Case Number: BC560982??? Hearing Date: December 20, 2016??? Dept: 34
SUBJECT: Motion to tax costs
Moving Party: Defendant Joseph Markowitz
Resp. Party: Plaintiff Saul Markowitz and Rose Markowitz
Defendant?s motion is GRANTED IN PART. The Court GRANTS the Motion to Tax in part. The Court taxes $130.00 in item No. 1b and taxes $21,762.65 for item No. 8. Defendant?s motion is otherwise DENIED. The Court awards costs of $38,231.34 ? ($130.00 + $21,762.65) = $ 16,338.69.
BACKGROUND:
Plaintiff Saul Markowitz, as attorney-in-fact for Rose Markowitz, commenced this action on 10/16/14 against defendant for financial elder abuse. Plaintiff is the son of Rose Markowitz and holds power of attorney for her. (Compl., ?? 2-3.) Defendant is also Rose?s son. (Id., ? 4.) In June 1998, Rose and her husband, David Markowitz, established The David and Rose Markowitz 1998 Trust. (Id., ? 8.) David died in July 2006, and Rose amended the Survivor?s Trust in May 2009. (Id., ?? 8-9.) Rose thereafter executed amendments and restatements of the Trust. (Id., ?? 10-17.) The third restatement provided that defendant would receive 75% of Rose?s estate upon her death and plaintiff would receive 25%. (Id., ? 17.) Plaintiff alleges that the third restatement was a result of undue influence exercised by defendant against Rose. (Id., ?? 18-19.) Plaintiff alleges that defendant has engaged in other financial abuse. (Id., ? 29.)
The action proceeded to a trial before the Court on 7/25/16.
The Court entered judgment on 9/21/16 for plaintiff and against defendant on the first cause of action for elder abuse, and for defendant and against plaintiff on the second and third causes of action for unjust enrichment and conversion. The judgment provided that plaintiff is deemed the prevailing party.
ANALYSIS:
After judgment is entered, the prevailing party ?who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal.? (Cal. Rules of Court, rule 3.1700(a).) ?The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in this case.? (Ibid.)
Plaintiff?s memorandum of costs was served on 10/11/16 ? 20 days after the date of mailing of the notice of entry of judgment. (See Minute Order, 9/21/16; Def. Exh. A.) The parties dispute whether the mailing of the notice of judgment extends the deadline by five days pursuant to Code of Civil Procedure section 1013. The parties both cite to Nevis Homes LLC v. CW Roofing, Inc. (2013) 216 Cal.App.4th 353, which held that, where a notice of dismissal was served by mail, the time to file the memorandum of costs was extended by five days. (See id. at p. 354.) However, the court left open the issue of whether the extension would apply where the notice of judgment was mailed by the clerk pursuant to Code of Civil Procedure section 664.5. (Id. at pp. 357-358.) The court noted:
?[U]nder the terms of rule 3.1700(a), the five-day extension does not apply when the notice is sent by the clerk pursuant to section 664.5 because based on the wording of that section, the clerk does not ?serve? the notice but only ?mails? it. Because the case before us falls into the category of cases in which the notice was undisputedly ?served,? we need not address the theoretical problem raised by Nevis as to what would be the result if the notice were mailed by the clerk.? (Ibid.)
Plaintiff correctly points out that, effective 1/1/16, the wording of rule 3.1700(a) has changed, and the rule now provides that a cost memorandum must be served and filed within 15 days ?after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal.? (Cal. Rules of Court, rule 3.1700(a) [emphasis added].) Because section 1013(a) applies ?[i]n the case of service by mail,? and the language of rule 3.1700(a) refers to service of the notice of judgment, it may be found that section 1013(a) applies to the clerk?s service of the notice of judgment by mail. (See Nevis, supra, 216 Cal.App.4th 353, 357-358.) Moreover, plaintiff shows good cause for any delay in the filing date. (See Watanabe Decl., ?? 22-27.)
The Court may find that plaintiff?s memorandum of costs is timely.
In turn, the losing party may file a motion to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b).) Procedurally, ?[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.? (Ibid.) Defendant?s motion was timely filed and served on 10/28/16.
