Tentative Rulings

Case Number: BC537377    Hearing Date: December 13, 2019    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

This action is brought by Susan Kimberling, Angela True and Jamie Kimberling–Brittain (“Plaintiffs” or “the Kimberlings”) as Wrongful Death Heirs to Mr. James Kimberling. Defendant Kaiser Gypsum Company, Inc. (“Kaiser”) is one of numerous defendants sued because they were allegedly responsible for Mr. Kimberling’s death for his alleged asbestos related disease.

The matter proceeded to a jury trial, which concluded on August 24, 2019 when the jury returned a verdict in favor of the Kimberlings.

The Court then issued a Judgment on Special Verdict on October 28, 2019.

On November 13, 2019, Plaintiffs filed their Third Amended Memorandum of Costs.

The Court notes that Kaiser Gypsum’s first motion to strike and/or tax Plaintiffs’ costs (filed November 13, 2019) directed at the Second Amended Memorandum of Costs (dated September 5, 2019) was taken off-calendar by Kaiser on December 6, 2019.

The motion currently on calendar is Kaiser’s motion to strike and/or tax Plaintiffs’ costs filed on December 2, 2019. The motion was originally set to be heard on December 27, 2019, but was advanced to December 13, 2019 by ex parte request.

On December 6, 2019, Plaintiffs filed an opposition to the current motion. In the opposition, Plaintiffs incorporate their arguments from their opposition to the first motion, which was filed on December 2, 2019.

Kaiser submitted the reply brief in Exhibit F of the ex parte application papers with the Declaration of Sarah N. Bendon (filed on December 10, 2019).

LEGAL STANDARD

In ruling on a motion to tax costs, the Court determines whether the statute expressly allows the particular item and whether it appears proper on its face. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.) If so, the burden is on the objecting party to show that the costs are unnecessary or unreasonable. (Id.) Where costs are not expressly allowed by statute, the burden is on the party claiming costs to show the costs were reasonable and necessary. (Id.) 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. (Id.)

DISCUSSION

1. Third Amended Memorandum of Costs

Plaintiffs filed the Third Amended Memorandum of Costs on November 13, 2019, which seeks the following costs:

• Item 1. Filing and Motion Fees - $4,600.59

• Item 2. Jury Fees - $7,383.97

• Item 4. Deposition Costs - $19,273.00

• Item 5. Service of Process - $1,152.57

• Item 11. Models, Enlargements, and Photocopies of Exhibits - $8,334.52

• Item 13. Other - $7,194.04

• TOTAL: $47,938.69.

1. Merits of Motion

1. Strike

Kaiser moves to strike the entirety of Plaintiffs’ memorandum of costs as deficient because it does not show that the claimed costs were actually incurred and both reasonable and necessary.

The Court declines to strike the memorandum of costs in its entirety and will instead discuss each category of costs sought to determine whether taxing/reducing such costs is appropriate.

1. Item 1: Filing and Motion Fees

CCP §1033.5(a)(1) classifies fling, motion, and jury fees as allowable costs under section 1032.

Kaiser argues that it should not be held accountable for the $4,600.59 amount sought by Plaintiffs because Plaintiffs did not file any dispositive motions, discovery motions, or other complex motions against Kaiser that would warrant costs over $4,000. Thus, Kaiser argues that it should not be responsible for the costs Plaintiffs’ incurred as to other defendants. Plaintiffs named 19 defendants in the complaint.

In opposition, Plaintiffs argue that the fact that the costs were incurred as to other defendants is not a reason to deny the costs; rather, they argue that the costs were still reasonable and necessary to the conduct of the litigation.

The Court will award Plaintiffs the amount of the Complaint and Complex Filing Fee of $1,435.00 incurred on February 21, 2014.

However, as to the rest of the costs (i.e., $3,165.59 = $4,600.59 - $1,435.00), the Court will reduce the amount of fees Plaintiffs seeks to recover for filing and motions fees against Kaiser because there were 18 other defendants in this action. While Plaintiffs have provided a summary of Filing and Motion Fees incurred on pages 1 to 3 of their attached spreadsheet, they fail to specifically state what the filing and motion fees were incurred for, against which defendant, or for what motion. As stated above, it is Plaintiffs’ burden as the party seeking the costs to support the costs and show they were reasonable and necessary in litigating this action against Kaiser. Thus, as to the remaining costs, the Court will only award 1/19 of the apportioned costs to Plaintiffs and against Kaiser. As such, Kaiser shall reimburse Plaintiffs for $166.61 (=1/19 of $3165.59) of these remaining costs.

The motion to tax Item 1 is therefore granted in part such that the amount awarded will be reduced by $2,998.98. Accordingly, Plaintiffs may only recover $1,601.61 against Kaiser (= $1,435.00 + $166.61).

