rosas eventually provided Citrus with transcripts, for example, it may yet have been reasonable for Citrus to separately order transcripts if Rosas unnecessarily delayed delivery. Likewise, Rosas does not submit any evidence demonstrating whether he provided preliminary transcripts, final transcripts alone, paper transcripts, digital transcripts, all of the above, or some combination thereof. Again, depending on the circumstances, it certainly may have been reasonable for Citrus to separately request transcripts if for some reason the transcripts Rosas provided were inadequate to reasonably litigate the action. The memorandum of costs is prima facie evidence that the asserted transcription costs were reasonably necessary and Rosas cannot meet his burden to overcome that evidence by inviting the Court to merely speculate about what might have happened. Rosas can only overcome that burden with evidence, which he does not submit. The motion to tax costs of $22,360.31 is DENIED as to the expert depositions taken in Velasquez.

B. Depositions of Co-Plaintiffs

Rosas next moves to tax the $6,594.38 in deposition costs that Citrus claims are associated with the depositions of co-plaintiffs Regulo Arredondo and Gustavo Gomez. (Mtn., pp. 8-9; Decl. of Miller, Exh. B.) Rosas cites no authority to suggest that Citrus is not entitled to costs vis-à-vis Rosas merely because Arredondo’s and Gomez’ testimony was also relevant to their own claims. As noted above, the need for a deposition must be assessed from the vantage point of the deposing party at the time they noticed the deposition. (Brake v. Beech Aircraft Corp., supra, 184 Cal.App.3d at 940.) “The need for a deposition must be viewed from the pretrial vantage point of a litigant who does not yet know” the substance of a deponent’s testimony. (Id.) In addition to their roles as independent litigants, Rosas expressly identified both Arredondo and Gomez as percipient witnesses to his own claims in written interrogatory responses. (See Decl. of Tarango ISO Centrome’s Opp. to Mtn. to Tax Centrome’s Costs, Exh. 1, p. 23).) Rosas offers no argument or evidence to prove that it was unreasonable or unnecessary for Citrus to depose individuals who Rosas himself identified as percipient witnesses to his claims. (Compare Nelson v. Anderson, supra, 72 Cal.App.4th at 132 [deposition of losing party’s expert inherently reasonable after losing party designated witness as an expert].)
However, while it may have been reasonably necessary for Citrus to depose both Arredondo and Gomez as percipient witnesses to Rosas’ independent claims, that does not imply that three days of deposition for Gomez and two days of depositions for Arredondo were reasonably necessary to litigate Rosas’ claims (as distinct from Arredondo’s and Gomez’ independent claims). Citrus deposed similarly situated co-workers for only one deposition session. Citrus, however, offers nothing to suggest why two extra days of deposition of Arredondo and Gomez were necessary to litigate Citrus’ claims against Rosas, when only one day was required to depose similarly situated co-workers. On its face, one day of deposition seems more than sufficient. The motion to tax is GRANTED as to the $3,017.18 that Citrus claims for the costs of attending and transcribing days two and three of Gomez’s deposition and day two of Arredondo’s deposition.

C. Apportionment

Next, Rosas challenges $35,441.27 in deposition costs incurred in relation to the claims of multiple plaintiffs. Rosas contends that Citrus “is not entitled to the full amount of the costs of these depositions as Defendant was not the ‘prevailing party’ with respect to each Plaintiff in relation to whom these depositions were taken and the full amount of these depositions were not ‘reasonably necessary’ to Defendant’s conduct in this case.” (Mtn., p. 10.) Rosas notes that courts “have the authority to apportion costs pursuant to C.C.P. §1032(a)(4), and to reduce the amount of any cost item to that which is ‘reasonable.’” (Mtn., p. 10 [citing Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.app.4th 238, 245.) That may be true as far as it goes, but Rosas offers no evidence with respect to any of the challenged depositions to suggest why that deposition was unreasonable or unnecessary as to Rosas’ claims. It is undisputed that Citrus was a prevailing party on Rosas’ claims, and whether the costs identified in Exhibit C to the Miller declaration were also relevant to Citrus’ defense of co-plaintiffs Arredondo’s and Gomez’ claims, or the claims in the related Velasquez and Ortiz actions, is not the question at hand. The operative question is whether those costs were reasonably necessary to Rosas’ claims in this case. It was Rosas’ burden to prove otherwise as to each deposition at issue. He did not do so.
Instead, Rosas urges the court to enter a blanket order apportioning those costs based on the sole fact that there were three plaintiffs in this action, two of whom settled with Citrus, and two related actions with overlapping witnesses. “However, an across-the-board reduction based upon the number of plaintiffs, without regard to the reason the costs were incurred, is not a determination of the necessity or reasonableness of the costs.” (Nelson v. Anderson, supra, 72 Cal.App.4th at 130.) Rosas makes “no attempt here to distinguish between costs incurred as a result of the actions or tactics of one plaintiff as opposed to another” and “does little to prove that two-thirds of [Citrus’] costs were not incurred in defense of [Rosas’] claims in the action.” (Id.) Apportionment is especially problematic here because:

(Wegner, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group, 2014), ¶17:108.1 [emphasis added].)

D. Duplicate Deposition Costs

Rosas contends that Citrus is not entitled to $2,302.51 in deposition costs for Louis Ledesma and Robert DiSimone because it is a duplicate charge for the same deposition. (Motion, p. 12, Exh. F.) Rosas argues that Citrus has provided no explanation or justification as to why it should be permitted to recover costs for the same depositions more than once. Citrus, in its opposition, agrees to eliminate the costs which were inadvertently listed twice. (Opposition, p. 9; Decl. of Atherton, ¶ 6, Exh., D.) Because the costs are duplicative, the Court GRANTS the motion to tax costs of $2,302.51 for duplicate deposition costs.

