- CDG Defendants’ Motion to Strike or Tax CRH’s Memorandum of Costs
- CDG Defendants’ Motion to Strike or Tax Culligan’s Memorandum of Costs
Motion to Strike or Tax Costs Sought by CRH:
The Motion to Strike or Tax Costs brought by the CDG Defendants and directed towards the Memorandum of Costs filed on behalf of CRH California Water, Inc. is granted in part and denied in part.
The request to apportion costs incurred prior to January 27, 2020 to Plaintiffs is denied. The record of this action demonstrates that, while a Master Cross-Complaint was not filed until January 27, 2020, the CDG Defendants were litigating cross-claims and issues relevant to their cross-claims well in advance of this filing. (See Mora Cross-Complaint filed on April 21, 2017 [ROA No. 1106] and Opposition filed on November 27, 2019 [ROA No. 1516]). It is CDG’s cross-complaint against CRH and Culligan (“the Water Defendants”), not the Long Form Complaint and associated Ávila Short Form Complaint that framed the controversy resulting in a Summary Judgment against CDG in connection with the Ávila bellwether action.
Consequently, it cannot be said that only costs incurred after January 27, 2020 are attributable to the CDG Defendants. Moreover, regardless, it is the reasons costs were incurred, that governs. (Ducoing Management, Inc. v. Superior Court (2015) 234 Cal.App.4th 306, 315). Here, costs earlier incurred may nonetheless have proven essential and/or “reasonably necessary” to the litigation of the CDG Defendants’ claims.
With respect to Defendants’ challenges to Item 1 of the Memorandum of Costs, the request to tax the charge in the amount of $6,057.20, relating to filing a “Notice of Rescheduled IDC Hearing” (Item 1(f)) is granted, as the charge is questionable on its face and CRH did not respond to this objection.
“The 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.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, citing Ladas v. California State Auto Association (1993) 19 Cal.App.4th 761, 774). In such event, “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.” (Id.).
As CRH did not meet this burden, the item is properly stricken.
Additionally, the Court finds that the Memorandum of Costs should be taxed in the amounts of $447.20 and $42.20, as to the CDG Defendants, as these items are attributable to answering Complaints pursued by Plaintiffs and, thus, fairly attributable only to Plaintiffs.
Thus, Item 1 in the Memorandum of Costs is taxed in the overall amount of $6,546.60. The remainder of the challenges to Item 1 are denied, as the CDG Defendants did not offer any explanation, demonstrating the discrete filings identified in the Memorandum of Costs relate only to the Complaint. The Memorandum of Costs worksheet sufficiently identifies the items filed to enable the CDG Defendants to challenge the them or to offer specific arguments that the items should be apportioned to Plaintiff. CDG did not discharge its burden to do so.
“It is up to the plaintiffs in a motion to tax costs to point out that some costs are not related to the joint theory of liability, but are specific to a particular plaintiff, and it is therefore not fair to include these in a joint award.” (Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1376).
Similarly, with respect to the challenges to Item 4, the CDG Defendants primarily assert that “the majority of depositions noted were completed prior to the filing of the cross-complaint in the Avila matter.” (Motion: 9:9-11). Defendants also assert that certain discrete depositions related only to other Plaintiffs. (Motion: 9:22-27).
The Motion offers no declaration which supports these factual assertions or which otherwise demonstrates any particular deposition was unnecessary.
As was the case in County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, “defendant submitted no affidavits in support of her motion to tax costs.” (Id. at 1113). “Defendant merely alleged that the depositions were neither necessary nor reasonable under the circumstances. Opposed to this was the county’s declaration under penalty of perjury that each item in the cost bill was reasonably incurred. In this situation, defendant has not met her burden of showing that her depositions were unnecessary.” (Id. at 1113-1114).
Similarly, here, Defendants offered no declaration and, in contrast, the declaration of Grant Mullen indicates “the depositions were reasonably necessary to the conduct of the litigation.” (¶5 of Mullen Declaration).
Moreover, as indicated above, the burden is on the moving party to demonstrate apportionment is justified. (Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1376).
In addition to the above, the CDG Defendants challenge the Memorandum of Costs, on the basis CRH did not provide supportive documentation. This argument was largely mooted by the April 1, 2021 lodging by CRH; also documentation is not necessary absent a challenge to the amount of the costs as opposed to a challenge to the entitlement to that category of costs. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265).
While the CDG Defendant repeatedly assert supportive documentation must be provided, they did not challenge the amounts sought or otherwise indicate the amounts requested were not actually incurred. (See Motion, generally).
Consequently, the Court finds the CDG Defendants did not challenge the costs, such as to require documentation pursuant to Jones v. Dumrichob (1998) 63 Cal.App.4th 1258.
