This case was last updated from Los Angeles County Superior Courts on 06/03/2019 at 00:17:37 (UTC).

CASEY CHERYL MARIE O'NEILL VS ZOIC INC ET AL

Case Summary

On 12/13/2017 CASEY CHERYL MARIE O'NEILL filed a Labor - Wrongful Termination lawsuit against ZOIC INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are GREGORY W. ALARCON and DALILA CORRAL LYONS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6098

  • Filing Date:

    12/13/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

GREGORY W. ALARCON

DALILA CORRAL LYONS

 

Party Details

Plaintiff and Petitioner

O'NEILL CASEY CHERYL MARIE

Defendants and Respondents

THUNELL MATT

ZOIC STUDIOS

ZOIC INC.

DOES 1 TO 10

VENTURA TIFFANY

MCBRIDE TIM

ZOIC INC. DBA ZOIC STUDIOS

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

LYON GEOFFREY C. ESQ.

Defendant Attorney

FISHMAN DAVID

 

Court Documents

NOTICE OF CASE MANAGEMENT CONFERENCE

2/27/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

PROOF OF SERVICE SUMMONS

3/6/2018: PROOF OF SERVICE SUMMONS

REQUEST FOR DISMISSAL

3/7/2018: REQUEST FOR DISMISSAL

Unknown

4/24/2018: Unknown

Unknown

4/24/2018: Unknown

DEFENDANT MATT THUNELL'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGES

4/24/2018: DEFENDANT MATT THUNELL'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGES

CASE MANAGEMENT ORDER

5/7/2018: CASE MANAGEMENT ORDER

Minute Order

5/7/2018: Minute Order

Motion for Summary Judgment

5/10/2019: Motion for Summary Judgment

Declaration

5/10/2019: Declaration

Request for Judicial Notice

5/10/2019: Request for Judicial Notice

Proof of Service (not Summons and Complaint)

5/10/2019: Proof of Service (not Summons and Complaint)

Motion for Summary Judgment

5/16/2019: Motion for Summary Judgment

Minute Order

5/20/2019: Minute Order

Unknown

5/20/2019: Unknown

DEFENDANT ZOIC, INC.'S NOTICE OF PEREMPTORY CHALLENGE (CODE OF CIVIL PROCEDURE 170.6)

1/12/2018: DEFENDANT ZOIC, INC.'S NOTICE OF PEREMPTORY CHALLENGE (CODE OF CIVIL PROCEDURE 170.6)

PROOF OF SERVICE OF SUMMONS

12/26/2017: PROOF OF SERVICE OF SUMMONS

COMPLAINT FOR DAMAGES FOR SEXUAL HARASSMENT IN EMPLOYMENT AND RELATED CLAIMS

12/13/2017: COMPLAINT FOR DAMAGES FOR SEXUAL HARASSMENT IN EMPLOYMENT AND RELATED CLAIMS

13 More Documents Available

 

Docket Entries

  • 05/20/2019
  • at 4:17 PM in Department 20, Dalila Corral Lyons, Presiding; Court Order

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  • 05/20/2019
  • Minute Order ( (COURT ORDER - REGARDING CONTINUANCE OF HEARING:)); Filed by Clerk

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  • 05/20/2019
  • Certificate of Mailing for (Minute Order (COURT ORDER - REGARDING CONTINUANCE OF HEARING:) of 05/20/2019); Filed by Clerk

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  • 05/16/2019
  • Motion for Summary Judgment; Filed by Matt Thunell (Defendant)

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  • 05/10/2019
  • Other - (Appendix of Evidence in support of Motion for Summary Judgment; crs#414183227318); Filed by Zoic Inc. (Defendant)

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  • 05/10/2019
  • Proof of Service (not Summons and Complaint); Filed by Zoic Inc. (Defendant)

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  • 05/10/2019
  • Separate Statement (crs#414183227318); Filed by Zoic Inc. (Defendant)

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  • 05/10/2019
  • Motion for Summary Judgment (of Zoic Inc dba Zoic Studios and Matt Thunell; CRS#414183227318); Filed by Zoic Inc. (Defendant)

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  • 05/07/2018
  • at 08:30 AM in Department 20; Case Management Conference (Conference-Case Management; Trial Date Set) -

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  • 05/07/2018
  • Minute order entered: 2018-05-07 00:00:00; Filed by Clerk

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25 More Docket Entries
  • 02/01/2018
  • Minute order entered: 2018-02-01 00:00:00; Filed by Clerk

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  • 01/12/2018
  • Challenge To Judicial Officer - Peremptory (170.6); Filed by Defendant/Respondent

    Read MoreRead Less
  • 01/12/2018
  • DEFENDANT ZOIC, INC.'S NOTICE OF PEREMPTORY CHALLENGE (CODE OF CIVIL PROCEDURE 170.6)

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  • 01/12/2018
  • Answer; Filed by Zoic Inc. (Defendant)

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  • 01/12/2018
  • DEFENDANT ZOIC, INC.'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGES

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  • 12/26/2017
  • Proof-Service/Summons

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  • 12/26/2017
  • PROOF OF SERVICE OF SUMMONS

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  • 12/13/2017
  • SUMMONS

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  • 12/13/2017
  • Complaint; Filed by Casey Cheryl Marie O'neill (Plaintiff)

    Read MoreRead Less
  • 12/13/2017
  • COMPLAINT FOR DAMAGES FOR SEXUAL HARASSMENT IN EMPLOYMENT AND RELATED CLAIMS

    Read MoreRead Less

Tentative Rulings

Case Number: BC686098    Hearing Date: January 24, 2020    Dept: 20

Tentative Ruling

Judge Dalila C. Lyons

Department 20


Hearing Date: Friday, January 24, 2020

Case Name: Casey Cheryl Marie O’Neill v. Zoic, Inc., et al.