E. Travel Costs

Finally, Rosas attacks $3,196.89 travel expenses for Citrus’ designated corporate witnesses’ (Sylvia Young and Elliot Kleinman) attendance at their depositions. In its opposition, Citrus agrees to cut these travel expenses from its memorandum of costs. (Opposition, p. 9; Decl. of Atherton, ¶ 6, Exh., D.) Consequently, the issue is moot, and the Court GRANTS the motion to tax $3,196.89 for travel expenses.

III. Conclusion

In light of the foregoing, Rosas’ motion is GRANTED IN PART and DENIED IN PART. As stated in section II.A, the motion is DENIED as to the expert depositions taken in Velasquez. As per the Court’s analysis in section II.B, the motion is GRANTED for $3,017.18, the amount that Citrus claims as costs of attending and transcribing days two and three of co-plaintiff Gomez’s deposition and day two of co-plaintiff Arredondo’s deposition. As per the Court’s analysis in II.C., the motion is DENIED as to apportionment of costs incurred for multiple plaintiffs’ claims. Finally, in light of Citrus’ concession, the motion to tax $2,302.51 in duplicate deposition costs (see II.D.) and $3,196.89 in travel costs for Sylvia Young and Elliot Kleinman (see II.E.) is GRANTED.
///
///
Dated: ____________ ___________________________________
AMY D. HOGUE
JUDGE OF THE SUPERIOR COURT

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

ISMAEL ROSAS, ET AL.,

Plaintiff,
vs.

FLAVORCHEM CORPORATION, ET AL.,

Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
) Case No.: BC400974

[TENTATIVE] ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF ISMAEL ROSAS’ MOTION TO TAX PORTIONS OF DEFENDANT ELAN CHEMICAL CO., INC.’S MEMORANDUM OF COSTS

Hearing Date: September 30, 2014
Time: 9:30 a.m.
Dept.: 307

Plaintiff Ismael Rosas (“Rosas”) moves to tax portions of Defendant Elan Chemical Co., Inc’s (“Elan”) memorandum of costs submitted on May 20, 2014 after the Court granted summary judgment in Elan’s favor. Elan opposes. For the reasons stated below, the Court GRANTS Rosas’ request to tax $6,845.55 in Elan’s costs. The motion is otherwise DENIED.
///
///
///
I. Standard of Review

II. Individual Cost Items

Although Elan’s memorandum of costs lists four separate categories of costs, Rosas only moves to tax portions of two of those categories: deposition costs and “other” costs. Rosas does not move to tax the $2,980.98 Elan claims in filing and motion fees or the $150 Elan claims in jury fees. Filing, motion, and jury fees are expressly allowed as costs by statute (Code Civ. Proc. §1033.5(a)(1)) and Elan’s memorandum of costs is prima facie evidence that those costs were reasonable. The Court does not discuss Elan’s claim of filing, motion, and jury fees further.

Rosas does not dispute that the costs of “[t]aking, video recording, and transcribing necessary depositions” are expressly allowed by statute. (Code Civ. Proc. §1033.5(a)(3).) Rather, Rosas contends that many of the deposition costs Elan claims are unrelated to this action or were not “necessary” to defend against Rosas’ claims in this case. Rosas further argues that the telephonic appearance fees Elan claims as “other” costs are not recoverable. Elan opposes.

A. Depositions of Co-Plaintiffs and Their Spouses

Rosas first moves to tax various deposition costs associated with the depositions of co-plaintiffs Regulo Arredondo and Gustavo Gomez, and their spouses. (Mtn., pp. 4-6; Decl. of Miller, Exh. A.) With respect to co-Plaintiffs Arredondo and Gomez, Rosas cites no authority to suggest that Elan is not entitled to costs for those depositions vis-à-vis Rosas merely because Arredondo’s and Gomez’ testimony was also relevant to their own claims. As noted above, the need for a deposition must be assessed from the vantage point of the deposing party at the time they noticed the deposition. (Brake v. Beech Aircraft Corp., supra, 184 Cal.App.3d at 940.) “The need for a deposition must be viewed from the pretrial vantage point of a litigant who does not yet know” the substance of a deponent’s testimony. (Id.) In addition to their roles as independent litigants, Rosas expressly identified both Arredondo and Gomez as percipient witnesses to his own claims in written interrogatory responses. (See Decl. of Tarango ISO Centrome’s Opp. to Mtn. to Tax Centrome’s Costs, Exh. 1, p. 23.) Rosas offers no argument or evidence to prove that it was unreasonable or unnecessary for Elan to depose individuals who Rosas himself identified as percipient witnesses to his claims. (Compare Nelson v. Anderson, supra, 72 Cal.App.4th at 132 [deposition of losing party’s expert inherently reasonable after losing party designated witness as an expert].)

However, while it may have been reasonably necessary for Elan to depose both Arredondo and Gomez as percipient witnesses to Rosas’ independent claims, that does not imply that three days of deposition for each witness were reasonably necessary to litigate Rosas’ claims (as distinct from Arredondo’s and Gomez’ independent claims). Every other co-worker deposition Elan claims lasted only one day, and Elan offers nothing to suggest why two extra days of deposition of Arredondo and Gomez were reasonably necessary to litigate its claims against Rosas. On its face, one day of deposition seems more than sufficient. The motion to tax is GRANTED as to the $3,295.72 in costs Elan claims for days two and three of Arredondo’s deposition and days two and three of Gomez’ deposition. And as Rosas correctly observes (and Elan concedes – see Opp., p. 7.), the memorandum of costs lists two itemized cost entries for day one of Arredondo’s deposition. (Compare Memo. Of Costs, Attachment p. 6 with Attachment p. 7.) The motion to tax is additionally GRANTED as to the duplicate claim of $1,212.25 in costs for day one of Arredondo’s deposition.