1. Item 2: Jury Fees

CCP §1033.5(a)(1) classifies jury fees as allowable costs under section 1032.

Kaiser moves to tax the jury fees in the amount of $7,383.97, arguing that Plaintiffs have not proven the jury fees they actually incurred, and Plaintiff improperly seeks jury fees of $150 which were incurred in 2012 prior to the filing of the complaint.

Case No. BC537377 was filed on February 25, 2014. The memorandum of costs includes an attachment showing that the following jury fees were paid: (1) $150 on August 15, 2012 (non-refundable jury fee); (2) $150 on February 25, 2015 (non-refundable jury fee); and (3) March 25, 2019 to April 24, 2019 for per diem jury fees. (See Third Am. Memo. of Costs, Attachment at pp.3-4.)

The Court will allow the recovery of jury fees as they are an allowable cost pursuant to CCP §1033.5. However, the Court will grant Kaiser’s motion only as to the $150 jury fee incurred on August 15, 2012, paid prior to the filing of the case. Plaintiffs have not shown that the August 2012 jury fee was paid in connection with this action, particularly since this action had not yet been filed.

Thus, the motion to tax Item 2 is granted in part in the amount of $150 (for jury fees incurred on August 15, 2012, prior to the commencement of this action), such that Plaintiffs may recover $7,233.97 (= $7,383.97 - $150.00) in jury fees and costs from Kaiser.

1. Item 4: Deposition Costs

CCP §1033.5(a)(3) states that: (A) taking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed; (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; and (C) travel expenses to attend depositions, are allowable costs under section 1032.

Kaiser argues that the $19,273.00 sought in deposition costs are unreasonably high and that Plaintiffs have not differentiated the costs in the memorandum of costs. Kaiser also argues that it should not be liable for costs incurred from October 2016 to October 31, 2018 when Kaiser declared bankruptcy and an automatic stay had been imposed. In opposition, Plaintiffs argue that Kaiser offers nothing to show that the claimed costs are for unrecoverable costs.

The attachment to the memorandum of costs at pages 4-5 inform the reader what the deposition costs are for, such as the transcripts of Billy Chesser, the phone depositions of various individuals, reporter appearance fees, etc. (Third Am. Memo. of Costs, Attachment at §4A at pp.4-5.) Though Kaiser argues that some of the costs are not recoverable or that it need not compensate Plaintiffs for expert costs when they did not prevail on their section 998 offer, Kaiser does not apprise the Court which deposition costs should not be recoverable for certain individuals. Thus, the Court will allow the costs for taking depositions and the transcripts thereto as delineated in Item 4A to be recovered by Plaintiffs against Kaiser, as reasonable and necessary to the conduct of the litigation. (CCP §1033.5(a)(3)(A). Thus, the Court will allow Plaintiffs to recover the total costs of $5,646.29 under Item 4A.

With regard to Item 4B, the Court will allow and disallow certain travel, lodging, and meal costs. The only recoverable costs for travel include travel expenses to attend depositions. (CCP §1033.35(a)(3)(C).) The only allowable costs for food and lodging are for jurors. (CCP §1033.35(a)(2).) As travel, lodging, and meals is not otherwise provided for in section 1033.5, the Court may allow or deny the cost in its discretion. (CCP §1033.5(c)(4).) (The Court notes that the costs for travel/lodging, etc. for trial would have been better brought under “Other”; however, for consistency, the Court will consider it here.)

With regard to costs incurred regarding depositions, the Court will not allow meal and lodging costs incurred during depositions in the total amount of $903.64 (e.g., 4/17/15, $37.70; 4/23/15, $38.02; 7/17/15, $8.48; 7/23/15, $170.06; 8/26/15, $15.31; 9/23/15, $436.63; 9/30/15, $39.90; 9/23/16, $157.54).

The Court also declines to award costs to Plaintiffs for counsel meeting with clients, in the total amount of $171.81 (5/22/12 for $166.50 and $5.31).

In addition, the Court will not allow reimbursement of costs for travel, meals, lodging, parking, etc. for attending the trial. As stated above, these are not allowable costs under section 1033.5 and the Court declines to exercise its discretion in allowing such costs. Further, even if the Court were to exercise its discretion to award such costs, Plaintiffs have not provided any support showing what these costs are for, receipts of the amounts, and any showing that the costs were reasonable and necessary—this is Plaintiffs’ burden as the party seeking the costs. Thus, the Court will not award Plaintiffs costs in the amount of $11,679.36 for travel expenses related to trial, hearing, and unspecified matters (from 11/23/17 to 11/21/18; 3/13/19 to 10/28/19).

The Court will allow the other remaining costs for Item 4B that have not specifically been excluded above.

For Item 4 Deposition Costs (and Plaintiffs’ included travel costs for trial), the Court will grant the motion in part in the amount of $12,754.81, such that Plaintiffs may only recover $6,518.19 for Item 4 costs.

