CHONG SEO YUN VS TOM JUNG SECURITY INC

Tentative Rulings

Case Number: BC581162    Hearing Date: March 16, 2020    Dept: 47

Chong Seo Yun v. Tom Jung Security, Inc., et al.

MOTION FOR ORDER TAXING COSTS

MOVING PARTY: Plaintiff Chong Seo Yun

RESPONDING PARTY(S): Defendant Duo Max Enterprises, Inc. dba Super Cash & Carry Wholesale

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleged wage and hour violations and wrongful termination in violation of public policy against Defendant employer. Judgment was entered in favor of Defendant Duo Max Enterprises following a bench trial.

Plaintiff Chong Seo Yun moves to tax costs.

TENTATIVE RULING:

Plaintiff Chong Seo Yun’s motion to tax costs is GRANTED as to Item No. 5 in the amount of $5,215.00, GRANTED as to Item No. 13 in the amount of $1,516.80, and GRANTED IN PART as to Item No. 14 in the amount of $29.95.

The motion is DENIED as to Item No. 10 and Item No. 16.

DISCUSSION:

Motions To Tax Costs

Plaintiff moves to tax costs in five categories: (1) witness fees (Item No. 8), (2) attorney’s fees (Item No. 10), (3) interpreter fees (Item No. 13), (4) electronic filing fees (Item No. 14), and (5) “other” costs (Item No. 16).

On a motion to tax costs, “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.” (Ibid.) Where the fees listed in the Memorandum of Costs appear proper on their face, the burden is on the party challenging those costs to show that they were unreasonable or unnecessary. (Ladas v. California State Auto Ass’n (1993) 19 Cal.4th 761, 774-776.)

Item No. 5 (Witness Fees)

Plaintiff moves to tax these costs in the amount of $5,215.00. In its opposition, Defendant withdrew its request for these costs.

Accordingly, the motion is GRANTED as to Item No. 5 in the amount of $5,215.00.

Item No. 10 (Attorney Fees)

Defendant has not requested any attorney’s fees as costs that are “fixed without necessity of a court determination,” which could be included in a cost memorandum. Rather, Defendant has noted that attorney’s fees would be (or may be) requested “by motion.”

Plaintiff asks the Court to determine that Defendant is not entitled to attorney’s fees. This is premature, given that Defendant has not requested attorney’s fees. It would not be appropriate for the Court to make that determination without a request for attorney’s fees before it. And given that Defendant has not requested attorney’s fees at this time, there is nothing to tax.

Accordingly, the motion is DENIED as to Item No. 10.

Item No. 13 (Interpreter Fees)

Plaintiff moves to tax these costs in the amount of $1,516.80 out of the requested $2,366.80.

Interpreter fees are recoverable in the following circumstances:

(a) The following items are allowable as costs under Section 1032:

. . .

(3)(B) Fees of a certified or registered interpreter for the deposition of a party or witness who does not proficiently speak or understand the English language.

. . .

(12) Court interpreter fees for a qualified court interpreter authorized by the court for an indigent person represented by a qualified legal services project, as defined in Section 6213 of the Business and Professions Code, or a pro bono attorney, as defined in Section 8030.4 of the Business and Professions Code.

(CCP § 1033.5(a)(3)(B), (12).)

Plaintiff seeks to tax the interpreter fees of Ko & Martin on the ground that only interpreter fees rendered in connection with a deposition are recoverable, other than in circumstances not present here involving an indigent person.

Plaintiff is correct about the law, but Plaintiff has made no showing that the challenged fees were incurred for interpreter services at trial. They are listed under the category of fees of a certified or registered interpreter for the deposition of a party or witness, and therefore they appear proper on their face. As noted above, on a motion to tax costs, “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.” (Ibid.) Where the fees listed in the Memorandum of Costs appear proper on their face, the burden is on the party challenging those costs to show that they were unreasonable or unnecessary. (Ladas v. California State Auto Ass’n (1993) 19 Cal.4th 761, 774-776.) Plaintiff has not presented any evidence that these costs were incurred at trial.

Although Plaintiff did not meet his burden on his own, Defendant’s opposition makes clear that the challenged costs were, in fact, incurred at trial. That means they should not have been listed in the category of interpreter costs in connection with a deposition. If Defendant had intended to seek these costs in the Court’s discretion under CCP § 1033.5(c)(4), they should have been included in the “Other” category, not in a category in which they did not belong.

Having shown with its opposition that these costs, which appeared proper on their face, were actually improper, the motion to tax Item No. 13 is GRANTED in the amount of $1,516.80.

Item No. 14 (Fees for Electronic Filing or Service)

Plaintiff seeks to tax these costs in the amount of $200.65, the total amount Defendant seeks.

The following fees for electronic filing or service are recoverable:

Fees for electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.

(CCP § 1033.5(a)(14).)

Plaintiff argues that these costs should be taxed because the LASC did not have mandatory electronic filing until December 2018, and the two documents Defendant filed in this case (per Item No. 1) – a demurrer to the 1AC and a demurrer to the 3AC – were both filed before December 2018. Defendant indicates, however, that the fees requested were all incurred in 2019. (Declaration of Ryan J. DeRose ¶ 4 & Exh. 2.)

Plaintiff is correct that one of the claimed fees – $29.95 on March 13, 2019 – is improper not because it is a service fee as opposed to a filing fee, but because it is not an electronic service fee. The evidence submitted by Defendant indicates that this was a fee for delivery of a courtesy copy to this Department. (DeRose Decl. ¶ 4 & Exh. 2.) Thus, it was not a fee for electronic service.

Otherwise, Plaintiff primarily argues that these fees were incurred in connection with unsuccessful or withdrawn motions. However, costs may be permitted even as to those incurred for the unsuccessful aspects of the prevailing party’s case. (Michell v. Olick (1996) 49 Cal. App. 4th 1194, 1199-1201.)

Accordingly, the motion is GRANTED IN PART as to Item No. 14 in the amount of $29.95.

Item No. 16 (Other Costs)

Plaintiff seeks to tax these costs in the amount of $1,111.67, representing one-third of the mediator’s fees.

Plaintiff correctly notes that costs not mentioned specifically in CCP § 1033.5, like mediator fees, “may be allowed or denied in the court’s discretion.” (CCP § 1033.5(c)(4).) The Court finds that the fees for a mediation that was Court-ordered were reasonably necessary to the litigation and exercises its discretion to allow these fees.

Accordingly, the motion is DENIED as to Item No. 16.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 16, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org