On 05/29/2015 ANPING ZENG filed an Other - Declaratory Judgment lawsuit against LOS ANGELES FILM REGIONAL CENTER II LP. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DEIRDRE HILL. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
LOS ANGELES FILM REGIONAL CENTER II
LOS ANGELES FILM REGIONAL CENTER II LP
TEST PARTY FOR TRUST CONVERSION
LAW OFFICES OF BARRY G. FLORENCE
FLORENCE BARRY G.
KURZBAN KURZBAN WEINGER TETZELI & PRAT
HARTZLER MARK B.
KURZBAN IRA J
YOUNG GEORGE LEUNG-CHU
4/20/2018: Minute Order
6/4/2018: NOTICE OF RELATED CASE
7/5/2018: Minute Order
9/20/2018: Minute Order
12/20/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice
4/5/2019: Minute Order
9/11/2015: EX PARTE APPLICATION TO CONTINUE SEPTEMBER 14, 2015 HEARING; ETC
10/23/2015: PROOF OF SERVICE OF SUMMONS
1/11/2016: Minute Order
1/26/2016: PROOF OF SERVICE - CIVIL
9/7/2016: NOTICE OF CONTINUED OSC RE SERVICE OF COMPLAINT
11/7/2016: FIRST AMENDED COMPLAINT FOR: 1. DECLARATORY RELIEF 2. BREACH OF CONTRACT
11/18/2016: Minute Order
12/1/2016: NOTICE OF ENTRY OF JUDGMENT OR ORDER
5/31/2017: Minute Order
8/25/2017: Minute Order
8/25/2017: OPPOSITION TO EX PARTE APPLICATION;ETC.
10/18/2017: DEFENDANT FENG JIANG'S MEMORNADUM OF REPLY TO OPPOSITION BY PLAINTIFF ANPING ZENG TO MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FOR FURTHER RESPONSES TO SECOND SET OF INSPECTION DEMANDS AND REQUEST
at 08:30 AM in Department 49; Hearing on Ex Parte Application (to Continue Trial (c/f 3-8-19)) - Held - Motion GrantedRead MoreRead Less
at 08:30 AM in Department 49; Jury Trial ((c/f 3-8-19)) - Not Held - Vacated by CourtRead MoreRead Less
at 08:30 AM in Department 49; Final Status Conference ((c/f 3-8-19)) - HeldRead MoreRead Less
Minute Order ( (Final Status Conference (c/f 3-8-19); Hearing on Ex Parte App...)); Filed by ClerkRead MoreRead Less
Notice (of Trial); Filed by Feng Jiang (Defendant)Read MoreRead Less
at 08:30 AM in Department 49; Jury Trial - Not Held - Advanced and Continued - by CourtRead MoreRead Less
at 08:30 AM in Department 49; Hearing on Ex Parte Application (to Continue Trial) - Not Held - Advanced and Continued - by CourtRead MoreRead Less
at 08:30 AM in Department 49; Final Status Conference - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Minute Order ( (Final Status Conference; Hearing on Ex Parte Application to C...)); Filed by ClerkRead MoreRead Less
Ex Parte Application (Ex Parte Application to Continue Trial); Filed by Anping Zeng (Plaintiff)Read MoreRead Less
EX PARTE ORDERRead MoreRead Less
Minute OrderRead MoreRead Less
EX PARTE APPLICATION TO CONTINUE SEPTEMBER 14, 2015 HEARING; ETCRead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
ORDER TO SHOW CAUSE HEARINGRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
OSC-RE Other (Miscellaneous); Filed by ClerkRead MoreRead Less
COMPLAINT FOR DECLARATORY RELIEFRead MoreRead Less
Complaint; Filed by Anping Zeng (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC583483 Hearing Date: November 19, 2020 Dept: 49
Superior Court of California
County of Los Angeles
Los Angeles Film Regional Center II LP, et al.
Hearing Date: November 19, 2020
Department 49, Judge Stuart M. Rice
(1) Plaintiff Zeng’s Motion for Attorney’s Fees
(2) Defendant Jiang’s Motion to Strike Costs
Moving Party: Plaintiff Anping Zeng (Attorney’s Fees); Defendant Feng Jiang (Strike Costs)
Responding Party: Defendant Feng Jiang (Attorney’s Fees); Plaintiff Anping Zeng (Strike Costs)
Ruling: Plaintiff’s motion for attorney’s fees is granted in the amount of $219,645.
