CASE NAME: HAPPY VALLEY VS COHEN
HEARING ON MOTION TO/FOR TAX COSTS FILED BY TANAIGA REAL ESTATE
CORPPRATION
* TENTATIVE RULING: *
Tanaiga Real Estate Corporation (Tanaiga)?s motion to tax costs is denied.? Federal Insurance Company (Federal)?s request for costs is granted in the total amount of $8,783.88 as follows:? (1) filing and motion fees of $742.48; (2) jury fees of $50.00; (3) deposition costs of $933.72; (4) witness fees of $1415.63; and (5) subpoena costs of $5,642.05.
On July 2, 2015, Federal filed a memorandum of costs, seeking total costs of $9,203.67.? The breakdown of the total costs is as follows:? (1) filing and motion fees of $742.28; (2) jury fees of $50.00; (3) deposition costs of $933.72; (4) witness fees of $1,415.98; and (5) subpoena costs of $6,061.69.? On July 20, 2015, Tanaiga filed a motion to tax costs.? The motion is opposed by Federal.
Tanaiga challenges the costs on three grounds.
First, Tanaiga argues that Federal is not a prevailing party.
Under Code of Civil Procedure section 1032(a)(4), a prevailing party includes: (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.
Tanaiga was one of the plaintiffs in this action against Federal.? (See Second Amended Complaint filed July 7, 2014.)? Tanaiga voluntarily dismissed its second amended complaint against Federal and cannot recover any relief against Federal.? Thus, Federal fits within the last definition of prevailing party?a defendant as against those plaintiffs who do not recover any relief against that defendant.? Code Civ. Proc., ? 1032(a)(4).
Tanaiga argues that the Court should wait to award costs, if any, against Tanaiga, pending the outcome of the litigation between Happy Valley Road, LLC (Happy Valley) and Federal.? Tanaiga argues that given the similarity between Happy Valley?s claims and Tanaiga?s claims, if Happy Valley prevails against Federal, it would be anomalous if Federal was determined the prevailing party as to Tanaiga. Tanaiga relies on Textron Financial Corporation v. National Union Fire Insurance Company of Pittsburg (2004) 118 Cal.App.4th 1061, Webber v. Inland Empire Investments, Inc. (1999) 74 Cal.App.4th 884, Slavin v. Fink (1994) 25 Cal.App.4th 722, and Smith v. Circle P Ranch Co. (1978) 87 Cal.App.3d 267.? However, these cases presented the circumstances different from the instant case.? In these cases, multiple, jointly represented defendants presented a unified defense where some defendants prevailed but not others.? In the instant case, one of the plaintiffs, Tanaiga, dismissed its claims against defendant Federal.? Thus, Tanaiga will not recover any relief against Federal.
Andersen v. Pacific Bell (1988) 204 Cal.App.3d 277 involved the circumstances similar to the instant case.? Multiple employees sued Pacific Bell for emotional distress and other injuries stemming from marketing practices they were instructed to follow, which were later enjoined by the Public Utilities Commission.? Id. at pp. 281-284.? Pacific Bell obtained summary judgment against 22 plaintiffs and submitted a cost bill to recover the costs of those plaintiffs? depositions.? Id. at p. 286.? The trial court recognized that Pacific Bell was the prevailing party as to the twenty-two plaintiffs, but concluded the cost award was premature in light of the remaining claims asserted by the remaining plaintiffs.? Id.? The Court of Appeal held that Code of Civil Procedure section 1032 gave Pacific Bell the right to recover its costs against the twenty-two plaintiffs.? Id. at pp. 286-287.? In the instant case, Federal is the prevailing party entitled to recover its costs against the dismissed plaintiff Tanaiga.? The hypothetical future outcome of the remaining claims between Happy Valley and Federal is not relevant.
Second, Tanaiga argues that the costs incurred by Federal will continue to benefit Federal in its defense of claims asserted by Happy Valley and that Federal should not be awarded the costs until Federal prevails against Happy Valley.