Case No.: BC686098

Motion: Tax Costs

Moving Party: Plaintiff Casey Cheryl Marie O’Neill

Responding Party: Defendants Zoic, Inc. d/b/a Zoic Studios


Ruling: Plaintiff Casey Cheryl Marie O’Neill’s motion to tax costs is GRANTED.  Defendant Zoic, Inc. d/b/a Zoic Studios’s costs will be taxed by $11,879.47, from $39,417.08 to $27,537.61. 

Plaintiff Casey Cheryl Marie O’Neill shall pay Defendant Zoic, Inc. d/b/a Zoic Studios’s costs in the amount of $27,537.61.

Moving Party shall give notice.


BACKGROUND

On February 5, 2018, Defendant Zoic Inc. (“Zoic”) made a CCP § 998 offer of $50,000 (“998 Offer”), which Plaintiff Casey Cheryl Marie O’Neill (“Plaintiff”) rejected.  On September 05, 2019, a jury rendered a verdict finding only defendant Mattt Thunell liable to Plaintiff for $15,000 and finding Zoic not liable.  On October 28, 2019, Plaintiff submitted a memorandum of costs.

MOVING PARTY POSITION

Plaintiff moves to strike all of Zoic’s $39,417.08 in costs because Plaintiff’s claims were not frivolous, unreasonable, or without foundation.

Alternatively, Plaintiff attacks individual items of Zoic’s costs as not allowed by statute, not reasonably necessary, and not supported by documentation.

OPPOSITION

 

Zoic opposes the motion to strike on these grounds: (1) Zoic was the prevailing party against Plaintiff’s frivolous FEHA claims; (2) Zoic was the prevailing party against Plaintiff’s non-FEHA claims; (3) Plaintiff failed to recover more than Zoic’s CCP § 998 offer; and (4) alternatively, all Zoic’s costs were reasonable and necessary to the litigation.

REPLY

 

Plaintiff’s reply was late filed on Jan. 21, 2020.  Plaintiff argues Zoic’s costs all arose from claims that are factually intertwined with Plaintiff’s FEHA claims, so it cost Zoic no more to defend the non-FEHA claims.  Because Plaintiff’s FEHA claims were not frivolous, Zoic should not be granted costs against Plaintiff’s FEHA claims.  Because Zoic should not get costs against the FEHA claims, Zoic should not recover the redundant costs of defending the non-FEHA claims.

ANALYSIS

I. Procedural Defect

Plaintiff’s reply was filed January 21, 2020.  The hearing is January 24, 2020.  Therefore, the reply was filed 3 court days before the hearing, in violation of CCP § 1005(b).

The Court finds that Zoic was not prejudiced by the reply being filed two court days late.  The reply required no response from Zoic before the hearing.  Accordingly, the Court will consider the untimely reply, but not any issues raised for the first time on reply.[1]

II. Tort and non-FEHA Statutory Claims

The following analysis pertains to Plaintiff’s Second, Sixth, and Eighth Causes of Action, which are Plaintiff’s common law and non-FEHA statutory claims.

A “prevailing party” entitled to costs: In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. CCP § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108. Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129. The term “prevailing party” for costs purposes is defined by statute to include:

C The party with a net monetary recovery;

C A defendant who is dismissed from the action;

C A defendant where neither plaintiff nor defendant recovers anything; and

C A defendant as against those plaintiffs who do not recover any relief against that defendant.  (CCP § 1032(a)(4).)

If the party does not fall within one of these four express categories, the court may exercise its discretion to award or deny costs.  See Lincoln v. Schurgin (1995) 39 Cal.App.4th 100, 105. 

Here, it is undisputed that Plaintiff did not recover anything against Zoic.  Therefore, Zoic is the prevailing party under CCP § 1032(a)(4) and may recover its costs in defending the Second, Sixth, and Eighth Causes of Action as a matter of right.[2]  The amount of those costs is dealth with in Section III.

III. FEHA Claims

The following analysis pertains to Plaintiff’s First, Third, Fourth, Fifth, and Seventh Causes of Action, which are Plaintiff’s FEHA claims.

In civil actions brought under FEHA “the court, in its discretion, may award to the prevailing party … reasonable attorney’s fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.”  Govt. Code § 12965(b).  FEHA is an express exception to CCP § 1032(b) but the Court in its discretion may award costs to defendants prevailing on FEHA claims where Plaintiff brought or maintained suit frivolously, unreasonably, or groundlessly.  Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 105. 

An award to a prevailing defendant is appropriate when the plaintiff’s conduct was egregious or the plaintiff’s case was patently baseless for objective reasons.  Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1389.  An award was appropriate when (1) the plaintiff’s cause of action was obviously contrary to undisputed facts or (2) well-established legal principals specifically precluded recovery or (3) the plaintiff pursued litigation after discovery affirmatively disclosed the factual basis for the alleged discrimination was patently nonexistent.  Id. at p. 1390.

However, a FEHA claim being frivolous does not alone require awarding costs to the defendant employer if the plaintiff’s other causes of action could be legitimate because a “civil action is based upon the injury to the Plaintiff, and not any particular legal theory.”  Delany v. Superior Fast Freight (1993) 14 Cal.App.4th 590, 600.  The trial court must resist the temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.  Cummings, supra, 11 Cal.App.4th at p. 1388 (quoting Christianburg Garment Co. v. EEOC (1978) 434 U.S 412, 421).

Here, Zoic attacks Plaintiff’s Seventh Cause of Action for retaliation in violation of FEHA as unreasonable because the Court granted summary judgment on the Seventh Cause of Action.  The Court found Plaintiff had failed to present direct or circumstantial evidence that Zoic refused to move Plaintiff’s desk away from Thunell because Plaintiff had complained of Thunell’s sexual harassment.  However, Zoic fails to show that Plaintiff’s retaliation claim was patently baseless for objective reasons.  Plaintiff argued that the temporal proximity between her complaint and her constructive termination–six months–evidenced the causal link necessary for harassment.  Although the Court did not find that temporal proximity alone to be evidence of a causal link for this retaliation claim, the Court cannot say that Plaintiff’s argument was obviously contrary to well-established legal principals specifically precluding recovery. 

