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This case was last updated from Los Angeles County Superior Courts on 07/05/2019 at 08:20:05 (UTC).

DIANA GDOWSKI VS WAYNE K TSANG

Case Summary

On 12/23/2015 DIANA GDOWSKI filed a Contract - Other Contract lawsuit against WAYNE K TSANG. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5329

  • Filing Date:

    12/23/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Torrance Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

GDOWSKI DIANA

Defendants and Respondents

DOES 1 THROUGH 25

YING BONNI C.

TOMARO ARCHITECTURE INCORPORATED

TSANG WAYNE K.

TOMARO LOUIE

DOES 1 TO 25

TSANG FAMILY TRUST

TRUSTEE OF THE TSANG FAMILY TRUST

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

COX CASTLE & NICHOLSON LLP

LAMPORT STANLEY W.

Defendant and Respondent Attorneys

KELLNER JAMES L. ESQ.

KELLNER JAMES L.

LUNDY ALBRO L.

SHAPIRO MARC S.

 

Court Documents

NOTICE OF RULING AT STATUS CONFERENCE

6/25/2018: NOTICE OF RULING AT STATUS CONFERENCE

NOTICE OF RULING AND TRIAL SETTING

9/27/2018: NOTICE OF RULING AND TRIAL SETTING

PROOF OF SERVICE OF SUMMONS

1/8/2016: PROOF OF SERVICE OF SUMMONS

ORDER GRANTING EX PARTE APPLICATION

4/11/2016: ORDER GRANTING EX PARTE APPLICATION

ORDER GRANTING DEFENDANTS WAYNE K. TSANG, BONNI C. YING, AND THE TSANG FAMILY TRUST DATED 6/6/99'S EX PARTE APPLICATION FOR AN ORDER TERMINATING THE EXPARTE ORDERS DATED APRIL 11,2016 AND APRIL 13, 20

5/20/2016: ORDER GRANTING DEFENDANTS WAYNE K. TSANG, BONNI C. YING, AND THE TSANG FAMILY TRUST DATED 6/6/99'S EX PARTE APPLICATION FOR AN ORDER TERMINATING THE EXPARTE ORDERS DATED APRIL 11,2016 AND APRIL 13, 20

DEFENDANTS WAYNE K. TSANG, BONNI C. YING, AND THE TSANG FAMILY TRUST DATED 6/6/99'S EX PARTE APPLICATION FOR AN ORDER TERMINATING THE EXPARTE ORDERS DATED APRIL 11, 2016 AND APRIL 13, 2016, OR IN THE

5/20/2016: DEFENDANTS WAYNE K. TSANG, BONNI C. YING, AND THE TSANG FAMILY TRUST DATED 6/6/99'S EX PARTE APPLICATION FOR AN ORDER TERMINATING THE EXPARTE ORDERS DATED APRIL 11, 2016 AND APRIL 13, 2016, OR IN THE

NOTICE OF RULING RE EX PARTE APPLICATION OF DEFENDANTS WAYNE K. TSANG, BONNI C. YING, AND THE TSANG FAMILY TRUST DATED 6/6/99 TO CONTINUE TRIAL (AND ALL TRIAL RELATED DATES)

6/10/2016: NOTICE OF RULING RE EX PARTE APPLICATION OF DEFENDANTS WAYNE K. TSANG, BONNI C. YING, AND THE TSANG FAMILY TRUST DATED 6/6/99 TO CONTINUE TRIAL (AND ALL TRIAL RELATED DATES)

NOTICE OF ENTRY OF JUDGMENT OR ORDER

6/27/2016: NOTICE OF ENTRY OF JUDGMENT OR ORDER

NOTICE RE: CONTINUANCE OF HEARING

8/1/2016: NOTICE RE: CONTINUANCE OF HEARING

NOTICE RE: CONTINUANCE OF HEARING

8/1/2016: NOTICE RE: CONTINUANCE OF HEARING

NOTICE OF SPECIAL MOTION AND SPECIAL MOTION TO STRIKE SECOND AND THIRD CAUSES OF ACTION AND RELATED GENERAL ALLEGATIONS IN CROSS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF DIANA

8/18/2016: NOTICE OF SPECIAL MOTION AND SPECIAL MOTION TO STRIKE SECOND AND THIRD CAUSES OF ACTION AND RELATED GENERAL ALLEGATIONS IN CROSS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF DIANA

DEFENDANTS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THEIR MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT

