Clark v. Windsail Capital Group, LLC

4

notice packet (in all languages) should be attached to the proposed order as an exhibit (together with one copy of the settlement agreement and one copy of each amendment to the settlement agreement). The parties are also ordered to file and serve by September 10, 2026 an amendment to the settlement agreement addressing the following: 1. In the first amendment to the settlement agreement, the parties include paragraph 5.3 twice and it states different things. In the same amendment, the parties revised the title of paragraph 5.3 to have different (contradictory) titles. The parties must prepare a second amendment to the settlement agreement that states one version of paragraph 5.3 that (i) contains the correct title and (ii) addresses the issues identified in the court’s January 8, 2026 order (ROA 138).

The final approval hearing is scheduled for January 21, 2027 at 2:00 p.m. in Department CX105. The motion for final approval shall be filed at least 16 court days before the hearing. See Department CX105 Guidelines for Approval of Class Action Settlements and PAGA Settlements (www.occourts.org). Plaintiff is ordered to give notice, including to the LWDA, and to file a proof of service. 4 Clark v. Windsail Capital Group, LLC

2021-01191735

Cross-complainant Arthur C. Cohen’s Motion to Strike and Tax Costs Claimed by Cross-defendant James Pickell

Cross-complainant Arthur C. Cohen moves to strike and tax $603,817.18 in costs claimed by cross-defendant James Pickell. For the following reasons, Cohen’s motion is granted in part and denied in part.

Pursuant to stipulation, the parties agreed to present the claims in plaintiffs Preston Clark and Growthpoint Global, Inc.’s third amended complaint first, followed by the claims in Cohen’s third amended cross-complaint. ROA 2615. Following a bench trial, the court found in Pickell’s favor on plaintiffs’ third amended complaint and Cohen’s third amended cross-complaint. ROA 3354. The court entered judgment on March 12, 2026. ROA 3366. Pickell filed and served a costs memorandum on March 16, 2026 (ROA 3378), by which Pickell seeks $627,586.91 in claimed costs from Cohen.

A prevailing party is usually entitled as a matter of right to recover costs reasonably necessary to the conduct of the litigation. Cal. Civ. Proc. Code §§ 1032(b), 1033.5(c)(2). A prevailing party “includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” Civ. Proc. Code § 1032(a)(4). Section 1032(a)(1) defines “[c]omplaint” as including a cross-complaint, and section 1032(a)(2) defines “[d]efendant” as including a cross-defendant or a person against whom a complaint is filed. Id. § 1032(a)(1), (2).

If the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-74. The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable.

Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557; see also Wagner Farms, 145 Cal.App.4th at 777-78. If the claimed items are not expressly allowed by statute and are objected to by a motion to strike or tax costs, the burden of proof is on the party claiming them as costs to show that the charges were reasonable and necessary. Foothill-De Anza Comm. College Dist., 158 Cal.App.4th at 29. Whether a cost item was reasonably necessary to the litigation is a question of fact for the court to determine.

Id. at 29-30.

Pickell prevailed against Cohen on Cohen’s third amended crosscomplaint, and thus Pickell is the prevailing party entitled to an award of costs. Civ. Proc. Code § 1032(a)(1), (a)(2), (a)(4), (b).

Apportionment

Cohen argues the court should apportion Pickell’s costs (i) between the “Phase 1” trial on plaintiffs’ third amended complaint and the “Phase 2” trial on Cohen’s third amended cross-complaint, and (ii) as to any “overlapping” costs, 85% / 15 % between plaintiffs and Cohen based on Cohen’s calculation of the trial days ostensibly dedicated solely to each trial “phase.” Cohen cites no relevant authority holding that a court must apportion costs to be paid to a successful defendant and crossdefendant between unsuccessful plaintiffs represented by one set of lawyers and an unsuccessful cross-complainant represented by different lawyers. “Apportionment of costs is authorized, at the court’s discretion, only under those comparatively unusual circumstances when the court must determine which party prevailed.” Smock v. State of Cal. (2006) 138 Cal.App.4th 883, 889; Civ. Proc. Code § 1032(a)(4).

Two of the cases Cohen cites (Slavin v. Fink (1994) 25 Cal.App.4th 722; Wakefield v. Bohlin (2006) 145 Cal.App.4th 963) address apportionment of jointly incurred costs among jointly represented parties where fewer than all prevailed. The third case on which Cohen relies (Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265) addresses apportionment of attorneys’ fees and costs among cross-defendants where fewer than all prevailed. Neither is the situation here.

