This case was last updated from Los Angeles County Superior Courts on 10/17/2020 at 10:42:19 (UTC).

STEVE SNOECK VS EXAKTIME INNOVATIONS INC

Case Summary

On 06/06/2018 STEVE SNOECK filed a Contract - Other Contract lawsuit against EXAKTIME INNOVATIONS INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MICHAEL P. LINFIELD. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8964

  • Filing Date:

    06/06/2018

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MICHAEL P. LINFIELD

 

Party Details

Plaintiffs, Petitioners, Respondents and Appellants

SNOECK STEVE

ONE LEGAL

Defendants, Respondents and Appellants

EXAKTIME INNOVATIONS INC.

SNOECK STEVE

DOES 1-50

Plaintiffs and Not Classified By Court

ONE LEGAL

MCCOY TIMOTHY J.

L.A. DEPOSITIONS INC

DURON MARLENE

BARRITT SMITH LLP

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

SMITH PERRY G.

Defendant and Respondent Attorneys

MARCHLEWSKI THERESA M. ESQ.

MARCHLEWSKI THERESA M.

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON MOTION TO TAX COSTS)

1/21/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION TO TAX COSTS)

Proof of Service (not Summons and Complaint)

9/23/2019: Proof of Service (not Summons and Complaint)

Brief - BRIEF DEFENDANT'S SUPPLEMENTAL TRIAL MEMORANDUM RE: JUDICIAL ADMISSIONS

6/17/2019: Brief - BRIEF DEFENDANT'S SUPPLEMENTAL TRIAL MEMORANDUM RE: JUDICIAL ADMISSIONS

Minute Order - MINUTE ORDER (JURY TRIAL (DAY 3) / EXPEDITED)

6/19/2019: Minute Order - MINUTE ORDER (JURY TRIAL (DAY 3) / EXPEDITED)

Special Verdict

6/25/2019: Special Verdict

Objection - OBJECTION DEFENDANTS OBJECTIONS/RESPONSE RE PROPOSED VIDEO CLIPS

6/17/2019: Objection - OBJECTION DEFENDANTS OBJECTIONS/RESPONSE RE PROPOSED VIDEO CLIPS

Proof of Service (not Summons and Complaint)

6/14/2019: Proof of Service (not Summons and Complaint)

Motion in Limine - MOTION IN LIMINE DEFENDANT'S MOTION IN LIMINE NO. 5

5/31/2019: Motion in Limine - MOTION IN LIMINE DEFENDANT'S MOTION IN LIMINE NO. 5

Motion in Limine - MOTION IN LIMINE PLAINTIFF'S MOTION IN LIMINES NO 3-10

5/31/2019: Motion in Limine - MOTION IN LIMINE PLAINTIFF'S MOTION IN LIMINES NO 3-10

Motion in Limine - MOTION IN LIMINE PLAINTIFF'S MOTION IN LIMINE NO 2

5/31/2019: Motion in Limine - MOTION IN LIMINE PLAINTIFF'S MOTION IN LIMINE NO 2

Memorandum - MEMORANDUM PLAINTIFF'S MOTION IN LIMINE NO 7

5/31/2019: Memorandum - MEMORANDUM PLAINTIFF'S MOTION IN LIMINE NO 7

Witness List

5/31/2019: Witness List

Witness List

6/3/2019: Witness List

Declaration in Support of Ex Parte Application

3/8/2019: Declaration in Support of Ex Parte Application

Separate Statement - PLAINTIFF STEVE SNOECKS RESPONSE TO DEFENDANT EXAKTIME INNOVATIONS, INC.S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE AL

5/16/2019: Separate Statement - PLAINTIFF STEVE SNOECKS RESPONSE TO DEFENDANT EXAKTIME INNOVATIONS, INC.S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE AL

Objection - OBJECTION TO EVIDENCE SUBMITTED BY DEFENDANT IN SUPPORT OF MSJ/MSA

5/16/2019: Objection - OBJECTION TO EVIDENCE SUBMITTED BY DEFENDANT IN SUPPORT OF MSJ/MSA

225 More Documents Available

 