Moreover, Rosas’ request to tax the deposition costs of Maribel Garcia Castro (Arredondo’s wife) and Blanca Gomez (Gomez’ wife) are well taken. Absent some affirmative indication, there is nothing in the record or in logic to suggest that either Mrs. Garcia Castro or Mrs. Gomez would have any percipient knowledge relevant to Rosas’ claims simply because their husbands worked with Rosas. Unlike Gomez and Arredondo, their wives did not work at Gold Coast, and Rosas did not list either woman as a percipient witness in his interrogatory responses. (See Decl. of Tarango ISO Centrome’s Opp. to Mtn. to Tax Centrome’s Costs, Exh. 1.) That Elan ultimately asked Mrs. Garcia Castro and Mrs. Gomez perfunctory questions about Rosas at their depositions does not suggest otherwise. (See Decl. of Drain, Exh. E.) If anything, their answers merely confirmed what common sense would have suggested from the outset: neither woman had ever met, and knew nothing about, Rosas. (See Decl. of Drain, Exh. E.) The costs appear unreasonable on their face, and the motion to tax $1,249.85 in costs associated with the depositions of Mrs. Garcia Castro and Mrs. Gomez is GRANTED. Elan agrees that it is appropriate to tax the costs from Mrs. Garcia Castro’s and Mrs. Gomez’ depositions. The motion to tax the remaining costs set forth in Exhibit A to the Miller Declaration is DENIED.
///
///
///
B. Apportionment

Rosas next contends that Elan “is not entitled to the full amount of the costs of these depositions as Defendant was not the ‘prevailing party’ with respect to each Plaintiff in relation to whom these depositions were taken and the full amount of these depositions were not ‘reasonably necessary’ to Defendant’s conduct in this case.” (Mtn., p. 6.) Rosas notes that courts “have the authority to apportion costs pursuant to C.C.P. §1032(a)(4), and to reduce the amount of any cost item to that which is ‘reasonable.’” (Mtn., p. 6 [citing Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.app.4th 238, 245.) That may be true as far as it goes, but Rosas offers no evidence with respect to any of the challenged depositions to suggest why that deposition was unreasonable or unnecessary as to Rosas’ claims. It is undisputed that Elan was a prevailing party on Rosas’ claims, and whether the costs identified in Exhibit B to the Miller declaration were also relevant to Elan’s defense of Arredondo’s and Gomez’ claims is not the question at hand. The operative question is whether those costs were reasonable and necessary to Rosas’ claims. It was Rosas’ burden to prove otherwise as to each deposition at issue with competent evidence. He did not do so.

Instead, Rosas urges the court to enter a blanket order apportioning those costs based on the sole fact that there were three plaintiffs in this action, two of whom settled with Elan. “However, an across-the-board reduction based upon the number of plaintiffs, without regard to the reason the costs were incurred, is not a determination of the necessity or reasonableness of the costs.” (Nelson v. Anderson, supra, 72 Cal.App.4th at 130.) Rosas makes “no attempt here to distinguish between costs incurred as a result of the actions or tactics of one plaintiff as opposed to another” and “does little to prove that two-thirds of [Elan’s] costs were not incurred in defense of [Rosas’] claims in the action.” (Id.) Apportionment is especially problematic here because:

(Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group, 2014), ¶17:108.1 [emphasis added].)

(Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1376.) Rosas fails to make the necessary evidentiary showing as to each deposition he challenges as unreasonable or unnecessary, and his request for an indiscriminate order reducing Elan deposition costs identified in Exhibit C to the Miller Declaration by two-thirds would constitute reversible error. (Nelson v. Anderson, supra, 72 Cal.App.4th at 130.)

C. Travel Costs

Rosas also attacks $4,665.33 in travel expenses Elan claims for attending various depositions. (Mtn., pp. 7-8; Decl. of Miller, Exh. D.) However, Rosas offers no evidence to suggest that Elan’s costs were unreasonable or unnecessary to the litigation. And despite the fact that Elan submits detailed travel receipts for each of the deposition travel costs claimed in opposition (Decl. of Arnett, Exh. F-O), in reply (see Reply, p. 7) Rosas fails to identify any specific travel expense that was unreasonable or unnecessary. (Acosta v. SI Corp, supra, 129 Cal.App.4th at 1380 [“SI filed a detailed verified memorandum of costs. The memorandum ran 181 pages, and included detailed invoices for depositions; reports and receipts for hotels, meals and other expenses; the expense section of bills submitted by counsel to SI and other documentation. It provided sufficient support for the cost memorandum.”].)

However, the Court’s independent review of Elan’s travel receipts reveals that a handful of travel expenses Elan claims are meal expenses which are not recoverable on their face. (See Decl. of Arnett, Exh. G, J, N, O.)

“The only meal expenses statutorily allowable are those for jurors while they are kept together during trial and deliberation. (§ 1033.5, subd. (a)(2).) While section 1033.5, subdivision (a)(3) allows the cost of taking and transcribing depositions and ‘travel expenses to attend depositions,’ it does not mention meals eaten while attending local depositions. Nor can meal expenses be justified as ‘necessary to the conduct of the litigation’ since attorneys have to eat, whether they are conducting litigation or not. At best, these expenses are ‘merely convenient or beneficial’ to preparation for litigation, the recovery of which is proscribed under section 1033.5, subdivision (c).”

The $233.73 Elan claims in meal expenses while attending depositions are not recoverable and the motion to tax them is GRANTED.
///
///
D. CourtCall Fees

Finally, Rosas moves to tax the $854 Elan claims as “other” costs for CourtCall telephonic appearance fees incurred to telephonically attend various court hearings. Neither the cost of a telephonic appearances nor the cost of attending a court hearing are expressly allowed costs, and Elan bears the evidentiary burden to prove that such costs were reasonably necessary rather than merely convenient. (Ladas, supra, 19 Cal.App.4th at 774.) Elan offers no evidence to that effect.