Next, Zoic attacks Plaintiff’s Fourth Cause of Action for race-association discrimination as unreasonable because the Court granted Zoic’s motion for nonsuit.  Plaintiff’s race-association discrimination cause of action against Zoic argued Zoic’s alleged constructive termination of Plaintiff–Zoic’s failure to move Plaintiff’s desk away from Thunell’s following Plaintiff’s complaints of harassment–was substantially motivated by Plaintiff’s perceived association with African-Americans–Plaintiff having had an African-American boyfriend the year before and chatting with a group of FedEx delivery workers who were either Hispanic or African-American.  Indulging every legitimate inference in favor of Plaintiff’s evidence presented at trial, the Court found that Plaintiff’s evidence of race-association discrimination by Zoic could not support a jury verdict.  Plaintiff failed to produce sufficient evidence that Zoic kept Plaintiff’s desk close to Thunell’s office because Plaintiff had dated an African-American a year before and was friendly to FedEx workers who were either African-American or Hispanic.  But even this lack of evidence does not make Plaintiff’s claim frivolous because the claim was not obviously contrary to undisputed facts and discovery had not affirmatively disclosed the factual basis for the discrimination was patently nonexistent.  Plaintiff could still assert the fact that Zoic knew Plaintiff had dated an African-American a year earlier and Plaintiff allegedly suffered an adverse employment action at Zoic’s hand after complaining of racially charged sexual harassment.  Ultimately, the Court did not find Plaintiff’s evidence was sufficient for a jury to find Zoic had discriminated against Plaintiff by a preponderance of the evidence, but that fact alone does not mean Plaintiff’s factual basis was patently nonexistent or contrary to undisputed facts.

Next, Zoic attacks Plaintiff’s First and Third Causes of Action for sexual harassment and race-association harassment because Plaintiff “knew” that she did not report harassment to Zoic until December 2016, and that afterward Plaintiff never suffered harassment again.  Plaintiff’s harassment causes of action were decided by the jury, based on evidence that raised a question whether Plaintiff had previously reported harassment and whether Zoic’s remedial action was sufficient.  Despite Zoic’s characterization of Plaintiff’s “knowledge”, Zoic has failed to show how Plaintiff’s harassment causes of action were obviously contrary to undisputed facts or barred by well-established principals specifically precluding recovery or that discovery had affirmatively disclosed the factual basis for the alleged harassment was patently nonexistent. 

Zoic does not attack Plaintiff’s Fifth Cause of Action for failure to prevent discrimination, harassment or retaliation.

Given the legislature’s express policy of encouraging FEHA claims and mindful of hindsight bias, the Court cannot say that Plaintiff’s FEHA claims were frivolous, unreasonable, or groundless.  Therefore, the Court in its discretion will deny Zoic’s costs from Plaintiff’s FEHA causes of action.

IV. Costs: Items and Amounts

Because Zoic is entitled to costs for defending against some but not all of Plaintiff’s claims, the Court reviews which of Zoic’s claimed costs arose from defending against Plaintiff’s tort and non-FEHA statutory claims.  Only costs arising from Plaintiff’s tort and non-FEHA statutory claims are allowable here.  Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1062 (“Unless the FEHA claim was frivolous, only those costs properly allocated to non-FEHA claims may be recovered by the prevailing defendant”).  “[I]t would weaken private enforcement of vital antidiscrimination and disability rights statutes … to compel an award of costs under [CCP § 1032(b)] simply because the plaintiff, based on the same alleged misconduct, had pleaded other civil rights theories in addition to his or her FEHA causes of action.”  Id. at p. 1060.[3]

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.”  Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.  “On the other hand, 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.”  Ibid.

California Rules of Court Rule 3.1700 provides that: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.”

CCP § 1033.5 provides the items that are allowable as costs under CCP § 1032.  The losing party may dispute any or all of the items in the prevailing party’s memorandum of costs by a motion to strike or tax costs.  CRC Rule 3.1700(b). 

A. Filing Fees

Filing fees are allowable costs under CCP § 1033.5(a)(1).

Plaintiff seeks to tax $1,660.00[4] of Plaintiff’s filing fees.  Plaintiff argues and Zoic concedes that $1,097.00 in costs should be taxed because Zoic included two answers and two motions for summary judgment, despite only filing one of each document.  Plaintiff has met its burden to show these costs should be taxed.

Plaintiff also argues that Zoic has included $562.50 in costs for three motions, one notice and one reply without including further description of these materials.  Plaintiff fails to cite any law allowing a court to exclude these costs merely because the descriptions of the motions are sparse.  Plaintiff has given the Court no other reason to tax these costs, and therefore has not met Plaintiff’s burden to show these allowable costs are unreasonable.

Therefore, the Court will tax Zoic’s filing fee costs by $1,097.00.  Plaintiff’s allowable filing fees are $2,195.75.

B. Deposition Costs

Taking, video recording, and transcribing necessary depositions are allowable costs under CCP § 1033.5(a)(3)(A).

Plaintiff seeks to tax $8,179.39 of Zoic’s deposition costs because Zoic only took three depositions but records costs under the “taking” column for additional depositions.  Zoic claims three and five times as much in costs to take 60 and 80-page depositions as Zoic claims to defend a 130-page deposition.  In opposition, Zoic attaches its invoices for the court reporter and videographer at the contested depositions of Pat Boone and Chris Trejo, respectively.  Fishman Decl., Exh. 1.  Zoic argues taking a deposition should not cost the same as defending a deposition because of the additional expense for the court reporter and videographer.  Zoic explains its costs reported as “taking” the other depositions were mislabeled, and those costs were Zoic’s expenses in ordering transcripts of depositions Plaintiff took and Zoic defended.  The Court finds Zoic’s reasoning more detailed and persuasive.  Plaintiff has failed to meet its burden to show Zoic’s documented deposition costs are neither reasonable nor necessary.  