Defendant’s motion to strike costs is granted as to $226 in interpreter fees at the attempted deposition, and $2845.30 regarding transcripts not ordered by the Court. The motion is denied in all other respects leaving a total award of costs due to Plaintiff from Defendant in the amount of $10,720.90.
Motion for Attorney’s Fees
This matter came for hearing before the Court on September 14, 2020. The Court continued the hearing for Zeng to provide “supplementary evidence to provide a basis for this court’s determination of reasonable attorney fees.” (9/14/20 Ruling p. 3.) The Court ordered that a supplemental brief and any evidence be filed prior to November 5, 2020, and that Jiang provide a supplemental response thereto by November 13, 2020. The parties made such filings, and now address the issues raised by the Court at the prior hearing.
First, there are no reasonable grounds to argue that Zeng was not the prevailing party. The case proceeded to a lengthy and contentious court trial and Plaintiff prevailed in all of her litigation goals. Jiang may disagree and has exercised his right to appeal the Court’s decision. Nonetheless, the plaintiff is the prevailing party for purposes of this motion. The applicable divorce agreement dated September 7, 2011 provides for the recovery of attorney’s fees in the event of a dispute.
The Court will not disregard Zeng’s supplemental brief as argued by Jiang. In Alan S., the Court of Appeal refused to consider the late filing of a second memorandum because “it would be intellectually dishonest to consider Mary's untimely September 2, 2008 memorandum as a mere ‘amendment’ of her timely July 31, 2008 memorandum.” (Alan S. v. Superior Court (2009) 172 Cal.App.238, 261.) “The grounds in the September 2, 2008 memorandum were wholly distinct and independent of the grounds in the July 31, 2008 memorandum.” (Id.) Such is not the case here. This Court explicitly requested further briefing, including evidence pertinent to the determination of reasonable attorney’s fees, and provided Defendant an opportunity to respond. Thus, Alan S. is readily distinguishable.
While Zeng provides authority which stands for the principle that a contingency arrangement is grounds for an upward adjustment of a lodestar calculation, and that attorneys seeking compensation under a theory of quantum meruit must provide evidence of the reasonable value of services rendered, there is no authority in the supplemental brief which relieves Florence of his requirement to submit evidence to determine a reasonable award of fees. Nevertheless, the Court notes, and is established by case law, that a contingency arrangement may warrant an upwards adjustment, or “lodestar multiplier” to account for the risks of no compensation and incurred costs during representation.
After review of “his emails from 2015, his calendar, his file, and the online case summary,” Florence estimates that billable hours would amount to $241,680. Florence now provides billing invoices compiled from a retrospective review of the records of this case. (Supp. Brief, Exhs. 2-3.) A review of the invoices reveals entries which detail specific activities, the length of time spent thereon, and the applicable hourly rate. (Id.) The Court finds the hourly rate to be reasonable.
Jiang cites to Taylor for the language that “[l]awyers can testify from memory to the hours they devoted to a case. That testimony, based on personal knowledge, can be relevant and admissible. But that evidence may be of poor quality.” (Taylor v. County of Los Angeles (2020) 50 Cal.App.5th 205, 208.) Indeed, while evidence from memory as to hours spent on a matter may be less reliable, this language also reiterates the well-established principle that requests for attorney’s fees may be supported by testimonial evidence. Furthermore, Florence asserts that his estimate is not only compiled from memory, but from a review of the relevant records in this matter. (Florence Decl. ¶ 6.) The Court finds these records to sufficiently compile and detail time spent on representation in this matter, and addresses the disputed individual entries below.
Excessive or Unnecessary Entries
Contrary to Jiang’s argument, the approximate 30 hours for phone calls, and 50 hours for review of documents are not so generalized so as to be “insufficient.” (Supp. Opp. 5:13.) Any entry for “review” of a document specifies which document or set of documents are being reviewed. (Supp. Brief Exhs. 2-3.) Jiang does not identify any specific entry which he contends is too general in nature.
Shanghai Verdicts Expenses
Jiang contends that the tasks pertaining to Zeng’s efforts to obtain res judicata for certain verdicts from a Chinese court were unnecessary and should be deducted from the fee request. Pursuant to Code Civ. Proc. § 1715(b)(3)(A), foreign judgments for divorce, or other judgments rendered in connection with domestic relations, shall not be entered by California courts for purposes of granting a judgment for recovery of monies. Indeed, it is difficult to justify 29.9 hours of billable work, or $28,210, researching and drafting arguments pertaining to res judicata of the Shanghai judgments when Code Civ. Proc. § 1715(b)(3)(A) clearly provides for the ineffectiveness of the Shanghai judgments in a California court.