In opposition, Elan contends that the Court “should deny Plaintiff’s motion and award Elan its cost for telephonic attendance at depositions.” (Opp., p. 9.) However, the Court need not decide whether the cost of telephonically attending a deposition would constitute an expressly allowed “travel” cost for attending a deposition, because Elan’s memorandum of costs clearly states that each of the telephonic appearance costs Elan seeks were incurred in the context of a court hearing. (Memo of Costs, Attachment p. 7.) While telephonically appearing at a hearing may have been convenient and saved Elan the cost of traveling to the hearing, Elan would not be entitled to any costs for attending a court hearing in person, and it offers no evidence or argument to suggest why it should be awarded costs for doing so virtually. The motion to tax the $854 Elan claims in telephonic appearance fees is GRANTED.

III. Conclusion

In light of the foregoing, Rosas’ motion is GRANTED IN PART and DENIED IN PART. As stated in section II.A, the motion is GRANTED as to the $4,507.97 in costs associated with days two and three of the Arredondo and Gomez depositions and the duplicative entry for day one of Arredondo’s deposition. The motion is additionally granted as stated in section II.A as to the $1,249.85 Elan claims for the costs of deposing Mrs. Garcia Castro and Mrs. Gomez. And per the Court’s analysis in section II.C, the motion is also granted as to the $233.73 Elan claims for meal expenses while traveling to various depositions. Finally, the motion is GRANTED as stated in section II.D as to the $854 Elan claims as “other” costs for CourtCall telephonic appearance fees. The motion is otherwise DENIED. Elan is awarded costs consistent with the $6,845.55 in reductions discussed herein.

Dated: ____________ ___________________________________
AMY D. HOGUE
JUDGE OF THE SUPERIOR COURT

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

ISMAEL ROSAS, ET AL.,

Plaintiff,
vs.

FLAVORCHEM CORPORATION, ET AL.,

Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
) Case No.: BC400974

[TENTATIVE] ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF ISMAEL ROSAS’ MOTION TO TAX PORTIONS OF DEFENDANT CENTROME, INC.’S MEMORANDUM OF COSTS

Hearing Date: September 30, 2014
Time: 9:30 a.m.
Dept.: 307

Plaintiff Ismael Rosas (“Rosas”) moves to tax portions of Defendant Centrome, Inc. d.b.a. Advanced Biotech’s (“Centrome”) amended memorandum of costs submitted on June 2, 2014 after the Court granted summary judgment in Centrome’s favor. Centrome opposes. For the reasons stated below, the Court GRANTS Rosas’ request to tax $19,649.51 in Centrome’s costs. The motion is otherwise DENIED.
///
///
///
I. Standard of Review

II. Individual Cost Items

Although Centrome’s amended memorandum of costs lists four separate categories of costs, Rosas only moves to tax portions of two of those categories: deposition costs and witness fees. Rosas does not move to tax the $2,191 Centrome claims in filing and motion fees or the $150 Centrome claims in jury fees. Filing, motion, and jury fees are expressly allowed as costs by statute (Code Civ. Proc. §1033.5(a)(1)) and Centrome’s memorandum of costs is prima facie evidence that those costs were reasonable. The Court does not discuss Centrome’s claim of filing, motion, and jury fees further.

Rosas does not dispute that the costs of “[t]aking, video recording, and transcribing necessary depositions” are expressly allowed by statute. (Code Civ. Proc. §1033.5(a)(3).) Nor does Rosas deny that “ordinary witness fees pursuant to Section 68093 of the Government Code” are allowable costs. (Code Civ. Proc. §1033.5(a)(7).) Rather, Rosas contends that many of the deposition costs and ordinary witness fees Centrome claims are duplicative of costs Centrome has previously recovered or were not “necessary” to defend against Rosas’ claims. Centrome opposes.

A. Duplicative Depositions

Rosas moves to tax $24,636.92 in costs Centrome claims in connection with 37 depositions on the ground that Centrome has already recovered those costs in connection with the related Velasquez v. FEMA (BC370319) action. (Mtn., pp. 3-4; Decl. of Miller, Exh. A.) Centrome does not dispute that it would be improper to double recover on costs it was already awarded in the related Velasquez case. (See Reed v. Wilson (1999) 73 Cal.App.4th 439, 445.) However, Centrome contends that it is not seeking double recovery. Counsel for Centrome declares that it only sought half of the relevant cross-over costs in the Velasquez action, and now seeks the other half of those costs in this action. (Decl. of Tarango, ¶3; Exh. 1.)

Centrome’s deposition costs being expressly permitted by statute, the memorandum of costs constitutes prima facie evidence that the costs were necessary and reasonable, and Rosas bears the evidentiary burden to prove that those costs were unreasonable. In this context, Rosas bore an evidentiary burden to demonstrate that Centrome was, in fact, seeking a double recovery. In light of Centrome’s declaration that it only sought half of its actual costs in connection with the Velasquez case, the Court does not find that Rosas’ chart attached as Exhibit A to the Declaration of Kimberly Miller satisfies that evidentiary burden. The fact that the dollar amounts claimed in Centrome’s cost memo in Velasquez match the dollar amounts claimed in Centrome’s instant cost memo does not, standing alone, suggest that Centrome is seeking a double recovery rather than the other half of a single recovery. Indeed, the Court takes judicial notice on its own motion of the fact that Centrome signaled in opposition to Velasquez’ motion to tax costs that it was only claiming half the costs associated with depositions that were relevant to both the Velasquez and Rosas actions. (See Decl. of Tarango ISO Centrome’s Opp. to Velazquez’ Motion to Tax Costs, ¶25 [“Advanced Biotech is only seeking one-half of the costs of the taking of the deposition of Plaintiff Ismael Rosas. Advanced Biotech is not “double-dipping” with respect to these costs.”].)

However, Centrome concedes that six of the 37 depositions identified by Rosas are not proper cost items and should be taxed. (Opp., p. 4; Decl. of Tarango, ¶2.) As to those six depositions, totaling $6,167.97, the motion to tax is GRANTED. However, Rosas has failed to meet his evidentiary burden to establish that Centrome seeks to impermissibly “double dip” with respect to the remaining 31 depositions identified in Exhibit A to the Miller Declaration, and the motion is DENIED as to those 31 depositions.