9/22/2016: DEFENDANTS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THEIR MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT

DEFENDANTS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S DEMURRER TO FIRST CAUSE OF ACTION IN THE CROSS COMPLAINT

11/7/2016: DEFENDANTS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S DEMURRER TO FIRST CAUSE OF ACTION IN THE CROSS COMPLAINT

DEFENDANTS' EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DIANA GDOWSKI SUBMITTED IN SUPPORT OF PLAINTIFFS' SECOND SPECIAL MOTION TO STRIKE

11/7/2016: DEFENDANTS' EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DIANA GDOWSKI SUBMITTED IN SUPPORT OF PLAINTIFFS' SECOND SPECIAL MOTION TO STRIKE

DEFENDANTS' REPLY IN SUPPORT OF THEIR SPECIAL MOTION TO STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO CCP 425.16

11/14/2016: DEFENDANTS' REPLY IN SUPPORT OF THEIR SPECIAL MOTION TO STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO CCP 425.16

PLAINTIFF'S OBJECTION TO DEFENDANTS/CROSS-COMPLAINANTS' NOTICE OF RULING AND ETC

4/5/2017: PLAINTIFF'S OBJECTION TO DEFENDANTS/CROSS-COMPLAINANTS' NOTICE OF RULING AND ETC

NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL (CIVIL)

8/3/2017: NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL (CIVIL)

NOTICE OF DEFAULT (UNLIMITED CIVIL APPEALS)

8/21/2017: NOTICE OF DEFAULT (UNLIMITED CIVIL APPEALS)

161 More Documents Available

 

Docket Entries

  • 05/28/2019
  • at 09:00 AM in Department 34; Non-Jury Trial - Not Held - Continued - Stipulation

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  • 05/10/2019
  • at 09:00 AM in Department 34; Final Status Conference - Not Held - Continued - Stipulation

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  • 03/20/2019
  • Notice (of Entry of Order Re Stipulation to Continue Trial, Final Status Conference and Related Deadlines); Filed by Diana Gdowski (Plaintiff)

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  • 03/18/2019
  • Stipulation and Order (to Continue Trial, Final Status Conference and Related Deadlines); Filed by Diana Gdowski (Plaintiff)

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  • 09/27/2018
  • NOTICE OF RULING AND TRIAL SETTING

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  • 09/27/2018
  • Notice of Ruling; Filed by Diana Gdowski (Plaintiff)

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  • 09/26/2018
  • at 08:30 AM in Department 34; Status Conference (Status Conference; Trial Date Set) -

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  • 09/26/2018
  • Minute Order

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  • 09/26/2018
  • Minute order entered: 2018-09-26 00:00:00; Filed by Clerk

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  • 09/19/2018
  • Status Report; Filed by Diana Gdowski (Plaintiff)

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351 More Docket Entries
  • 01/08/2016
  • PROOF OF SERVICE OF SUMMONS

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  • 01/08/2016
  • Notice and Acknowledgment of Receipt; Filed by Plaintiff/Petitioner

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  • 01/08/2016
  • NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

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  • 01/08/2016
  • Notice and Acknowledgment of Receipt; Filed by Plaintiff/Petitioner

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  • 12/23/2015
  • Complaint Filed

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  • 12/23/2015
  • Summons Filed

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  • 12/23/2015
  • SUMMONS

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  • 12/23/2015
  • COMPLAINT FOR SPECIFIC PERFORMANCE

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  • 12/23/2015
  • Complaint; Filed by Diana Gdowski (Plaintiff)

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  • 01/01/1900
  • at 08:32 AM in Department Legacy; Unknown event

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Tentative Rulings

Case Number: BC605329    Hearing Date: May 3, 2021    Dept: 34

SUBJECT: Motion to Tax Costs

Moving Party: Plaintiff and Cross-Defendant Diana Gdowski

Resp. Party: Defendants Wayne K. Tsang and Bonni C. Ying, individually and as trustees of the Tsang Family Trust dated 6/6/99

Plaintiff’s motion to tax costs is GRANTED in part. The Court taxes $3,512.63 in requested costs; Defendants are entitled to recover costs in the amount of $35,650.14.

PRELIMINARY COMMENTS:

Plaintiff states in her motion that she seeks to “tax $12,119.29 of costs specified in the memorandum of costs served electronically on March 22, 2021.” (Motion, p. 4:4-5.) However, Plaintiff is actually requesting to tax costs totaling $17,784.62. However, this does not affect the Court’s analysis or decision.

