2013-00138028-CU-MC

V Randy Bernabe vs. Imogene Genie Propst

Nature of Proceeding:   Motion to Tax Costs

Filed By:  Johnson, Brian D.

The motion of Plaintiffs V. Randy Bernabe, D.O. and The Medical Protective Company
(collectively “Plaintiffs”) to tax costs is GRANTED in part and DENIED in part as
follows:

This is a consolidated action in which Plaintiffs sought declarations statutory rights and
duties under CCP § 1062.5.  After the court sustained a demurrer in the lead case, the
parties agreed that the demurrer should apply to all the cases and that the defendants
were prevailing parties.  The defendants filed a joint memorandum of costs.  Plaintiffs
now move to tax costs pursuant to CRC 3.1700.

In ruling on a motion to tax costs, the court’s first determination is whether the statute
(CCP § 1033.5) expressly allows the particular item and whether it appears proper on
its face.  (Foothill-De Anza Community College Dist. v. Emerich (2007) 158
Cal.App.4th 11, 29-30.)  “If so, the burden is on the objecting party to show [the costs]
to be unnecessary or unreasonable.”  (Id. [quoting Nelson v. Anderson (1999) 72
Cal.App.4th 111, 131] [brackets in original].)  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.  (Nelson, 72 Cal.App.4th at 132.)  Whether a cost
item was reasonably necessary to the litigation presents a question of fact for the trial
court.  (Ladas v. California (1993) 19 Cal.App.4th 761, 774; see also  Gorman v.
Tassajara Devel. Corp. (2009) 178 Cal.App.4th 44, 71.)

Filing/Motion Fees

Based on Plaintiffs’ calculations, Defendants have overstated their filing and motion
fees by several thousands of dollars.  According to Plaintiffs’ calculations, because this
case was resolved at the pleading stage, Defendants are entitled to their first
appearances fees and limited filing fees associated with the demurrers and a motion to
consolidate.  Plaintiffs tallied the first-appearance fees by multiplying the fee amount
by the number of cases filed, i.e., 25.

Defendants counter that Plaintiffs’ tally is erroneous because first-appearance fees are
required for each Defendant, not merely for each case.  Because the number of
Defendants exceeds the number of cases, Defendants argue that Plaintiffs’ tally is
short by approximately $4,000.  In the Reply, Plaintiffs concede their error.

The court thus accepts Defendants’ calculation of filing fees in the amount of $16,155.

The parties also dispute whether Defendants are entitled to messenger fees incurred
to fax-file Defendants’ demurrers.  Although Defendants appear to concede that these
fees are not actually “filing/motion fees” expressly allowed under CCP § 1033.5(a)(1),
they argue that they are nonetheless recoverable in the court’s discretion under
subdivision (c)(4).   In Plaintiffs’ view, the court should tax most of the fax-filing charges as excessive
because fax-filing not necessary.  According to Plaintiffs, even if it was reasonably
necessary to fax-file the first demurrer due to time constraints (as opposed to file by
mail), there was no need to fax-file the balance of the demurrers because they were
essentially duplicates of the first one.  In their Reply, Defendants point out that, had
Plaintiffs stipulated to consolidate all the cases in the first instance, the need for
multiple demurrers could have been avoided altogether.

Despite Defendants’ argument that Plaintiffs could have avoided the need for most of
the demurrers, the court agrees with Plaintiffs that fax-filing fees associated with all but
the first demurrer were not reasonably necessary given the option to file by mail.  The
court likewise disallows any messenger-service fees associate with fax-filing the
motion to consolidate.

The court will allow, however, all the “document prep” fees associated with filing each
of Defendants’ pleadings.  Those fees were reasonably necessary under CCP §
1033.5(c)(4).  To the extent Plaintiffs argue that document prep fees should be found
unreasonable unreasonable given the variability in the fees assessed for the filings,
the court rejects the argument.  (See Reply at 4:1-12.)

In sum, the court allows filing fees in the amount of $16,155, the fax-filing fee
associated with Defendants’ first demurrer, and the document prep fees associated
with all of Defendants’ filings.  Because Defendants have not provided the court with a
tally of these amounts, and because such a tally requires a considerable review of
invoices, the court directs Defendants to tally the allowed amounts in formal order to
be served and lodged under CRC 3.1312.  If Plaintiffs object to Defendants’ tally, then
they may serve notice of their objections under CRC 3.1312(a).

Service-of-Process Costs

Defendants have withdrawn their request for these fees.  Accordingly, the court taxes
these costs in the amount of $4,591.79.

Other Costs–“Legal Research”

Finally, Plaintiffs ask the court to tax $424.50 in “other costs” associated with retaining
a third party vendor (Legislative Research & Intent LLC) to research the legislative
history of CCP § 1062.5.  Citing Ladas v. California State Automobile Association
th
(1993) 19 Cal.App.4   761, 776, Plaintiffs argue that legal-research fees are not
recoverable under CCP § 1033.5 absent a fee-shifting contract.  However, the parties
agree that a vendor’s compilation of legislative materials, without research or advice as
to their import, is recoverable.  (See  Van de Kamp v. Gumbiner (1990) 221 Cal.App.3d
1260, 1292-1293.)

The court finds that Defendants have only requested costs associated with the
compilation of legislative materials.  (See Siminou Decl., ¶¶ 25-27 and Exh. 7.)  The
court makes this finding notwithstanding the appearance of the term “custom research”
in the invoice.  That term is not inconsistent with a search for legislative materials and
does not undermine Defendants’ assertion that the vendor only compiled the materials.
Accordingly, the court denies Plaintiffs’ request to tax costs associated with the
compilation.             Judicial Notice

Plaintiffs’ request for judicial notice of documents in the court’s files is UNOPPOSED
and GRANTED.

Conclusion

Pursuant to CRC 3.1312, Defendants shall lodge a formal order for the court’s
signature.