Case Number: BC539849??? Hearing Date: July 29, 2016??? Dept: NCB
7. BC539849
WALTER RUF v PALM CANYON HOTELS, INC.
Motion to Strike or to Tax Costs and for:
1. Order taxing $1,211 in filing fees, $4,778.32 for deposition costs, $309.61 for service of process fees, and $33.61 for witness fees from memorandum of costs filed by Kashe Investments, LLC
2. Order taxing $1,211 in filing fees, $8,777.72 for deposition costs, $377.78 for service of process fees, and $33.61 for witness fees from memorandum of costs filed by Vertigo Investments, LLC
This case arises from the Plaintiffs? claim that the Defendants wrongfully caused the death of Walter Ruf when he was a guest in room 276 of the Curve Palm Springs Hotel & Resort. The Plaintiffs claim that the Defendants negligently owned or maintained a pool heater that caused carbon monoxide to accumulate in room 276 and suffocate Walter Ruf.
Trial is set for January 23, 2017.
This hearing concerns the Plaintiffs? motion to tax costs from the memoranda of costs filed by Kashe Investments, LLC, and Vertigo Investments, LLC. Under CRC rule 3.1700, a party may file and serve a motion to tax costs from a memorandum of costs. A verified memorandum of costs is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred. Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal. App. 3d 256, 266. A party seeking to tax costs must provide evidence to rebut this prima facie showing. Jones v. Dumrichob (1998) 63 Cal. App. 4th 1258, 1266. Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred. Id.
1. Item 1 – Filing Fees
The Plaintiffs argue that the Court should strike $1,211 in filing fees from both of the Defendants? memorandum of costs. The Plaintiffs object to all filing fees. The Plaintiffs do not proceed through the costs sought in item 1 of the Defendants? memoranda of costs and offer facts to rebut the prima facie showing in the memorandum of costs that the Defendants incurred each of these fees to file papers with the Court.
For example, the Plaintiffs argue in their papers that a motion for leave to file a Cross-Complaint and a motion for a continuance were not necessary. However, there are no facts in a declaration showing that it was not necessary for the Defendants to incur the filing fees for these motions.
Accordingly, the Plaintiffs? statements in their papers are unsupported by facts and are insufficient to rebut the prima facie showing in the memoranda of costs that the Defendants necessarily incurred these filing fees and the Plaintiffs? motion with regards to filing fees is denied.
2. Item 4 – Deposition Costs
The Plaintiffs argue that the Court should tax $4,778.32 from item 4 in the memorandum of costs filed by Kashe Investments, LLC and $8,777.72 from item 4 in the memorandum of costs filed by Vertigo Investments, LLC. The Plaintiffs state that they object to all deposition costs.
Again, the Plaintiffs do not proceed through each deposition and offer facts to show that each, specific deposition was unnecessary. The Plaintiffs argue that the Defendants cannot demonstrate that the depositions were necessary to the protection of their rights. This argument is not persuasive because the Plaintiffs, not the Defendants, have the burden of proof on this motion to tax. As noted above, the Plaintiffs have the burden of providing facts to rebut the prima facie showing in the memorandum of costs.
The Plaintiffs do not meet their burden. The Plaintiffs argue that the depositions are ?so obviously unconnected to any defense?. The Plaintiffs offer no facts or explanation that proceeds through each deposition and supports this assertion. The Plaintiffs? counsel notes that no specific questions were asked about Vertigo Investments, LLC, or Kashe Investments, LLC. This argument is not persuasive grounds to find that the depositions were unnecessary because a review of the Plaintiffs? pleadings reveal that the Plaintiffs did not plead any separate theory against these Defendants that would require separate questions about the liability of Vertigo Investments, LLC, or Kashe Investments, LLC. Instead, the Plaintiffs grouped all the Defendants together when they pleaded their claims that the Defendants are liable for the death of Walter Ruf. The fact that counsel did not ask a separate question about Vertigo Investments, LLC, or Kashe Investments, LLC, does not establish that the depositions were unnecessary to them because a question about any Defendant would obtain information relevant to the claims against all of them, e.g., questions about notice of the pool heater?s condition.
In the opposition, the Defendants? counsel, Shanna Burkholder, states that when she prepared the memorandum of costs for the Defendants, she apportioned the costs between the numerous Defendants equally because the Plaintiffs? Complaint, First Amended Complaint, and Second Amended Complaint all contain the same causes of action and the same allegations against each Defendant. Further, Ms. Burkholder offers numerous facts to identify each deposition and the manner in which it was relevant to notice of a dangerous condition, damages, causation, and percipient witness testimony from law enforcement personnel. Further, Ms. Burkholder has offered the billing for the costs. These facts corroborate the prima facie showing in the Defendants? memoranda of costs that these costs were necessarily incurred.
Accordingly, the Plaintiffs have not offered facts that rebut the prima facie showing in the memoranda of costs that the Defendants necessarily incurred the deposition costs and the Plaintiffs? motion with regards to deposition costs is denied.
3. Item 5 – Service of Process and Item 8 – Witness Fees
The Plaintiffs argue that the Court should tax $309.61 from item 5 in the memorandum of costs filed by Kashe Investments, LLC and $377.78 from item 5 in the memorandum of costs filed by Vertigo Investments, LLC. In addition, the Plaintiffs argue that the Court should tax $33.61 from item 8 in the memoranda of costs filed by both Defendants.
The Plaintiffs argue that these costs are unnecessary because they were jointly incurred with the other Defendants and none of the costs were incurred to address the issue of the separate liability of Kashe Investments, LLC, or Vertigo Investments, LLC. The Plaintiffs do not meet their burden by proceeding through each of these costs and offering facts to support their arguments. The Plaintiffs again argue that no questions were asked about these Defendants, which, as noted above, is not persuasive because the Plaintiffs did not plead any particular, separate theory against these Defendants. Instead, the Plaintiffs grouped all the Defendants together in the claim that they were all liable for the death of Walter Ruf.
Further, as noted above, the Defendants? attorney has offered facts and billing to demonstrate that these costs were incurred by all the Defendants and that she apportioned an equal share to these Defendants because the Plaintiffs? pleadings were directed at the Defendants as a group and did not identify any particular or separate theory against Kashe Investments, LLC, or Vertigo Investments, LLC. These facts corroborate the prima facie showing in the Defendants? memoranda of costs that these costs were necessarily incurred.
Accordingly, the Plaintiffs have not offered facts that rebut the prima facie showing in the memoranda of costs that the Defendants necessarily incurred the service of process and witness fees and the Plaintiffs? motion with regards to service of process and witness fees is denied.