The Court notes that the table included in Jiang’s supplemental opposition includes a miscalculation. While the total states that 29.9 hours were spent on the “Shanghai Verdicts,” the listed entries amount only to 27.65 hours. Notably, an entry in the “hours” column appears blank. The Court identifies the missing entry in Florence’s submitted time sheets as a 2.25-hour entry for $650, which would harmonize Jiang’s table, and justify the 29.9 total.
However, as to the total dollar amount noted in the table, the Court is unable to explain the discrepancy between the listed amounts and the total. Jiang asserts that the amounts billed in connection with the Shanghai Verdicts total $28,210. However, addition of the listed entries (including the missing entry) amounts only to $19,435. Indeed, $19,435 equals an hourly rate of $650 an hour for 29.9 hours of billable entries. It is unclear where Jiang obtained the “$28,210” figure.
Accordingly, $19,435 shall be discounted from the final award of attorney’s fees.
Unsuccessful Motion to Compel Deposition
Florence made entries totaling $2,875 in connection with drafting an unsuccessful motion to compel Jiang’s deposition. Jiang notes that the Court denied the fee requests made in connection with the motion to compel the deposition. Indeed, the Court held that both parties’ requests for monetary sanctions were denied given that the parties failed to adequately meet and confer. However, Jiang provides no argument as to why time expended in litigation should not be recovered by the prevailing party simply because a motion was unsuccessful. The present request for attorney’s fees is distinguishable from the request for sanctions made in connection with the specific motion. Jiang provides no authority for the proposition that only time expended on successful motions is recoverable by the ultimate prevailing party.
Supplemental Brief to Support Request for Attorney’s Fees
Florence spent 4 hours, or $2,600, to prepare his supplemental brief in connection with Jiang’s motion to strike costs. Jiang argues that because the supplemental briefing was “caused purely by Mr. Florence’s erroneous entries in the initial Memorandum of Costs,” the fees incurred in connection therewith should be discounted. (Supp. Opp. 7:25.) In addition, Florence relied exclusively on his contingency fee arrangement with plaintiff which provided the court with inadequate information to determine what is a reasonable fee.
Indeed, “Ms. Zeng concedes that the fee for Atkinson Baker for the services of the interpreter were not for deposition but were for the trial and including in the section for a deposition interpreter of the Memorandum of Costs created confusion.” (Opp. to Tax Costs 3:18-20.) Furthermore, this Court previously noted that “Plaintiff has not submitted any invoices to support the amount of interpreter fees sought.” (9/14/20 Ruling p. 4.) Thus, further billable entries necessitated by counsel Florence’s defective request for costs shall be discounted from the total award of fees.
Jiang also argues that 9.5 hours, or $6,175, should be discounted for Florence’s time spent reviewing emails and compiling the time entries submitted in support of Zeng’s request for attorney’s fees. Jiang argues that had “Florence kept contemporaneous time records as recommended by Taylor, these hours would not have been necessary to reconstruct his time entries,” and that it would be inequitable to shift this expense to Jiang. (Supp. Opp. 7:16-17.) Indeed, as noted by Jiang, Taylor does not require attorneys working on a contingency basis to maintain contemporaneous time records. (Taylor, supra at 207.) Here, a compilation of time entries was required to support this request for attorney’s fees, should Florence have submitted such evidence in the initial motion or in this supplemental briefing. The Court will not discount time for an entry which is necessary to the resolution of this motion.
Accordingly, $2,600 shall be discounted from the total award of attorney’s fees.
Attorney’s Fees and Pre-Judgment Interest
In Marshall v. Department of Water & Power, the Court of Appeal upheld a trial court ruling that “[the attorney fee award] will not include pre-judgment interest. It is an interesting issue that I wish you would take up on appeal, but it seems to me that the purpose of the pre-judgment interest is really to protect the private citizen against the taking of his or her property by the government, and really would result in an enourmous [sic] windfall to the attorneys, which I think would be inequitable.” (Marshall v. Dep't of Water & Power (1990) 219 Cal.App.3d 1124, 1149.) The court discussed the “underlying rationale for the award of prejudgment interest in an inverse condemnation setting,” and concluded that “[t]he constitutional mandate to make whole a property owner does not translate into a basis for enriching an attorney's fee award.” (Marshall, supra at 1149.) A second case to which Jiang cites is Aetna Life, also involving eminent domain. (Aetna Life & Cas. Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865, 881.)