Moreover, the decision to present the claims in plaintiffs’ third amended complaint before the claims in Cohen’s third amended cross-complaint was made by stipulation of the parties (including Cohen) and occurred after many of Pickell’s claimed costs (e.g., deposition costs) had been incurred. ROA 2615. The court declines Cohen’s request for an across-the-board reduction in Pickell’s claimed costs based on the parties’ stipulated trial “phasing.”

Deposition costs

Cohen argues Pickell’s claimed deposition costs of $118,762.82 should be taxed in the amount of $96,093.91. ROA 3378 (Item No. 4 & Att. 4e). Specifically, Cohen argues $96,093.91 in Pickell’s deposition costs “are not reasonable or necessary for [Pickell’s] defense of the Cohen [third amended cross-complaint], or Phase 2 of the trial and $96,093.91 should be allocated to Phase 1, the Clark and Growthpoint trial where Pickell prevailed.” Brief (ROA 3410) at 12:9-11.

The taking, video recording, and transcribing of 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, are allowable costs under section 1033.5(a)(3). In addition, as stated above, if the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. Foothill-De Anza Comm. College Dist., 158 Cal.App.4th at 29; Wagner Farms, 145 Cal.App.4th at 773-74. The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. Seever, 141 Cal.App.4th at 1557; see also Wagner Farms, 145 Cal.App.4th at 777-78.

Cohen has not presented evidence proving that Pickell’s claimed deposition costs are not recoverable. Cohen instead argues that the court should apportion the deposition costs between the two “phases” of the trial. As an initial matter, Cohen does not identify any deposition for which Pickell claims costs that was taken after the parties stipulated to phase the evidence at trial. Thus, when the depositions were taken, no “phasing” had occurred. Cohen also argues that “[t]he issues and claims in this case were distinct and separate,” and thus “it [is] easy to separate Phase 1 from Phase 2 except for the party witnesses.”

Brief at 12:12-13. To the contrary, and as evidenced by the court’s Statement of Decision (ROA 3354), the facts and events underlying plaintiffs’ and Cohen’s claims overlapped to a significant degree. Cohen’s counsel’s decision not to attend certain depositions does not bear on whether Pickell’s counsel reasonably attended the depositions as part of Pickell’s defense. Furthermore, Cohen’s emphasis on whether and when particular witnesses ultimately testified at trial is misplaced. See, e.g., Nelson v.

Anderson (1999) 72 Cal.App.4th 111. 132 (“the court should have determined need for the deposition ‘from the pretrial vantage point of a litigant who does not yet know whether or not to oppose the expert’s opinions’”). Cohen’s request to tax Pickell’s deposition charges is denied for these reasons and for the other reasons stated in the apportionment section above.

Cohen’s claim that “Pickell has failed to demonstrate the [deposition charges] are allowable, reasonably necessary, and reasonable in amount” (Brief at 14: 3-4) misunderstands the costs standard, i.e., if the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. Foothill-De Anza Comm. College Dist., 158 Cal.App.4th at 29; Wagner Farms, 145 Cal.App.4th at 773-74.

Cohen has not carried this burden. In addition, as to the specific charges Cohen challenges (Kelly Freis deposition; Pickell deposition (Vol. 3)), Pickell substantiated those charges in his opposition. Opp. (ROA 3538) at 11:9-21; Hart Decl. (ROA 3540) ¶¶ 6-7 & Exs. 2.47, 2.52. Cohen’s motion to tax $96,093.91 in deposition charges is denied. Pickell shall recover $118,762.82 in deposition costs from Cohen.

Service of process costs

Cohen argues Pickell’s claimed service of process costs of $7,582.81 should be taxed in the amount of $6,745.75. ROA 3378 (Item No. 5 & Att. 5d). Cohen argues several of the charges are not service of process charges and that one of three service of process charges for Keith Henderson is unnecessary and duplicative. Pickell claims $4,816.51 in “ancillary service fees,” $1,543.91 in motion service fees, $377.31 in delivery fees, and $7.92 to retrieve a notice of ruling from the court. He also claims $837.16 in subpoena service fees.

Section 1033.5(a) allows service of process fees as follows: (4) 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).

Civ. Proc. Code §1033.5(a)(4).

