Motion Tax Cost

Cal. Super. - 6th Dist.April 13, 2017

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Caroline Sanchez vs Julie Sanchez Jones et al Hearing Start Time: 1:30 PM 17CV308535 Hearing Type: Motion: Tax Cost Date of Hearing: 09/07/2018 Comments: Line #1 Heard By: Kuhnle, Thomas Location: Department 5 Courtroom Reporter: - No Court Reporter Courtroom Clerk: Jessica Lauren Crabtree Parties Present: Future Hearings: Exhibits: - The parties have not retained an Official Reporter Pro Tempore; the matter is not reported. The Tentative ruling issued on 9/5/18 (see proof of service filed 9/5/18) is not contested. The Tentative Ruling is adopted. See below. The above-entitled matter comes on regularly for hearing on Friday, September 7, 2018, at 1:30 p.m. in Department 5, the Honorable Thomas E. Kuhnle presiding. The Court now issues its tentative ruling. A party wishing to contest this tentative ruling must give notice to opposing counsel and the Department 5 Courtroom Clerk (408-882-2153) before Thursday, September 5, 2018, at 4:00 p.m. If notice is not provided, this tentative ruling will be adopted as an order of the Court. I. INTRODUCTION This real property dispute was tried over a number of days in November 2017. The Court issued its Statement of Decision and Judgment on June 18, 2018. It concluded: Judgment should be entered against Ms. Sanchez and in favor of defendants Leslie Peralta, Frank Jay Sanchez, and Julie Jones. Defendants are entitled to recover costs. Plaintiff Caroline Sanchez ( Plaintiff ), who is represented by James L. Dawson, Esq. and Joshua J. Borger, Esq., has filed a motion to tax costs. Defendant Leslie Peralta ( Defendant ), who is represented by James P. Lemieux, Esq., Vicky W. Chan, Esq. and Andrew G. Watters, Esq., opposes the motion. ||. DISCUSSION Defendant is the prevailing party. A prevailing party is entitled as a matter of right to recover certain costs. (Civ. Proc. Code 1032(b).)1 Costs that may be recovered are set forth in Code of Civil Procedure section 1033.5. Defendant seeks recovery of $40,644.17 in costs. Plaintiff argues that allowable costs are much lower $12,228.54. Below the Court reviews the costs Defendant seeks to recover. A. Undisputed Recoverable Costs The parties agree Defendant can recover filing fees and jury fees totaling $450. The parties agree that court reporter fees of $6240 may be recovered. The parties also agree that Defendant can recover electronic filing fees of $158.47. B. Deposition Costs Certain costs incurred in connection with depositions are recoverable under Section 1033.5(a)(3), including Printed: 9/7/201 8 09/07/2018 Motion: Tax Cost - 17CV308535 Page 1 of3 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER certain travel expenses. Plaintiff does not dispute deposition costs of $4,478. Defendant claims $7,194.17. The Court has reviewed the information provided by Defendant and concludes that she is entitled to recover $7194.17. C. Service of Process Costs Service of process costs are recoverable under Section 1033.5(a)(4). Plaintiff does not dispute service of process costs of $549.25. Defendant claims $5,512.43. Each invoice shows that Defendant incurred substantial additional costs for next day or same day service. Consequently, instead of running between $40 and $75, which is typical in this county, the service of process costs were routinely in excess of $250, and in one instance, more than $1000. The date for trial in this matter was known well in advance, and the Court is unaware of any last-minute reasons why witnesses had to be suddenly haled into court and thus served within 24 hours. Morever, most of the witnesses who were served did not testify at all. The Court finds that next day and same day service was not necessary and as a consequence, the costs were not reasonable. The Court will allow costs of $100 for each attempt to serve process. Defendant can thus recover $1500. D. Witness Fees Ordinary witness fees pursuant to section 68093 of the Government Code are recoverable. (Section 1033.5(a)(7).) Plaintiff contests any recovery for witness fees. Defendant seeks recovery of witness fees for two witnesses totaling $2500. Government Code section 68093 provides: Except as otherwise provided by law, witness fees for each day s actual attendance, when legally required to attend a civil action or proceeding in the superior courts, are thirty-five dollars ($35) a day and mileage actually traveled, both