Zeng contends that the Marshall holding does not apply because this contractual dispute is distinguishable from the inverse condemnation matter in Marshall, and Jiang contends that there are no grounds to distinguish the two. Zeng notes that the right to prejudgment interest in Marshall derived from the Fifth Amendment to the U.S. Constitution prohibiting the unjust taking of private land for public use without just compensation, whereas here, the right to prejudgment interest stems from Civil Code § 3287. Pursuant to § 3287(a), “[a] person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt.”
Notably, while contending that Marshall and Aetna are inapplicable, Zeng provides no authority in which a court has awarded attorney’s fees calculated from a total award including pre-judgment interest. Here, the Court finds no reason to differ from the rationale of Marshall and Aetna. While Marshall and Aetna involved real property, the purpose of prejudgment interest remains “to compensate “’the prevailing party for loss of the use of the funds awarded,’ as well as to offset any ‘costs of bringing a court action’ and ‘to provide an incentive for prompt settlement.’” (Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664.) Additionally, as noted by Jiang, a calculation of attorney’s fees from a total including pre-judgment interest would result in imposing pre-judgment interest exceeding a rate of 10% on Jiang. Adding a hypothetical 40% contingency rate to the awarded pre-judgment interest, and then requiring payment thereof from Jiang would result in Jiang in effect paying a pre-judgment interest at a 14% rate (10% interest, plus 40% of 10% in attorney’s fees.) Pursuant to Code Civ. Proc. § “if a contract entered into after January 1, 1986, does not stipulate a legal rate of interest, the obligation shall bear interest at a rate of 10 percent per annum after a breach.”
Ultimately, this issue is not dispositive of the matter at hand. Zeng, as the prevailing party, shall recover a reasonable attorney’s fees award. The determination of what constitutes a “reasonable award” does not take into account a calculation of pre-judgment interest. As mentioned above, while a contingency fee arrangement may be a factor in calculating a reasonable award, it is not the controlling issue.
Here, Zeng shall recover attorney’s fees for time reasonably spent in litigating this case. The court has considered Florence’s articulation of his time spent, the five years of contentious litigation, a trial of significant length and the risk taken by counsel in handling this case from beginning to end on a straight contingency fee. Florence’s evidence reflects a total of $241,680 for reasonable attorney fees incurred. As discussed above, this total shall be discounted by $22,035 ($2,600 for time spent in preparation of the supplemental brief for costs, plus $19,435 for time spent in connection with research and briefing pertaining to the Shanghai judgment) for a total reasonable attorney fee award of $219,645.
Jiang is ordered to pay Zeng’s attorney’s fees in the total amount of $219,645.
Motion to Strike Costs
As heard by this Court on September 14, 2020, Jiang moved to strike costs from Zeng’s memorandum of costs. Specifically, Item 9 for Court-ordered transcripts on the grounds that there were no court-ordered transcripts, and Item 13 for Interpreter Fees, on the grounds that such fees are only available for recovery when pertaining to depositions.
In its earlier tentative ruling, the Court planned to grant the motion to strike $2,845.30 for Item 9 because the Court did not order transcripts. The motion was continued for Zeng to submit documentation proving the actual expense incurred during trial for the interpretation services.
Zeng’s supplemental brief attempts to justify two remaining costs: (1) court ordered translation expenses, and (2) the trial interpretation fees.
First, “Defendant Jiang does not oppose the $1,000 translation fee for the court ordered translation of documents under CCP § 1033.5(c)(4).” (Supp. Reply 2:6-7.)
Second, as to interpreter fees, Zeng now apparently seeks to recover $226 for interpreter fees incurred at the attempted deposition of Jiang on December 13, 2016. However, it is not clear whether this expense appears in the original memorandum of costs. Jiang contends that it does not, and this Court is unable to determine if so. Zeng submits no further evidence in support of this seemingly novel request. As such, the request to tax this cost is granted.
