Case Number: BC675143 Hearing Date: September 09, 2019 Dept: SWE

MICHAEL KIDD

vs.

KRAVE GROUP, LLC, CHARLES AKSLAND, TERRY KARGES,

WAYNE RAINEY AND RICHARD VARNER

BC675143

Motion of plaintiff Michael Kidd to tax defendant’s Memorandum of Costs by a minimum of $10,783.45 of the $16,066.20 of alleged costs. CCP §1032, CCP §1033.5 and CCP §1034, California Rules of Court Rule 3.1700.

Specifically, plaintiff challenges the following costs: Item 4 Deposition Costs Of $8,465.95; Item 5 Service Of Process $480.00; and Item 11 Court Reporter fees $1,837.50.

“Code Civ. Proc. § 1032 permits a prevailing party to recover costs in any action or proceeding. Code Civ. Proc., §1033.5 sets out a list of items allowable as costs under Code Civ. Proc. §1032. Code of Civil Procedure § 1033.5(c) states in pertinent part: “Any award of costs shall be subject to the following: Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. Allowable costs shall be reasonable in amount.”

(emphasis added.) Whether or not an item is “reasonably necessary” is not the same as “merely convenient of beneficial to its preparation.” (Ladas v. California Statue Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Once proper objections are asserted, the burden of proof rests with the party seeking to recover its costs. (Ibid.) When items are properly challenged by a motion to tax costs and do not appear on their face to be proper and necessary, or if necessity is doubtful, the burden of establishing necessity is on the party claiming those items of costs. (Ibid.) “

DEPOSITION FEES OF $8,465.95 in Unauthorized Costs Related to Rush Deposition Transcripts Long Before Trial.

“Code of Civil Procedure § 1033.5(a)(3)(A) permits the recovery of costs for “Taking, 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.” Parties are permitted to recover costs for videotaped depositions, but editing the video for more effective presentation is an unnecessary expense that may not be recovered. (Science Applications Int’l Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1104.)

Here, Plaintiff contends that Defendants claim an unsupported, drastically overstated $8,975.42 for deposition costs in Item 4 of the cost bill, but certain costs appear to have been incurred from obtaining an expedited “rush” transcript, as well as editing video, such that they are not recoverable. Indeed, Defendants claim $1,816.25 in costs for videotaping Plaintiff’s deposition, but Plaintiff has reason to suspect this figure includes editing costs because Defendants brought a trial video technician to the Court and made multiple references to their intent to impeach Plaintiff with his videotaped deposition testimony. (Bederman Decl. ¶ 3 & Ex. A.)

Further, Defendants claim $4,110.20 in costs for deposing Plaintiff, but the transcript of that deposition affirms those costs were incurred from obtaining the transcript on an “expedited” basis. (Bederman Decl. ¶ 3 & Ex. B, Kidd Depo. at 302:3 – 303:12.) At the time, Defendants had already moved for summary judgment and their reply brief was not due for more than a month. (Bederman Decl. ¶ 4.) In marked contrast, per moving party at page 5, defendants claimed no costs for the other depositions plaintiff’s counsel took, i.e. Wayne Rainey, Chuck Aksland and Terry Karges. Additionally, Defendants did not notice the deposition of Richard Varner, nor did they ask any questions at his deposition, but they are claiming costs of $1,358.30 for transcribing his deposition.”

Hence, plaintiff contends that the $4,110.20 for taking plaintiff’s deposition and $1,816.25 for videotaping (combined $5,926.45) did not justify a “rush” transcript since defendants had already filed their summary judgment motion; that the depositions of Richard Varner ($1,358.30) and Michael Webster ($1,181.20) were taken a month before trial and did not warrant “rush” transcripts. Plaintiff contends there was no rush for any of the depositions except possibly for that of John Ulrich, taken on the eve of trial but his transcript was taken without a “rush” transcript.