Therefore, the Court will not tax Zoic’s deposition costs.  Zoic’s allowable deposition costs are $11,684.84.

C. Court Reporter Fees

Court reporter fees as established by statute are allowable costs under CCP § 1033.5(a)(11).

Plaintiff seeks to tax $9,015.60 of Zoic’s court reporter fees because Zoic lists incorrect amounts for the court reporter’s fees.  Government Code § 68086 and the Los Angeles County Superior Court’s fee schedule caps court reporter’s per diem fees at $382 for less than four hours and $764 for more than four hours.  Zoic argues its court reporter’s fees are supported by documentation and include not only the per diem but also “real time, and the occasional partial daily or partial rough.”  Opp. At p. 9:28-10:1.  Zoic argues the additional costs should be allowed in the court’s discretion because they allowed Zoic to avoid duplicating questioning and to conduct the trial expeditiously. 

Zoic’s arguments admit that the court reporter costs above the per diem rate are not statutorily authorized.  Therefore, Zoic has the burden to show these additional court reporter fees should be allowed.  Zoic has failed to meet its burden because Zoic fails to show that the additional expenses were reasonably necessary to the conduct of the litigation rather than merely convenient.  CCP § 1033.5(c)(2).  Here, the only allowable court reporter fees are those authorized by statute.

Therefore, the Court will tax Zoic’s court reporter fees by $9,015.60.  Plaintiff’s allowable court reporter fees are $4,202.00.

D. Other Costs

I. Service of Process - Preparation of Foreign Subpoenas

Service of process is an allowable cost under CCP § 1033.5(a)(4).

Plaintiff seeks to tax all $2,016.50 of Zoic’s costs for preparation of foreign subpoenas because Plaintiff believes Zoic tried to subpoena Tiffany Ventura’s deposition while Ventura was on vacation in Europe and such subpoena was unnecessary because the five months to trial left plenty of time to depose Ventura later.  In opposition, Zoic argues this expense was incurred to depose and retrieve medical records from the Washington doctor Plaintiff listed as her medical expert witness.  Fishman Decl., Exh. 3.  Plaintiff’s reply fails to offer any counterargument.  Plaintiff has failed to meet her burden to show this statutorily authorized expense was not reasonable given Plaintiff herself designated an out-of-state physician as an expert witness.

Therefore, the Court will not tax Zoic’s service of process costs. Zoic’s allowable service of process costs for preparation of foreign subpoenas are $2,016.50.

II. Travel to and From Court

“The only travel expenses authorized by CCP § 1033.5 are those to attend depositions.”  Ladas, supra, 19 Cal.App.4th at p. 775; CCP § 1033.5(a)(3).  Routine expenses for local travel by attorneys are not reasonably necessary to conduct litigation; they are merely convenient.  Id. at pp. 775-776. 

Plaintiff seeks to tax all $371.78 of Zoic’s costs for counsel to travel to and from counsel’s office in Encino to court in Los Angeles.  Zoic argues these costs are calculated by the IRS mileage reimbursement rate.  Zoic has failed to meet its burden to show these costs, which are not statutorily authorized by CCP § 1033.5, are allowable.  Zoic gives not reason why these costs to make court appearances were not merely convenient to the litigation.

Therefore, the Court will tax all $371.78 of Zoic’s travel costs.  Zoic’s allowable travel costs are $0.00.

III. Messenger and Shipping Costs

Messenger fees are recoverable only if reasonably necessary, such as fees incurred filing documents with the court, complying with opposing counsel’s document demands, and transporting exhibits to court.  Ladas, supra, 19 Cal.App.4th at p. 776.  Messenger fees and shipping charges are not included in the list of allowable costs in CCP § 1033.5.

Plaintiff seeks to tax all $582.52 of Zoic’s messenger costs because these costs are not required to be awarded and Zoic does not specify the reason for the costs.  Zoic argues the messenger costs were incurred delivering courtesy copies to the Court and serving documents on Plaintiff and a foreign witness: Tiffany Ventura.  Zoic claims most of these costs were incurred in preparation for the final status conference.  Zoic has meet its burden on the necessity of these costs by making a similar showing to that made in Ladas, namely that messenger services were used in preparation for trial, for filing documents with the Court, and producing documents to opposing counsel in the months immediately preceding trial.  Plaintiff’s reply offers nothing to rebut Zoic’s claims about these costs.

Therefore, the Court will not tax Zoic’s messenger costs.  Zoic’s allowable messenger and costs are $582.52.

IV. Photocopying

Models, enlargements of exhibits, and photocopies of exhibits, if reasonably helpful to the trier of fact, are allowable costs under CCP § 1033.5(a)(13).  “[F]ees are not allowed for exhibits not used a trial.”  Ladas, supra, 19 Cal.App.4th at p. 775.

Plaintiff seeks to tax all $1,395.09 of Zoic’s photocopying fees because photocopying charges are not allowable except for exhibits and Zoic’s expenses are merely convenient copies of transcripts and witness binders.  Zoic argues photocopies of documents other than exhibits can be awarded in the Court’s discretion.  Zoic fails to give the Court a  reason why the Court should exercise its discretion to allow Zoic’s photocopies that were admittedly not of exhibits.  Thus, Zoic has failed to meet its burden to justify this cost item.

Therefore, the Court will tax all $1,395.09 of Zoic’s photocopying costs.  Plaintiff’s allowable photocopying costs are $0.00.