Within this item, at most, the Court will strike the $1,697.05 submitted by Resnick & Louis, as the Memorandum does not identify the depositions being referenced. (ROA No. 2464). Absent identification of the depositions, Defendants were rendered unable to respond to the request or challenge its connection to the Cross-Complaint.
Consequently, the Court finds the charge was questionable on its face and CRH failed to justify the same. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, citing Ladas v. California State Auto Association (1993) 19 Cal.App.4th 761, 774).
With respect to Item 5, the Court taxes this category in the amount of $3,948.23, which represents service costs associated with cancelled subpoenas, duplicative subpoenas and subpoenas for which CRH ultimately declined to obtain records. (See Exhibit D in CRH’s Notice of Lodging [ROA No. 2593]). The notations included within the invoices, indicating records were declined, duplicative or cancelled, are good evidence the identified subpoenas were not reasonably necessary to this litigation.
As to the subpoenas for which no records were ultimately located, the same does not demonstrate the requests were unreasonable or unnecessary.
Lastly, the CDG Defendants challenge costs associated with eight specific individuals. (5/17 Sur Reply: 9:3-7). As to five of these individuals, the CDG Defendants assert that no depositions actually occurred. (Id. at 9:11-13). As to the remaining two, the CDG Defendants assert the depositions were unnecessary. (Id. at 9:13-15).
These challenges are denied on the basis Defendants failed to meet their burden to demonstrate the identified costs were unreasonable. For example, defendants provided no declarations asserting these depositions did not go forward or that the costs incurred were otherwise unreasonable or unnecessary.
Notably, “[objecting party’s] mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of its counsel are insufficient to rebut the prima facie showing [that the costs were necessarily incurred].” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266).
Similarly, the challenges to Items Nos. 9, 14 and 15 are denied. The CDG Defendants object to these categories due to the lack of invoices. (Motion: 11:24-25, 12:3-4 and 12:10-11). The Sur-Reply also asserts that CRH’s lodging did not include invoices for these categories; however, the motion did not challenge the amounts requested or indicate the amounts were not actually incurred such as to require documentation, pursuant to Jones v. Dumrichob (1998) 63 Cal.App.4th 1258.
Lastly, the Court grants the request to strike costs in the amount of $19,797.58, relating to unidentified “subpoena costs.” The CDG Defendants challenge this category asserting “subpoena costs” are not specifically permitted by C.C.P. §1033.5. (Motion: 12:19-20). Also the CDG Defendants assert they are unable to discern what this item is referring to. (Motion: 12:24-27). This phrasing is ambiguous, as CDG asserts, and it is unclear which category of allowable costs within C.C.P. §1033.5(a), these costs refer to, if any. Notably, costs were identified relating to service of subpoenas, within Category No. 5 (“Service of
Process”), discussed above.
Based on the above, the item is questionable on its face and the burden was properly shifted to CHR. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, citing Ladas v. California State Auto Association (1993) 19 Cal.App.4th 761, 774). As CHR did not respond to this objection or address this item, the item is stricken.
- Motion to Strike or Tax Cost Sought by Culligan
The Motion to Strike or Tax Costs brought by the CDG Defendants and directed towards the Memorandum of Costs filed on behalf of Culligan International Company is granted in part and denied in part.
With respect to Item 1, the Court will tax the Memorandum of Costs in the total amount of $868.00 as to the CDG Defendants. This amount includes a $547.00 filing fee relating to an MSJ directed towards Plaintiff’s Complaint, $296.60 conceded by Culligan to be attributable to Plaintiffs (3/30 Sur Reply: 3:10-12) and duplicative charges in the amount of $24.40.
The remainder of the CDG Defendants’ challenges to Item 1 are denied, on the basis Defendants failed to meet their burden of proof. Defendants challenge specific costs as being unnecessary or attributable to Plaintiff. (See Reply: 2:15-4:10); however, Defendants do not submit a declaration, which supports these assertions.
The burden is on the moving party to demonstrate apportionment is justified. (Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1376).
Also, “[objecting party’s] mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of its counsel are insufficient to rebut the prima facie showing [that the costs were necessarily incurred].” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266).
As was the case in County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, “defendant submitted no affidavits in support of her motion to tax costs.” (Id. at 1113).
For these same reasons, the challenges directed towards Item 4 are denied. Additionally, while the Reply asserts that “only the ‘certified transcript’ cost noted on each bill is reasonable and necessary.” (Reply: 4:11-17). DefendanAts do not further support this argument.
With respect to Item 16, the Court will tax this category in the amount of $568.27. While C.C.P. §1033.5(3)(C) permits “[t]ravel expenses to attend depositions,” Defendants are correct that travel expenses related to local hearings are not included within C.C.P. §1033.5(a). Notably, Culligan concedes this amount within its Sur-Reply. (3/30 Sur Reply: 4:12-13).