However, the evidence submitted by Federal shows that Federal apportioned its costs so as to charge Tanaiga with a portion of the total amount.? (See Exhibits attached to Memorandum of Costs; Declaration of Jennifer N. Wahlgren and Exhibits attached thereto.)? Since Tanaiga and Happy Valley asserted the same allegations of bad faith and breach of contract against Federal, the costs were equally incurred to defend against both Tanaiga and Happy Valley.? In reply, Tanaiga argues that to the extent that the Court is inclined to award costs to Federal, Federal should be awarded only one-third of its costs since there are three plaintiffs:? Happy Valley, Tanaiga and Rajiv Gosain (Gosain).? However, the second amended complaint identified only two plaintiffs:? Happy Valley and Tanaiga.? (See Second Amended Complaint filed July 7, 2014.)? Federal equally apportioned its defense costs by the number of plaintiffs involved in the action at the time the costs were incurred.? (See Exhibits attached to Memorandum of Costs; Wahlgren Declaration and Exhibits attached thereto.)? The evidence shows that while Gosain was a named party plaintiff along with Happy Valley and Tanaiga, Federal?s defense costs were apportioned in thirds and only one-third was claimed against Tanaiga.? (Id.)? After the second amended complaint was filed and Gosain was no longer a named party plaintiff, Federal apportioned its defense costs equally between Happy Valley and Tanaiga.? (Id.)
Lastly, Tanaiga argues that Federal has not presented evidence to support its subpoena costs.
Service of process fees are recoverable costs under Code of Civil Procedure section 1033.5(a)(4).? Also, items not specifically allowable under section 1033.5(a) may be recoverable in the discretion of the court if reasonably necessary to the conduct of the litigation and reasonable in amount.? Code Civ. Proc., ? 1033.5(c)(2), (c)(4).
Tanaiga challenged the subpoena cost category on the grounds that it cannot determine who served the subpoenas or how.? See Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.? Tanaiga also argues that Federal should have presented evidence as to the amount allowed to a public officer for such service.? However, Federal is not limited to recovering the costs allowed to a public officer to serve a subpoena under Code of Civil Procedure section 1033.5(a)(4).? Federal is entitled to recover the costs actually incurred by a registered process server.? Code Civ. Proc., ?1033.5(a)(4).? Federal may also recover subpoena costs incurred by other vendors based upon application, where the costs are reasonably necessary to the conduct of the litigation and reasonable in amount.? Id.
Federal has presented factual information supporting costs incurred by Federal to serve the subpoenas.? (Exhibit C to Memorandum of Costs.)? In addition, Federal has submitted a declaration of Jennifer N. Wahlgren with its opposition, explaining the subpoenas served in this action and the vendors who provided this service.? (Wahlgren Declaration.)? This declaration explains some difficulties encountered by Federal in serving third party witnesses who provided services to Gosain, Happy Valley and Tanaiga.? (Id.)? Federal retained a private investigator in order to accomplish service in several instances.? (Id.)? The documents submitted by Federal reflect its efforts required to accomplish service.? (Exhibit C to Memorandum of Costs; Wahlgren Declaration and Exhibits attached thereto.)? Federal has also provided copies of the proofs of service for subpoenas which reflect how each subpoena was served.? (Wahlgren Declaration and Exhibit 2 attached thereto.)
In its memorandum of costs, Federal initially requested $6,061.69 for subpoena costs.? (See Memorandum of Costs filed July 2, 2015.)? However, Federal has now reduced its subpoena costs from $6,061.69 to $5,642.44.? (Wahlgren Declaration, ? 7.)? Federal has elected to withdraw certain costs previously claimed in its memorandum of costs as subpoena costs.? (Id.)? Federal has also identified and corrected a mathematical error.? (Id.)
The Court has discovered one additional mathematical error with respect to the subpoena costs. ?First Legal Network, LLC charged $159.02 in connection with service of subpoena on Doke?s Plumbing, Inc.? (See Exhibit C to Memorandum of Costs; First Legal Network, LLC?s Invoice #333837.)? Federal miscalculated Tanaiga?s share of this cost as $79.92.? 50% of $159.02 is $79.51, not $79.92.? (See Exhibit C attached to Memorandum of Costs.)? Therefore, the total amount of subpoena costs is corrected to $5,642.05.
Additionally, the Court corrects two other mathematical errors.? One such error is concerning Item 1, filing and motion fees.? The total amount of filing and motion fees should be $742.48, not $742.28.? (See Memorandum of Costs & Exhibit A attached thereto.)? The other error is concerning Item 8, witness fees.? The invoice amount of witness fees for Celina Pham is $38.20.? (Exhibit B attached to Memorandum of Costs.)? Federal miscalculated Tanaiga?s share of these fees as $19.45.? (Id.)? 50% of $38.20 is $19.10, not $19.45.? Therefore, the total amount of witness fees should be $1,415.63, not $1,415.98.
For the reasons discussed above, Tanaiga?s motion to tax costs is denied.? Federal?s request for costs is granted in the total amount of $8,783.88 as follows:? (1) filing and motion fees of $742.48; (2) jury fees of $50.00; (3) deposition costs of $933.72; (4) witness fees of $1415.63; and (5) subpoena costs of $5,642.05.