Case Number: VC060872    Hearing Date: July 15, 2014    Dept: SEC

LOZA v. MARTINEZ
CASE NO.: VC060872
HEARING: 07/15/14

#7
TENTATIVE ORDER

Plaintiff KEVEN LOZA’s motion to tax costs is GRANTED IN PART, as set forth below. C.C.P. § 1033.5.

On May 22, 2014, defendants PATRICK GRABOWSKI, SR. and PATRICK GRABOWSKI, HR. submitted their Memorandum of Costs (“MOC”) in the amount of $11,307.45. Plaintiff subsequently filed the subject motion to tax, challenging several of the costs sought.

If a cost is one expressly allowed by the section 1033.5, the objecting party has the burden of establishing that it is unreasonable or unnecessary. Nelson v. Anderson (1999) 72 Cal.App.4th 111. Where the cost is not expressly allowed, the burden rests with the fee claimant to establish its propriety. Id.

Item 4—deposition costs
Defendants seek $1,653.92 in deposition costs. C.C.P. § 1033.5(a)(3). Plaintiff argues that the MOC is unsupported by evidence of the charges. Defendants submitted the relevant invoice with their opposition. The motion to tax is denied.

Item 9—transcripts
The Court has no discretion to grant costs that are cited in the statute as unauthorized. Perkos Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238. Defendants seek recovery of $24 for a transcript of a hearing on a discovery motion. Such cost is excluded by statute. C.C.P. § 1033.5(b)(5).

In opposition to the motion, defendants argue that fee is actually a “court reporter fee.” The invoice, attached as Exhibit 2, does not make clear whether that is the fee for the transcript (which is referenced in the bill). The $24 is listed as an “advance,” and is exclusive of both the “base” and “wait time” charges for the reporter. The motion to tax is granted.

Item 12—reporter fees
Defendants seek $875 for court reporter fees. See C.C.P. § 1033.5(a)(11). However, the attachment to the MOC only references one charge for $250. The additional invoices are attached to the motion. Defendants have established the validity of those costs, and the motion is thus denied.

Item 13—“other costs”
Defendants seek attorney service charges, travel and parking.

Attorney messenger service fees are not listed under either subsections (a) or (b) of the statute. Thus, in order to allow such as recoverable costs, the Court must find that they were “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” C.C.P. § 1033.5(c)(2). Any award is discretionary.

In Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, the Court awarded messenger fees incurred for court filings and obtaining conformed copies of various court documents because the party seeking such costs submitted a declaration by counsel explaining that the legal issues were complex such that there was a large volume of motions and pleadings, and the heavy workload maintained by counsel prevented them from filing documents in advance of court deadlines. Counsel here states that attorney service charges were necessary because the court does not have an online filing system (although, the Court notes, parties are permitted to fax file). Counsel also states that obtaining copies of documents was necessary because plaintiff did not always serve them. The Court recalls the service issues raised during the course of the litigation.

The Court has reviewed attachment 13a to the MOC and finds the messenger service charges are excessive. By way of example, defendants’ filing of a “Notice of Non-opposition” (item i–$138.66) is not reasonably necessary. Defendants also seek messenger fees for two separate trips to the courthouse on the same day. On June 3, 2013, there were two separate attorney service fees totaling $203.49 (items r & t), on June 4, 2013, for a total of $520.74 (items u & w), on June 19, 2013 for $444.87 (items y & z), on August 22, 2013 in the total amount of $245.87 (items gg & hh), on December 19, 2013 for a total of $156.35 (items ll & mm) and on March 21, 2014 in the amount of $316.97 (items qq & rr).

In its discretion, the Court reduces the attorney service charges in those amounts, which total $2,026.95. The Court recognizes that one trip to the courthouse (rather than two) may have been reasonable. However, in light of defendants’ failure to use fax service and their use of an attorney service for documents that were not time sensitive, the Court finds that with that reduction, the remaining amount more accurately reflects reasonable costs.

The motion to tax is granted with respect to the costs for travel and parking. While the statute expressly allows costs related to travel for depositions (section 1033.5(a)(3), it is silent as to other travel expenses. Here, defendants did not meet their burden of establishing the amount sought. Counsel’s conclusory declaration simply states that the “travel expenses” were necessary. The costs for parking are stricken as not recoverable under the statute. See Ladas v. Calif. State Auto Ass’n (1993) 19 Cal.App.4th 791.

The FedEx charges for service are also taxed as not allowable. C.C.P. § 1033.5(b)(3).