BACKGROUND:

Plaintiff commenced this action on 12/23/15 against defendants (Defendants plus Louie Tomaro and Tomaro Architecture Inc.) for specific performance. Plaintiff filed a first amended complaint on 9/9/16 against defendants for specific performance, contract, and nuisance.

Plaintiff alleges that surface and subsurface drainage from defendants' property has caused damage to Plaintiff's property. Plaintiff alleges that when defendants planned to perform construction on their property, Plaintiff protested. Plaintiff alleges that she and defendant Tomaro, on behalf of defendants, entered into a contract to resolve Plaintiff's objections to defendants' application for city approval, pursuant to which Plaintiff and defendants agreed that the drainage plans for the property would be submitted to Plaintiff's civil engineers and defendants would incorporate Plaintiff's civil engineers' comments into their development plan. Plaintiff alleges that defendants failed to provide detailed information necessary to prepare a final drainage plan. Plaintiff alleges that defendants attempted to change the site plan without Plaintiff's approval. Defendants eventually revised the drainage plan and stated that they were no longer required to install the drainage system in Accordance with Plaintiff's civil engineers' recommendations. Plaintiff alleges that defendants have, refused to implement further recommendations from Plaintiff's civil engineers.

On 7/6/16, Defendants filed a cross-complaint against Plaintiff for: (1) declaratory relief; (2) intentional nuisance; and (3) fraud. Defendants allege that Plaintiff has engaged in harassment against Defendants in order to force Defendants to accept Plaintiff's demands about the drainage plans and other aspects of the project.

On 7/27/16, Plaintiff filed an anti-SLAPP motion to strike against Defendants' cross -complaint ("First Motion"). Plaintiff withdrew this motion upon reading Defendants' opposition, and then filed another, corrected anti-SLAPP motion on August 18, 2016 ("Second Motion").

On 11/21/16, the Court denied Plaintiff's Second Motion. (11/21/16 Minute Order.) The Court found that Plaintiff's Second Motion failed to establish that Defendants' claims were based on Plaintiff's protected conduct. (Ibid.) The Court noted that, while the cross -complaint includes allegations as to administrative proceedings, those allegations were "merely incidental" to the alleged harassment occurring outside the proceedings. (Ibid.)

On 11/21/16, the Court also denied Defendants' anti-SLAPP motion. (Ibid.)

On 1/13/17, Plaintiff appealed the Court's order denying Plaintiff's anti-SLAPP motion.

On 03/20/17, the Court denied Defendants’ motion for attorneys’ fees.

On 05/29/18, the Court of Appeal affirmed this Court’s rulings on the two anti-SLAPP motions, concluding that neither the operative first amended complaint, nor the operative cross-complaint arise from free speech or petitioning activity protected by the anti-SLAPP statute.

On 02/01/2021, the cross-complaint was called or court trial and the first cause of action for declaratory relief was voluntarily dismissed as moot.

On 02/02/2021, following the completion of Cross-Complainants’ case in chief, the Court granted Cross-Defendant’s motion for nonsuit pursuant to Code of Civil Procedure section 631.8 as to Cross-Complainants’ cause of action for fraud.

On 02/03/2021, following the completion of trial, the Court found that the Cross-Complainants prevail on their cause of action for Nuisance against Cross-Defendant Diana Gdowski and are awarded damages as follows:

1. $10,000 in damages for increased construction costs;

2. $63,500 in damages for lost rent;

3. $50,000 in general damages;

4. $5,000 in punitive damages.

On 03/12/2021, the Court granted the judgment (revised). The Court ordered:

“Plaintiff DIANA GDOWSKI shall recover nothing on her Complaint.

Cross-Complainants WAYNE K. TSANG and BONNI C. YING, individually and as trustees of THE TSANG FAMILY TRUST DATED 6/6/99 shall recover $128,500 on their Cross-Complaint.

Defendants and Cross-Complainants WAYNE K. TSANG and BONNI C. YING, individually and as trustees of THE TSANG FAMILY TRUST DATED 6/6/99 and Defendants LOUIE TOMARO and TOMARO ARCHITECTURE INCORPORATED are the prevailing parties in the Action and as such shall have judgment entered in their favor and shall recover costs and disbursements according to a memorandum timely filed, in the amount of $_________________; and altogether with interest on said judgment at the legal rate on and after the date of entry of said judgment.” (03/12/2021 Judgment (Revised), p. 3:2-14.)