Pickell appears to concede in his opposition that all of the charges other than the three Henderson subpoena charges are not service of process charges. Opp. at 12:16-13:1. Pickell appears to seek reimbursement of these charges pursuant to section 1033.5(c)(4) (“Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion”). Opp. at 12:25-27. The court has reviewed the Hart Declaration and Exhibits 3.14 through 3.25. The charges for service of summary judgment motion papers and oppositions ($1,543.91) and delivery of trial materials to the court ($283.11) were reasonably necessary to the conduct of the litigation.

In addition, Pickell has demonstrated in his opposition that the third service of process charge for Keith Henderson was necessary. Opp. at 12:5-15; Hart Decl. ¶¶ 8-9 & Exs. 3.3, 3.4, 3.12. The other charges sought in this category are disallowed. Pickell’s counsel states that Exhibits 3.14 through 3.25 “cover a variety of courier delivery fees.” Hart Decl. ¶ 11. Having reviewed those exhibits, the court finds that some of them do not appear to be for delivery fees at all, those that are for delivery fees are not sufficiently clear that the court can conclude the fees were reasonably necessary to the conduct of the litigation, and others do not provide sufficient information for the court to determine to what the invoice relates.

Accordingly, the court disallows $4,918.63 in claimed service of process fees. Pickell shall recover $2,664.18 in service of process charges from Cohen.

Court reporter fees

Civil Procedure Code section 1033.5(a)(11) allows recovery of “court reporter fees as established by statute.” See also Gov’t Code § 68086(d)(2) (“[I]f an official court reporter is not available, a party may arrange for, at the party’s expense, the presence of a certified shorthand reporter to serve as an official pro tempore reporter. . . . The fees and charges of the certified shorthand reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law”). Cohen argues Pickell’s claimed court reporter fees of $70,310.07 should be taxed in their entirety.

ROA 3378 (Item No. 11 & Att. 11c). Cohen asserts: “Pickell has cited no applicable statute or an order from this court that Cohen has to pay all of Pickell’s court reporter fees for the entire trial. . . . Cohen and this court lack[] sufficient information to determine whether all claimed court reporter fees were for court-ordered transcripts or daily trial transcripts as opposed to transcripts obtained for Pickell and his counsel’s convenience.” Brief at 15:5-10.

The court reporter fees Pickell claims in this item are not transcript fees, they are court reporter fees. Hart Decl. (ROA 3540) ¶ 2 & Ex.

4. See also Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58 (“These charges are not for transcripts. They are for court reporter fees, an entirely different expense. The parties have to pay the court reporter regardless of whether anyone orders transcripts.”).

On reply, Cohen argues that Pickell should not recover the “Rough ASCII” charges on the court reporter invoices because those charges are for “transcripts and roughs provided to the parties and not to the court.” Reply (ROA 3548) at 7:9. As an initial matter, Cohen has not presented any evidence that the “Rough ASCII” charges are for “transcripts and roughs provided to the parties and not to the court.” Moreover, the trial transcript reflects that the court at times utilized daily rough transcripts during the trial. E.g., Trial Transcript (3/17/25) at 246:7-247:21; id. (3/18/25) at 9:13-12:25. Cohen’s alternative argument that Pickell’s court reporter fees should be taxed based on trial “phasing” is denied for the reasons stated above. Pickell shall recover $70,310.07 in court reporter fees from Cohen.

Models, enlargements and photocopies of exbibits

In the introduction section of his brief (ROA 3410 at 7:20-22), Cohen identifies “Item No. 13 – Models, enlargements, and photocopies of exhibits $1,535.7[0]” as one of the costs items he challenges. Cohen does not, however, provide any legal or factual argument elsewhere in his opening brief (or in his reply) as to why these costs allegedly should be taxed. Pickell shall recover $1,535.70 in costs for models, enlargements and photocopies of exhibits from Cohen.

E-discovery fees

Pickell claims $421,037.58 in Consilio e-discovery charges from approximately May 2023 to September 2025. (Cohen states the amount is $409,354.48, but the Consilio invoices attached to the Hart Declaration as part of Exhibit 5 appear to total $421,037.58.) Cohen argues only $33,026.58 should be permitted, which is the amount Cohen spent on electronic data storage from August 2023 through September 2025. Cohen also argues that the claimed storage fees of $80,283.06 for February 2024 and $43,469.70 for July 2024 are on their face “outrageous and unreasonable.”