Docket Entries

  • 06/26/2020
  • DocketAppeal Record Delivered (APPEALS FILED 10-31-19 & 12-11-19); Filed by Clerk

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  • 04/24/2020
  • DocketAppellate Order Extension of Time (NOA: 10/31/19 B302178); Filed by Clerk

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  • 04/24/2020
  • DocketAppeal Record Delivered; Filed by Clerk

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  • 03/27/2020
  • DocketAppeal - Notice Court Reporter to Prepare Appeal Transcript (B304054, NOA 2/4/20;); Filed by Clerk

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  • 03/20/2020
  • DocketAppellate Order Extending Time for Reporter Transcript Prep (NOA:10/31/19 B302178); Filed by Clerk

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  • 02/21/2020
  • DocketUndertaking (bond)

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  • 02/21/2020
  • DocketNotice (Notice of Filing of Undertaking on Appeal); Filed by Exaktime Innovations, Inc. (Defendant)

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  • 02/21/2020
  • DocketAppeal - Reporter Appeal Transcript Process Fee Paid; Filed by Steve Snoeck (Plaintiff)

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  • 02/18/2020
  • DocketAppeal - Ntc Designating Record of Appeal APP-003/010/103 ("U"; NOA:2/4/20); Filed by Steve Snoeck (Appellant)

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  • 02/18/2020
  • DocketProof of Service (not Summons and Complaint); Filed by Steve Snoeck (Appellant)

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239 More Docket Entries
  • 07/09/2018
  • DocketNotice of Change of Firm Name; Filed by Steve Snoeck (Plaintiff)

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  • 06/27/2018
  • DocketProof-Service/Summons

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  • 06/27/2018
  • DocketProof of Service (not Summons and Complaint); Filed by Steve Snoeck (Plaintiff)

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  • 06/27/2018
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 06/27/2018
  • DocketPROOF OF SERVICE BY MAIL

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  • 06/26/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/26/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 06/06/2018
  • DocketSUMMONS

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  • 06/06/2018
  • DocketComplaint; Filed by Steve Snoeck (Plaintiff)

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  • 06/06/2018
  • DocketCOMPLAINT FOR DAMAGES (1) FAILURE TO REASONABLY ACCOMMODATE DISABILITY (GOVT. CODE 12940(M)); ETC

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Tentative Rulings

Case Number: BC708964    Hearing Date: January 21, 2020    Dept: 34

SUBJECT: Motion to Tax Costs

Moving Party: Defendant ExakTime Innovations, Inc.

Resp. Party: Plaintiff Steve Snoeck

The Court GRANTS in part Defendant’s motion to tax. The Court taxes the total costs by $30,056.44, and grants costs in the amount of $49,353.46.

BACKGROUND:

Plaintiff Steve Snoeck commenced this action on June 6, 2018 against Defendant ExakTime Innovations, Inc. for (1) failure to reasonably accommodate disability; (2) failure to engage in good faith interactive process; (3) disability discrimination; (4) failure to prevent discrimination and retaliation; (5) retaliation in violation of the Fair Employment and Housing Act; and (6) wrongful termination in violation of public policy.

Plaintiff alleges that his employer, Defendant, terminated his employment as an Account Executive after he took an approved medical leave for his disability of sleep apnea, high blood pressure, and hypothyroidism. (Complaint, ¶¶ 8-15.)

On May 30, 2019, the Court denied Defendant’s for summary judgment, or in the alternative, summary adjudication.

A jury trial took place on June 17, 2019, June 18, 2019, June 19, 2019, June 20, 2019, June 24, 2019, and June 25, 2019.

The jury found in favor of Defendant on Plaintiff’s claims for (1) disability discrimination; (2) failure to accommodate; (3) retaliation; (4) failure to prevent discrimination and/or retaliation; and (5) wrongful termination in violation of public policy. (06/25/2019 Minute Order, pp. 1-2.)

The jury found in favor of Plaintiff on Plaintiff’s claim for failure to engage in the interactive process. (06/25/2019 Minute Order, p. 2.)

