Case Number: SC125700 Hearing Date: January 31, 2019 Dept: K

CASE NAME: Woo v. Phillip Roman & Company, et al.

CASE NO.: SC125700 COMPLAINT FILED: 4-4-16

HEARING: Thursday, January 31, 2019 MOTION C/O: None

CALENDAR #: DISCOVERY C/O: None

NOTICE: ok TRIAL DATE: None

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SUBJECT: Motion to Tax Costs

MOVING PARTY: Defendants Phillip Roman and Company

RESP. PARTY: Plaintiff Kenneth Woo

BACKGROUND

This Motion: Defendant Phillip Roman and Company moves the Court for an order taxing costs totaling $437,150.00 from Plaintiff Kenneth Woo’s Memorandum of Costs.

TENTATIVE RULING

Defendant Phillip Roman and Company’s Motion to Tax Costs is GRANTED, as to items 1, 10, 11, and 13, and DENIED, as to item 4.

The Court STRIKES the following costs: item 1, $775.00; Item 10, $11,775.00; Item 11, $740.00; Item 13 in its entirety, $23,610.00.

Defendant Phillip Roman and Company to give notice.

REASONING

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. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.) 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. (Ibid.; see alsoBender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989 [holding “verified memorandum of costs is prima facie evidence of [the] propriety of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary” and trial court will evaluate whether items were reasonably necessary].)

Defendant Phillip Roman and Company (“Defendant”) moves to tax six different costs in Plaintiff Kenneth Woo’s (“Plaintiff”) Memorandum of Costs. The Court notes Plaintiff inexplicably used a Memorandum of Costs form from 1999. Plaintiff should download and use the most up-to-date MC-010 form in the future. Nevertheless, the Court addresses each of the 6 items in turn.

Item 1: Writ Filing Fee

First, Defendant moves to tax a portion of item 1 (item 1.d. on the costs worksheet), a $775.00 filing fee for a petition for writ of mandate. Defendant argues this cost was not “reasonably necessary” to the litigation because Plaintiff’s writ was denied. Plaintiff argues the Court already ruled that attorneys’ fees for taking the writ were proper, so costs for the same are also appropriate. On August 14, 2018, the Court granted Plaintiff’s Motion for Attorney’s Fees in the amount of $400,000.00. The Court did not specifically rule on whether or not attorneys’ fees for taking the writ were proper. The Court finds the petition for writ of mandate regarding Plaintiff’s motion for summary adjudication (which was summarily denied) was not “reasonably necessary” to the litigation. Therefore, Defendant’s Motion to Tax Costs is GRANTED as to item 1.d.

Item 4d: Deposition Costs

Second, Defendant moves to tax a portion of item 4 (item 4.d. on the costs worksheet), $250.00 in deposition costs for transcribing the non-appearance of Steve Arenal at a deposition. Defendant argues Plaintiff did not properly notice this deposition, and attaches its objections to the deposition subpoena. Plaintiff argues Defendant gave notice of an ex parte application to stop this deposition, which it later cancelled and no one appeared. Neither party provided the Court with enough information to determine whether this deposition was properly noticed. The item appears to be a proper charge, and Defendant has not met its burden to show this cost was not reasonable or necessary. (Ladas, supra, 19 Cal.App.4th at pp. 773-74.) Defendant’s Motion to Tax Costs is DENIED as to item 4.

Item 8.b.: Expert Fees

Third, Defendant moves to tax a portion of Plaintiff’s item 13, i.e. item 8.b. on the worksheet, $18,360.00 for expert fees. Expert fees not ordered by the court are not allowable as costs except where expressly authorized by law. (Code Civ. Proc., § 1033.5, subd. (b)(1).)

Defendant argues Plaintiff failed to serve a 998 offer, so he is not entitled to any expert fees. Plaintiff’s opposition memorandum is so brief as to be nearly completely unhelpful. Plaintiff argues, without citation to any authority, that “[t]he Labor Code is not limited by the provisions of Section §998 of the Code of Civil Procedure.” Plaintiff’s argument is inapposite. A plaintiff prevailing on Fair Employment and Housing Act (“FEHA”) claims may be entitled to recover expert witness fees. (Gov. Code, § 12965, subd. (b).) But Plaintiff did not prevail on any FEHA claims. Plaintiff fails to cite any law allowing expert fees in this situation, and therefore fails to meet his burden to show he is entitled to the same. Therefore, Defendant’s Motion to Tax Costs is GRANTED as to item 8.b. on the worksheet (the second item 3 on the summary of Plaintiff’s Memorandum of Costs), in the amount of $18,360.00.

Item 10: Attorney’s Fees

Fourth, Defendant moves to tax item 10 of Plaintiff’s Memorandum of Costs, attorneys’ fees in the amount of $411,775.00. As discussed above, the Court already awarded attorneys’ fees in the amount of $400,000.00 to Plaintiff. Therefore, Defendant’s Motion to Tax Costs is GRANTED as to item 10 in the amount of $11,775.00. As a practical matter, the Judgment entered already contains an award of $400,000 in addition to a blank line for costs. Thus, the amount of costs should not include another $400,000.

Item 11: Models, Blowups, Copies

Fifth, Defendant moves to tax item 11, $900.00 for Models, blowups, and photocopies of exhibits. “Models, the enlargements of exhibits and photocopies of exhibits … may be allowed if they were reasonably helpful to aid the trier of fact.” (Code Civ. Proc., § 1033.5, subd. (a)(13).)

Defendant argues, and Plaintiff does not dispute, that Plaintiff presented no models or blowups at trial. Defendant argues $900.00 for exhibit copies is unnecessary and that a more reasonable amount would be $160.00, based on the normal rate for copies, the amount of exhibits, and the number of copies actually needed. Plaintiff argues he had to prepare for trial twice “as the matter was set for trial on two occasions approximately one year apart.” Plaintiff’s argument is unpersuasive. Plaintiff may only recover these costs if “reasonably helpful” to the jury. Binders the jury apparently never saw do not qualify. Defendant’s Motion to Tax Costs is GRANTED as to item 11 in the amount of $740.00.

Item 13: Hotel Stay

Sixth, Defendant moves to tax item 13 (item 13 on the costs worksheet), $5,250.00, “lodging to avoid travel time to court; messenger.” “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2)). Plaintiff fails to explain how much of the $5,250.00 was for lodging and how much was for messenger costs. Additionally, it does appear that attorneys staying in Santa Monica during the trial, rather than traveling from Pasadena, is an expense for the lawyers’ convenience, not “reasonably necessary” for the conduct of this litigation. For these reasons, Plaintiff fails to meet its burden to show he should recover these costs. Thus, Defendant’s Motion to Tax Costs is GRANTEDas to item 13 in the amount of $5,250.00.

In sum, the amount to be taxed is $36,900 of Plaintiff’s cost bill of $448,179. As stated earlier, $400,000 in attorney’s fees is already included in the Judgment and should not be awarded again in the costs slot. Therefore, the total amount of costs awarded to Plaintiff (exclusive of already included attorney’s fees) to be filled in on the Judgment is $48,179.