With his opposition, Pickell submitted a declaration from his counsel in which counsel states that Pickell “engaged an external document hosting company, Consilio, to host all collected documents and to facilitate the review and production of documents required of Pickell to produce.” Hart Decl. (ROA 3540) ¶ 13. Electronic discovery costs are neither specifically allowed nor prohibited by section 1033.5. The court has discretion to award or deny electronic discovery costs pursuant to section 1033.5(c)(4). In Hooked Medial Group, Inc. v. Apple Inc. (2020) 55 Cal.App.5th 323, the court affirmed a trial court’s award of electronic discovery costs to convert “native electronic files into usable form.” Id. at 338.

Cohen relies on Science Applications International Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, where the court disallowed costs “for an outside firm to keep track of the voluminous records in the case—that is, to ‘Bates-stamp’ the documents, input them for retrieval, maintain a document library, create databases to search for records by date, author or subject, etc.,” noting that such “expense is the cost of hiring assistants to help counsel organize documents and access them in discovery and at trial—in other words, the cost of a ‘high tech’ paralegal.

Because we have concluded attorney fees are not compensable, we cannot condone payment of paralegal fees.” Id. at 1104. The court also disallowed costs for a “laser disks and graphics communication system (equipment rental and technician),” finding that “storage” costs for “documents and videos [that] were stored on laser disks like hard copy is stored in a filing cabinet” were not recoverable. Id.

More recent decisions have approved costs incurred for the preparation of electronic evidence for trial. In Green v. County of Riverside (2015) 238 Cal.App.4th 1363, the court approved costs incurred for the preparation of electronic evidence at trial as reasonable and necessary, explaining that “[u]se of such technology, including a technician to monitor the equipment and quickly resolve any glitches, has become commonplace, if not expected by jurors.” Id. at 1374. In Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, the court approved costs for the preparation of video depositions used at trial.

The Bender court observed that “[a]lmost 20 years have passed since Science Applications was decided, during which time the use of technology in the courtroom has become commonplace (including a technician to monitor the equipment and quickly resolve any glitches), and technology costs have dramatically declined.” Id. at 991. While Green and Bender address preparation of electronica evidence used at trial rather than e-discovery costs, those cases provide some guidance about the use of technology generally in complex litigation.

In this case, the court finds that the use of a provider to host electronic evidence was reasonably necessary to the conduct of the litigation given the number of parties and nonparties from whom discovery was sought and the amount of data and volume of documents produced. See, e.g., Hart Decl. ¶ 13. Indeed, it appears that all of the parties, including Cohen, retained and utilized an electronic discovery provider. As to the reasonableness of the amount, however, the court does not find Pickell has met his burden of establishing the reasonableness of the entire amount he seeks.

The February 2024 Consilio invoice (Hart Decl. (ROA 3540) Ex. 5.35) reflects that Consilio charged $55,912.20 for “data processing” and $8,658 for “project management & support services.” Pickell does not explain either of those charges in his opposition. Cohen’s motion to tax $64,570.20 ($55,912.20 + $8,658) from the February 2024 Consilio invoice is granted.

Cohen presents evidence that he incurred $33,026.58 for electronic discovery hosting services. Phillips Decl. (ROA 3410) ¶ 34; Supp. Phillips Decl. (ROA 3546) ¶ 12 & Ex. N. In addition, as discussed in the court’s concurrently-issued ruling on Cohen’s motion to strike or tax costs claimed by cross-defendant Preston Clark, Clark incurred $11,250 for 30 months of e-discovery storage services at $375/month. ROA 3392; ROA 3534 (at 4:11-12); ROA 3532 (¶ 18). Pickell’s Consilio charges are significantly higher, and Pickell does not sufficiently explain or justify in his opposition the reasonableness of the amount he seeks.

See Hart Decl. (ROA 3540) ¶ 13. Pickell’s counsel’s general statement that counsel’s firm retained Consilio on Pickell’s behalf to “host all collected documents and to facilitate the review and production of documents required of Pickell to produce” (Hart Decl. (ROA 3540) ¶ 13) does not demonstrate the reasonableness of the amount sought. Cohen’s motion to tax Pickell’s e-discovery costs, including Cohen’s challenge to the July 2024 invoice, is granted in the amount of $331,037.58 ($266,467.38 + $64,570.20).

Pickell shall recover $90,000 in e-discovery costs from Cohen.

Parking charges

Cohen moves to tax $639 in parking costs incurred by Pickell’s counsel for attending the trial. “The only travel expenses authorized by section 1033.5 are those to attend depositions. (§ 1033.5, subd. (a)(3).) Routine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation.” Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775-76. Cohen’s motion to tax $639 in parking charges is granted.