On March 23, 2021, Defendants/Cross-Complainants filed a memorandum of costs, seeking $39,162.77 in costs.

On April 6, 2021, Plaintiff/Cross-Defendant Diana Gdowski filed the instant motion to tax costs.

ANALYSIS:

I. Motion to Tax Costs

A. Legal Standard

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).)

After judgment is entered, the prevailing party “who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule 3.1700(a).) “The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in this case.” (Ibid.)

In turn, the losing party may file a motion to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b).) Procedurally, “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.” (Ibid.)

Even where parties are unsuccessful as to certain matters, prevailing parties as defined by statute (Code of Civil Procedure section 1032) are entitled to recover all costs reasonably incurred, and proof that parties were unsuccessful on particular items is not tantamount to a demonstration that such costs were unreasonably incurred. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1200.)

During the hearing, “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.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) “This procedure provides an orderly and efficient way of placing disputed costs at issue on a line item basis.” (612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285.)

“[T]he 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. [Citation.] However, “[i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” [Citations.]

The court’s first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. [Citation.] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. [Citation.]” (Nelson, supra, 72 Cal.App.4th at p. 131.)

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. (Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761, 774.) “There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Supporting documentation must be submitted only if costs have been put in issue by a motion to tax costs.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.)

B. Discussion

Plaintiff Diana Gdowski moves to tax the following costs:

· Item No. 1: Filing and motion fees: Amount to be taxed $1,565, which amount includes (i) $500 for a motion for summary judgment that was not filed, (ii) $875 for a notice of appeal, in which the Court of Appeal ordered that Defendants were to bear their own costs in the appeal, (iii) $60 for filing a motion for attorney fees which the Court denied, and (iv) $130 for a notice of designation of record on appeal in which the Court of Appeal ordered that Defendants were to bear their own costs in the appeal.

· Item No. 9: Court-ordered transcripts: Amount to be taxed $1,947.63. The Memorandum states this cost pertains to “transcript on appeal” with respect to an appeal in which the Court of Appeal ordered that Defendants were to bear their own costs in the appeal

· Item No. 11: Models, enlargements, and photocopies of exhibits: Amount to be taxed $5,665.33.

· Item No. 16: Other: Amount to be taxed $8606.66. (Motion, p. 2:4-20.)

1. Filing and Motion Fees

Pursuant to Code of Civil Procedure section 1033.5(a)(1), filing and motion fees are allowable costs. However, allowable costs shall be reasonably necessary to the conduct of litigation rather than merely convenient or beneficial to its preparation. (Code Civ. Proc., § 1033.5(c)(2).)

Plaintiff seeks to strike the following costs from the motion and filing fees and for a total amount of $1,565.00:

· $500.00 filing fee for a summary judgment motion that was not filed;

· $1,005.00 filing fees related to the appeal of the Court’s denial of the Tsang Defendants’ anti-SLAPP motion ($875.00 for a filing fee for “1/20/17 Notice of Appeal” and $130.00 filing fee for “2/07/17 Notice of Designation of Record”), which the Court of Appeal stated that “Each side is to bear their own costs on appeal”;

· $60.00 filing fee for a motion for attorneys’ fees, which the Court denied and found that “Defendants have failed to abide by common curtesy and professional standards.” (Motion, pp. 4:26-5:10, citing Ex. 2, pp. 37-40.)

In opposition, Defendants argue that the filing fees for the motions should not be taxed because these costs were incurred and therefore are recoverable. (Opp., p. 3:9, 3:18.) Defendants maintain that “if a motion is reserved, a filing fee must be paid, whether the motion is ultimately filed or not.” (Id. at p. 3:8-9.) Defendants also argue that “with regard to appellate costs, while the Court of Appeal declined to award costs at the time of its decision, that decision does not prevent this Court from nevertheless awarding costs now that trial in this matter is complete and the case has resulted in a final judgment in favor of Defendants, which entitles them to recover all costs that were reasonably incurred during the litigation.” (Id. at p. 3:14-18.)