The jury determined that Plaintiff’s damages were (1) economic damages in the amount of $58,088.00; and (2) non-economic damages in the amount of $72,000.00. (06/25/2019 Minute Order, pp. 2-3.)

On October 7, 2019, the Court denied Plaintiff’s motion for judgment notwithstanding the verdict and motion for new trial.

On October 29, 2019, the Court signed and filed the judgment on general verdict.

On November 13, 2019, Plaintiff filed his memorandum of costs.

On December 2, 2019, Defendant filed the instant motion to strike Plaintiff’s memorandum of costs in its entirety, or in the alternative, to tax Plaintiff’s costs.

ANALYSIS:

A. Evidentiary Objections

The Court SUSTAINS Plaintiff’s evidentiary objections to the original Marchlewski declaration, paragraphs 5 and 6 and Yang declaration, paragraphs 4 and 5.

The Court OVERRULES Plaintiff’s evidentiary objections to the supplemental Marchlewski declaration, paragraph 2 and exhibit A.

B. Relevant Law

“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(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.” (Id.)

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.” (Id.)

Even where parties are unsuccessful as to certain matters, prevailing parties as defined by statute (Code of Civil Procedure §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, 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.)

C. Discussion

1. Striking the Memorandum of Costs in its Entirety

Defendant first argues that “the Memorandum of Costs should be stricken in its entirety because Plaintiff fails to support any of the costs therein.” (Motion, p. 4:22-24.) Defendant maintains that “because Plaintiff filed his Memorandum of Costs . . . without any supporting documentation, he has foreclosed this Court and Defendant from properly examining the costs sought to determine whether they are allowable, reasonably necessary, and should be awarded.” (Id. at p. 4:18-20.)

In opposition, Plaintiff argues that “Defendant’s motion to strike for lack of supporting documentation is frivolous” and his “supporting documentation is appropriately presented for the first time in response to Defendant’s motion.” (Opp., p. 2:16-22.)

The Court agrees with Plaintiff, that “supporting documentation must be submitted only if costs have been put in issue by a motion to tax costs.” (See Jones, supra, 63 Cal.App.4th at 1267.)

The Court DENIES Defendant’s motion to strike the memorandum of costs in its entirety.

2. Taxing the Memorandum Costs

Defendant argues that in the alternative, the memorandum of costs should be taxed because (1) Plaintiff did not apportion costs after he rejected Defendant’s statutory offer pursuant to Code of Civil Procedure section 998; and (2) Plaintiff’s claimed costs for filing and motion fees, depositions, service of process, models, enlargements, and photocopies of exhibits, and the electronic filing or service fees are not allowable and are not reasonably necessary. (Motion, pp. 5:2-3, 7:24-25.)

a. Section 998 Offer

The costs allowed under section 1032 may be “withheld or augmented” if an offer to compromise made pursuant to section 998 is rejected. (Code Civ. Proc., § 998. subd. (a).) The policy of section 998 is to “encourage settlement by providing a strong financial disincentive to a party—whether it be a plaintiff or a defendant—who fails to achieve a better result than that party could have achieved by accepting his or her opponent's settlement offer.” (Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 804.) Of relevance here, “[i]f 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.” (Code Civ. Proc., § 998, subd. (c)(1).)

Additionally, if a settlement offer made by a defendant pursuant to section 998 is not accepted and the plaintiff fails to obtain a more favorable result, the court, “in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer costs of services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for the trial or arbitration, or during trial or arbitration, of the case by the defendant.” (Ibid.)

On June 4, 2019, Defendant’s counsel personally served a statutory offer to compromise to Plaintiff on behalf of Defendant pursuant to California Code of Civil Procedure § 998. The amount offered was $500,000.00, which did not include Plaintiff’s costs and attorneys’ fees incurred, which were to be paid by Defendant upon a determination by the Court if the Parties were unable to agree upon a reasonable amount. (Marchleweski Supplemental Decl., ¶ 2; Ex. A.)

That day, on June 4, 2019, Plaintiff rejected the offer to compromise. (Id. at ¶ 2; Ex. B.)