V. Conclusion

In sum, the Court finds the following costs were reasonably necessary and are allowable:

Cost Item

Zoic’s Request

Amount Awarded

Filing Fees

$3,292.75

$2,195.75

Deposition Costs

$11,684.84

$11,684.84

Court Reporter Fees

$13,217.60

$4,202.00

Other: Foreign Subpoenas

$2,016.50

$2,016.50

Travel Expenses

$371.78

$0.00

Messenger Fees

$582.52

$582.52

Photocopies

$1,395.09

$0.00

Total Costs

$39,417.08

$27,537.61

Accordingly, Plaintiff’s motion to tax costs is GRANTED.  Zoic’s costs will be taxed by $11,879.47, from $39,417.08 to $27,537.61. 


[1] Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.App.4th 1323, 1333 (new issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded). 

[2] Because Zoic can recover its costs under CCP § 1032 on Plaintiff’s tort and Labor Code claims, the Court need not address whether Zoic can also recover those same costs under CCP § 998.

[3] To the extent that Plaintiff’s reply tries to raise the new issue that all of Zoic’s costs to defend the non-FEHA claims are not allowable because the non-FEHA claims and the FEHA claims are factually intertwined, the Court will not consider this new issue raised for the first time on reply. Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.App.4th 1323, 1333 (new issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded). 

[4] Plaintiff’s motion seeks to tax $522 for answers, $575.50 for motions for summary judgment, and $562.50 in unspecified filings, which adds up to $1,660.00.  Confusingly, Plaintiff’s motion adds these costs up to only $1,225.00.

_________________________________________________________________________________MOTION NO. 2

Tentative Ruling

Judge Dalila C. Lyons

Department 20


Hearing Date: Friday, January 24, 2020

Case Name: Casey Cheryl Marie O’Neill v. Zoic, Inc., et al.

Case No.: BC686098

Motion: Tax Costs

Moving Party: Defendants Zoic, Inc. d/b/a Zoic Studios and Matt Thunell

Responding Party: Plaintiff Casey Cheryl Marie O’Neill


Ruling: Defendants Zoic Inc. d/b/a Zoic Studios and Matt Thunell’s motion to tax costs is GRANTED.  Plaintiff Casey Cheryl Marie O’Neill’s costs will be taxed by $30,358.39, from $37,177.59 to $6,819.20. 

Plaintiff Casey Cheryl Marie O’Neill’s costs of $6,819.20 are to be paid by Defendant Matt Thunell only.

Moving Party shall give notice.


BACKGROUND

MOVING PARTY POSITION

Defendants move to strike all of Plaintiff’s $37,177.50 in costs because Plaintiff’s $15,000 verdict was not greater than Defendants’ 998 Offer to compromise of $50,000.  Additionally, Plaintiff’s $15,000 verdict was below the $25,000 jurisdictional minimum for an unlimited case, so the Court has discretion to deny Plaintiff’s request for costs.

Alternatively, Defendants move to tax $34,647.79 of Plaintiff’s costs, leaving $2,529.80 in costs to be awarded.  Defendants attack individual items of Plaintiff’s costs as not allowed by statute, not reasonably necessary, and not supported by documentation.

OPPOSITION

Plaintiff opposes the motion to strike all of Plaintiff’s costs because a CCP § 998 offer by multiple defendants that fails to apportion the offer between them is too uncertain for the Court to determine if Plaintiff’s verdict against any one party was higher than the offer made by that party alone.  Based on the information available at the time of filing, Plaintiff had a reasonable chance of receiving an award above the jurisdictional minimum.

Plaintiff asserts all costs are justified and provides invoices for court reporters and expert witnesses.

REPLY

Defendants argue for the first time on reply that Plaintiff has not actually sought costs against Defendant Thunell, only against Zoic, and therefore Plaintiff cannot recover any costs at all.[1]  Defendants repeat their argument that the 998 Offer was made on behalf of Zoic and Thunell, and bars Plaintiff’s recovery of costs.  Defendants repeat their limited jurisdiction argument.  Defendants argue Plaintiff’s 42 U.S.C. 1988 argument is inapplicable here.  Defendants argue Plaintiff has waived all argument against taxing specific items because Plaintiff has only attached a few invoices and fails to substantively address the rest of Defendants’ arguments for apportionment.

ANALYSIS

I. Prevailing Party

A “prevailing party” entitled to costs: In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. CCP § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108. Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129. The term “prevailing party” for costs purposes is defined by statute to include:

C The party with a net monetary recovery;

C A defendant who is dismissed from the action;

C A defendant where neither plaintiff nor defendant recovers anything; and

C A defendant as against those plaintiffs who do not recover any relief against that defendant.  (CCP § 1032(a)(4).)

If the party does not fall within one of these four express categories, the court may exercise its discretion to award or deny costs.  See Lincoln v. Schurgin (1995) 39 Cal.App.4th 100, 105. 

Here, it is undisputed that Plaintiff did not recover against Zoic.  Plaintiff is not entitled to recover costs against Zoic, per CCP § 1032(a)(4).[2] 

It is also undisputed that Plaintiff recovered $15,000 against Thunell.  Under CCP § 1032(a)(4), Plaintiff is a prevailing party entitled to recover costs from Thunell only.  Plaintiff’s recovery of costs may be affected by Defendants’ 998 Offer or Plaintiff’s failure to secure a recovery above the jurisdictional minimum for an unlimited civil case.

II. CCP § 998 Offer

CCP § 998 restricts a prevailing party’s recovery of costs.  “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer.”  CCP § 998(c)(1).  However, not all CCP § 998 offers trigger the above provision.  “When multiple defendants have jointly made a settlement offer to a single plaintiff without indicating how the offer is to be allocated among them, it has been held too uncertain to result in section 998 penalties, because it cannot be determined whether any individual plaintiff's recovery at trial was more favorable than the offer.”  Arno v. Helinet Corp. (2005) 130 Cal.App.4th 1019, 1026.

Here, Zoic alone made a 998 Offer of $50,000 to Plaintiff.  Fishman Decl., Exh. 1.  Despite Defendants’ assertions in this motion, the 998 Offer does not mention Thunell or any of the other defendants.  Fishman Decl., Exh. 1.  A review of the Court’s records reveals Thunell did not appear in this action until two months after the 998 Offer.  Because the 998 Offer was not made by Thunell, the 998 Offer will not bar Plaintiff’s recovery of costs against Thunell. 