The primary issue framed by the court in the September 14, 2020 tentative ruling was the trial interpreter expenses. During trial in this matter, the Court exercised its authority to appoint a Chinese interpreter for the plaintiff. (Trial Transcript Day 2, 9/4/19 at 116-121.) Recovery for said expenses is allowed pursuant to Code Civ. Proc. § 1033.5(c)(4). Jiang contends that “the majority of the interpreter’s fees ($3,422.50) were for Ms. Zeng’s own benefit, so that she could understand the trial proceedings. These would fall into the ‘merely convenient or beneficial’ exception to the allowable costs. CCP § 1033.5(c)(2).” The Court disagrees with the position that a party’s ability to understand trial proceedings is” merely convenient.” Zeng provides no evidence or authority to support his argument that the interpreter fees at trial should not be recoverable. Now, as requested by the Court in the September 14, 2020, ruling, Zeng provides an invoice for the trial interpreter expenses. (Supp. Brief, Florence Decl. Exh. 4.)
In light of the foregoing, Jiang’s Motion to Strike Costs is granted for the $226 in interpreter fees at attempted deposition and $2845.30 regarding transcripts not ordered by the court. The motion is denied in all other respects leaving a total award of costs due to plaintiff from defendant in the amount of $10,720.90.
Plaintiff is to prepare an appropriate order and to give notice of this ruling.
Date: November 19, 2020
Honorable Stuart M. Rice
Judge of the Superior Court
Case Number: BC583483 Hearing Date: September 14, 2020 Dept: 49
Superior Court of California
County of Los Angeles
Los Angeles Film Regional Center II LP, et al.
Hearing Date: September 14, 2020
Department 49, Judge Stuart M. Rice
(1) Motion for Attorney Fees
(2) Motion to Strike Costs
Moving Party: Plaintiff Anping Zeng (Attorney Fees); Defendant Feng Jiang (Strike Costs)
Responding Party: Defendant Feng Jiang (Attorney Fees); Plaintiff Anping Zeng (Strike Costs)
Ruling: Plaintiff’s motion for attorney fees is continued to December 30, 2020 at 8:30 a.m. to allow plaintiff to file supplemental evidence to support an attorney fee award. See briefing schedule within.
Motion for Attorney Fees
A prevailing party entitled to contractual attorney fees may recover “reasonable” attorney fees as determined by the court. (Civ. Code, § 1717.) The court has “wide discretion to fix a reasonable amount of attorney fees.” (Gilbert v. Master Washer & Stamping Co., Inc. (2001) 87 Cal.App.4th 212, 220.) “Although the terms of the contract may be considered, they ‘do not compel any particular award.’” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.) The burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable. (Gorman v. Tassajara Development Co. (2009) 178 Cal.App.4th 44, 98.)
As a preliminary matter, the court rejects defendant’s argument that plaintiff is not the prevailing party. Plaintiff has recovered on both causes of action in the operative complaint for declaratory relief and breach of contract. She is therefore the prevailing party and entitled to attorney fees under the parties’ divorce agreement, which is also memorialized in the April 20, 2020 judgment of this court.
Plaintiff’s counsel, Barry Florence, asserts that he and plaintiff had a contingency fee agreement under which Florence would receive between 28% and 40% of the amount of plaintiff’s recovery based on certain benchmarks. (Florence Decl. ¶ 3.) Based on that agreement, Florence seeks an award of attorney fees in the amount of $298,030, which is 40% of $745,075.11, which is the sum of the principal ($500,000) and prejudgment interest ($245,075.11) awarded in the judgment.
Defendant argues that the lodestar analysis applies and that plaintiff has failed to meet her burden on this fee motion because Florence has omitted of his hourly rate and hours spent litigating this matter. Defendant also argues that even if a contingency fee award were proper, plaintiff has failed to proffer evidence showing that 40% is the applicable contingency rate. Finally, defendant argues that plaintiff should not recover attorney fees based on prejudgment interest.
“The law is clear…that an award of attorney fees may be based on counsel’s declarations, without production of detailed time records.” (Raining Data Corp. v. Barrrenechea (2009) 175 Cal.App.4th 1363, 1375.) In Raining Data, the court held that the attorneys’ declarations detailing their experience and expertise supporting their billing rates and explaining their work provided to the client, in the absence of evidence to challenge those declarations, provided an adequate basis for the attorney fee awarded by the trial court. (Id.)
Although “[i]n many cases the trial court will be aware of the nature and extent of the attorney’s services from its observation of the trial proceedings and the pretrial discovery proceedings reflected in the file,….in the absence of such crucial information as the number of hours worked, billing rates, types of issues dealt with and appearances made on the client’s behalf, the trial court is placed in the position of simply guessing at the actual value of the attorney’s services. That practice is unacceptable and cannot be the basis for an award of fees.” (Martino v. Denevi (1986) 182 Cal.App.3d 553, 558.)