ways, twenty cents ($0.20) a mile. Since neither witness testified, and because actual attendance is required, Defendant is not entitled to recover the witness fees. E. Court-Ordered Transcripts Court-ordered transcript costs are recoverable under Section 1033.5(a)(9). Plaintiff contests any recovery of these costs. Defendant argues that the Court s Tentative Decision After Bench Trial ordered that trial transcripts be prepared. The Court agrees. Defendant is entitled to recover $8281. F. Models, Enlargements of Exhibits and Photocopies of Exhibits Costs for models and enlargements of exhibits and photocopies of exhibits may be allowed under Section 1033.5(a)(13) if they were reasonably helpful to aid the trier of fact. Plaintiff argues that recoverable costs total $352.82. Defendant seeks recovery of $1,148.97. The Court was assisted by copies of exhibits in the judge s exhibit binder. The cost for trial exhibit binders is listed as $685.15. The Court assumes this amount was for multiple binders. The Court agrees with Plaintiff that Defendant may recover $352.82. G. Other Items Section 1033.5(a) lists categories of costs that may be recovered. Section 1033.5(b) lists categories of costs that cannot be recovered. Section 1033.5(c)(4) states, Items not mentioned in this section and items assessed upon application may be allowed or denied in the court s discretion. Section 1033.5(c)(2) states that such costs shall be reasonably necessary to the conduct of this litigation rather than merely convenient or beneficial to its preparation. Section 1033.5(c)(3) states that such costs must be reasonable in amount. Defendant seeks to recover a number of categories of costs not set forth in Section 1033.5(a) including: copying costs, courier fees, parking, mileage, and airline travel and lodging for Defendant. These requested costs were neither specifically allowable under subdivision (a) of section 1033.5, nor specifically prohibited under subdivision (b) of that section. Therefore, they are the type of costs recoverable in the discretion of the court if reasonable in amount and reasonably necessary to the conduct of the litigation. Courier and messenger charges incurred for such matters as filing documents with the court, complying with appellants document demands, and transporting exhibits to and from the courtroom can be recovered. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 776 ( Ladas ).) The Court finds that using Printed: 9/7/201 8 09/07/2018 Motion: Tax Cost - 17CV308535 Page 2 of3 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER courier services for routine filings is not reasonably necessary. Filing can be accomplished by mailing documents to the court or using an overnight delivery service. Some of the requests also include photocopying, including a copy of the entire case file, which cannot be recovered pursuant to Section 1033.5(b)(3). Courier services were used, however, for time-sensitive filings and service and are thus reasonably necessary. The Court finds Defendant may recover $2980.80 in courier fees. The private investigation fee cannot be recovered pursuant to Section 1033.5(b)(2). Defendant seeks to recover parking fees. Routine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation. (Ladas, supra, 19 Cal.App.4th at 775- 76.) This includes parking fees, cab fares and mileage/parking fees for attorneys and paralegals. The Court finds Defendant cannot recover parking fees. Finally, Defendant seeks to recover her cost of traveling to trial and staying at a motel. A useful discussion of this issue appears in Genesis Merchant Partners, LP v. Nery s USA, Inc. (S.D. Cal. 2013) 2013 WL 12094825, *9-10. The bottom line is that non-local travel costs unrelated to taking depositions fall under Section 1033.5(c). The Court must assess, therefore, whether the travel-related costs were reasonably necessary to the conduct of this litigation. The Court finds Defendant can recover her travel-related costs because it was reasonably necessary for Defendant to participate in trial, and because they were reasonable in amount. Defendant can recover travel costs of $2864.62. |||. DISPOSITION Plaintiffs motion to tax costs is GRANTED IN PART and DENIED IN PART. In sum, the Court awards Defendant costs of $30,021.88. 1Unless otherwise noted, all statutory citations are to the California Code of Civil Procedure. Printed: 9/7/201 8 09/07/2018 Motion: Tax Cost - 17CV308535 Page 3 of3