Case Number: BC625953 Hearing Date: January 17, 2018 Dept: 34

SUBJECT: Motion to tax costs

Moving Party: Defendant County of Los Angeles

Resp. Party: Plaintiff Ana Flores

Defendant’s motion is GRANTED in part. The Court taxes $1,716.61 from plaintiff’s memorandum of costs and awards $22,489.39 in costs.

BACKGROUND:

Plaintiff commenced this action on 7/1/16 against Defendants Cedric White and County of Los Angeles Probation Department for: (1) retaliation; (2) discrimination based on sex; (3) harassment based on sex; and (4) failure to prevent discrimination and harassment.

On 10/6/17, a jury found in favor of Plaintiff on her causes of action for retaliation and failure to prevent discrimination and harassment against the County of Los Angeles and awarded $62,127.20.

The Court awarded plaintiff attorney’s fees in the amount of $687,000.00 on 12/07/17.

ANALYSIS:

Defendant moves to tax plaintiff’s request for deposition costs and “other” expenses in Item 4 and 13. Defendant also seeks to strike plaintiff’s request for “models, blow-ups, and photocopies of exhibits” in Item 11.

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032(b).) Plaintiff is the prevailing party in this action pursuant to the judgment.

During the hearing, “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 they were not reasonable or necessary.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) “This procedure provides an orderly and efficient way of placing disputed costs at issue on a line item basis.” (612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285.)

[T]he mere filing of a motion to tax costs may be a “proper objection” to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. [Citation.] However, “[i]f 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 [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” [Citations.]

The court’s first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. [Citation.] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. [Citation.]

(Nelson, 72 Cal.App.4th at p. 131.)

“On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. [Citations.] Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. [Citation.] However, because the right to costs is governed strictly by statute [citation], a court has no discretion to award costs not statutorily authorized. [Citations.]”

(Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1128-1129.)

First, defendant challenges the request for costs in the amount of $2,121.14 but claims that it cannot definitively state whether the objectionable costs are contained in Item 4 (“deposition costs”) or Item 13 (“other”). Defendant argues that:

plaintiff has included costs which are clearly prohibited under Code of Civ. Proc. § 1033.5(b)(3). However, it is difficult to tell which costs Plaintiff has placed some items into her Memorandum of Costs. This has required the County to guess at which expenses belong to which category, making this Motion difficult. . . . [these expenses] include mileage and parking fees, postage and shipping, and document retrieval fees.

(Motion, p. 3:15–18, 24–25.) Defendant argues that Code of Civil Procedure section 1033.5 specifically excludes these costs.

Parking

Costs for parking are not expressly allowed nor are they expressly prohibited. “An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’ ” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 [citing CCP § 1033.5(c)].) The court in Ladas found that “[r]outine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation.” (Id. at pp. 775-776 [local travel expenses included parking fees, cab fares, and mileage].) Defendant fails to provide any evidence suggesting that the parking costs were necessary to the litigation, as opposed to merely being convenient. (See ibid.)

Defendant argues that plaintiff improperly claimed $1,336.63 in parking and mileage fees, “some of which may have been included under deposition costs and some under ‘other’ costs.” (Motion, p. 6:4–5.)

In opposition, plaintiff argues that because plaintiff prevailed in this FEHA action, costs are recoverable under Government Code § 12965(b) and are not controlled by Code of Civil Procedure section 1032(b).) (Opposition, p. 2:19–23.) Under section 12965(b), a court is limited only by the requirement that the costs recovered must have been “reasonably necessary” to the litigation and reasonable in amount.” (Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548.) However, determination of what is reasonable lies solely within the Court’s discretion. (Ibid.; Opposition, p. 2:26–27.)

In light of this standard, plaintiff argues that the parking and mileage fees incurred in driving to “various locations for depositions noticed by Defendants,” as well as routine court hearings were reasonably necessary to the litigation and are “appropriate as the vast majority of the court appearances were required due to Defendant’s approach to discovery.” (Opposition, p. 4:5–11.) Costs for travelling to depositions are recoverable as a matter of right under Code of Civil Procedure section 1033.5(a)(3) and the Court finds no reason to conclude that they are not “reasonably necessary” to the litigation under Government Code 12965(b). But defendant does not object to travel expenses related to depositions. Defendant merely points out that plaintiff’s itemized expenses reflect parking and mileage expenses that, combined with the remaining uncategorized expenses, exceed the $2,148 in “other” expenses requested by plaintiff. (See Motion p. 3:13–18.) Defendant apparently does not care which item is reduced and is simply speculating that some unrecoverable costs have been buried in the deposition costs.