The Court sustains Plaintiff’s objections to the original declaration that Defendant’s counsel submitted, based on the secondary evidence rule. However, in reply, Defendant submits a supplemental declaration and attaches a copy of the June 4, 2019 offer to compromise. (See id., Ex. A.)

The Court finds that Plaintiff rejected the statutory offer to compromise and the amount offered, $500,000.00, is greater than the jury’s award of $130,088.00. (See id., Ex. A; see also 06/25/2019 Minute Order, pp. 2-3.) Therefore, Plaintiff is not entitled to recover his post-offer costs that were incurred after June 4, 2019. (See Code Civ. Proc., § 998 subd. (c)(1).)

i. Expert Fees Costs

Defendant argues that “at the very least, the deposition fees and ‘trial’ fees for Plaintiff’s experts were accrued after June 4, 2019” – the date the 998 offer was made. (Motion, p. 6:1-2.) Defendant seeks to tax the following expert fee costs:

Depositions

Gould, Jeffrey, MD

$1,400.00

Hagen, June, PhD

$1,850.00

Downs, Donald, MD

$1,125.00

Total

$4,735.00

Consultation/Trial Testimony

Hunt, Tamora, PhD

$5,559.50

Reading, Anthony

$7,025.00

Prisco, Douglas, MD

$1,800.00

EXTTI, Inc.

$6,307.50

Total

$20,421.50

(Id. at p. 6:5-17.)

In opposition, Plaintiff amends his Memorandum of Costs and recalculates the amount of expert fees. (See Smith Decl., Ex. A.) In reply, Defendant seeks to tax the following costs, as updated to match Plaintiff’s revised Memorandum of Costs:

Depositions

Gould, Jeffrey, MD

$1,400.00

Hagen, June, PhD

$1,650.00

Total

$3,050.00

Consultation/Trial Testimony

Hunt, Tamora, PhD

$5,559.50

Reading, Anthony

$6,575.00

Prisco, Douglas, MD

$1,800.00

Hunt, Tamora, PhD

$5,000.00 (consult)

EXTTI, Inc.

$6,037.50 (consult)

Total

$24,971.50

The Court has reviewed the invoices and supporting documentation Plaintiff submits with the revised memorandum of costs. (Smith Decl., Ex. B.) The invoice provided for Jeffrey Gould, M.D. states that the job date was 6/14/2019, which is after the Section 998 offer was made and rejected, thus the Court GRANTS Defendant’s motion to tax costs for the amount of $1,400.00.

The invoice provided for June Hagen, PhD states that the job date was 6/13/19, which is after the Section 998 offer was made and rejected, thus the Court GRANTS Defendant’s motion to tax costs for the amount of $1,650.00.

The invoice provided for Tamora Hunt, PhD is dated on July 15, 2019 for “travel, wait & testimony time – trial” and “professional services rendered,” and the consultation fees for $5,000.00 to determine damages, which would have occurred at trial after the Section 998 offer was made and rejected, thus the Court GRANTS Defendant’s motion to tax costs for the amount of $10,559.50.

The invoice provided for Anthony Reading has work dated from 5/9/2019-5/28/2019, which is before the Section 998 offer was made and rejected, thus the Court DENIES Defendant’s motion to tax costs for the amount of $6,575.00.

The invoice for EXTTI is for work dated 6/1/19-6/4/19, which is before the Section 998 offer was made and rejected, thus the Court DENIES Defendant’s motion to tax costs for the amount of $6,037.50.

The attachment 8.b.(5) states that the work Douglas Prisco, MD performed was for trial at $450.00 per hour, which would have occurred after the Section 998 offer was made and rejected, thus the Court GRANTS Defendant’s motion to tax costs for the amount of $1,800.00.

For the expert fees, the Court reduces the costs sought by Plaintiff in the amount of $15,409.50.

ii. Trial/Hearing Transcript and Court Reporter Fees

Defendant argues that the trial/hearing transcript and court reporter fees in the amount of $17,195.04 should also be taxed as they all were incurred after Defendant’s June 4, 2019 statutory offer. (Motion, p. 7:2-5.)

