Case Number: BC526258 Hearing Date: September 09, 2019 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

JENNIFER FRANCIS,

Plaintiff,

vs.

CITY OF LOS ANGELES, etc., et al.,

Defendants.

CASE NO.: BC526258

[TENTATIVE] ORDER RE: MOTION TO TAX COSTS

Date: September 9, 2019

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff Jennifer Francis

RESPONDING PARTY: Defendant City of Los Angeles

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

This is an action in which Plaintiff alleges various wrongful actions against her during her employment with Defendant. Plaintiff filed a complaint alleging causes of action for: (1) violation of California Labor Code, Section 1102.5; (2) discrimination in violation of FEHA; (3) harassment in violation of FEHA; and (4) retaliation in violation of FEHA.

On June 21, 2019, Defendant filed a memorandum of costs seeking $283,551.84 in costs. Plaintiff then filed a motion to strike/tax items of costs claimed by Defendant against her. Plaintiff seeks to tax $261,100.21 from Defendant’s memorandum of costs. Specifically, Plaintiff seeks to tax: (1) filing and motion fees; (2) jury fees; (3) deposition costs; (4) service of process; (5) witness fees; (6) court ordered transcripts; (7) court reporter fees established by statute; (8) fees for electronic filing or service; and (9) fees for hosting electronic documents.

DISCUSSION

A prevailing party “includes the party with a net monetary recovery . . . [or] a defendant in whose favor a dismissal is entered.” (Code Civ. Proc. § 1032(a)(4).) “Except as otherwise provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc. § 1032(a)(4).) “Under the common law rule, parties to litigation must bear their own costs. The right to recover any of such costs is determined entirely by statute.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.) “In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face. If so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.” (Id.) “Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.” (Id.) “Whether a costs item was reasonably necessary to the litigation presents a question of fact for the trial court.” (Id.) “[T]he items on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred.” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) “There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) Once a party shows that an expense or cost was necessarily incurred “the burden is upon the moving party to establish the illegality of the challenged items; otherwise the amount demanded in the verified cost bill is controlling.” (Wilson v. Nichols (1942) 55 Cal.App.2d 678, 682-683.) “[T]he 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.) “[Nevertheless], because the right to costs is governed strictly by statute . . . a court has no discretion to award costs not statutorily authorized.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) California Code of Civil Procedure, Section 1033.5(c)(4) gives a court discretion to allow or deny a claimed cost where it is not explicitly allowed or prohibited by Section 1033.5.

Filing and Motion Fees

Plaintiff seeks to tax Item 1 in Defendant’s memorandum of costs for filing and motion fees in the amount of $1,895.33.

California Government Code, Section 6103.5(a) says that “[w]henever a judgment is recovered by a public agency . . . either as plaintiff . . . or defendant . . . in any action or proceeding to begin, or to defend” for which “no fee for any official service rendered by the clerk of the court . . . has been paid . . . the clerk entering the judgment shall include as a part of the judgment the amount of the filing fee . . . which would have been paid.” “It is apparent that section 6103.5 considers the filing fees to be an existing debt that simply remains unpaid. Filing fees are therefore costs incurred but not paid, which are recoverable under the general costs statute. Moreover, section 6103.5 specifically prescribes the inclusion of these fees as costs in a judgment; therefore a trial court does not have any discretion to tax them.” (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 164.)

Defendant seeks $1,895.33 in filing and motion fees pursuant to Item 1 in the memorandum of costs. Under California Code of Civil Procedure, Section 1033.5(a)(1) filing and motion fees are allowable as costs. Defendant has submitted a verified memorandum of costs and as such have presented prima facie evidence that costs were necessarily incurred. Defendant has also submitted supporting documentation with respect to its filing fees. (Thomas Decl. at Exhibit 1.)

Plaintiff presents no evidence that the filing and motion fees claimed by Defendant were unreasonable or unnecessary. Plaintiff has not met her burden under Gorman.

As such, the Court will DENY Plaintiff’s request to tax $1,895.33 in costs pursuant to Item 1 in Defendant’s memorandum of costs for filing and motion fees.

