Case Number: BC521900
NOE ABARCA VS CITIZENS OF HUMANITY LLC

Filing Date: 09/20/2013
Case Type: Other Employment Complaint (General Jurisdiction)
Status: Verdict 03/09/2017

03/22/2018
Motion to Tax Costs

TENTATIVE RULING — MOTION #1: TAX COSTS

Defendant’s Evidentiary Objections are SUSTAINED as to Nos. 1-3 and otherwise OVERRULED. Motion is granted in part. Memorandum of Costs is taxed in the total sum of $26,616.80. The total recoverable costs are reduced from $142,299.92 to $126,683.12.

Filing and Motion Fees

Defendant objects to Plaintiff’s submission of bills for use of an attorney service in the filing of documents. The use of an attorney service is not really a “filing fee” within the plain meaning of that term, and Plaintiff may not recover these costs as of right. The cases have referred to these fees as messenger or courier fees. Costs for courier or messenger fees are not specifically enumerated as allowable costs in Code of Civil Procedure section 1033.5, subdivision (a), neither are they prohibited in section 1033.5, subdivision (b). Thus, messenger fees may be recoverable in the trial court’s discretion if “reasonably necessary to the conduct of the litigation.” (Code Civ. Proc., § 1033.5, subd. (c)(2); Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 776.); See also Foothill-DeAnza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30. In this case, it appears to the court that these costs were both necessary and reasonable to the litigation, so the motion to tax these costs is DENIED.

Deposition Costs

Defendant objects to the deposition costs on the grounds that Plaintiff has not provided sufficient information to justify them. But as D admits, deposition costs are recoverable as of right. And as the authority set forth above provides, where an item appears proper on its face, the burden falls on Defendant to prove it was unreasonable. Defendant has not attempted to prove any of the deposition costs were unreasonable. See Adams v. Ford Motor Co. (2011) 199 C.A.4th 1475, 1486-87 (statements in a memorandum of points and authorities and the declaration of moving party’s counsel are insufficient to carry moving party’s burden). Therefore, Defendant’s motion to tax deposition costs is DENIED.

Service of Process Costs

Defendant objects to these costs on the ground that it refers to service of notices on counsel rather than service of summons or subpoena, as well as on the ground that it represents costs for attempted service which was either ineffectual or effected later by other means. Defendant is correct that service of notices and other documents is not technically service of process; however, this still falls into the category of discretionary costs under CCP §1035(c)(2).

Plaintiff had to serve the notices and documents somehow, so the costs are allowed. Defendant’s other argument, that some of the costs were for ineffectual attempts at service, has an obvious flaw: lack of success is no equivalent to lack of necessity. These costs, in the court’s view, were both reasonable and necessary. Thus, the motion to tax “service of process costs” is DENIED.

Expert Fees

Expert witness fees are ordinarily unrecoverable. However, under CCP §998(d), if plaintiff made an Offer of Compromise, he may recover post-offer expert witness fees. But P has included pre-offer fees in his calculation. Plaintiff relies on Bates v. Presbyterian Intercommunity Hosp., Inc. (2012) 204 C.A.4th 210, 222 for the proposition that he may do so. However, there are two problems with this. First, Bates was interpreting Section 998(c), which governs offers made by a defendant rather than offers made by a plaintiff. Id. Second, the Legislature amended Section 998(c) in 2015, three years after Bates was decided, to include language limiting recovery to post-offer costs. Stats.2015, c. 345 (A.B. 1141), § 2, effective 1/1/16.

That said, Plaintiff’s error under Section 998 is ultimately irrelevant, because Gov’t Code §12965(b) permits an award of expert witness fees without time limitation. Defendant disputes the award of fees as to each expert listed. Defendant’s objections are addressed in turn below.

Timothy Lanning

Defendant argues that Timothy Lanning (hereinafter “Lanning”) was never designated as an expert or called by Plaintiff, so no award of costs can be made. Plaintiff contends that he hired Lanning in preparation for the punitive damages phase at a time when Defendant’s net worth was in dispute; as soon as Defendant agreed to the net worth amount, Plaintiff no longer sought to use Lanning’s testimony, but the fee had already been paid. Plaintiff has the better of the argument here. Closely contested trials often have such “false starts;” preparation for contingencies that never happen is usually nothing more than sound practice. Defendant’s motion is DENIED as to Lanning.

Ruth Shapiro

Plaintiff withdraws this item of costs. The motion is GRANTED as to Ruth Shapiro.