Even assuming the 998 Offer had been made by both Zoic and Thunell, the 998 Offer failed to indicate how the offer was allocated between Zoic and Thunell.  The 998 Offer was too uncertain to bar Plaintiff’s recovery of costs because the Court cannot determine whether Plaintiff’s recovery against Thunell was more favorable than Thunell’s unknown portion of the $50,000 998 Offer.  Therefore, even assuming Zoic’s 998 Offer could be construed to apply to Thunell, the 998 Offer would not bar Plaintiff’s recovery of costs against Thunell.

III. Recovery Under Jurisdictional Minimum for Unlimited Civil

Although a prevailing party usually has a right to recover costs from the losing party, Code of Civil Procedure Section 1033(a) curtails that right and grants the court discretion to limit the costs a prevailing party may recover.  “Costs or any portion of claimed costs shall be determined by the court in its discretion in a case other than a limited civil case … where the prevailing party recovers a judgment that could have been rendered in a limited civil case.”  CCP § 1033(a).  Judgments in limited civil cases can be rendered up to $25,000, so any recovery under $25,000 subjects the prevailing party’s costs to the court’s discretion.  CCP § 85(a).  CCP § 1033(a) embodies an “encouragement of the bringing of an action in the appropriate forum.”  Steele v. Jensen Instrument Co. (1997) 59 Cal.App.4th 326, 329.  Litigation costs may be denied when “the trial court is firmly persuaded that the plaintiff’s attorney had no reasonable basis to anticipate a FEHA damages award in excess of the amount recoverable in a limited civil case…”  Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 987.

However, “the trial court should consider FEHA’s underlying policy of encouraging the assertion of meritorious FEHA claims, and … the trial court should exercise caution to avoid ‘hindsight bias.’”  Chavez, supra, 47 Cal.4th at p. 986. 

If, based on the available information, the plaintiff's attorney might reasonably have expected to be able to present substantial evidence supporting a FEHA damages award in an amount exceeding the damages limit (now $25,000) for a limited civil case, or if the plaintiff's attorney might reasonably have concluded that the action could not be fairly and effectively litigated as a limited civil case, the trial court should not deny attorney fees merely because, for example, the trier of fact ultimately rejected the testimony of the plaintiff's witnesses or failed to draw inferences that were reasonably supported, although not compelled, by the plaintiff's evidence.

Id. at p. 987.

Here, the Court is not firmly persuaded that Plaintiff’s attorney had no reasonable basis to anticipate a recovery above $25,000 when filing this case.  First, contemporaneous evidence shows not only Plaintiff but also Defendants estimated this case could result in an award above the jurisdictional minimum.  Defendants’ own counsel made a $50,000 settlement offer shortly after the case was filed.  Fishman Decl., Exh. 1.  Second, Plaintiff’s eventual recovery was merely $10,000 short of the jurisdictional limit.  Third, Plaintiff likely recovered only $15,000 because the jury did not fully credit the testimony of the witnesses Plaintiff presented on the issue of damages.  Plaintiff’s entire award was made up of noneconomic damages, which are evaluated largely subjectively by the jury.  A different jury could have found Plaintiff’s damages witnesses more credible and awarded at least $10,000 more in noneconomic damages, reaching the jurisdictional threshold.  In light of FEHA’s underlying policy of encouraging meritorious FEHA claims, the Court is not firmly persuaded that Plaintiff’s attorney had no reasonable basis to expect a recovery $10,000 greater in this case.  Therefore, the Court will award Plaintiff some costs against Thunell.[3] [4]

IV. Costs: Items and Amounts

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.”  Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.  “On the other hand, 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.”  Ibid.

California Rules of Court Rule 3.1700 provides that: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. 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 the case.”

CCP § 1033.5 provides the items that are allowable as costs under CCP § 1032.  The losing party may dispute any or all of the items in the prevailing party’s memorandum of costs by a motion to strike or tax costs.  CRC Rule 3.1700(b).  Technically, a motion to strike challenges the entire costs bill whereas a motion to tax challenges particular items or amounts.

Before addressing specific items, Defendants argue Plaintiff’s recovery of costs should be reduced because Plaintiff failed to recover anything against Zoic; Plaintiff prevailed on one cause of action out of eight; and Plaintiff recovered a small fraction of the demand of the Complaint.  Rather than indulging Defendants’ request for a indiscriminate reduction of all Plaintiff’s costs, the Court will address each item in turn under CCP § 1033.5.

A. Filing Fees

Filing fees are allowable costs under CCP § 1033.5(a)(1).

Defendants seek to tax all $621.65 of Plaintiff’s filing fees because Plaintiff fails to provide invoices for these costs.  Defendants cite no case law requiring Plaintiff to provide invoices for filing fees paid.  Therefore, Defendants have failed to meet their burden to show this statutorily proper item is not reasonable or necessary.

Alternatively, Defendants argue Plaintiff “should be made to account for what the filing and motion fees were,” so that Plaintiff can only recover for motions that lead to Plaintiff’s single successful cause of action against Thunell.  Defendants cite no case law requiring such granular accounting of costs.  Nonetheless, there is logic to Defendants’ contention that motions pertaining solely to unsuccessful causes of action should be excluded.  Defendants bear their burden on merely one cost item: the $1.75 filing fee for “Brief of Plaintiff re. Association Discrimination and Harassment.”  Defendants identify no other filing fees that apply solely to unsuccessful causes of action.

Lastly, Defendants claim Plaintiff made an arithmetical error and Plaintiff’s listed filing fees add up to $100 less than Plaintiff’s claimed $621.65.  The Court has independently added up Plaintiff’s filing fee costs and finds they total $532.20.