In reply, Plaintiff argues that Defendants have not shown the summary judgment filing fee is justified. (Reply, p. 2:16.) Plaintiff asserts that “there is no record of the motion on the Court’s docket [, t]here is no documentation for payment of the filing fee[, t]here is no evidence a motion was ever prepared[, and t]here is no evidence the fee was not incurred in error, if it was incurred at all.” (Id. at p. 2:18-21.) Plaintiff also argues that “Defendants have not justified the filing fee for a motion brought in breach of professional standards.” (Id. at p. 3:8-9.) Plaintiff maintains that “A filing fee to bring a motion where the Defendants failed to abide by professional standards is neither necessary nor reasonable” and Defendants have not met their burden to prove otherwise. (Id. at p. 3:13-15.)

First, the Court finds that the filing fee for the summary judgment motion is not recoverable because Defendants have not presented any evidence that the reservation fee for the summary judgment motion was actually incurred or that this motion appeared on the Court’s docket. Second, the Court finds that the filing fees relating to the appeal of the Court’s denial of the Tsang Defendants’ anti-SLAPP motion are not recoverable, as the appellate court stated that “[e]ach side is to bear their own costs on appeal.” (Motion, Ex. 1, p. 15.) Third, the Court finds that Defendants have failed to demonstrate that the filing fee for the motion for attorney’s fees, where the Court found that Defendants have failed to abide by professional standards, is necessary or reasonable.

The Court GRANTS Plaintiff’s motion to tax the motion and filing fees in the amount of $1,565.00.

2. Court-Ordered Transcripts

Transcripts of court proceedings not ordered by the court are not allowable as costs, except when expressly authorized by law. (Code Civ. Proc., § 1033.5, subd. (b)(5).)

Defendants seek the recovery of $1,947.63 in costs for “Transcript on Appeal.” (Memorandum of Costs Worksheet, ¶ 9.)

Plaintiff moves to tax the $1,947.63 in costs for court ordered transcripts on the grounds that the Court of Appeal stated that “[e]ach side is to bear their own costs on appeal.” (Motion, p. 6:11-15, citing Ex. 1, p. 15.)

This Court did not order transcripts of the appellate case reviewing the denial of Defendants’ anti-SLAPP motion. Further, the appellate court stated that “[e]ach side is to bear their own costs on appeal.” (Motion, Ex. 1, p. 15.)

The Court GRANTS Plaintiff’s motion to tax costs of $1,947.63.

3. Models, Enlargements, and Photocopies of Exhibits

Code of Civil Procedure section 1033.5(a)(13) provides that expenses for models, blow-ups, and photocopies of exhibits may be allowed if “reasonably helpful to aid the trier of fact.” Additionally, the Court has discretion to allow costs for copies that are reasonably necessary to the conduct of litigation. (Code Civ. Proc., § 1033.5(c)(2); Applegate v. St. Francis Lutheran Church (1994) 23 Cal. App. 4th 361, 364.)

Cross-Complainants seek $5,665.33 for models, enlargements, and photocopies of exhibits. (Memorandum of Costs Worksheet, ¶ 11.)

Plaintiff moves to tax these costs on the ground that Defendants have failed to meet their burden to support the recovery of these costs and that “the vast majority of Defendants’ exhibits were not reasonably helpful to aid the Court.” (Motion, p. 6:3-6.) Plaintiff maintains that “if the Court is going to allow costs in this category, the costs should be limited to exhibits that were used at trial and should not include costs for any of the foregoing exhibits.” (Id. at p. 7:23-24.)

In opposition, Defendants argue that “Plaintiff ignores the fact that a nonsuit was granted on Plaintiff’s complaint, the result of which was that Defendant never had to present a defense to Plaintiff’s claims.” (Opp., p. 3:21-23.) Defendants argue that their costs for exhibits are recoverable because “the costs of preparing the defense, including exhibits that potentially don’t ultimately become evidence, is a cost that is incurred and thus allowable.” (Id. at p. 3:27-28.)

In reply, Plaintiff argues that “Defendants fail to provide any supporting evidence to allow the Court to determine the cost to reproduce the exhibits.” (Reply, p. 4:20-21.) Plaintiff maintains that “Defendants do not identify a single exhibit that they would have used had the Court not granted a 631.8 motion on Plaintiff’s first amended complaint.” (Id. at p. 4:22-23.) Plaintiff asserts that “the Court has no basis to discern the cost of the six exhibits they did use, and no basis to determine the cost of the unidentified exhibits Defendants claim they would have used.” (Id. at p. 4:23-25.)

