Motion to Tax Costs
Accordingly, the motion is GRANTED and the Court awards $30,727.90 in attorney’s fees in favor of Third Mutual and against Michael Glover.
Third Mutual to submit a proposed judgment.
Third Mutual to give notice of this ruling. 8 Dodson v. O/C LaCilento 9 Ruffin v. OC Defendant OC Dental Corporation, Inc.’s Motion for Summary Dental Judgment/Adjudication is DENIED. Corporation, Inc. OC Dental’s Motion is based entirely on the assertion that plaintiff Ruffin did not exhaust her administrative remedies required under FEHA. This assertion is supported (1) by Plaintiff’s response to Form Interrogatory No. 208.1, where Plaintiff indicated she did not file a complaint with any government agency regarding the alleged harassment, and (2) by Plaintiff’s failure to produce a right to sue letter during discovery.
This is sufficient to meet OC Dental’s burden on summary judgment under CCP §473(p)(2).
In response, Ruffin has shown a triable issue of material fact, that her administrative remedies were exhausted by receipt of a right-to- sue Notice/Letter. See, Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment/Adjudication, Fact 6]; Declaration of Corey A. Hall. Although Plaintiff has apparently failed to file her referenced Compendium of Evidence with the Court, her attorney’s declaration attests that a complaint was filed with the DFEH which then issued a right to sue letter.
In its Reply, OC Dental asks the Court not to consider Opposition evidence. In its discretion, the Court declines OC Dental’s request. Any error by Plaintiff’s counsel in responding to discovery should not result in Plaintiff’s loss of her claims, particularly where there is evidence that the right to sue letter was provided to Jarrod Y. Nakano, Defendant’s former counsel, in January of 2023. Whether the right to sue letter is authentic is a matter for trial, not a motion for summary judgment.
The Court disregards the two Declarations filed with OC Dental’s Reply because Reply Declarations are not authorized by statute, rule, or case law. [Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252]
Plaintiff to give notice. 10 Lin v. Zhang Before the Court is a motion by Defendants Ark Electronics USA, Inc. (“Ark), Wen Xia Zhang, and E.J. Constantine (collectively, “Defendants”) in which they seek to tax the memorandum of costs filed by Plaintiff Gary Lin at ROA 465. The motion is GRANTED in part, as set forth herein.
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The right to recover costs of suit is determined entirely by statute. (Code Civ. Proc., § 1032 et seq.) Unless otherwise expressly prohibited by statute, a prevailing party is entitled to recover costs as a matter of right. (Code Civ. Proc., § 1032, subd. (b).) Code of Civil Procedure section 1033.5, subdivision (a) specifies cost items that are allowable, including filing and motion fees, deposition costs, and court reporter fees. (Code Civ. Proc., § 1033.5, subd. (a)(3).) Allowable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5, subd. (c).)
“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 Automobile Association (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. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267) If the party seeking to tax costs makes a proper objection to an item in the cost bill, the burden then shifts back to the party claiming them as costs. (Acosta v. SI Corp. (2005) 129 Cal. App. 4th 1370, 1380.) The propriety of costs is a question of fact to be determined by the trial court. (Jones, supra, at 1266.)
Item 4: Deposition Costs - $765: Defendants seek to tax the $765 from the deposition of Zhang which is an entry labeled “Centerview/Emmes After Hours HVAC & Lighting at Deposition.” Plaintiff explains that this is the charge from his office for lighting and air conditioning during the time he took Zhang’s deposition. This is not a recoverable cost. The motion is GRANTED as to this item and the Court will TAX $765.
Item 8: Witness Fees (Experts): Defendant states that “Lin submitted his section 998 offer to compromise on December 16, 2024.” (Motion at 6:4) A copy of the Code of Civil Procedure Section 998 offer is attached to Feng’s declaration as Exhibit 4. Defendants do not dispute the plaintiff’s result at trial far exceeded the Section 998 offer.
Section 998(d) states: “(d) If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff's costs.”
Attached as Exhibits 1 and 2 to Ethan Feng’s declaration are copies of the invoices from plaintiff’s two experts, Renee Howdeshell
(Fulcrum Inquiry) and Dan Harris (Harris Sliwoski LLP). The Court has reviewed the invoices and finds the invoices sufficiently detailed, the rates reasonable and the work reasonably necessary to trial preparation. However, Defendants also object to the charges by experts which was for work done after the Section 998 Offer on 12/16/24. This argument has merit. The $5,590 invoice by Harris states that the work is for time up through 11/15/24. This predates the Section 998 offer and therefore the Court will TAX the entire bill for $5,590.
Also, the $26,544 invoice by Howdeshell covers the period of 11/16/24 to 8/20/25. The plaintiff has failed to meet his burden to justify this expense because the invoice does not delineate the work done on particular days and therefore Court will TAX entire bill for $26,544. In total, the motion to tax the expert charges is GRANTED and the Court will TAX $32,134.
Models, Enlargements, and Photocopies of Exhibits – Attachment 13
CCP §1033.5(a)(13) states: “The following items are allowable as costs under Section 1032: ... (13) Models, 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.”
Plaintiff has submitted copies of the invoices from Re-Qwest at Exhibit 5 to the Ethan Feng Declaration. Based on the Court’s review of the invoices, Mr. Feng’s declaration explaining the costs, and the Court’s familiarity with this case, the court finds the charges to be have been for copies reasonably helpful to the trier of fact. Therefore the motion is DENIED as to charges by Re-Qwest.
In addition to the copy charges, Defendants challenge the charge by Merritt Technologies for $25,787.50. The parties refer to Merritt as a “Hot Seat Assistant.” The invoice shows this company was present during trial and assisted plaintiff’s counsel in his presentation of evidence. The court does not find this to be a recoverable cost. Accordingly the motion is GRANTED as to the Hot Seat Assistant charges shown on Exhibit 6 and the Court will Tax $25,787.50.
Item 15 - Other: Defendants challenge the charges listed under Item 15 for obtaining copies of court documents and hiring a messenger to retrieve and transport plaintiff’s counsel’s trial materials back to counsel’s office. The Defendants’ arguments have merit. These are typical office expenses and not recoverable costs. The motion is GRANTED as to the $44.20 in costs for four separate instances of “Documents ordered from OCSC website” (Motion at 10:2-3) and the $330 charge for a “Messenger” to “Pickup [] Trial Materials from Fullerton Courthouse” (Motion at 10:14). The Court will TAX $374.20.
In total, the motion is partially GRANTED and the Court will tax a total of 59,060.70. The remainder of the motion is DENIED. That means that the plaintiff is awarded costs in the total amount of $144,473.78.