Litigation support charges

Cohen moves to tax $5,179.25 in charges for litigation technology support for trial. The Razor Legal, Inc. invoice attached as Exhibit 5.1-5.2 to the Hart Declaration reflects that the charges were incurred for exhibit presentation at trial. The court presided at the trial. Preparation and presentation of the exhibits at trial was reasonably necessary to the conduct of the litigation, including display of the exhibits to the court and the witnesses during trial examinations. See, e.g., Green, 238 Cal.App.4th at 1373-74 (“[T]hese costs reflected amounts defendants incurred for preparation and presentation of electronic evidence, including videos of deposition testimony, exhibits and excerpts from audio recordings, at trial. . . .

Use of such technology, including a technician to monitor the equipment and quickly resolve any glitches, has become commonplace, if not expected by jurors”). Cohen’s motion to tax Pickell’s costs incurred for litigation technology support for trial is denied. Pickell shall recover $5,179.25 in litigation support charges from Cohen.

Mediation charges

Cohen moves to tax $3,695 in JAMS mediation charges. Cohen asserts the court did not order the parties to mediation, and “the parties agreed that Cohen would only pay $5,000” for the mediation. Phillips Decl. (ROA 3410) ¶¶ 37-40 & Exs. G & H. Mediation costs are not listed among the costs that are expressly allowable or expressly not allowable. Consequently, mediation costs fall within the category of costs that may be awarded in the trial court’s discretion. Berkeley Cement, Inc. v. Regents of Univ. of California (2019) 30 Cal.App.5th 1133, 1140. “[M]ediation fees incurred for mediation that was not ordered by the court are not categorically nonrecoverable as ‘not reasonably necessary to the conduct of litigation.’ The question whether mediation fees should be awarded as costs in a particular matter must be determined based on the facts and circumstances of the particular action.”

Id. at 1143.

Pickell does not dispute that Cohen did not agree to share the mediation fees equally and instead agreed to pay only $5,000 towards the mediation costs. Hart Decl. ¶ 16. When “the parties agree to share costs during litigation, the courts will enforce those agreements as written under the principles that ‘[w]hen the language of a document is unambiguous, we are not free to restructure the agreement,’ and ‘if the parties wanted to allow recovery of the apportioned fee [by] the prevailing party as an item of cost, they were free to spell this out in their agreement,’ but such a provision will not be read into the agreement.” Anthony v. Li (2020) 47 Cal.App.5th 816, 824. In light of Pickell’s concession that Cohen agreed to pay only $5,000 for the mediation, Cohen’s motion to tax Pickell’s claimed mediation costs of $3,695 is granted.

Pickell shall recover $288,715.78 ($288,452.02 + $263.76) in costs from Cohen. Pickell to give notice.

Cross-complainant Arthur C. Cohen’s Motion to Strike and Tax Costs Claimed by Cross-defendant Preston Clark

Cross-complainant Arthur C. Cohen moves to strike and tax $87,700.52 in costs claimed by cross-defendant Preston Clark. For the following reasons, Cohen’s motion is denied.

Pursuant to stipulation, the parties agreed to present the claims in plaintiffs Preston Clark and Growthpoint Global, Inc.’s third amended complaint first, followed by the claims in Cohen’s third amended cross-complaint. ROA 2615. Following a bench trial, the court found in defendants’ favor on plaintiffs’ third amended complaint, and in Clark’s and the other cross-defendants’ favor on Cohen’s third amended cross-complaint. ROA 3354. The court entered judgment on March 12, 2026. ROA 3366. Clark filed and served a costs memorandum on March 27, 2026 (ROA 3392), by which Clark seeks $87,700.52 in claimed costs from Cohen.

A prevailing party is usually entitled as a matter of right to recover costs reasonably necessary to the conduct of the litigation. Cal. Civ. Proc. Code §§ 1032(b), 1033.5(c)(2). A prevailing party “includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” Civ. Proc. Code § 1032(a)(4). Section 1032(a)(1) defines “[c]omplaint” as including a cross-complaint, and section 1032(a)(2) defines “[d]efendant” as including a cross-defendant or a person against whom a complaint is filed. Id. § 1032(a)(1), (2).

If the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-74. The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable.

Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557; see also Wagner Farms, 145 Cal.App.4th at 777-78. If the claimed items are not expressly allowed by statute and are objected to by a motion to strike or tax costs, the burden of proof is on the party claiming them as costs to show that the charges were reasonable and necessary. Foothill-De Anza Comm. College Dist., 158 Cal.App.4th at 29. Whether a cost item was reasonably necessary to the litigation is a question of fact for the court to determine.

Id. at 29-30.

Cohen argues Clark is not a prevailing party because “[n]either Clark nor Cohen made a net monetary recovery against each other after trial.” Brief (ROA 3421) at 5:22. Cohen ignores section 1032(a)(4), which states that a prevailing party “includes . . . a defendant where neither plaintiff nor defendant obtains any relief.” A prevailing party also “includes . . . a defendant as against those plaintiffs who do not recover any relief against that defendant.” Civ. Proc. Code § 1032(a)(4). Clark prevailed against Cohen on Cohen’s third amended cross-complaint, and thus Clark is the prevailing party entitled to an award of costs. Civ. Proc. Code § 1032(a)(1), (a)(2), (a)(4), (b).

Apportionment

Cohen’s contention that the court should apportion Clark’s costs “in proportion to [Cohen’s] role in the litigation” (Brief at 7:21-22) is rejected for the reasons stated in the apportionment and deposition sections of the court’s concurrently-issued ruling on Cohen’s motion to strike or tax costs claimed by cross-defendant James Pickell.

Deposition costs

Cohen moves to tax Clark’s claimed deposition costs of $32,530.11. (Clark states in his opposition that he withdraws $3,460.84 for hearing transcripts, and that the amount sought is now $29,039.27. Opp. (ROA 3534) at 3:22-25.) Cohen asserts Clark’s deposition costs duplicate those claimed by cross-defendant Growthpoint Global, Inc. Different counsel represented Growthpoint and Clark until August 20, 2025. Tricker Decl. (ROA 3532) ¶¶ 6, 9-10; ROA 3224 (Substitution of Attorney). Thus, when the deposition costs were incurred, Growthpoint and Clark, who are separate parties, had separate counsel. ROA 3392 (Att. 4e). Cohen does not dispute or otherwise address this on reply.

Cohen also argues Clark’s deposition costs are “associated with witnesses who did not testify during their claimed depositions concerning Cohen’s claims against Clark relating to the stock purchase agreement transaction.” Brief at 9:17-19. As stated above, Cohen’s apportionment argument is rejected for the reasons stated in the apportionment and deposition sections of the court’s concurrently-issued ruling on Cohen’s motion to strike or tax costs claimed by cross-defendant James Pickell. Clark shall recover $29,059.27 in deposition costs from Cohen.

Court reporter fees

Cohen moves to tax Clark’s claimed court reporter fees of $43,930.41. Cohen argues Clark’s court reporter fees should be apportioned between the two “phases” of the trial, such that Clark should recover a maximum of $7,118.76 from Cohen for court reporter fees. Cohen’s apportionment argument is rejected for the reasons stated in the court’s concurrently-issued ruling on Cohen’s motion to strike or tax costs claimed by cross-defendant James Pickell.

Civil Procedure Code section 1033.5(a)(11) allows recovery of “court reporter fees as established by statute.” See also Gov’t Code § 68086(d)(2) (“[I]f an official court reporter is not available, a party may arrange for, at the party’s expense, the presence of a certified shorthand reporter to serve as an official pro tempore reporter. . . . The fees and charges of the certified shorthand reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law”). Contrary to Cohen’s claim in his reply (ROA 3550 at 6:17), the court reporter fees Clark claims in this item are not transcript fees, they are court reporter fees.

Tricker Decl. (ROA 3532) ¶ 17. See also Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58 (“These charges are not for transcripts. They are for court reporter fees, an entirely different expense. The parties have to pay the court reporter regardless of whether anyone orders transcripts.”).

Cohen’s claim that Clark bears the burden of further substantiating his claimed court reporter fees misunderstands the law. Reply at 5:21-23. As stated above, if the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. Foothill-De Anza Comm. College Dist., 158 Cal.App.4th at 29; Wagner Farms, 145 Cal.App.4th at 773-74. The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. Seever, 141 Cal.App.4th at 1557; see also Wagner Farms, 145 Cal.App.4th at 777-78. Cohen has not carried this burden. Clark shall recover $43,930.41 in court reporter fees from Cohen.