Jury Fees

Initially, in its opposition, Defendant indicates that it inadvertently included jury-related costs other than those paid to the Court in its calculation with respect to Item 2 for jury fees in its memorandum of costs. As such, Defendant indicates it is entitled to $2,779.70 in jury fees rather than the $40,599.64 set forth in the memorandum of costs.

Under California Code of Civil Procedure, Section 1033.5(a)(1) jury fees are allowable as costs. Defendant has submitted a verified memorandum of costs and as such have presented prima facie evidence that costs were necessarily incurred.

Plaintiff presents no evidence that the $2,779.70 in jury fees claimed by Defendant were unreasonable or unnecessary. Plaintiff has not met her burden under Gorman.

Due to the admitted error of Defendant in calculating the amount of jury fees in its cost memorandum, the Court GRANTS Plaintiff’s request to tax $37,819.94 from Item 2 for jury fees from Defendant’s memorandum of costs so that Defendant will be awarded the correct amount of $2,779.70 in jury fees.

Deposition Costs

Plaintiff seeks to tax Item 4 from Defendant’s memorandum of costs for deposition costs in the amount of $77,928.50. Plaintiff argues that the majority of depositions in this case were noticed by Plaintiff and Plaintiff was responsible for paying the court reporter and videographer fees for those depositions.

California Code of Civil Procedure, Section 1033.5(a)(3)(A) allows for “[t]aking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed.” California Code of Civil Procedure, Section 1033.5(c)(4) says that “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”

The Court finds a discrepancy in the amount claimed on Defendant’s memorandum of costs and the amount Defendant’s counsel declares is representative of the costs Defendant’s incurred in connection with depositions in this action. Defendant’s memorandum of costs indicates that Defendant’s costs for depositions were $77,928.50; however, the declaration of Defendant’s counsel indicates that Defendant’s only incurred $17,517.75 in deposition expenses. (Thomas Decl., ¶ 3 and Exhibit 3.) Plaintiff presents evidence that: (1) Plaintiff’s counsel noticed and took the majority of depositions in this case; and (2) Plaintiff agreed to produce herself for trial and deposition. (Taylor Decl. at ¶¶ 2-3.)

The Court therefore the Court GRANTS Plaintiff’s request to tax Item 4 from Defendant’s memorandum of costs and taxes $60,410.75 from Item 4 in Defendant’s memorandum of costs because the amount claimed in the memorandum of costs is not indicative of the actual deposition expenses incurred according to Defendant’s counsel’s declaration.

Service of Process

Plaintiff argues that Item 5 from Defendant’s memorandum of costs should be taxed in its entirety in the amount of $13,584.40 because Plaintiff produced herself and all of her witnesses for deposition and trial without the need for a subpoena.

California Code of Civil Procedure, Section 1033.5(a)(4) allows for service of process by a public officer, registered process server, or publication to be recovered as a cost. A party’s memorandum of costs must state how a subpoena was served or how service was effectuated for the Court to determine whether the costs are recoverable. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.) “Whether and in what amount the expenses for service of process are allowed depends upon who served the process.” (Id.) Costs for service of process can be recovered where service was effectuated by a registered process server. (Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 506 (costs recoverable for service of process where party set forth in detail in its memorandum of costs each item of service claimed and attached copies of proofs of service for each item claimed in the cost memorandum which was served by a registered process server).)

The Court cannot ascertain by what method service of process for subpoenas and other documents was effectuated based on the exhibit presented by Defendant, and cannot determine whether the costs for service of process are recoverable under California Code of Civil Procedure, Section 1033.5(a)(4). (Thomas Decl. at Exhibit 6.) Defendant presents no evidence that the costs claimed for service of process were reasonable and necessary to the litigation as required under Gorman.

As such, the Court GRANTS Plaintiff’s request to tax Item 5 from Defendant’s memorandum of costs in the amount of $13,584.40.

Witness Fees

Plaintiff seeks to tax Item 8 from Defendant’s memorandum of costs in the amount of $1,590.00 for witness fees. Plaintiff argues that these costs are not for ordinary witnesses within the meaning of California Code of Civil Procedure, Section 1033.5(a)(7). Defendant, however, indicates in its opposition that in order to depose Doctors Yang and Obarski, it had to pay them significant fees and asks the Court to exercise its discretion under California Code of Civil Procedure, Section 1033.5(c)(4) and award those costs pursuant to Item 8.

