Case Number: BC528453 Hearing Date: April 10, 2018 Dept: A

# 7. Penelope Armstrong v. County of Los Angeles

Case No.: BC528453

Matter on calendar for: Hearing on motion to tax costs

Tentative ruling:

I. Background

In this case arising from alleged sex discrimination, retaliation, and Labor Code and Bane Act violations, Defendant County of Los Angeles prevailed at trial, and has filed a Memorandum of Costs seeking reimbursement for:

(1) Filing and motion fees – $1,790.00

(2) Deposition costs – $9,277.29

(3) Service of process – $485.00

(4) Court reporter fees – $5,625.85

(5) Models, enlargements, and photocopies of exhibits – $27,092.09

Plaintiff moves to tax costs.

II. Standard

A prevailing party (including a “defendant as against those plaintiffs who do not recover any relief against that defendant”) is “entitled as a matter of right to recover costs in any action or proceeding” under CCP §§ 1032(a)(4) and (b).

A “Memorandum of Costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (CRC, Rule 3.1700(a)(1).)

“If the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant, and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) “[I]f the correctness of the memorandum is challenged either in whole or in part by the affidavit or other evidence of the contesting party, the burden is then on the party claiming the costs and disbursements to show that the items charged were for matters necessarily relevant and material to the issues involved in the action.” (Id. at 699.)

CCP § 1033.5(c) provides, in relevant part, that “any award for costs shall be subject to the following:

(1) Costs are allowable if incurred, whether or not paid.

(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.

(3) Allowable costs shall be reasonable in amount.

(4) Items not mentioned in this section… may be allowed… in the Court’s discretion.”

Need for depositions should be determined “from the pretrial vantage point of a litigant.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.)

“Mere statements in the points and authorities accompanying [a party’s] notice of motion to strike cost bill and the declaration of its counsel are insufficient to rebut the prima facie showing [that the costs were necessarily incurred].” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.)

III. Analysis

Defendant’s Memorandum of Costs was properly verified by Defendant’s counsel pursuant to CRC, Rule 3.1700(a)(1). Plaintiff bears the burden to show, by affidavit or other evidence, that Defendant’s claimed costs were not reasonably necessary to the conduct of the litigation under CCP § 1033.5(c).

The Court evaluates Plaintiff’s challenge to Defendant’s claimed costs below:

A. Filing and motion fees – $1,790.00

Defendant, a public entity, may recover its filing and motion fees under Government Code § 6103.5(a). Plaintiff otherwise fails to submit any evidence challenging the necessity of this cost bill. The Court denies the motion to tax this claimed cost.

B. Deposition costs – $9,277.29

Deposition costs are expressly allowed by CCP § 1033.5(a)(3). Costs of videotaping necessary depositions are allowed by CCP § 1033.5(a)(3)(A). Need for depositions should be determined “from the pretrial vantage point of a litigant.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.)

Plaintiff concedes that costs relating to the depositions of Robert Rifkin and Otis Dobine, and the cost of one day of Plaintiff’s non-videotaped deposition (altogether totaling $2,654.04), were reasonably incurred.

Plaintiff requests that the Court strike (1) the costs associated with the videotaping of Plaintiff’s deposition (purportedly $3,355.00); (2) costs associated with “Volumes II and III” of Plaintiff’s deposition ($3,086.00); and (3) the video-taping fee for Volume I of Plaintiff’s deposition ($182.25).

Plaintiff argues that (1) the videotaping costs of Plaintiff’s deposition were unreasonable and unnecessary because the video footage was never used in this litigation; (2) with respect to Volume II, Defendant double-billed for videographer services on the same date; (3) Defendant was inefficient in conducting Plaintiff’s deposition over three sessions, and only referenced the deposition transcript three times during trial.

Arguments 1, 3-4 are unavailing and unsupported by evidence or law. “It is certainly not inappropriate for a party to choose cutting edge technology…” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 133.) More recent appellate cases note the increasingly commonplace usage of videotaping technology. (See Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 991.)

Argument 2 appears meritorious (see Motion, Exh. D) and is unrefuted by Defendant. The Court grants the motion to strike the greater billed amount, $755.00. The Court otherwise denies the motion to strike deposition costs.

C. Service of process – $485.00

Plaintiff presents no evidence or authorities for the contention that these costs were unnecessary. Defendant shows that acquiring Plaintiff’s medical and retirement records via subpoena was necessary because Plaintiff put her mental health at issue, and that serving a trial subpoena on Deputy District Attorney Rachel Hardiman was necessary to ensure Hardiman’s appearance at trial. (Hausman Decl., ¶¶ 13-14.) The Court denies the motion to tax this claimed cost.