E-discovery costs

Cohen moves to tax Clark’s claimed costs of $11,250 in electronic document management costs. Clark’s counsel states that this sum is based on a $375 monthly payment for 30 months during discovery and through trial. Tricker Decl. (ROA 3532) ¶ 18. Electronic discovery costs are neither specifically allowed nor prohibited by section 1033.5. The court has discretion to award or deny electronic discovery costs pursuant to section 1033.5(c)(4). In Hooked Medial Group, Inc. v. Apple Inc. (2020) 55 Cal.App.5th 323, the court affirmed a trial court’s award of electronic discovery costs to convert “native electronic files into usable form.” Id. at 338.

Cohen relies on Science Applications International Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, where the court disallowed costs “for an outside firm to keep track of the voluminous records in the case—that is, to ‘Bates-stamp’ the documents, input them for retrieval, maintain a document library, create databases to search for records by date, author or subject, etc.,” noting that such “expense is the cost of hiring assistants to help counsel organize documents and access them in discovery and at trial—in other words, the cost of a ‘high tech’ paralegal.

Because we have concluded attorney fees are not compensable, we cannot condone payment of paralegal fees.” Id. at 1104. The court also disallowed costs for a “laser disks and graphics communication system (equipment rental and technician),” finding that “storage” costs for “documents and videos [that] were stored on laser disks like hard copy is stored in a filing cabinet” were not recoverable. Id.

More recent decisions have approved costs incurred for the preparation of electronic evidence for trial. In Green v. County of Riverside (2015) 238 Cal.App.4th 1363, the court approved costs incurred for the preparation of electronic evidence at trial as reasonable and necessary, explaining that “[u]se of such technology, including a technician to monitor the equipment and quickly resolve any glitches, has become commonplace, if not expected by jurors.” Id. at 1374. In Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, the court approved costs for the preparation of video depositions used at trial.

The Bender court observed that “[a]lmost 20 years have passed since Science Applications was decided, during which time the use of technology in the courtroom has become commonplace (including a technician to monitor the equipment and quickly resolve any glitches), and technology costs have dramatically declined.” Id. at 991. While Green and Bender address preparation of electronica evidence used at trial rather than e-discovery costs, those cases provide some guidance about the use of technology generally in complex litigation.

In this case, the court finds that the use of a provider to host electronic evidence was reasonably necessary to the conduct of the litigation given the number of parties and nonparties from whom discovery was sought and the amount of data and volume of documents produced. Indeed, it appears that all of the parties, including Cohen, retained and utilized an electronic discovery provider.

As to the reasonableness of the amount being sought, the court finds $11,250 for 30 months of electronic document hosting reasonable. Indeed, that amount is less than the $33,026.58 Cohen’s counsel states Cohen incurred for similar services. Phillips Decl. (ROA 3410) ¶ 34; Supp. Phillips Decl. (ROA 3546) ¶ 12 & Ex. N. Clark shall recover $11,250 in e-discovery costs from Cohen. Clark shall recover $84,219.68 in costs from Cohen. Clark to give notice.

Cross-complainant Arthur C. Cohen’s Motion to Tax Costs Claimed by Cross-defendant Growthpoint Global, Inc.

Cross-complainant Arthur C. Cohen moves to tax costs claimed by cross-defendant Growthpoint Global, Inc. (It is unclear whether Cohen moves to tax the entire amount Growthpoint claims (ROA 3425 at 2:25) or $154,116.26 of the $177,771.56 Growthpoint seeks (ROA 3425 at 3:2-3).) For the following reasons, Cohen’s motion is denied.

Pursuant to stipulation, the parties agreed to present the claims in plaintiffs Preston Clark and Growthpoint Global, Inc.’s third amended complaint first, followed by the claims in Cohen’s third amended cross-complaint. ROA 2615. Following a bench trial, the court found in defendants’ favor on plaintiffs’ third amended complaint, and in Growthpoint’s and the other cross-defendants’ favor on Cohen’s third amended cross-complaint. ROA 3354. The court entered judgment on March 12, 2026. ROA 3366. Growthpoint filed and served a costs memorandum on March 27, 2026 (ROA 3394), by which Growthpoint seeks $177,771.56 in deposition costs from Cohen.

A prevailing party is usually entitled as a matter of right to recover costs reasonably necessary to the conduct of the litigation. Cal. Civ. Proc. Code §§ 1032(b), 1033.5(c)(2). A prevailing party “includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” Civ. Proc. Code § 1032(a)(4). Section 1032(a)(1) defines “[c]omplaint” as including a cross-complaint, and section 1032(a)(2) defines “[d]efendant” as including a cross-defendant or a person against whom a complaint is filed. Id. § 1032(a)(1), (2).

