Case Number: EC047718 Hearing Date: June 06, 2014 Dept: NCD

Defendants’ Motion to Tax Costs

TENTATIVE:

Motion to tax costs is GRANTED in part and DENIED in part as follows.
The court finds that plaintiff People of the State of California was the prevailing party in this action entitled to costs under CCP section 1032(a).

1.) Motion to tax Item 4—Deposition Costs—is GRANTED in part.
The court finds that it was not reasonably necessary to the litigation that counsel obtain non-refundable airfares, and that plaintiff has not established the necessity and reasonableness of claimed expenses for meals and “Misc.” expenses claimed.

Costs claimed of $13,153.54 are reduced by $500 with respect to airfare, $152 with respect to meals, and $575.46 for “Misc.” expenses.

Costs claimed of $13,153.54 are reduced to $11,926.08)

2.) Motion to tax Item 5—Service of Process—is GRANTED in part.
At the concession in the opposition, the amount claimed is reduced by $600.

Costs claimed of $850 are reduced by $600 to $250.

3.) Motion to tax Item 11—Models, blowups and photocopies of exhibits—is DENIED.
The court’s review of the file shows that these costs were reasonably and necessarily incurred.

Costs claimed of $1,002.00 are awarded in full.

4.) Motion to tax Item 12—Court reporter fees as established by statute—is GRANTED in part.
At the concession of plaintiff in the opposition, the costs are taxed by $78.75, a claim for transcripts.

Costs claimed of $2,883.75 are reduced by $78.75 to $2,805.

5.) Motion to tax Item 13—Other—is GRANTED

Costs claimed of $7,459.05 are stricken and reduced to -0-.
ANALYSIS:
Factual Background
Plaintiff The People of the State of California, through the California Department of Managed Health Care, brought this action against defendant Jeanette Martello, M.D., and her professional corporation, seeking civil penalties and injunctive relief based on defendants’ alleged improper practices with respect to billing patients for elective plastic surgery medical services.

The matter went to a court trial in June of 2013, before Judge Milton. On November 15, 2013, the court entered judgment in the matter for plaintiff and against defendants, awarding $562,500 in statutory penalties, and enjoining defendants from billing patients treated in an emergency room if that person is in a plan licensed by the Department of Managed Health Care, permitting defendants to bill for co-payments and deductibles in amounts determined by the patient’s health plan to be the patient’s responsibility, and ordering defendants to dismiss all pending legal actions brought by defendants against any person treated in the emergency department of any California hospital on or after October 15, 2008, who was enrolled in a plan licensed by the Department of Managed Health Care.

The judgment further provides, “It is further ordered that plaintiff shall recover costs against defendants pursuant to a memorandum to be filed within 10 court days.”

Substantive
CCP § 1032 provides that “(b) 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.” This is clearly a case where plaintiff was the party with the net monetary recovery, entitled to recoverable costs.

1.) Item 4—Deposition Costs
CCP § 1033.5(a)(3) provides that an allowable cost includes:
“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, and travel expenses to attend depositions.”

The motion argues that the costs for travel expenses to attend depositions are overstated, as the average airfare from Sacramento to Los Angeles during the time in question was $148.92-$153.08, when the expenses sought for five depositions range from $526.33 to $862.52.

The opposition provides a cost breakdown for the travel expenses for each trip, which includes not only airfare, which state employees are required to book under refundable rates, but also lodging, meals, and miscellaneous expenses, which evidently include parking fees and mileage to and from the airport. [See Ex. 3]. The reply argues that the State is confusing costs recoverable from the other party with those recoverable by a State employee against its employer, which is true to some extent.

Here, although meals are reimbursed to employees by the State, such costs need not be passed on to the other side in a costs bill. The court may determine that counsel would have had to pay for meals in any case, whether traveling to deposition or not, or may find the circumstances here, where Sacramento-based State employees were required to prosecute the action in Los Angeles, justifies awarding expenses of meals while traveling to depositions. In addition, there appear to be substantial sums sought here for “MISC,” without any explanation of what these expenses were, only generally stating they were for parking and traveling to the airport. The Court finds that the State has failed to sufficiently establish that these fees were necessarily incurred, as no breakdown of what they represent is provided to be challenged.

2.) Item 5—Service of Process
The opposition submits a bill showing that two $125 fees were charged to personally serve the subject process, with a $600 stake out fee. [Ex. 8]. The State indicates that is cannot obtain all supporting documents to support the $600 fee and withdraws that item. The Item is therefore by taxed by $600.

3.) Item 11—Models, blowups and photocopies of exhibits
CCP 1033.5(a)(12) provides “Models and blowups of exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to the trier of fact.”

The cost memorandum seeks $1,002 in this category, seeking reimbursement for copies of 835 pages times four, at .30 per page. This appears reasonable. Defendants argue that plaintiffs did not utilize 835 pages multiplied by 4 at the time of trial, and requests the entire sum be taxed. The opposition does not submit any evidence on this, such as an invoice, or even a declaration, but argues that all documents were used at trial and admitted into evidence. The reply argues that not all exhibits were admitted, but similarly provides no evidence for this or explanation as to why copying charges for at least some exhibits should not be allowed. The costs claimed are awarded in full.

4.) Item 12– Court Reporter Fees
Here, fees are sought in the sum of $2,883.75, for transcription at trial and for an original and one copy of the transcript. The opposition concedes that plaintiff is not entitled to the $78.75 charge for a transcript. The item is therefore taxed by this sum.

Government Code Section 68086 provides in part:
(a)(4) The costs for the services of the official court reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law.

(5)(B) That if an official court reporter is not available, a party may arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter, the costs therefor recoverable as provided in paragraph (4).

CRC Rule 2.956(c) provides:
“If the services of an official court reporter are not available for a hearing or trial in a civil case, a party may arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter. It is that party’s responsibility to pay the reporter’s fee for attendance at the proceedings, but the expense may be recoverable as part of the costs, as provided by law.” See also Govt. Code 68086.

The recoverable costs for a reporter retained by the party therefore appear to be the fee “for attendance at the proceedings,” to serve as official reporter, which is what the remaining costs claimed represent, and they are supported by a bill. [Ex. 6]. The costs shall accordingly not be any further taxed.

5.) 13. Other-
These costs are sought under CCP §1033.5(a)(13), which provides that allowable costs include:
“Any other item that is required to be awarded to the prevailing party pursuant to statute as an incident to prevailing in the action at trial or on appeal.”
CCP§ 1033.5(b)(4) provides that “items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”

The costs sought are $7,459.05 for travel expenses for two attorneys for pretrial, trial and post-trial proceedings.

As noted above, travel expenses are authorized by the statute for attendance at deposition, but not otherwise. Defendants rely on Ladas v. Calif. State Auto. Assn. (1993) 19 Cal.App.4th 772, under which travel to other events are not allowable costs: n:
“The only travel expenses authorized by section 1033.5 are those to attend
depositions. (@ 1033.5, subd. (a)(3).) Routine expenses for local travel by
[*776] attorneys or other firm employees are not reasonably necessary to the
conduct of litigation.”
Ladas, at 775-776.

Here, the opposition argues that the court has discretion to award these expenses under section 1033.5, subdivisions (c)(2) and (c)(4):
“(c) Any award of costs shall be subject to the following:

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

(4) Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”

There is no compelling authority under which pursuant to these statutes, state employees – – by virtue of incurring travel expenses which complied with reimbursement rules for the agency – – may pass those costs on to the other side in litigation. There is no statutory or other authority offered under which the state prosecuting an action in a distant city is entitled to these disputed costs. The costs claimed are stricken.