In his opposition, Plaintiff states that he “is withdrawing his request for transcript fees of $11,906.85, and has made some slight corrections to amounts based on the supporting documentation.” (Opp., p. 2:25-27.)

In reply, Defendant still seeks to tax the trial court reporter fees in the amount of $5,288.19, all incurred after June 4, 2019, as follows:

· June 17, 2019 – Trial Day 1: $1,416.85

· June 18, 2019 – Trial Day 2: $1,391.75

· June 19, 2019 – Trial Day 3: $391.80

· June 20, 2019 – Trial Day 4: $736.54

· June 21, 2019 – Trial Day 5: $598.75

· June 22, 2019 – Trial Day 6: $510.00

· October 7, 2019 – JNOV/New Trial Hearing: $242.50

The Court would have found that the trial/hearing transcript fees in the amount of $11,906.85 should be taxed as they were incurred after the June 4, 2019 statutory offer. However, because Plaintiff submitted an amended memorandum of costs withdrawing these fees, the Court finds that the request to tax the trial/hearing transcript fees is MOOT.

Relevant to this motion, however, the trial court reporter fees in the amount of $5,288.19 were incurred after the Section 998 offer was made and rejected. Accordingly, the Court GRANTS Defendant’s motion to tax costs for the trial court reporter fees and reduces the amount of costs sought by Plaintiff in the amount of $5,288.19.

b. Allowable and Necessary Costs

i. Filing and Motion Fees Costs

Pursuant to Code of Civil Procedure section 1033.5(a)(1), filing and motion fees are allowable costs. Under section 1033.5, “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.)

“Neither subdivision (a) or (b) [of Code of Civil Procedure section 1033.5] states whether attorney service charges for court filings and deliveries or mediators' fees are allowable or not. Thus, these costs fall within the ‘discretionary category,’ subdivision (c)—that is, they are allowable if in the court's discretion they were ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’” (Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1132.)

Defendant requests that the Court tax the filing and motion fee costs, in a total amount of $916.37. (Motion, pp. 8:11-9:3.)

Defendant argues that “the amount Plaintiff claims for several filing fee related costs are either inaccurate in that they do not match the Court’s filing fee schedule, unrecoverable, or were not incurred.” (Id. at p. 9:4-5.) Defendant maintains that “all ‘filing service fees’ do not match any filing fee on the Court’s filing fee schedule and should be taxed from the totals listed under Attachment 1.g of Plaintiff’s Memo.” (Id. at p. 9:5-8 [citing Yang Decl., ¶ 3, Exs. A, B].) Further, Defendant maintains that “the Court does not charge a filing fee for a Case Management Statement.” (Id. at p. 9:10-12.) Lastly, Defendant asserts that “any costs that were incurred after June 4, 2019 – after the 998 settlement offer was made, should be stricken as outlined above.” (Id. at p. 9:12-13.)

Plaintiff submits a revised memorandum of costs, and lists the amount for filing fees as $1,480.06, instead of $1,491.37. (Smith Decl., Ex. A.) Plaintiff attaches an invoice for the filing fee of the complaint that states it is $70.00 instead of the $81.31. (Smith Decl., Ex. A, Attachment 1.g.; Ex. B.)

In reply, Defendant requests that the Court tax the following revised list of costs, in a total amount of $916.37:

· Filing Service Fee – Complaint: $70.00

· Filing Service Fee – Case Management Statement – LASC: $55.00

· Filing Service Fee – Notice Jury Fee Deposit – LASC: $55.00

· Filing Service Fee – Motion to Quash: $40.75

· Filing Service Fee – Stipulation/Protective Order: $58.00

· Filing Service Fee – Objection to Def’s Evidence re MSJ: $91.50

· Filing Service Fee – Notice of Lodging Proposed Judgment: $33.25

· Filing Service Fee – Courtesy Copy – LASC: $126.94

· Filing Service Fee – Courtesy Copy – LASC: $117.65

· Filing Service Fee – Courtesy Copy – LASC: $127.97

· Filing Service Fee – Courtesy Copy – LASC: $129.00. (Reply, pp. 7:13-8:4.)