The Court finds that Defendant has not presented evidence that the costs to depose Doctors Yang and Obarski were reasonable and necessary to this litigation. Defendant only attaches copies of checks it paid to Doctors Yang and Obarski (Thomas Decl. at Exhibit 8), without any indication in the declaration of counsel on why the costs were reasonable and necessary as required by Gorman.

As such, the Court GRANTS Plaintiff’s request to strike Item 8 as costs in the amount of $1,590.00 from Defendant’s memorandum of costs.

Court-Ordered Transcripts

Plaintiff asserts that the Court did not order a single transcript in this case and as such costs are not allowable for court-ordered transcripts. Plaintiff thus seeks to strike $22,841.88 in costs for court-ordered transcripts as indicated by Item 9 in Defendant’s memorandum of costs.

Under California Code of Civil Procedure, Section 1033.5(a)(9) “[t]ranscripts of court proceedings ordered by the court” are recoverable as a cost. “Transcripts of court proceedings not ordered by the court” are not recoverable as a cost under California Code of Civil Procedure, Section 1033.5(b)(5).

Defendant presents no evidence that the Court ordered the parties to obtain transcripts. Defendant argues that the Court’s standing rules required the parties to have original transcripts ready during trial, yet Defendant presents no evidence of that fact. Plaintiff’s counsel declares that: (1) based on his presence at the trial and review of the Court orders in this case, the Court did not order any transcripts related to this case. (Taylor Decl. at ¶ 8.)

The Court GRANTS Plaintiff’s request to tax as costs Item 9 from Defendant’s memorandum of costs in the amount of $22,841.88 which represents the cost for court-ordered transcripts.

Court Reporter Fees Established by Statute

Plaintiff does not dispute Item 11 in Defendant’s memorandum of costs and only requested in her moving papers that Defendant provide documentation that the entire $9,671.89 was solely for the cost of the trial court reporter. Plaintiff’s reply brief fails to present any argument with respect to Item 11 in Defendant’s memorandum of costs. Defendant has provided evidence of its costs for court reporter fees. (Thomas Declaration at Exhibit 7.)

The Court therefore DENIES Plaintiff’s request to tax Item 11 from Defendant’s memorandum of costs in the amount of $9,671.89.

Fees for Electronic Filing Service

Plaintiff argues that Defendant is a public entity and as such requests that Item 14 from Defendant’s memorandum of costs in the amount of $212.70 be taxed as a cost. Defendant presents no argument in its opposition that Item 14 in its memorandum of costs should not be taxed. The Court finds that Defendant has conceded on this point. (Heglin v. F.C.B.A. Market (1945) 70 Cal.App.2d 803, 806.)

The Court GRANTS Plaintiff’s request to tax as a cost Item 14 from Defendant’s memorandum of costs in the amount of $212.70.

Fees for Hosting Electronic Documents

Plaintiff argues that the Court did not order that Defendant have documents hosted by an electronic filing service provider and as such Item 15 should be taxed in its entirety for the amount to $115,227.50.

California Code of Civil Procedure, Section 1033.5(a)(15) says that “[f]ees for the hosting of electronic documents” are recoverable as a cost “if a court requires or orders a party to have documents hosted by an electronic filing service provider.”

The Court finds that despite Defendant’s assertion that the Court ordered Defendant to host electronic documents, the Court did not order Defendant to host electronic documents. The evidence offered by Defendant does not support that proposition. (Thomas Decl., Exhibit 7 at 34:13-21.) The Court ordered Defendant to identify documents pursuant to a document response. (Id.) The Court did not order Defendant’s to host documents by an electronic service provider. (Id.) Given that the fees for hosting electronic documents were not ordered by the Court, Defendant did not meet its burden of providing evidence that the fees for hosting electronic documents were reasonable and necessary to the litigation as required by Gorman.

The Court will exercise its discretion and will GRANT Plaintiff’s request to tax Item 15 in Defendant’s memorandum of costs in its entirety in the amount of $115,227.50.

Plaintiff’s motion to tax costs is GRANTED IN PART.

Moving party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 9th day of September 2019

Hon. Holly J. Fujie

Judge of the Superior Court