Tentative Ruling

Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Thomas Felkay v. City of Santa Barbara
Case No: 17CV03351
Hearing Date: Tue Mar 03, 2020 9:30

Nature of Proceedings: Motion Strike and Tax Costs

City’s motion to tax costs

ATTORNEYS:

Joseph Liebman and Steven H. Kaufman of Nossaman LLP and Richard Monk of Hollister & Brace for plaintiff [“plaintiff”]

Tom R. Shapiro of City Attorney’s Office, Bruce W. Beach/Shawn Hagerty of Best & Krieger LLP (San Diego) and Kendall H. MacVey/Scott Ditfurth of Best & Krieger LLP (Riverside) for Defendant City of Santa Barbara [“City”]

RULING: The motion is granted as to $615 in filing and motion fees; in all other respects the motion is denied. As a result, costs will be allowed in the total amount of $8,616.68.

Background

After plaintiff prevailed at trial, he filed a Memorandum of Costs seeking a total of $9,231.68 in costs. City now seeks to tax $7,947.15 of the claimed costs. Specifically, City challenges the $1500 claim for filing and motion fees (Item 1), contending that the fees set forth in the memorandum only add up to $885, and not $1500. City further challenges the deposition costs (Item 4) in the amount of $5,652.15, contending that the claimed costs (related to six different depositions) are not reasonable in amount, and were not reasonably necessary to the litigation. City challenges the $1,335 sought for court reporter fees (Item 11), on the basis that the cost of transcripts not ordered by the court are not recoverable costs. Finally, City challenges the costs for service of trial subpoenas, claimed within Item 16 (Other), contending that the costs were not reasonable in amount nor reasonably necessary to the litigation.

Plaintiff has opposed the motion.

ANALYSIS

The motion is granted as to $615 of the $1,500 claimed for filing and motion fees in Item 1 of the Memorandum of Costs, and is denied as to all other costs set forth in plaintiff’s Memorandum of Costs. Costs will be allowed in the total amount of $8,616.68.

The right to recover costs is purely statutory, and, in the absence of an authorizing statute, no costs can be recovered by any party. (Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, 439.) Except as otherwise provided by statute, the prevailing party in any action or proceeding is entitled as a matter of right to recover their costs. (Code Civ. Proc., § 1032, subd. (b).) “Prevailing party” is defined to include the party with a net monetary recovery. (Code Civ. Proc., § 1032, subd. (a)(4).)

Certain items of costs are allowable if incurred by the prevailing party, whether or not such costs have been paid. (Code Civ. Proc., § 1033.5, subds. (a) and (c)(1).) Recoverable costs are limited, however, to costs that are both reasonable in amount, and reasonably necessary to the conduct of the litigation. (Code Civ. Proc., § 1033.5, subds. (c)(2) and (3).) Costs which are “merely convenient or beneficial to its preparation” are disallowed. (Code Civ. Proc., § 1033.5, subd. (c)(2).)

Certain items of costs are expressly not allowable as costs, except when otherwise expressly authorized by law. (Code Civ. Proc., § 1033.5, subd. (b).) Items neither specifically allowable nor specifically prohibited may be allowed or denied in the court’s discretion. (Code Civ. Proc., § 1033.5, subd. (c)(4); Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 773-774.)

Costs are obtained by the timely service and filing of a verified memorandum of costs. (Cal. Rules of Court, Rule 3.1700, subd. (a)(1).) Claimed costs may be challenged by the filing of a motion to strike or tax costs. (Cal. Rules of Court, Rule 3.1700, subd. (b)(1).) Unless the objection is made to the entire cost memorandum, the motion must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the Memorandum of Costs, and must state why the item is objectionable. (Cal. Rules of Court, Rule 3.1700, subd. (b)(2).)

Where the items appear on their face to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and 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., supra, 19 Cal.App.4th at p. 774.) Items that are properly objected to are put in issue, and the burden of proof is on the party claiming them as costs. (Id.) Whether an item listed on the cost bill was reasonably necessary is a question of fact for the trial court. (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989.)