The Court finds that the filing and service fees of $126.84 and $127.97 were incurred after the Section 998 offer was made and rejected. Thus, the Court GRANTS Defendant’s motion to tax these costs in the amount of $254.81.

For the remaining filing service fees, the Court finds that these costs are reasonably necessary to the conduct of litigation, thus are allowable. The Court DENIES Defendant’s motion to tax these costs.

ii. Deposition Costs

 

“Although the fees charged by court-retained reporters are fixed by statute (Gov. Code, §§ 69947, 69948, 69950), there is no statute regulating the fees charged by private reporting firms, and [private] reporters are free to charge all the market will bear.” (Urban Pacific Equities Corp. v. Superior Court (1997) 59 Cal.App.4th 688, 691-692.) The costs at issue here are not those by a court-retained reporter, but those incurred by Avee for a deposition transcribed by a private reporter.

Code of Civil Procedure §1033.5(a)(3) provides that costs for “[t]aking, video recording, and transcribing necessary depositions” are allowable, as are travel expenses to attend depositions.

Defendant argues that the following deposition costs in the amount of $6,638.94 should be stricken because the depositions were taken after Defendant’s 998 offer was made on June 4, 2019:

· John O’Hara (PMQ-video): $1,877.24

· Jeffrey Gould, M.D.: $1,757.90

· June Hagen, Ph.D.: $1,720.75

· Tamorah Hunt, Ph.D.: $621.25

· Anthony E. Reading, Ph.D: $661.80. (Motion, pp. 9:20-10:3.)

The Court agrees that these depositions occurred after the Section 998 offer was made and rejected. Accordingly, the Court GRANTS Defendant’s motion to tax costs for the O’Hara, Gould, Hagen, Hunt, and Reading deposition costs in the amount of $6,638.94.

Defendant also argues the following deposition costs in the amount of $14,550.54 should be taxed because they all related to Plaintiff’s unsuccessful failure to engage in the interactive process claim:

· Abraham Govea/Randall Hudson: $1,439.20

· Michael Dickran/Luis Vizcaino: $4,134.80

· Paul Dutch: $786.05

· Sepeedeh “Sepi” Javid; Cameron Trudgeon; Adriana Mora; Jabari Washington: $2,472.20

· Karen Kennedy, Danny Marcus: $960.40

· Michael Dickran (PMQ Depos x 3): $4,757.89. (Motion, p. 10:4-17.)

The Court finds that these deposition costs in the amount of $14,500.54 are reasonable and necessary to the conduct of litigation. As explained earlier, even where parties are unsuccessful as to certain matters, prevailing parties as defined by statute (Code of Civil Procedure §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.) Accordingly, the motion to tax the deposition costs of $14,500.54 is DENIED.

iii. Service of Process Costs

Under Code of Civil Procedure section 1033.5, subdivision (a)(4), the following items are allowable as costs:

“Service of process by a public officer, registered process server, or other means, as follows:

(A) When service is by a public officer, the recoverable cost is the fee authorized by law at the time of service.

(B) If service is by a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code, the recoverable cost is the amount actually incurred in effecting service, including, but not limited to, a stakeout or other means employed in locating the person to be served, unless those charges are successfully challenged by a party to the action.

(C) When service is by publication, the recoverable cost is the sum actually incurred in effecting service.

(D) When service is by a means other than that set forth in subparagraph (A), (B), or (C), the recoverable cost is the lesser of the sum actually incurred, or the amount allowed to a public officer in this state for that service, except that the court may allow the sum actually incurred in effecting service upon application pursuant to paragraph (4) of subdivision (c).” (Code Civ. Proc., § 1033.5(a)(4).)