COURT REPORTER FEES – ITEM 11 $1,837.50 FOR UNNECESSARY COURT REPORTER FEES (out of the total reporter fees of $3,637.50). The challenged amount includes $525.00 for Jennifer Spee, a court reporter defendants brought to a post mediation status conference for unknown reasons who transcribed a ministerial hearing during which there were no significant motions or orders. The $1,312.50 for reporter Jorge Dominguez who sat in Dept. 1 for 2½ days with defendants while awaiting trial assignment.

DEFENDANTS’ WRITTEN OPPOSITION TO PLAINTIFF’S MOTION TO TAX

DEFENDANTS’ MEMORANDUM OF COSTS

First, defendants seek to strike the declaration of plaintiff’s attorney David Bederman which mostly consists of uncorroborated statements leading to argumentative speculation. If the basis for objections to defendants’ Memorandum of Costs is the declaration of David Bederman, there is no cognizable objection to much of the cost bill.

(Ladas v. California Statue Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Once proper objections are asserted, the burden of proof rests with the party seeking to recover its costs. (Ibid.) When items are properly challenged by a motion to tax costs and do not appear on their face to be proper and necessary, or if necessity is doubtful, the burden of establishing necessity is on the party claiming those items of costs. (Ibid.) “

Of note are the following matters raised by the Bederman declaration:

(1)COURT REPORTER FEES – ITEM 11 $1,837.50 FOR UNNECESSARY COURT REPORTER FEES (out of the total reporter fees of $3,637.50). The challenged amount includes $525.00 for Jennifer Spee, a court reporter defendants brought to a post mediation status conference for unknown reasons who transcribed a ministerial hearing during which there were no significant motions or orders. TAX the $1,312.50 for reporter Jorge Dominguez who sat in Dept. 1 for 2½ days with defendants while awaiting trial assignment. TAX CSR Jennifer Spee’s $525.00, defendants’ contend her presence was warranted because “several substantive issues were discussed” (no further elaboration). The attached transcript by Ms. Spee reveals no such issues. GRANT MOTION TO STRIKE $1,837.50 for unnecessary court reporter fees.

(2)RUSH DEPOSITION TRANSCRIPTS WELL BEFORE TRIAL. The expenses involved with “rush” transcripts well before trial appear to be a convenience for counsel rather than reasonably necessary to the conduct of the trial. Note that the deposition of John Ulrich was not put on a “rush” basis although taken the eve before trial. Defendants contend that contrary to plaintiff’s arguments, the costs for depositions did not include rush charges or editing charges. As for plaintiff’s deposition, defendants contend the rush transcript ($1,214.40 of the $5,926.45 total transcript cost) was warranted because of plaintiff’s continued changing of deposition availability before the summary judgment was filed. Why was the plaintiff’s deposition necessary for the summary judgment? Either a motion to compel timely deposition or a motion to continue trial based on plaintiff’s delay. Grant motion to TAX $1,214.40 for expedited deposition transcripts.

ITEM 5, $480.00 ”SERVICE OF PROCESS”. These are costs claimed without presenting invoices or other proof of actual expense. Specifically, Gill Campbell was and apparently continues to be a defense friendly witness who agreed to appear so service of process did not appear to be necessary and she was not deposed. “Friendly” or not, whether a witness agrees to appear in court is no guarantee of an appearance. DENY MOTION TO TAX $480.00 for service of process fees.

PLAINTIFF MICHAEL KIDD

ATTORNEY BORIS TREYZON, DAVID BEDERMAN

Abir Cohen Treyzon Salo, LLP

1901 Avenue of the Stars, Suite 935

L.A., CA 90067

DEFENDANTS KRAVE GROUP, LLC; CHARLES CHUCK AKSLAND; TERRY KARGES; WAYNE RAINEY; RICHARD VERNER

ATTORNEYS RICHARD BUCKLEY & GEORGE KOUMBIS

Arent Fox LLP

555 West Fifth Street, 46th Floor

L.A., CA 90013-1065