Initial verification of the Memorandum of Costs suffices to establish the reasonable necessity of the costs claimed, and there is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Rather, supporting documentation must only be submitted if costs have been put in issue by a motion to tax costs. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.)

Plaintiff is the prevailing party in this action and is entitled to recoverable costs. (Code Civ. Proc., §§ 1032, subd. (b), and 1033.5.) City has challenged several of plaintiff’s claimed costs.

A. Filing and motion fees (Item 1)

Plaintiff claims $1,500 in filing and motion fees, including e-filing costs, within Item 1 of his Memorandum of Costs. City does not dispute that such costs are recoverable, but contends that plaintiff committed a mathematical error in claiming $1,500, rather than in claiming $885, the total amount of such costs articulated in and supported by Attachment 1g to plaintiff’s Memorandum of Costs. The Court agrees, and will tax the claimed costs in the amount of $615.

The attachment to plaintiff’s Memorandum of Costs sets forth $615 in filing and motion fees ($435 to file the complaint, and three $60 motion fees, for a total of $615), and $270 in e-filing fees, for a grand total of $885 in all filing, motion, and e-filing fees. Rather than inserting that $885 into the Memorandum of Costs, plaintiff inexplicably added the $615 in twice, and instead claimed a total of $1,500 in filing and motion fees at Item 1. Plaintiff has supported entitlement to only $885 in such fees, and the remaining $615 will be stricken from the Memorandum of Costs.

B. Deposition costs (Item 4)

Pursuant to Code of Civil Procedure section 1033.5(a)(3)(A), the costs of 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. Further, Section 1033.5(a)(3)(C) permits the recovery of travel expenses incurred to attend depositions.

At Item 4 of his Memorandum of Costs, plaintiff claimed a total of $5,652.15 in deposition costs for the following depositions: (1) $1,237.10 for Kathleen Kennedy; (2) $696.80 for Allison De Busk; (3) $805.70 for Paul Cook; (4) $753.25 for Matthew Webb; (5) $1,487.55 for Stephen Roach; and (6) $671.75 for the second deposition of Kathleen

City challenged plaintiff’s claim of those costs, contending that there was no evidence to support the contention that it was reasonably necessary to depose Kathleen Kennedy twice, particularly given that she did not testify at the Phase 2 trial, which City contends demonstrates that the cost of her second deposition was not reasonably necessary to the litigation. City further asserts that several other individuals deposed by plaintiff, including Allison De Busk and Paul Cook, did not testify at either phase of the trial, which City contends confirms that their testimony was not necessary or indispensable to the proceedings. City contends a deposition is not necessary merely because the deponent’s testimony may have been relevant, citing Fellowship of Humanity v. County of Alameda (1957) 153 Cal.App.2d 673, 702. As a result, City contends that the deposition costs for those who did not testify should be eliminated. City also contends that plaintiff failed to provide any invoices to allow it to determine if there were any unnecessary deposition costs, and the court should therefore strike the entire amount of deposition costs set forth on the memorandum.

As noted above, there is no obligation to provide invoices with the Memorandum of Costs; supporting documentation need only be provided if costs are placed at issue in a motion to tax. Consequently, the Court will decline City’s invitation to eliminate the entirety of the deposition costs claimed. Further, the Court notes that the Fellowship case, relied upon by City, is not of particular relevance in this case here. In that case, the court disallowed the deposition cost for one witness who was not going to be able to testify at trial, where there were 12 other witnesses available to testify on the issue. The transcript was then offered as evidence at trial. The Fellowship court found that the trial court had not abused its discretion in denying the deposition cost, since even though parts of the deposition transcript were relevant, the cost of taking the deposition may well have been unnecessary under the circumstances of the case. That is clearly not the circumstance with any witness whose deposition was taken in this case.