Plaintiff’s counsel asserted at oral argument that there is a split of opinion in the Court of Appeal as to whether the Court can award costs for exhibits that were not used at trial – and that that issue is now before the California Supreme Court. This Court believes that, had the Court not granted the non-suit pursuant to §631.8, these exhibits would have aided the trier of fact, and hence are the basis for an award of costs.

The Court finds that Defendants have met their burden to demonstrate that the expenses for models, blow-ups, and photocopies of exhibits were used at trial and were “reasonably helpful to aid the trier of fact.” (Code Civ. Proc., § 1033.5(a)(13).) The Court’s own notes and recollection of the trial support the Court’s decision.

The Court DENIES the motion to tax costs of $5,665.33.

4. Other: Mediation Fees

Under section 1033.5, “[a]n item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)

The court in Berkeley Cement, Inc. v. Regents of University of California (2019) 30 Cal.App.5th 1133, 1143 set forth the rules for taxing costs related to mediation:

“Mediation costs are not listed among the costs that are expressly allowable or expressly not allowable. (Code Civ. Proc., § 1033.5, subds. (a), (b).) “An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’ ” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774, 23 Cal.Rptr.2d 810 (Ladas).) Consequently, mediation costs fall within the category of costs that may be awarded in the trial court’s discretion. (Code Civ. Proc., § 1033.5, subd. (c)(4).) “Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.”[Citation.].”

There is no hardline rule for when mediation costs are recoverable and “[t]he question whether mediation fees should be awarded as costs in a particular matter must be determined based on the facts and circumstances of the particular action.” (Berkeley, supra, 30 Cal.App.5th at p. 1143.)  

One consideration courts consider when deciding whether to tax the costs of mediation is the desire to promote party-led resolution of lawsuits. The Court in Gibson v. Bobroff (1996) 49 Cal.App.4th 1202, 1209, stated “[e]ncouraging the parties to resolve¿lawsuits at the earliest time and before a costly and time-consuming trial, is a necessary part of litigation as conducted in this state. The award of mediation fees is no less reasonably necessary to the conduct of litigation, than the award of arbitrator’s fees ..., which costs are also statutorily authorized.” Another consideration is whether the mediation was court ordered. (Berkeley, supra, 30 Cal.App.5th at 1143.) 

Defendants seek $8,606.66 for mediation fees. (Memorandum of Costs Worksheet, ¶ 16.)

Plaintiff seeks to tax the $8,606.66 for mediation fees. (Motion, p. 7:26-27.) Plaintiff asserts that “while the Court encouraged counsel to uphold the finest traditions of the legal profession to help their clients to resolve this matter through mediation or another dispute resolution forum, the Court did not order the parties to mediate.” (Id. at p. 1-4.) Plaintiff argues that the mediation fees should not be a recoverable cost because “where, as here, the parties have other avenues to address settlement that do not require or involve mediation, mediation is a convenience, not a necessity.” (Id. at p. 10:15-16.)

In opposition, Defendants argue that the mediation fees should be recoverable. although the “mediation was not successful, but was worth the effort on the chance it could have stopped this matter in its tracks significantly sooner than ultimately occurred, which could have avoided significant costs, including some which are now before this court and not challenged, such as several days-long depositions which were taken by the Plaintiff.” (Opp., p. 4:7-11.) Defendants maintain that “to deny Defendants the recovery of these costs would punish Defendants for trying to reach an agreement on the disputes in this matter with Plaintiff earlier in the case.” (Id. at p. 4:12-13.)

In reply, Plaintiff argues that “contrary to their claim, Defendants would not be punished if they were not to recover their mediation cost.” (Reply, p. 6:1-2.) Plaintiff maintains that “there is no dispute that the parties agreed to split the mediation cost in this case.” (Id. at p. 6:2-3.) Plaintiff argues that forcing her “to pay the entire cost of the mediation punishes Plaintiff by requiring Plaintiff to bear the entire cost of the mediation, which the parties had previously agreed to share.” (Id. at p. 6:3-4.)