Therefore, the Court will tax Plaintiff’s filing fee costs by $1.75 for the Brief re Association Discrimination and $89.45 for arithmetical errors.  Plaintiff’s allowable filing fees are $530.45.

B. Jury Fees

Jury fees are allowable costs under CCP § 1033.5(a)(1).

Defendants seek to tax all $1,514.09 of Plaintiff’s jury fees because Plaintiff would not have incurred jury fees if this action was brought in “the appropriate forum”[5] and the trial of Plaintiff’s sole winning claim against Thunell cannot have taken more than two days.  Defendants fail to specify the amount of the reduction in jury fees that would have occurred if trial was limited to two days.  Instead, Defendants submit the declaration of their attorney, David Fishman, claiming most of the testimony at trial dealt with Zoic’s liability.  Plaintiff offers no response.  Although there was overlap in the facts presented for Plaintiff’s causes of action, the trial would not have lasted as long if Zoic was not included as a defendant and if the race-based association discrimination claim against Thunell was not tried.  Trial last six days (Aug. 27th, 28th, 30th, and Sept. 3rd, 4th, and 5th) and Plaintiff paid $1,514.09 in jury fees.  Given the factual overlap among Plaintiff’s claims, the Court finds that three days of the jury trial were spent on Plaintiff’s unsuccessful claims. 

Therefore, the Court will tax Plaintiff’s jury fees by half: $757.04.  Plaintiff’s allowable jury fees are $757.05.

C. Deposition Costs

Taking, video recording, and transcribing necessary depositions are allowable costs under CCP § 1033.5(a)(3)(A).

Defendants seek to tax Plaintiff’s $7,295.75 in deposition costs down to $2,529.80 because the depositions of Caitlin Schneiderhan, Ali Raza, Alexandra Hopkins, Tim McBride, Ina Unterreiner, and Tiffany Ventura pertained exclusively to Plaintiff’s causes of action against Zoic.  Defendants offer the declaration of their attorney, David Fishman, who declares the above depositions solely concerned Zoic’s liability.  Fishman Decl. ¶¶ 9-10.  Plaintiff offers no response.  Defendants have met their burden to show the deposition costs for Schneiderhan, Raza, Hopkins, McBride, Unterreiner, and Ventura were not necessary for Plaintiff’s sole successful cause of action against Thunell. 

Therefore, the Court will tax Plaintiff’s deposition costs by $4,765.95.  Plaintiff’s allowable deposition costs are $2,529.80.

D. Service of Process Fees

Service of process is an allowable cost under CCP § 1033.5(a)(4).

Defendants seek to tax all $13,425.00 of Plaintiff’s service of process fees because it was unnecessary to serve process on witnesses who did not testify or to “stake out” witnesses who had agreed to testify on Plaintiff’s behalf.  Pat Boone and Caitlin Schneiderhan had agreed to testify for Plaintiff but were unnecessarily “staked out” by Plaintiff’s process server.  Fishman Decl. ¶¶ 11-12.  Tiffany Ventura, Monica Ballard, Saker Klippstein, Raymond Vath M.D., Leonard Creer, Ali Raza, Alexandra Hopkins, Nick Vassil, Gordon Van Tassel D.O., Chris Trejo, Brittney Yvonne Scale, and Brian Lamar Stokes were unnecessarily served with trial subpoenas but not asked to testify at trial.  Fishman Decl. ¶ 14.  Plaintiff unnecessarily paid a process server to serve trial subpoenas on Ian Unterreiner, McBride, and Thunell, after Defendants’ counsel had agreed to accept service for these persons.  Fishman Decl. ¶ 15.  Plaintiff did not prevail against Zoic, despite spending $71.52 to serve Zoic.  Defendants fails to address the $397.40 spent to serve Larissa Ramos with a trial subpoena.  Plaintiff fails to respond to Defendants’ arguments.  Defendants have met their burden to show the service of process costs were unnecessary for all witnesses except Larissa Ramos.

Therefore, the Court will tax Plaintiff’s service of process costs by $13,027.60.  Plaintiff’s allowable service of process costs are $397.40.

E. Expert Witness Fees

Fees of experts not ordered by the court are not allowable as costs, except when expressly authorized by law.  CCP § 1033.5(b)(1). 

Defendants seek to tax all $2,931.00 of Plaintiff’s expert witness fees because the Court did not order any experts and Plaintiff’s experts were not reasonably necessary.  Plaintiff offers no justification for her expert witness fees, and therefore cannot meet her burden to show the expert witness fees were reasonable or necessary.

Therefore, the Court will tax all $2,931.00 of Plaintiff’s expert witness fees.  Plaintiff’s allowable expert witness fees are $0.00.

F. Court Reporter Fees

Court reporter fees as established by statute are allowable costs under CCP § 1033.5(a)(11).

Defendants seek to tax all $4,780.50 of Plaintiff’s court reporter fees because Plaintiff did not include invoices, so Defendants cannot determine whether the court reporter fees were statutorily authorized or reasonably necessary.  Defendants have failed to cite any case law requiring the inclusion of invoices in a memorandum of costs.  Defendants’ inability to determine cannot carry Defendants burden to show these statutorily allowed costs were not reasonable or necessary. 

Alternatively, Defendants also argue the court reporter fees should be reduced because Plaintiff prevailed on one cause of action only, against one defendant only.  The Court finds that the court reporter fees shall be reduced by half for two reasons.  First, if the Defendants were to share the court reporter’s fees and Zoic avoided liability, half of the court reporter fees would not be paid.  Second, the court reporter here transcribed the trial.  In Section IV(B), the Court determined that the trial would have been half as long if only Plaintiff’s case against Thunell proceeded.  Therefore, the half of the court reporter’s fees earned transcribing the half of the trial which could have been eliminated by excluding Zoic should not be recoverable as costs.

Therefore, the Court will tax Plaintiff’s court reporter fees by half: $2,390.25.  Plaintiff’s allowable court reporter fees are $2,390.25.