Furthermore, the necessity of a deposition for purposes of recovering costs is determined from the pretrial vantage point of a litigant, and is not based on how useful or relevant the witness ultimately proves to be at trial. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.) Consequently, the fact that a deponent may not have testified at trial does not, as City argues, demonstrate that the deposition was unnecessary.

In opposition to the motion to tax costs, plaintiff provided the invoices for each of the depositions for which costs were claimed in his Memorandum of Costs. He provided evidence that each of the deposition expenses was reasonably incurred and is recoverable. Deponent Kathleen Kennedy was the City project planner in charge of the proposed project, and plaintiff asserts that her deposition was essential to his case, since she was the City employee in charge of reviewing the project and she wrote the Staff Reports that discussed whether it should be approved. Her second deposition was necessary because the City had designated her as an expert, along with Matthew Webb and Stephen Roach, and plaintiff asserts that the depositions of all expert witnesses designated by the City were not just necessary deposition, but were essential. Deponent Allison De Busk was the City’s Senior Planner, and was Ms. Kennedy’s supervisor. Plaintiff asserts that her testimony was necessary because the City contended that plaintiff’s claims were not ripe, and her testimony illustrated how City’s arguments were not rooted in reality, but were fictions created by City as a defense to the action. Finally, plaintiff asserts that the deposition of his own expert, Paul Cook, was taken by the City, and plaintiff ordered a copy of the transcript in order to be prepared for trial.

The Court finds that the depositions were necessary for the litigation, and the costs claimed by plaintiff for each such deposition were reasonable. Consequently, the Court will deny the motion, as it relates to deposition costs.

C. Court reporter fees at trial (Item 11)

Code of Civil Procedure section 1033.5(a)(11) identifies court reporter fees as established by statute as recoverable costs. These costs relate to the charge imposed by the court for providing a court reporter for the proceeding, and are separate and distinct from the cost of transcripts, which are recoverable pursuant to Section 1033.5(a)(9) only when ordered by the court (and which are located at Item 9 of the Memorandum of Costs, for which plaintiff entered the amount of $0). (See also Code Civ. Proc., § 1033.5, subd. (b)(5).) Plaintiff claimed a cost of $667.50 for Phase 1 of the trial, and $667.50 for Phase 2 of the trial, within Item 11 of his Memorandum of Costs, as “Court reporter fees as established by statute.”

City challenges the costs, contending that costs of transcripts not ordered by the Court are not recoverable, and because plaintiff did not present any invoice proving that they were not for transcripts. The argument necessarily fails, and requires that the motion be denied as to these costs. Court records confirm that plaintiff was twice charged by the court the amount of $667.50 for “Court Reporter Per Diem Fees,” and that plaintiff paid those sums to the court on October 4, 2019, for Phase 1, and on January 16, 2020, for Phase 2. The amounts were not related in any way to transcripts, and are fully recoverable by plaintiff, as the prevailing party, pursuant to Section 1033.5(a)(11). The motion challenging the court reporter fees is therefore denied.

D. Trial subpoenas, claimed in “Other” (Item 16)

Within Item 16 (“Other”), plaintiff claimed $345 for the costs for service of trial subpoenas for Phase 1 of the trial. City has challenged the cost, based upon the failure to identify the witnesses, and the failure to provide invoices. In opposition to the motion, plaintiff explains that the costs were incurred for service by a registered process server of three trial subpoenas upon witnesses prior to the bench trial on liability in this case. The first, Elisabeth Weber, is the owner of the home next door to plaintiff’s property, who testified during the bench trial. The other two were Mr. and Mrs. Wiscomb, advised counsel after they had been served, that they would be out of state at the time of trial, and could not change their travel plans. As a result, counsel excused them from testifying. The invoice for such service is attached to the opposition.

The Court finds that these costs are reasonable in amount, and were necessary to the litigation, viewed from the time when they were incurred. Consequently, the Court will deny the motion to tax, as it relates to these costs.