Michael Dogali

Defendant argues that Plaintiff should not recover expert witness fees for an expert who was improperly designated and stricken from the expert witness list. Defendant is correct on this point; improper designations are by definition unnecessary. Plaintiff points out that Michael Dogali was permitted to function as a rebuttal witness for impeachment purposes. But that is manifestly not the same thing. Defendant’s motion is GRANTED as to Michael Dogali.

Daniel Silver, Mark Nehorayan, and Sookyung Chang

Defendant argues that all three of these people are not retained expert witnesses, but treating physicians. Plaintiff relies on Gov’t Code §68092.5(a), but that code section governs the payment of expert witnesses. Though it does refer to “a treating physician and surgeon or other treating health care practitioner,” it does not do this with the intent of defining the term expert witness. The parties competing parade of horribles is not relevant: the doctors were on the expert list, and were required to be there by the discovery code. Therefore, they are experts and entitled to compensation as such. Defendant’s motion is DENIED as to these doctors.

EXTTI and Janet Swerdlow

Janet Swerdlow was Defendant’s expert. Plaintiff’s bill here is not really for expert fees, but for deposition costs. Plaintiff should have put those costs under that line item, but the clerical error is no cause to disallow them.

Defendant also argues that EXTTI’s fees should be reduced because his testimony was ineffective and did not persuade the jury. But effectiveness is not the test for whether costs are allowable; the test is whether the expenses were necessary and reasonable. And so they were; Plaintiff needed this expert to make his case, whether or not the outcome was a complete and total success.

Defendant’s motion is DENIED as to these experts.

Summation

Defendant’s motion is GRANTED only as to Ruth Shapiro and Michael Dogali, and otherwise is DENIED. The expert fees are taxed in the amount of $8,820.00

Models and Exhibits

These costs are recoverable as of right, and not improper on their face. Therefore, the burden is on Defendant to prove them unreasonable and unnecessary, which it has not done. Defendant argues that PowerPoint is not included in the statute. This argument does not have merit; the statute does not attempt to list every possible means by which information could be electronically provided to the jury.

Defendant cites to Science Applications Internat. Corp. v. Superior Court (1995) 39 C.A.4th 1095, 1105 for the proposition that video editing to produce clips of depositions is unrecoverable. However, that is not precisely what Science Applications said. Science Applications stands for the proposition that a party cannot recover costs for using exceptional, state of the art equipment when an equally effective, more mundane method exists. Id. (“[t]he fact that the State took a state-of-the-art approach to the testimony does not make it allowable”). In Science Applications, the State of California spent over $35,000 to perform high-end video editing, which in 1995 was a rarity outside of a Hollywood studio. Id. Twenty-three years later, almost any ordinary laptop has video editing tools, and a video deposition is as “mundane” now as it was unique then. Plaintiff’s claimed cost for the entirety of his trial displays is less than one-third of the bill at issue in Science Applications. The court finds this was a reasonable and necessary cost.

Defendant’s motion is therefore DENIED as to this line item.

Court Reporter Fees

Plaintiff withdraws this element of costs because it reflects the cost of ordering transcripts rather than the cost of having a reporter.

Plaintiff requests that the court consider its newly-arrived bill for $5,253.00 in reporter fees. The court declines to do so; such an untimely submission is impermissible.

Defendant’s motion is GRANTED as to this item.

Miscellaneous

Plaintiff withdraws his claim of costs for printing, medical records, and travel and food during trial.

That leaves mediation costs, translator charges, investigations, and “Special Messenger Services/Witness Consulting.”

Defendant’s sole basis for challenging the mediation costs is that Plaintiff’s counsel told him one day that Plaintiff was not going to be charged for the mediation. That is not enough to overcome Plaintiff’s assertion that he actually was charged. The translation costs are obviously reasonable and necessary where, as here, Plaintiff does not speak English. Defendant’s challenge to these costs is perfunctory and without merit.

Defendant’s motion is DENIED as to the mediation costs and translator charges.

On the other hand, the investigation expenses are expressly excluded by CCP §1033.5(b)(2); Plaintiff cites no on-point authority suggesting an exception in these circumstances. And the combination of two very different types of items (special messenger services with witness consulting) is improper on its face. The court cannot tell what these items are, and Plaintiff’s explanation is not illuminating.

Defendant’s motion are GRANTED as to the investigation expenses and the special messenger/witness consulting items.

Conclusion

Defendant’s motion is GRANTED as to the court reporter fees, the investigation expenses, and the special messenger/witness consulting item.

Plaintiff’s cost bill is thus be taxed in the total amount of $26,616.80.

Defendant’s motion is otherwise DENIED.

IT IS SO ORDERED:

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