G. Photocopies of Exhibits

Models, enlargements of exhibits, and photocopies of exhibits, if reasonably helpful to the trier of fact, are allowable costs under CCP § 1033.5(a)(13).  “[F]ees are not allowed for exhibits not used a trial.”  Ladas, supra, 19 Cal.App.4th at p. 775.

Defendants seek to tax all $425.00 of Plaintiff’s exhibit copying fees because Defendants cannot tell which copying costs were for the exhibits relating to Plaintiff’s unsuccessful claims, and Plaintiff only introduced 30 exhibits of the 64 Plaintiff designated.  Defendants have failed to cite case law requiring Plaintiff’s differentiate among their copying costs and have failed to prove that Plaintiff’s included copying costs are not already differentiated or otherwise reasonable and necessary.  Conversely, Defendants have submitted evidence that Plaintiff used a little less than half of Plaintiff’s exhibits at trial, creating the reasonable inference that half of Plaintiff’s exhibit copying costs accrued from exhibits that were not presented at trial.  Therefore, Defendants have met their burden to show that half of Plaintiff’s exhibit copying costs are not recoverable.

Therefore, the Court will tax Plaintiff’s exhibit copying costs by half: $212.50.  Plaintiff’s allowable exhibit copying costs are $212.50.

H. Other Costs

I. Messenger and Shipping Costs

Messenger fees are recoverable only if reasonably necessary, such as fees incurred filing documents with the court, complying with opposing counsel’s document demands, and transporting exhibits to court.  Ladas, supra, 19 Cal.App.4th at p. 776.  Messenger fees and shipping charges are not included in the list of allowable costs in CCP § 1033.5.

Defendants seek to tax all $1,623.10 of Plaintiff’s messenger fees and all $36.02 of Plaintiff’s shipping charges because Plaintiff has not provided evidence that the messenger fees or shipping charges were related to trial preparation.  Plaintiff offers no response.  Unlike in Ladas where the party seeking messenger fees provided a declaration that the messenger service transported documents to the courthouse for filing, to opposing counsel in response to document demands, and to court for use as exhibits, Plaintiff fails to justify these fees at all.  Therefore, Plaintiff cannot meet her burden to show the messenger fees or shipping charges should be allowed as costs.

Therefore, the Court will tax all of Plaintiff’s messenger and shipping costs.  Plaintiff’s allowable messenger and shipping costs are $0.00.

II. Lodging, Parking, and Transportation Costs

“The only travel expenses authorized by CCP § 1033.5 are those to attend depositions.”  Ladas, supra, 19 Cal.App.4th at p. 775; CCP § 1033.5(a)(3).  Routine expenses for local travel by attorneys are not reasonably necessary to conduct litigation; they are merely convenient.  Id. at pp. 775-776. 

Defendants seek to tax all $4,525.04 of Plaintiff’s lodging, parking, and transportation expenses because this case did not involve any travel outside of Los Angeles and Plaintiff fails to specify whether the parking and transportation expenses arose from depositions or not.  Defendants submit the declaration of their attorney, David Fishman, who declares the case was litigated entirely in Los Angeles so there should not be any expenses for lodging and local travel should be in the hundreds, not thousands.  Fishman Decl. ¶ 20.  Plaintiff fails to respond.  Like the attorney in Ladas whose declaration failed to demonstrate his local travel expenses were necessary to conduct litigation, Plaintiff has failed to provide any justification for the transportation and parking expenses in this entirely local case.  Plaintiff has even failed to provide evidence that Plaintiff’s counsel travelled to any deposition in this case, especially since Plaintiff noticed the majority of the depositions, which likely took place at Plaintiff’s counsel’s office.  Additionally, because the case took place entirely in Los Angeles, Plaintiff’s lodging expenses appear unreasonable, and Plaintiff fails to provide any explanation for those expenses.  Therefore, Plaintiff has failed to meet her burden to show the lodging, parking, and transportation expenses are reasonable and necessary.

Therefore, the Court will tax all of Plaintiff’s lodging, parking, and transportation costs.  Plaintiff’s allowable lodging, parking, and transportation costs are $0.00.

V. Conclusion

In sum, the Court finds the following costs were reasonably necessary and are allowable:

Cost Item

Plaintiff’s Request

Final Amount

Filing Fees

$621.65

$532.20

Jury Fees

$1,514.09

$757.05

Deposition Costs

$7,295.75

$2,529.80

Service of Process Fees

$13,425.00

$397.40

Expert Witness Fees

$2,931.00

$0.00

Court Reporter Fees

$4,780.50

$2,390.25

Photocopies of Exhibits

$425.00

$212.50

Other: Messenger & Shipping

$1,659.12

$0.00

Other: Lodging, Parking, and Transportation

$4,525.04

$0.00

Total Costs

$37,177.59

$6,819.20

Accordingly, Defendants’ motion to tax costs is GRANTED.  Plaintiff’s costs will be taxed by $30,358.39, from $37,177.59 to $6,819.20.  Plaintiff’s costs of $6,819.20 are to be paid by Thunell only.


[1] Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.App.4th 1323, 1333 (new issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded). 

[2] CFO McBride and HR Ventura were dismissed from this action before trial.

[3] Plaintiff also raises 42 U.S.C. 1988 as a separate statute authorizing Plaintiff’s recovery of costs.  The Court need not address Plaintiff’s arguments about 42 U.S.C. 1988 because the Court holds Plaintiff is entitled to recover some costs against Thunell under California law.

[4] For the first time on reply, Defendants argue that Plaintiff’s memorandum of costs seeks costs from Defendant Zoic only, and therefore Plaintiff cannot recover costs against Defendant Thunell.  The Court disregards Defendants’ untimely argument.  Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.App.4th 1323, 1333 (new issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded). 

[5] To the extent that they intend to repeat their argument that Plaintiff should have filed this action as a limited jurisdiction case, Defendants’ argument has been disposed of above in Section III.