Defendant argues that the following service of process costs, as amended by Plaintiff’s revised memorandum of costs, and in the amount of $1,325.00, were incurred after Defendant’s 998 offer was made and rejected:

· Trial Subpoena (Basowski): $125.00

· Trial Subpoena (Pappas): $225.00

· Trial Subpoena (Williams): $125.00

· Trial Subpoena (Sunset Sleep Labs): $125.00

· Trial Subpoena (Sunset Sleep Labs): $125.00

· Trial Subpoena (Dr. Chen): $40.00

· Trial Subpoena (Mora): $125.00

· Trial Subpoena (UCLA Health Systems): $125.00

· Trial Subpoena (Prisco): $40.00

· Trial Subpoena (Facey Medical Group): $100.00

· Skip Trace Fee – Depo Subpoena (Grund): $120.00

· Skip Trace Free – Depo Subpoena (Vizcaino):$50.00

· Misc Documents Personal Service (Jackson Lewis): $661.05

· Misc Documents Personal Service (Law Brandemeyer): $180.00. (Reply, p. 9:7-28.)

The Court finds that the above service of process costs were incurred after the Section 998 offer was made and rejected. Accordingly, the Court GRANTS Defendant’s motion to tax costs in the amount of $1,325.00.

iv. Models, Enlargements, and Photocopies of Exhibits

Defendant argues that “to the extent any of these costs were incurred after the 998 demand was made on June [4] 2019, they must be stricken to reflect the fact that costs are not permissible after the date of the 998.” (Motion, p. 12:14-16.)

The receipt provided by Plaintiff does not support the recovery of the costs for models, enlargements, and photocopies of exhibits. For some unexplained reason, the receipt is for $1,472.51 plus $114.12 in taxes, but Plaintiff seeks only $250.00 as costs. (Smith Decl., Ex. B.) Of course, Plaintiff has every right to request reimbursement for less than the amount incurred. More critically, the receipt is dated June 15, 2019, which was incurred after the Section 998 offer was made and rejected.

The Court GRANTS Defendant’s motion to tax costs for the trial court reporter fees and reduces the amount of costs sought by Plaintiff in the amount of $250.00.

v. Electronic Filing or Service Fees

Defendant argues that the fees for electronic filing or service, listed in Attachments 14 and 15, line items 4-31 and 33-56 should be stricken in the amount of $890.00, as they were incurred after Plaintiff rejected Defendant’s 998 offer. (Motion, p. 12:18-22.)

The Court agrees that the electronic filing or service fees for items were incurred after the Section 998 offer was made and rejected. Accordingly, the Court GRANTS Defendant’s motion to tax costs for the trial court reporter fees and reduces the amount of costs sought by Plaintiff in the amount of $890.00.

(Note: these two items are listed separately on Plaintiff’s Memorandum of Costs as Items 14 and 15. The Court’s spreadsheet, at the bottom of this decision, shows the $890.00 that was taxed as divided between these two entries.)

D. Conclusion

The Court GRANTS in part Defendant’s motion to tax. The Court taxes the total costs by $30,056.44, and grants costs in the amount of $49,353.46, as indicated in the spreadsheet below:

Motion to Tax Costs

Item No.

Item

Amount Requested

Amount Taxed

Amount Granted

1

Filing and motion fees

$1,480.06

$254.81

$1,225.25

2

Jury fees

$924.48

$0.00

$924.48

3

Jury food and lodging

$0.00

$0.00

$0.00

4

Deposition costs

$28,593.45

$6,638.94

$21,954.51

5

Service of process

$3,041.05

$1,325.00

$1,716.05

6

Attachment expenses

$0.00

$0.00

$0.00

7

Surety bond premiums

$0.00

$0.00

$0.00

8

Witness fees

$38,776.50

$15,409.50

$23,367.00

9

Court-ordered transcripts

$0.00

$0.00

$0.00

10

Attorneys fees

$0.00

$0.00

$0.00

11

Court reporter fees

$5,288.19

$5,288.19

$0.00

12

Models, blowups, photocopies

$250.00

$250.00

$0.00

13

Interpreter fees

$0.00

$0.00

$0.00

14

Fees for electronic filing or service

$837.90

$837.90

$0.00

15

Fees for hosting electronic documents

$218.27

$52.10

$166.17

16

Other

$0.00

$0.00

$0.00

TOTAL

$79,409.90

$30,056.44

$49,353.46