B. Depositions of Co-Plaintiffs, Their Spouses, and Dr. Israel

Rosas next moves to tax the $22,321.45 in deposition costs associated with the depositions of co-plaintiffs Regulo Arredondo and Gustavo Gomez, their spouses, and Mr. Gomez’ doctor (Dr. Leslie Israel). (Decl. of Miller, Exh. B.) With respect to co-Plaintiffs Arredondo and Gomez, Rosas cites no authority to suggest that Centrome is not entitled to costs vis-à-vis Rosas merely because Arredondo’s and Gomez’ testimony was also relevant to their own claims. As noted above, the need for a deposition must be assessed from the vantage point of the deposing party at the time they noticed the deposition. (Brake v. Beech Aircraft Corp., supra, 184 Cal.App.3d at 940.) “The need for a deposition must be viewed from the pretrial vantage point of a litigant who does not yet know” the substance of a deponent’s testimony. (Id.) In addition to their roles as independent litigants, Rosas expressly identified both Arredondo and Gomez as percipient witnesses to his own claims in written interrogatory responses. (Decl. of Tarango, Exh. 2, p. 22.) Rosas offers no argument or evidence to prove that it was unreasonable or unnecessary for Centrome to depose individuals who Rosas himself identified as percipient witnesses to his claims. (Compare Nelson v. Anderson, supra, 72 Cal.App.4th at 132 [deposition of losing party’s expert inherently reasonable after losing party designated witness as an expert].)

However, while it may have been reasonably necessary for Centrome to depose both Arredondo and Gomez with a percipient witnesses to Rosas’ independent claims, that does not imply that three days of deposition for each witness were reasonably necessary to litigate Rosas’ claims (as distinct from Arredondo’s and Gomez’ independent claims). Every other co-worker deposition Centrome claims lasted only one day, and Centrome offers nothing to suggest why two extra days of deposition of Arredondo and Gomez were reasonably necessary to litigate its claims against Rosas. On its face, one day of deposition seems more than sufficient. The motion to tax is GRANTED as to the $11,046.22 in costs Centrome claims for days two and three of Arredondo’s deposition and days two and three of Gomez’ deposition.

Similarly, with respect to Dr. Israel, the Court notes that Rosas identified Dr. Israel not only as Gomez’ treating physician, but also as a “consultant to Gold Coast.” (Decl. of Tarango, Exh. 10 [Plaintiff’s witness list].) Rosas’ motion to tax costs associated with Dr. Israel’s deposition focuses exclusively on Dr. Israel’s role as Gomez’ treating physician and ignores Rosas’ own assertion that Dr. Israel also served as a consultant to Gold Coast where Rosas worked and where Rosas was allegedly injured. Rosas offers no evidence to suggest that it was unreasonable for Centrome to depose Dr. Israel in his capacity as a consultant to Gold Coast, let alone sufficient evidence to meet his evidentiary burden on a motion to tax costs.

Rosas’ request to tax the deposition costs of Maribel Garcia Castro (Arredondo’s wife) and Blanca Gomez (Gomez’ wife), on the other hand, are well taken. Absent some affirmative indication, there is nothing in the record or in logic to suggest that either Mrs. Garcia Castro or Mrs. Gomez would have any percipient knowledge relevant to Rosas’ claims simply because their husbands worked with Rosas. Unlike Gomez and Arredondo, their wives did not work at Gold Coast and Rosas did not list either woman as a percipient witness in his interrogatory responses. (Decl. of Tarango, Exh. 2.) That Centrome ultimately asked Mrs. Garcia Castro and Mrs. Gomez perfunctory questions about Rosas at their depositions does not suggest otherwise. (See Decl. of Tarango, Exh. 8, Exh. 9.) If anything, their answers merely confirmed what common sense would have suggested from the outset: neither woman had ever met, and knew nothing about, Rosas. (Decl. of Tarango, Exh. 8, Exh. 9.) The costs appear unreasonable on their face, and the motion to tax $2,435.32 in costs associated with the depositions of Mrs. Garcia Castro and Mrs. Gomez (see Decl. of Miller, Exh. B, p. 2) is GRANTED. The motion to tax the remaining costs set forth in Exhibit B to the Miller Declaration is DENIED.

C. Apportionment

Finally, Rosas contends that Centrome “is not entitled to the full amount of the costs of these depositions as Defendant was not the ‘prevailing party’ with respect to each Plaintiff in relation to whom these depositions were taken and the full amount of these depositions were not ‘reasonably necessary’ to Defendant’s conduct in this case.” (Mtn., p. 6.) Rosas notes that courts “have the authority to apportion costs pursuant to C.C.P. §1032(a)(4), and to reduce the amount of any cost item to that which is ‘reasonable.’” (Mtn., p. 6 [citing Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.app.4th 238, 245.) That may be true as far as it goes, but Rosas offers no evidence with respect to any of the challenged depositions to suggest why that deposition was unreasonable or unnecessary as to Rosas’ claims. It is undisputed that Centrome was a prevailing party on Rosas’ claims, and whether the costs identified in Exhibit C to the miller declaration were also relevant to Centrome’s defense of Arredondo’s and Gomez’ claims is not the question at hand. The operative question is whether those costs were reasonable and necessary to Rosas’ claims. It was Rosas’ burden to prove otherwise as to each deposition at issue with competent evidence. He did not do so.

Instead, Rosas urges the court to enter a blanket order apportioning those costs based on the sole fact that there were three plaintiffs in this action, two of whom settled with Centrome. “However, an across-the-board reduction based upon the number of plaintiffs, without regard to the reason the costs were incurred, is not a determination of the necessity or reasonableness of the costs.” (Nelson v. Anderson, supra, 72 Cal.App.4th at 130.) Rosas makes “no attempt here to distinguish between costs incurred as a result of the actions or tactics of one plaintiff as opposed to another” and “does little to prove that two-thirds of [Centrome’s] costs were not incurred in defense of [Rosas’] claims in the action.” (Id.) Apportionment is especially problematic here because:

(Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group, 2014), ¶17:108.1 [emphasis added].)

(Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1376.) Rosas fails to make the necessary evidentiary showing as to each deposition he challenges as unreasonable or unnecessary, and his request for an indiscriminate order reducing Centrome’s deposition costs identified in Exhibit C to the Miller Declaration by two-thirds would constitute reversible error. (Nelson v. Anderson, supra, 72 Cal.App.4th at 130.)

III. Conclusion

In light of the foregoing, Rosas’ motion is GRANTED IN PART and DENIED IN PART. As stated in section II.A, the motion is GRANTED as to the six depositions identified in Paragraph 2 of the Tarango Declaration, and the court taxes the $6,167.97 in costs associated with those depositions. And per the Courts analysis in section II.B, the Court motion is GRANTED as to the $11,046.22 in costs associated with days two and three of the Arredondo and Gomez depositions, and the $2,435.32 in costs associated with the depositions of Mrs. Garcia Castro and Mrs. Gomez. The motion is otherwise DENIED. Centrome is awarded costs consistent with the $19,649.51 in reductions discussed herein.

Dated: ____________ ___________________________________
AMY D. HOGUE
JUDGE OF THE SUPERIOR COURT

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

ISMAEL ROSAS, ET AL.,

Plaintiff,
vs.

FLAVORCHEM CORPORATION, ET AL.,

Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
) Case No.: BC400974

[TENTATIVE] ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF ISMAEL ROSAS’ MOTION TO TAX PORTIONS OF DEFENDANT BERJE, INC.’S MEMORANDUM OF COSTS

Hearing Date: September 30, 2014
Time: 9:30 a.m.
Dept.: 307

Plaintiff Ismael Rosas (“Rosas”) moves to tax portions of Defendant Berje, Inc.’s memorandum of costs submitted on May 19, 2014 after the Court granted summary judgment in Berje’s favor. Berje opposes. For the reasons stated below, the Court GRANTS Rosas’ request to tax as to $39,851.39 in Berje’s costs. The motion is otherwise DENIED.
///
///
///
I. Standard of Review

II. Individual Cost Items

Although Berje’s memorandum of costs lists two separate categories of costs, Rosas only moves to tax portions of one of those categories: deposition costs. Rosas does not move to tax the $1,010 Berje claims in filing and motion fees. Filing and motion fees are expressly allowed as costs by statute (Code Civ. Proc. §1033.5(a)(1)) and Berje’s memorandum of costs is prima facie evidence that those costs were reasonable. The Court does not discuss Berje’s claim of filing and motion fees further.

As to the deposition costs at issue, Rosas does not dispute that the costs of “[t]aking, video recording, and transcribing necessary depositions” and “travel expenses to attend depositions” are expressly allowed by statute. (Code Civ. Proc. §1033.5(a)(3).) Rather, Rosas contends that many of the deposition and travel costs Berje claims are unrelated to this action or were not “necessary” to defend against Rosas’ claims in this case. Berje opposes.

A. Depositions Taken in Velasquez

Rosas first moves to tax costs associated with a number of depositions Rosas contends were taken in the related action Velasquez v. FEMA (BC370319). (Mtn., pp. 4-8; Decl. of Miller, Exh. A.) Rosas notes that he was not a party to the Velasquez action, and that Berje cannot be considered a “prevailing party” entitled to costs as to Rosas in the Velasquez action. (See Mtn. p. 5.) Moreover, Rosas asserts, Berje settled with the plaintiff in Velasquez and signed a cost waiver agreeing to bear its own costs vis-à-vis the plaintiff in Velasquez. (Id.) There is little doubt that Berje is not a “prevailing party” as to Rosas in the Velasquez action, but that isolated fact is of little use to Rosas here. The relevant question which the Court must engage is the one set forth in the Code of Civil Procedure: whether the depositions at issue were relevant and necessary to this action. (Code Civ. Proc. §1033.5(a)(3) [“necessary” depositions are allowable costs]; 1033.5(c)(2) [“Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation”]; see also Cal. R. Ct., Rule 3.1700(a)(1) [memorandum of costs must include statement by party or attorney that costs “were necessarily incurred in the case”].)

The implication of Rosas’ argument is that any deposition noticed in the Velasquez action is irrelevant per se in the Rosas action. Notably, Rosas cites no authority for this blanket proposition. To the contrary, “[w]hether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court … .” (Ladas v. Cal. State Auto. Ass’n., supra, 19 Cal.App.4th at 774.) If a deposition was relevant and necessary in both the Velasquez and Rosas actions, Berje (as a prevailing party in the Rosas case) is entitled to costs associated with that deposition as a matter of statutory right. (Code Civ. Proc. §1033.5(a)(3).)

The memorandum of costs is, itself, prima facie evidence that the depositions listed were relevant and necessary to the litigation of the Rosas action. (Oak Grove School Dist. v. City Title Ins. Co., supra, 217 Cal.App.2d at 699.) “[I]t is not enough for the losing party to attack submitted costs by arguing that he thinks the costs were not necessary or reasonable.” (Seever v. Copley Press, Inc., supra, 141 Cal.App.4th at 1557.) To the extent Rosas believed that any individual deposition was not reasonably necessary to litigate the Rosas action, he was required to “present evidence and prove that the [deposition] costs are not recoverable.” (Id. [emphasis added].) Instead, he offered various charts identifying the costs counsel summarily declares were not reasonable or necessary. Such argument and conclusory declarations are insufficient to meet Rosas’ burden of proof. (Rappenecker v. Sea-Land Serv., Inc., supra, 93 Cal.App.3d at 266 [“mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of its counsel are insufficient to rebut the prima facie showing.”].)