Plaintiff relied in oral argument on Anthony v. Xiaobin Li (2020) 47 Cal.App.5th 816 for the proposition that, since the parties orally agreed to split the cost of mediation, this court should not change that agreement. “[W]here, as in this case, the parties agree to share costs during litigation, the courts will enforce those agreements as written. . . .” (Anthony v. Xiaobin Li (2020) 47 Cal.App.5th 816, 824.) There are two problems with Plaintiff’s argument. First, Anthony bases its opinion on a case where there was an “unambiguous” written agreement that the “fees with be ‘divide[d]’ and ‘borne’ equally.” (Id. at p. 824-825.) There is no such unambiguous agreement here. Secondly, Plaintiff states in her brief that “[t]here is no dispute that the parties agreed to split the mediation cost in this case.” (Reply, p. 6:2-3.) At oral argument, Plaintiff’s counsel repeatedly asserted that – although there is no written cost-sharing agreement – counsel had orally agreed to split mediation costs. However, there is no such evidence of such an oral agreement. In particular, there is no declaration from Plaintiff’s counsel evidencing such an agreement. “[T]he arguments of counsel in a motion are not a substitute for evidence, such as a statutorily required affidavit.” (Ponte v. County of Calaveras (2017) 14 Cal.App.5th 551, 556 [emphasis in original]; see also Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173 [“Argument of counsel is not evidence.”])

Plaintiff’s counsel also argues that if the Court were to follow Berkeley, it “would have a cooling effect on parties agreeing to mediation.” (Reply, p. 6:20-21.) This Court disagrees. Prior to concluding a mediation, competent counsel will always advise their client on the downside of not resolving the case; such downsides may include, inter alia, losing at trial, paying the other side’s damages, pre- and post-judgment interest, costs and attorney's fees. The Court does not believe that including mediation costs in this list would significantly deter parties from participating in mediation. This is particularly so in a case such as this one, which has been litigated for more than five years. The mediation costs at issue here approximately $8,606.66. On March 21, 2017, the Court denied a motion for attorney's fees in excess of $22,000. Based on the ample record in front of it – including over two dozen hearings, over a dozen motions, and two trials – the Court believes that each side has incurred substantially more than $100,000 in attorney's fees alone.

The Court agrees with Defendants and finds that the mediation was “reasonably necessary to the conduct of litigation.” (See Ladas, supra, 19 Cal.App.4th at p. 776.) As stated above, “[e]ncouraging the parties to resolve¿lawsuits at the earliest time and before a costly and time-consuming trial, is a necessary part of litigation as conducted in this state.” (Gibson v. Bobroff (1996) 49 Cal.App.4th 1202, 1209.) It is true that this Court did not order mediation, but on several occasions, it strongly encouraged the parties to mediate. The only reason the Court did not order mediation is because such an order would be beyond the Court’s authority; it is this Court’s understanding that it cannot order private parties to spend their own money in private mediation. However, if the Court had such authority, it would have ordered the parties to mediation.

Further, the Court believes – and the Court’s judgments have shown – that the facts were on the side of the Defendants. The Court further believes, as evidenced by the course of this litigation, that the vast majority of the antipathy to resolving this matter rested with Plaintiff. (As the Court stated during oral argument, this conclusion does not come from any confidential information that Court has concerning the conduct of the mediation or settlement discussions. It comes from the dozens of pleadings filed with this Court, from the argument of counsel, and from the evidence that the parties submitted through declarations and orally at the two trials.)

The Court DENIES the motion to tax the mediation costs of $8,606.66.

C. Conclusion

Plaintiff’s motion to tax costs is GRANTED in part. The Court taxes $3,512.63 in requested costs. Defendants are entitled to recover costs in the amount of $35,650.14, as indicated below:

Item

Amount Requested

Amount Taxed

Amount Granted

Filing and motion fees

$3,290.00

$1,565.00

$1,725.00

Jury fees

$0.00

$0.00

$0.00

Jury food and lodging

$0.00

$0.00

$0.00

Deposition costs

$18,440.75

$0.00

$18,440.75

Service of process

$0.00

$0.00

$0.00

Attachment expenses

$0.00

$0.00

$0.00

Surety bond premiums

$0.00

$0.00

$0.00

Witness fees

$0.00

$0.00

$0.00

Court-ordered transcripts

$1,947.63

$1,947.63

$0.00

Attorneys fees

$0.00

$0.00

$0.00

Court reporter fees

$1,212.40

$0.00

$1,212.40

Models, blowups, photocopies

$5,665.33

$0.00

$5,665.33

Interpreter fees

$0.00

$0.00

$0.00

Fees for electronic filing or service

$0.00

$0.00

$0.00

Fees for hosting electronic documents

$0.00

$0.00

$0.00

Other

$8,606.66

$0.00

$8,606.66

TOTAL

$39,162.77

$3,512.63

$35,650.14

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