Here, the sole evidence supporting plaintiff’s motion for attorney fees is the declaration of plaintiff’s counsel, Barry Florence, which states: Florence has more than 39 years of practice as a litigator. (Florence Decl., ¶ 2.) “The fees were negotiated between the parties with a range of between 28% and 40% based upon certain benchmarks. Based upon my experience, the 28% is lower than normal but it was agreed to between Ms. Zeng and me.” (Florence Decl., ¶ 3.) “This case had some unique issues which I was required to address[,] specifically those related to the proceedings in China that were at the heart of this case….” (Florence Decl., ¶ 4.) In addition, Florence states that defendant used many delay tactics in this action, such as falsely claiming he resided in China to avoid being deposed and failing to attend mediation and settlement conferences. (Florence Decl., ¶ 5.) Further, Florence had to deal with “new” matters at trial, including the introduction of a whole series of documents introduced for the first time at trial. (Florence Decl., ¶ 6.)
Plaintiff cites Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257 for the proposition that an attorney need not provide his or her hourly rate or number of hours spent on the case to justify a contingency fee recovery. However, the provision plaintiff quotes from Mardirossian merely states that Business and Professions Code section 6147 does not require contingency fee lawyers to maintain billing records. (Id. at p. 275.) In Mardirossian, however, “[n]otwithstanding the absence of billing records, each [attorney] testified at length concerning the work he or she performed, the complexity of the issues and the extent of the work that was required.” (Id. at p. 270-271.)
The court also notes that Florence’s declaration regarding the applicable contingency fee rate is somewhat ambiguous, which diminishes its weight. It does not unequivocally state that Florence is entitled to 40% of the amount of plaintiff’s recovery, including prejudgment interest. It merely states that the agreement provided that the percentage would be between 28% and 40% based on certain unidentified benchmarks. Florence’s declaration then confusingly states that he and plaintiff agreed to 28% despite that percentage being “lower than normal.”
Motion to Strike Costs
Code of Civil Procedure section 1033.5, subdivision (a) lists items that a prevailing party may recover as costs. Subdivision (b) lists items that are not allowable as costs, except when expressly authorized by law. Subdivision (c) provides that “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” (Code Civ. Proc. § 1033.5, subd. (c)(4).)
A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein were necessarily incurred. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.) It is not enough for the losing party to attack submitted costs by arguing that she thinks the costs were not necessary or reasonable. (Id.) Rather, the party seeking to strike costs must present evidence to prove that the claimed costs are not recoverable. (Id.)
Defendant’s motion to strike the $2,845.30 in item 9 will be granted because the court did not order transcripts. (See Gene Wu Decl., ¶ 3 [quoting this court’s statement contained within a transcript attached as exhibit A to Wu’s Declaration: “I’m not ordering you to spend money on a transcript for me”].) Defendant correctly observes that Code of Civil procedure section 1033.5, subdivision (b)(5) specifically disallows transcripts of court proceedings not ordered by the court.
As to the interpreter fees, defendant has met his burden of rebutting plaintiff’s prima facie showing in her memorandum of costs. (See Gene Wu Decl., ¶¶ 4-6.) Plaintiff states that the $5,772.50 sought was mistakenly included within item 13, which is for interpreter fees “for the deposition of a party or witness” because the interpreter fees actually sought were for services rendered at trial, not at a deposition.
Although the court may exercise its discretion to award these fees under Code of Civil Procedure section 1033.5, subdivision (c)(4), plaintiff has not submitted any invoices to support the amount of interpreter fees sought. If items are objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) The statement in Barry Florence’s declaration that the costs for the interpreter during trial were included in the wrong space in the memorandum of costs is insufficient evidence to substantiate the interpreter costs incurred during trial.
Therefore, the court will allow Florence to submit documentation proving the actual expense incurred during trial for the interpreter. As the costs incurred for the interpreter during trial rests within the sound discretion of the court, the parties may address whether such fees should be taxed in their supplemental filings.
Defendant’s motion to strike costs is therefore continued to December 30, 2020 at 8:30 a.m. Evidence regarding the interpreter costs shall be submitted no later than December 4, 2020. Defendant may respond to said evidence in the same 10-page brief provided for above, which is due by December 21, 2020.
Plaintiff is ordered to give notice of these rulings.
Date: September 14, 2020
Honorable Stuart M. Rice
Judge of the Superior Court
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