In opposition, however, Berje reduces the amount of costs it seeks for a number of depositions associated with both the Velasquez and Rosas actions by half. (Opp., pp. 3-5.) In light of Berje’s concession on this point, the motion is GRANTED with respect to the $16,399.39 Berje agrees to tax for co-worker witnesses associated with both cases and the $1,605.48 Berje agrees to tax for expert witnesses associated with both cases. Additionally, Berje agrees that the costs associated with a number of depositions should be taxed in their entirety (see Opp., p. 12):

• Sidney Arfa (5/22/13, 5/23/13, & 5/24/13)
• Frank Bruno (11/18/11)
• Maribel Garcia Castro (6/24/11)
• Harvey Cohen (8/9/12 & 8/10/12)
• Christopher Cooper (9/13/12 & 9/26/12)
• Moises I. Cruz (3/1/12)
• Blanca Gomez (5/2/13)
• Scott E. Hardy (9/17/12)
• Carol Hyland (11/30/11)
• Robert C. James (8/25/12 & 9/18/12)
• Craig E. Luebeck (8/24/12)
• Avedesa Quirino
• David Ross (9/4/12)
• Jorge Wecer (5/7/12)
• Bernard S. Weintraub (8/8/12)
• Gordon Yung (9/20/12)
Berje’s concession that these deposition costs should be taxed in their entirety is well taken, and the motion to tax is GRANTED as to the $14,077 in costs associated with those depositions.

In reply, Rosas also argues that the transcription costs associated with a number of cross-over experts who adopted their opinions from Velasquez in the Rosas matter were unnecessary because Rosas’ counsel gave Berje copies of those earlier transcripts as part of their experts’ reliance materials in the Rosas action. (See Reply, p. 2; Decl. of Miller ISO Reply, ¶5; Exh. H.) Even if the Court accepts the representation of Plaintiffs’ counsel (unsupported by any evidence) that Rosas provided Berje with copies of the deposition transcripts at issue, that does not lead to the inevitable conclusion that it was unnecessary or unreasonable for Berje to separately order copies of the transcripts. Plaintiffs offer no evidence to suggest when they provided the transcripts, by what means, or in what form. Even if Rosas eventually provided Berje with transcripts, for example, it may yet have been reasonable for Berje to separately order transcripts if Rosas unnecessarily delayed delivery. Likewise, Rosas does not submit any evidence demonstrating whether he provided preliminary transcripts, final transcripts alone, paper transcripts, digital transcripts, all of the above, or some combination thereof. Again, depending on the circumstances, it certainly may have been reasonable for Berje to separately request transcripts if for some reason the transcripts Rosas provided were inadequate to reasonably litigate the action. The memorandum of costs is prima facie evidence that the asserted transcription costs were reasonably necessary, and Rosas cannot meet his burden to overcome that evidence by inviting the Court to merely speculate about what might have happened. Rosas can only overcome that burden with evidence, which he does not submit.

With respect to the depositions of Mr. Velasquez, however, Rosas fares better. While it is true that Rosas himself designated Mr. Velasquez as a percipient witness in interrogatory responses (see Decl. of Tarango ISO Centrome’s Opp. to Mtn. to Tax Centrome’s Costs, Exh. 1, p. 23), those responses were served May 31, 2011, more than two years after Mr. Velasquez’ first eight depositions. And Berje does not offer anything to suggest why it was reasonably necessary to conduct nine separate depositions of a single percipient witness. Such an exorbitant number of depositions for one of Rosas’ many co-workers is unreasonable on its face, particularly in light of the fact the vast majority of co-worker depositions Berje claims lasted one day. Rosas’ motion to tax is further granted as to the remaining $2,030.63 in costs Berje for the first eight days of deposition for Mr. Velasquez is GRANTED.

B. Depositions of Co-Plaintiffs

Rosas next moves to tax the $6,555.10 in deposition costs Berje claims associated with the depositions of co-plaintiffs Regulo Arredondo and Gustavo Gomez. (Mtn., pp. 9-10; Decl. of Miller, Exh. B.) Rosas cites no authority to suggest that Berje is not entitled to costs vis-à-vis Rosas merely because Arredondo’s and Gomez’ testimony was also relevant to their own claims. As noted above, the need for a deposition must be assessed from the vantage point of the deposing party at the time they noticed the deposition. (Brake v. Beech Aircraft Corp., supra, 184 Cal.App.3d at 940.) “The need for a deposition must be viewed from the pretrial vantage point of a litigant who does not yet know” the substance of a deponent’s testimony. (Id.) In addition to their roles as independent litigants, Rosas expressly identified both Arredondo and Gomez as percipient witnesses to his own claims in written interrogatory responses. (See Decl. of Tarango ISO Centrome’s Opp. to Mtn. to Tax Centrome’s Costs, Exh. 1, p. 23).) Rosas offers no argument or evidence to prove that it was unreasonable or unnecessary for Berje to depose individuals who Rosas himself identified as percipient witnesses to his claims. (Compare Nelson v. Anderson, supra, 72 Cal.App.4th at 132 [deposition of losing party’s expert inherently reasonable after losing party designated witness as an expert].) Nonetheless, in opposition, Berje concedes that it would be appropriate to tax half of the costs associated with Arredondo’s and Gomez’ depositions to reflect the fact that those depositions served multiple purposes. (Opp., p. 6.) In light of Berje’s concession, the motion to tax is GRANTED as to $3,277.54 of the costs associated with Arredondo’s and Gomez’ depositions.

However, while it may have been reasonably necessary for Berje to depose both Arredondo and Gomez as percipient witnesses to Rosas’ independent claims, that does not imply that three days of deposition for each witness were reasonably necessary to litigate Rosas’ claims (as distinct from Arredondo’s and Gomez’ independent claims). As the Court has already noted, every other co-worker deposition Berje claims lasted only one day, and Berje offers nothing to suggest why two extra days of deposition of Arredondo and Gomez were necessary to litigate Berje’s claims against Rosas. On its face, one day of deposition seems more than sufficient. The motion to tax is further GRANTED as to the remaining $2,083.96 Berje claims for days two and three of Arredondo’s deposition and days two and three of Gomez’ deposition.