Although the Court may award parking and mileage costs in its discretion, plaintiff has not persuasively argued that these expenses were more reasonably necessary in this case than in a case governed by Code of Civil Procedure section 1032(b). Attending hearings is a routine part of litigation and plaintiff does not present evidence that defendant required her to attended hearings that were unreasonable in number and/or frivolous.

Upon review of plaintiff’s itemized case expenses, the Court concludes that plaintiff improperly requested $952.60 for parking and mileage incurred by “attorneys or other firm” employees.” (See Ladas, supra, at p. 775-76.)

Accordingly, the Court strikes $952.60 from plaintiff’s memorandum of costs.

Postage, Telephone, Copying, and Faxes

Section 1033.5 does not mention costs for faxing documents. However, the statute forbids recovery of costs for postage, telephone, and photocopying costs. (See Code Civ. Proc., § 1033.5(b)(3). Case law has found that costs for faxes are included within this prohibition. (See Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775 [“Fax expenses contain elements of all three of the above nonrecoverable items, and it is unlikely that the Legislature intended to allow attorneys to circumvent the statutory bar by using a fax machine instead of the mail, the telephone or a photocopier.”].)

Defendant argues that plaintiff improperly claimed $250.90 for postage, telephone calls, copying, and faxes. Once again, plaintiff argues that these costs may be recoverable under Government Code section 12965(b) as “reasonably necessary” to the litigation. However, plaintiff does not persuasively argue why these expenses should be recoverable. As defendants note, much of the shipping costs appear to have been incurred in shipping documents between plaintiff’s two attorneys and to plaintiff’s husband. (Motion, p. 5–6:27–1.) Plaintiff does not explain why these costs were necessary or why the documents could not have been delivered via email.

Upon review of plaintiff’s itemized case expenses, the Court concludes that plaintiff improperly requested $230.40 for these expenses that were not “reasonably necessary” to the litigation..

Accordingly, the Court strikes $230.40 from plaintiff’s memorandum of costs.

Courier, electronic research, and “war rooms”

Defendant also objects to a total of $533.61 for costs associated with downloading documents for the LASC website, sending a courier to the Court to retrieve documents, trial supplies, and the use of a conference room as a “war room” for 3 days. (Motion, p. 6:7–14.)

“Fees for legal research, computer or otherwise may not be recovered under section 1033.5.” (Ladas, supra, at p. 776.) Additionally, defendant is correct that section 1033.5 does not provided explicit authority for the recovery of costs incurred for using couriers to retrieve documents or the rental of conference rooms. Once again, plaintiff argues that these costs may be recoverable under Government Code section 12965(b) as “reasonably necessary” to the litigation. However, plaintiff simply argues that these costs are recoverable in the Court’s discretion but fails to provide the Court with a substantial reason for awarding these costs.

Upon review of plaintiff’s itemized case expenses, the Court concludes that plaintiff improperly requested $533.61 for these prohibited expenses.

Accordingly, the Court strikes $553.61 from plaintiff’s memorandum of costs.

Models, blowups, and photocopies of exhibits

Section 1033.5(a)(13) provides that “[m]odels and blowups of exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to aid the trier of fact.” Because this section only allows costs that were helpful to aid the trier of fact, “[i]t follows that fees are not authorized for exhibits not used at trial.” (Ladas v. California State Auto Assoc. (1993) 19 Cal.App.4th 761, 775 [such costs not allowable because the case was dismissed before trial].)

Defendant declares that plaintiff’s attorney did not use any models or blowups to display exhibits at trial. (Motion, p. 5:13–14, Hausman Decl. ¶ 3.) As a result, they could not have been “reasonably helpful to aid the trier of fact.” (Ladas, supra, at p. 775.) In opposition, plaintiff argues that she may recover for “costs of items that were prepared in anticipation for trial.” (Opposition, p. 3:4–8.) Even though plaintiff ultimately decided not to use these models, these expenses were reasonably incurred in connection with the litigation and are recoverable. (See Gov’t Code § 12965(b).)

Accordingly, the Court does not strike this cost from plaintiff’s memorandum of costs.

Conclusion

Defendant’s motion is GRANTED in part. The Court taxes $1,716.61 from plaintiff’s memorandum of costs and awards $22,489.39 in costs.