D. Court reporter fees – $5,625.85

CCP § 1033.5(a)(11) authorizes recovery of “allowable” costs of “[c]ourt reporter fees as established by statute.” CCP § 1033.5(b)(5) excludes the costs of “transcripts of court proceedings not ordered by the court.”

Plaintiff argues: (1) Defendant failed to provide any proof that its requested court reporter services were required by statute or ordered by the court; (2) the parties had agreed to split court reporter fees (except for the Pitchess and MSJ hearings); and (3) Defendant’s request to recover $402.90 for a “rough transcript” not ordered by the court is improper under CCP § 1033.5(b)(5).

The Court grants the motion because Defendant has failed to show how recovery of court reporter fees is “established by statute” here. (CCP § 1033.5(a)(11).)

Plaintiff is also correct that Defendant’s request to recover $402.90 for a “rough transcript” not ordered by the court is improper under CCP § 1033.5(b)(5).

Even if the Court were persuaded to allow recovery of any court reporter fees, the Court would only award half of Defendant’s claimed fees (minus the amount claimed for the “rough transcript”), since Defendant admits that the parties had agreed to split court reporter fees (except for the Pitchess and MSJ hearings, apparently). To award the full amount to Defendant would be unreasonable in light of the parties’ voluntary agreement that they would split court reporter fees.

The Court disregards Defendant’s argument: “[B]ecause the County’s Memorandum of Costs inadvertently included amounts for transcripts which are now removed and additional 8 days of trial fees have been added. The allowable costs for the court reporter fees should be $5,844.17.” (Opposition, 7:22-25.) Defendant cites no authority for the idea that a memorandum of costs may be altered (upward, in particular) in an opposing brief to a motion to tax costs.

The Court grants the motion to strike this claimed cost.

E. Models, enlargements, and photocopies of exhibits – $27,092.09

CCP § 1033.5(a)(13) states that a party may recover costs for “[m]odels and enlargements of exhibits and photocopies of exhibits if they were reasonably helpful to aid the trier of fact.” “On its face this statutory language excludes as a permissible item of costs exhibits not used at trial, which obviously could not have assisted the trier of fact.” (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557; see also Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761, 775 (“fees are not authorized for exhibits not used at trial).)

Plaintiff contests Defendant’s claimed (1) costs for exhibits not used at trial and (2) various trial and pre-trial consulting fees.

With respect to the exhibits, Plaintiff states, and Defendant does not contest, that only 54 exhibits were admitted into evidence. Plaintiff also states, and Defendant does not contest, that these exhibits amounted to 600 pages and several video clips. Assuming each page cost $0.10 to copy, Defendant should recover no more than $60, Plaintiff argues. Plaintiff’s argument is meritorious under CCP § 1033.5(a)(13), Seever, and Ladas. These 600 exhibit copies were the only ones “reasonably helpful to aid the trier of fact [i.e. jury].” All other copies, including the ones provided to the Court, witnesses, and opposing counsel, were not.

With respect to the consulting fees, Plaintiff argues that although they are allowable under the Code, in this case they were not “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (CCP § 1033.5(c)(2).) Defendant has characterized the purpose of the consulting as “how to best present the evidence at trial.” (Motion, Exh. C.) The Hausman Declaration at Paragraph 24 states: “The County’s technology consultant and his services included preparing the trial binders which were required by the Court to be provided to Plaintiff and three copies to the Court…” Defendant provides two bills for pre-trial consulting services from two companies in the amounts of $3,162.50 and $5,548.75. (Hausman Decl., Exh. 7.) Defendant also provides a bill for trial consulting services in the amount of $12,650.00. The Court allows Defendant to recover $8,000 only in consulting fees.

The Court also allows Defendant to recover costs for Courtroom Exhibit Presentation Equipment services ($730.00), Digitization and Synchronization of Video ($375.00), Analog Audio to Digital ($1,690), and Video DVD Encoding Only ($625.00). (Id., Exh. 7; see Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 991; Green v. County of Riverside (2015) 238 Cal.App.4th 1363, 1374.)

The Court grants the motion to strike a portion of this overall cost, and allows Defendant to recover $11,480 ($60 for exhibit copies + $8,000 for consulting fees + $3,420 in technology costs).

IV. Ruling

The Court grants in part, and denies in part, Plaintiff’s motion to tax Defendant’s claimed costs, based on the above analysis. The Court allows Defendant to recover $22,277.29 only.

($11,480 plus $485 plus $8,522.29 plus $1,790.)