Kasner, et al v. Louie Atilano et al

Kasner, et al v. Louie Atilano et al Motion: Tax Costs Movant: Louie Atilano and Atilano Inc. (Atilano/Defendants) Respondent: Robert Kasner (Plaintiff/Kasner)

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND On March 10, 2026, following a bench trial, a Judgment was entered in favor of Plaintiffs on the Third (Fraud by Concealment), First (Breach of Contract), and Eighth (Unfair Business Competition) causes of action against Defendants Louie and Atilano, Inc. The Court also determined that Defendants Nancy Herrera and RMA/Reality Masters & Associates prevailed on all causes of action asserted against them by Plaintiff. The Judgment includes an order that Plaintiff may recover attorney fees and against Atilano and Atilano Inc according to proof.

On March 23, 2026, Plaintiff filed their Memorandum of Costs. On April 17, 2026, Defendants filed their Motion to Tax Costs. Plaintiff opposes. ANALYSIS Except as otherwise stated, a prevailing party is entitled, as a matter of right, to recover costs in any action or proceeding. (Code Civ. Proc., § 1032, subd. (b).) Litigation costs allowed shall be reasonably necessary to the conduct of the litigation and reasonable in amount. (Code Civ. Proc., § 1033.5, subd. (c)(2)-(3).) Pursuant to Code of Civil Procedure section 1033.5, items allowable as costs include, among others, filing and motion fees, some deposition costs, service of process fees.

Costs that are not enumerated in section 1033.5, subdivision (b), as unrecoverable may be recovered at the Court’s discretion if reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation. (Code Civ. Proc., § 1033.5, subd. (c)(4).) Costs statutes are to be strictly construed. (Sequoia Vacuum Systems v. Stransky (1964) 229 Cal.App.2d 281, 289.) Pursuant to Code of Civil Procedure section 1033.5, subdivision (c), an award of costs is allowable if they are (1) incurred, whether or not paid; (2) reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation; and

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(3) reasonable in amount. Thus, even costs allowable as a matter of right may be disallowed if not reasonably necessary or may be reduced in amount to that which is reasonable. (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.) If the items appearing on a cost bill appear to be proper charges, the party seeking to tax costs bears the burden of showing they are not reasonable or necessary. If the items are properly objected to, however, then the party seeking costs bears that burden. (Ladas v.

California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).) The 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. (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal. App. 2d 678, 698-699.) 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 [party seeking costs], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” (Id. at p. 699.)

Item No. 4 – Deposition costs California Code of Civil Procedure 1033.5 states in pertinent part: Taking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed. Travel expenses to attend depositions. (CCP§1033.5(3)(A)(C)).

The plain reading of the statute allows for all the costs claimed by Plaintiff with the exception of attorney fees. Attorney fees are not costs and are statutorily treated differently. On July 29, 2026, this Court denied Plaintiff’s request for fees. As such Plaintiff is not entitled to claim attorney fees under the guise of costs. The court shall tax $10,259 as impressible costs. California Code of Civil Procedure 1033.5 states in pertinent part, “The following items are not allowable as costs, except when expressly authorized by law: Fees of experts not ordered by the court.” (CCP§1033.5(b)(1)).

In specifically addressing the issue of expert witness fees, Ripley v. Papdopoulos (1994) 23 Cal App. 4th 1616 stated: The compensation of an expert is, in the first instance, the responsibility of the party who hires the expert. If during discovery proceedings a party designates an expert, then any other party may depose the expert and may require the expert to give testimony before a court, tribunal or arbiter. In that event the party desiring to

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depose the expert or requiring the expert to testify must pay the expert's fees for the time required for the deposition and/or testimony. (Code Civ. Proc., § 2034, subd. (i); Gov. Code, § 68092.5.) In other respects the compensation of the expert remains the responsibility of the party who hired the expert. (Ibid.) Neither Code of Civil Procedure section 2034 nor Government Code section 68092.5 provides for the recovery of expert witness expenses in a cost award. (Ripley v. Papdopoulos (1994) 23 Cal App. 4th 1616, 1624)

The request for $1000 expert witness fee is impermissible and shall be taxed. The $960.70 for deposition of expert Wallace is also taxed. The request for $817.25 for Plaintiff’s deposition transcript and the $15.00 for travel to Plaintiff’s deposition is not supported by evidence and will be taxed. Item No. 5 – Service of Process California Code of Civil Procedure 1033.5 states in pertinent part: Service of process by a public officer, registered process server, or other means, as follows: When service is by a public officer, the recoverable cost is the fee authorized by law at the time of service. (CCP§1033.5(4)(A).

The costs requested for service of process are reasonable and specifically allowed by statute. Item No. 6 – Attachment Expenses California Code of Civil Procedure 1033.5 states in pertinent part’ “Expenses of attachment including keeper’s fees.” (CCP§1033.5(5)). The recording of a Lis Pendens is not an attachment and was not a reasonably necessary expense for Plaintiff considering the issues being litigated in this case. The Costs of $150.44 shall be taxed. Item No. 8 – Witness Fees Plaintiff has withdrawn his request for $13,320.50 in expert witness fees.

Out of the remaining request for $1375 only $275 was actually incurred for witness fees. The sum of $1100 shall be taxed. Item No. 9 – Court-ordered transcripts California Code of Civil Procedure 1033.5 states in pertinent part, “Transcripts of court proceedings ordered by the court. (CCP§1033.5(9)). The Court did not order any transcripts of the proceedings. The $1832 for transcripts shall be taxed. ///

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Item No. 13 – Models, enlargements, and photocopies of exhibits California Code of Civil Procedure states in pertinent part: The following items are allowable as costs under Section 1032: 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. (CCP§1033.5(a)(13)) The following items are not allowable as costs, except when expressly authorized by law: Investigation expenses in preparing the case for trial. Postage, telephone, and photocopying charges, except for exhibits. (CCP§1033.5(b)(2)(3))

The $192.10 and $672.25 claimed herein are specifically disallowed costs under CCP§1033.5(b)(2)(3). As such $864.35 shall be taxed. RULING 1. Plaintiffs’ Motion to Tax Costs is -GRANTED IN PART AND DENIED IN PART. The Court will tax a total of $30,319.24, consisting of the following \: a. Item 4: $13,051.95 b. Item 6: $150.44 c. Item 8: $14,420.50 d. Item 9: $1832 e. Item 13: $864.35 2. The Court awards Defendant litigation costs of $720.97.

3. Moving part to give notice.

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