1. Item 5: Service of Process

“Service of process by a public officer, registered process server, or other means” is an allowable cost under CCP §1033.5(a)(4).

Kaiser argues that it lacks sufficient information to determine whether Plaintiffs’ sought costs of $1,152.57 was reasonably necessary for the litigation against Kaiser.

The attachment to the memorandum of costs at page 7 is not specific with regard to what the service of process charges were for or who they were incurred against. In fact, some of the charges date back to January 31, 2011, which was prior to the filing of this case.

As such, the Court will grant the motion to tax in part in the amount of $615.00 (which accounts for the costs incurred from January 31, 2011 to August 31, 2011 prior to the commencement of this action on February 25, 2014). Plaintiffs may only recover $537.57 (which represents the costs Plaintiffs incurred from March 28, 2014 to December 31, 2014).

1. Item 11: Models, enlargements, and photocopies of exhibits

An allowable cost under CCP §1033.5(a)(13) includes: “[m]odels, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.” Subsection (b)(3) states that photocopying charges, except for exhibits, are not allowable as costs, except when expressly authorized by law.

Kaiser moves to strike the costs of $8,334.52, arguing that Plaintiffs’ memorandum fails to apprise it of what the claims costs were actually for, or how copies made in 2011 to 2018 are related to the trial.

The Court will disallow the $468.83 incurred from May 27, 2011 to February 24, 2014, as they are for copies made prior to the commencement of this action and therefore arguably could not aid the trier of fact. (See Third Am. Memo. of Costs, Attachment at pp.7-9.)

Based on the descriptions of the costs incurred from March 18, 2014 to February 23, 2019, the Court cannot ascertain whether these charges were for printing/copying of exhibits. The Court also notes that Plaintiffs have not provided any showing or declaration evidence that the exhibits were used in connection with certain motions or at trial that reasonably helpful to aid the trier in fact. Even assuming the costs were for exhibits, because the charges are not specific, the Court (who is the trier of fact prior to the time of the trial) cannot determined whether the exhibits were reasonably helpful to aid the Court. Thus, the non-specific charges of $2,040.89 incurred from March 18, 2014 to February 23, 2019 will be taxed/reduced as well.

As for the $5,824.80 charge incurred on May 1, 2019 for “Exhibits – In house printing”, the Court declines to award this charge to Plaintiffs. As stated under subsection (a)(13), only models, enlargements, and photocopies of exhibits that are “reasonably helpful to aid the trier of fact” are recoverable. The Court does not find that the exhibits presented at trial were of such a nature that they were helpful to aid the jury and the Court—rather, most of these exhibits were stock exhibits Plaintiffs’ counsel regularly uses at other asbestos trials and which are not specific to this trial. The Court is not given a declaration or other evidence to decide which of these exhibits were truly necessary and which were provided only to distract the defense from which exhibits counsel truly intended to use.

The Court grants the motion to tax costs for the total amount of Item 11, or $8,334.52.

1. Item 13: Other

In the “Other” category, Plaintiffs seek $7,194.04 total. The Court has reviewed the Attachment to the Third Amended Memorandum of Costs on pages 9-12, as well as the parties and will allow and/or disallow the following costs.

The Court will allow the recovery of costs incurred for Court Call (9/26/11, $108.00); Home Depot – Trial Exhibits (3/23/19 at $157.65); and Federal Express – Trial Print (4/30/19, $158.61). This totals $424.26.

However, the remaining $6,769.78 charges will not be recoverable. These other charges seek reimbursement of Plaintiffs’ costs for records (social security, medical and billing, etc.), delivery charges, printing/photocopying charges, and conference calls with client. These are either costs that are not allowable pursuant to CCP §1033.5 or are not substantiated. Further, to the extent they are charges not mentioned in section 1033.5, the Court declines to exercise its discretion to allow the recovery of such costs in view of the lack of substantiation. (See CCP §1033.5(c)(4).)

Thus, the Court grants the motion to tax costs in part in the amount of $6,769.78, such that Plaintiffs may only recover $424.26 for “Other” costs.

CONCLUSION AND ORDER

Based on the above, the Court is inclined to grant in part and deny in part Kaiser’s motion to tax the costs requested by Plaintiffs in the Third Amended Memorandum of Costs. The Court will allow Plaintiffs to recover the following cost amounts:

• Item 1. Filing and Motion Fees - $1,601.61

• Item 2. Jury Fees - $7,233.97

• Item 4. Deposition Costs – $6,518.19

• Item 5. Service of Process - $537.57

• Item 11. Models, Enlargements, and Photocopies of Exhibits - $0

• Item 13. Other - $424.26

• TOTAL: $16,315.60

Kaiser shall provide notice of this order.