Under California Code of Civil Procedure, section 1032, subd. (b), ?Except as otherwise provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.? A prevailing party is entitled to recover costs as a matter of right under statute. (Davis v. KGO T.V., Inc. (1998) 17 Cal.4th 436, 439.) If the ?prevailing party? requirements of California Code of Civil Procedure section 1032, subd. (b) are met, the trial court has no discretion to order each party to bear its own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198.) ?For purposes of costs, Code of Civil Procedure section 1032, subdivision (a)(4) defines a ?prevailing party? to include ?[1] the party with a net monetary recovery, [2] a defendant in whose favor a dismissal is entered, [3] a defendant where neither plaintiff nor defendant obtains any relief, and [4] a defendant as against those plaintiffs who do not recover any relief against that defendant.? ? (Cussler v. Crusader Entertainment (2012) 212 Cal.App.4th 356, 371.) Here, plaintiff is the prevailing party 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.)
?If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. 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.)
Filing fee
Code of Civil Procedure section 1033.5(a)(1) allows for the recovery of filing and motion fees. Defendant challenges the request for $150.00 for the stipulation to continue trial. Plaintiff states that this stipulation was filed on 3/14/16, and that the costs were reasonably and necessarily incurred. (See Watanabe Decl., ?? 5-6.) However, the costs do not appear to be proper on the face of the memorandum. The Court notes that, pursuant to the stamp on the stipulation, the amount paid was $20.00, which is the filing fee for a stipulation and order. (See Gov. Code, ? 70617(c)(2).) Plaintiff fails to show that the filing fee paid was actually $150.00. Therefore, the Court taxes the amount requested in item 1b by $130.00 and awards $20.00 for the filing fee.
Deposition
Defendant takes issue with the request for costs for videotaping depositions. Code of Civil Procedure section 1033.5(a)(3) expressly allows recovery of costs for “[t]aking, 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.” Therefore, these requested costs are allowable on the face of the memorandum. Defendant fails to provide evidence showing that these costs were not reasonably incurred.
Service of process
Defendant seeks to strike the requested costs of $135.00 for service of process on C/R The Wine Club. Code of Civil Procedure section 1033.5(a)(4) allows the recovery of costs for service of process by a public officer, registered process server, or by other means. ?If service is by a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code, the recoverable cost is the amount actually incurred in effecting service, including, but not limited to, a stakeout or other means employed in locating the person to be served, unless those charges are successfully challenged by a party to the action.? (Code Civ. Proc., ? 1033.5(a)(4)(B).) The cost memorandum states that the service was by a registered process servicer. (See Def. Exh. A, p. 2.) Therefore, this cost appears to be proper on the face of the memorandum of costs. Defendant fails to provide evidence to support the assertion that these costs were not reasonable or necessary.
Expert witness fees
Section 1033.5(a)(8) allows the recovery of expert fees when ?ordered by the court.? Fees for experts not ordered by the court are excluded as recoverable costs, ?except when expressly authorized by law.? (Code Civ. Proc., ? 1033.5(b)(1).) Plaintiff fails to provide any law which expressly authorizes an award of expert witness fees in this case. The Court rejects plaintiff?s argument that it has discretion to allow such recovery. Such discretionary authority only applies to items not otherwise mentioned in section 1033.5. (See Code Civ. Proc., ? 1033.5(c)(4).) Because section 1033.5(b) disallows recovery of expert fees unless expressly authorized by law, the Court does not have discretion to award such fees where they are not expressly authorized.
The Court therefore taxes plaintiff?s request for $21,762.65 in expert witness fees.
Court reporter fees
A prevailing party may recover ?court reporter fees as established by statute.? (Code Civ. Proc., ? 1033.5(a)(11).) The prevailing party may recover the actual cost of the court reporter services. (See Gov. Code, ? 68086(a)(2).) Plaintiff sufficiently shows that the costs for the court reporter were reasonable and necessary. (See Opp., pp. 7-8; Watanabe Decl., ?? 14-16.)
Transcripts of telephone calls
These costs 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 Code Civ. Proc., ? 1033.5(c)].) Plaintiff?s counsel declares that, during the final status conference, defense counsel stated that he intended to object to the admission of the audio recordings, and the Court stated that he would rule on the objection at the time of trial and requested written transcripts of the recordings. (Watanabe Decl., ? 10.) Plaintiff?s counsel declares that a portion of the transcripts were admitted into evidence to impeach the testimony of defendant. (Id., ? 12.) This evidence is sufficient to show that the costs for the transcripts were reasonably necessary to the litigation.
Defendant?s motion is GRANTED IN PART. The Court GRANTS the Motion to Tax in part. The Court taxes $130.00 in item No. 1b and taxes $21,762.65 for item No. 8. Defendant?s motion is otherwise DENIED. The Court awards costs of $38,231.34 ? ($130.00 + $21,762.65) = $ 16,338.69.