C. Apportionment

Rosas also contends that Berje “is not entitled to the full amount of the costs of these depositions as Defendant was not the ‘prevailing party’ with respect to each Plaintiff in relation to whom these depositions were taken and the full amount of these depositions were not ‘reasonably necessary’ to Defendant’s conduct in this case.” (Mtn., p. 10.) Rosas notes that courts “have the authority to apportion costs pursuant to C.C.P. §1032(a)(4), and to reduce the amount of any cost item to that which is ‘reasonable.’” (Mtn., p. 11 [citing Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.app.4th 238, 245.) That may be true as far as it goes, but Rosas offers no evidence with respect to any of the challenged depositions to suggest why that deposition was unreasonable or unnecessary as to Rosas’ claims. It is undisputed that Berje was a prevailing party on Rosas’ claims, and whether the costs identified in Exhibit C to the Miller declaration were also relevant to Berje’s defense of co-Plainitff Arredondo’s and Gomez’ claims, or the claims in the related Velasquez and Ortiz actions, is not the question at hand. The operative question is whether those costs were reasonably necessary to Rosas’ claims in this case. It was Rosas’ burden to prove otherwise as to each deposition at issue. He did not do so.

Instead, Rosas urges the court to enter a blanket order apportioning those costs based on the sole fact that there were three plaintiffs in this action, two of whom settled with Berje, and two related actions with overlapping witnesses. “However, an across-the-board reduction based upon the number of plaintiffs, without regard to the reason the costs were incurred, is not a determination of the necessity or reasonableness of the costs.” (Nelson v. Anderson, supra, 72 Cal.App.4th at 130.) Rosas makes “no attempt here to distinguish between costs incurred as a result of the actions or tactics of one plaintiff as opposed to another” and “does little to prove that two-thirds of [Berje’s] costs were not incurred in defense of [Rosas’] claims in the action.” (Id.) Blind apportionment is especially problematic here because:

(Wegner, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group, 2014), ¶17:108.1 [emphasis added].)

(Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1376.) Rosas fails to make the necessary evidentiary showing as to each deposition he challenges as unreasonable or unnecessary, and his request for an indiscriminate order reducing Berje deposition costs on a per-plaintiff basis would constitute reversible error. (Nelson v. Anderson, supra, 72 Cal.App.4th at 130.)
///
///
However, Berje agrees that it would be appropriate to tax portions of the costs associated with deposing its own PMK and certain co-Defendants’ PMKs in light of the fact that those depositions were used in the Velasquez, Ortiz, and Rosas cases (Opp., p. 7.) Accordingly, the motion is GRANTED as to the $3,399.07 Berje agrees are properly taxed from the depositions of Richard Pisano (3/15/12), Robert DeSimone (2/22/11 & 5/27/11), Frank D’Amico (4/6/11) and David Herbst (4/6/11).

D. Travel Costs

Finally, Rosas attacks $6,734.37 in travel expenses Berje claims for attending various depositions. (Mtn., p. 13; Decl. of Miller, Exh. G.) As discussed above, the Court has already taxed $936.95 in travel costs associated with the deposition of Carol Hyland (11/30/11). As for Berje’s remaining travel costs, however, Rosas offers no evidence to suggest that Berje’s costs were unreasonable or unnecessary to the litigation. And despite the fact that Berje submits detailed travel receipts for each of the deposition travel costs claimed in opposition, in reply (see Reply, p. 7) Rosas largely fails to identify any specific travel expense that was unreasonable or unnecessary. (Acosta v. SI Corp, supra, 129 Cal.App.4th at 1380 [“SI filed a detailed verified memorandum of costs. The memorandum ran 181 pages, and included detailed invoices for depositions; reports and receipts for hotels, meals and other expenses; the expense section of bills submitted by counsel to SI and other documentation. It provided sufficient support for the cost memorandum.”].)

The only specific travel expenses Rosas identifies as improper are a handful of food, and room service expenses listed in Berje’s travel receipts, totaling $377.39. On this limited point, Rosas is correct:
“The only meal expenses statutorily allowable are those for jurors while they are kept together during trial and deliberation. (§ 1033.5, subd. (a)(2).) While section 1033.5, subdivision (a)(3) allows the cost of taking and transcribing depositions and ‘travel expenses to attend depositions,’ it does not mention meals eaten while attending local depositions. Nor can meal expenses be justified as ‘necessary to the conduct of the litigation’ since attorneys have to eat, whether they are conducting litigation or not. At best, these expenses are ‘merely convenient or beneficial’ to preparation for litigation, the recovery of which is proscribed under section 1033.5, subdivision (c).”

The $377.39 Berje claims in meal expenses while attending depositions are not recoverable and the motion to tax them is GRANTED.

III. Conclusion

In light of the foregoing, Rosas’ motion is GRANTED IN PART and DENIED IN PART. As stated in section II.A, the motion is GRANTED as to the first eight depositions of Wilfredo Velasquez, as well as the various depositions Berje concedes should be taxed by half or in their entirety, and the court taxes the $34,112.50 in costs associated with those depositions. And per the Courts analysis and Berje’s concession that those depositions ought to be taxed by half discussed in section II.B, the Court motion is GRANTED as to the $5,361.50 in costs for the entirety of second and third days of deposition for co-Plaintiffs Arredondo and Gomez, and for half of the first day of those depositions. And because meal expenses are not recoverable deposition travel costs, the motion is further granted as to the of $377.39 Berje claims in meal or room service costs. (See Section II.D, supra.) The motion is otherwise DENIED. Berje is awarded costs consistent with the $39,851.39 in reductions from the memorandum of costs discussed herein.

Dated: ____________ ___________________________________
AMY D. HOGUE
JUDGE OF THE SUPERIOR COURT

Link to this page

Copy the code below to your web site.

Legal News

ISMAEL ROSAS VS FLAVORCHEM CORPORATION

Leave a Reply