If the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-74. The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable.

Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557; see also Wagner Farms, 145 Cal.App.4th at 777-78. If the claimed items are not expressly allowed by statute and are objected to by a motion to strike or tax costs, the burden of proof is on the party claiming them as costs to show that the charges were reasonable and necessary. Foothill-De Anza Comm. College Dist., 158 Cal.App.4th at 29. Whether a cost item was reasonably necessary to the litigation is a question of fact for the court to determine.

Id. at 29-30.

Growthpoint prevailed against Cohen on Cohen’s third amended cross-complaint, and thus Growthpoint is the prevailing party entitled to an award of costs. Civ. Proc. Code § 1032(a)(1), (a)(2), (a)(4), (b).

Apportionment

Cohen’s contention that the court should apportion Growthpoint’s costs based on trial “phasing” is rejected for the reasons stated in the apportionment and deposition sections of the court’s concurrently-issued ruling on Cohen’s motion to strike or tax costs claimed by cross-defendant James Pickell.

Deposition costs

Cohen moves to tax Growthpoint’s claimed deposition costs. Cohen asserts Growthpoint’s deposition costs duplicate those claimed by cross-defendant Preston Clark. Different counsel represented Growthpoint and Clark until August 20, 2025. Tricker Decl. (ROA 3542) ¶¶ 6, 9-10; ROA 3224 (Substitution of Attorney). Thus, when the deposition costs were incurred, Growthpoint and Clark, who are separate parties, had separate counsel. ROA 3394 (Att. 4e). Cohen does not dispute or otherwise address this on reply.

Cohen’s claim that Growthpoint bears the burden of further substantiating its claimed deposition costs misunderstands the law. Reply (ROA 3552) at 2:10-11. As stated above, if the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. Foothill-De Anza Comm. College Dist., 158 Cal.App.4th at 29; Wagner Farms, 145 Cal.App.4th at 773-74.

The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. Seever, 141 Cal.App.4th at 1557; see also Wagner Farms, 145 Cal.App.4th at 777-78. Cohen has not carried this burden. Moreover, Growthpoint submitted invoices substantiating the deposition charges. Tricker Decl. (ROA 3542) ¶ 15 & Ex. A.

As to Cohen’s claim on reply that Growthpoint improperly seeks reimbursement for a $965 deposition cancellation fee, “[a] late cancellation fee paid to a reporter may . . . be recovered as an expense related to taking a deposition.” Garcia v. Tempur-Pedic N. Am., LLC (2024) 98 Cal.App.5th 819, 825. Cohen also argues on reply that $38,251.75 in costs for “video only” depositions should be taxed. Section 1033.5(a)(3) allows costs for the “[t]aking, video recording, and transcribing [of] necessary depositions.” Civ. Proc. Code § 1033.5(a)(3) (italics added). Cohen’s request to tax costs incurred for a cancelled deposition and for video recording of depositions is denied. Growthpoint shall recover $177,771.56 in deposition costs from Cohen. Growthpoint Global, Inc. to give notice.

5 Escorcia v. The Foster Printing Company, Inc.

2023-01303441

Plaintiff’s Motion for Final Approval of Class

Plaintiff did not file the supplemental declaration ordered by the court in the August 27, 2026 order. ROA 141. Accordingly, the hearing on plaintiff’s motion for final approval of a class action and PAGA settlement is continued to January 28, 2027 at 2:00 p.m. in Department CX105. Plaintiff is ordered to file the supplemental declaration described in the court’s August 27, 2026 order at least 9 court days before the hearing. Clerk to give notice.

6 Jee v. Eplex Entertainment, Inc.

2023-01336144

Plaintiff Heili Jee’s Motion to Compel Deposition

Plaintiff Heile Jee moves to compel Hwami Lee to appear for deposition. No oppositions have been filed. For the following reasons, plaintiff’s motion is granted.

Plaintiff asserts Lee is defendant Eplex Entertainment, Inc.’s Chief Executive Officer, Secretary and Chief Financial Officer. Brief (ROA 286) at 3:20-21. Plaintiff provides no evidence supporting this assertion, but defendant did not file an opposition and thus has not disputed plaintiff’s representation. Service of a deposition notice on a corporate party is effective to require “an officer, director, managing agent, or employee of a party” to attend and testify at a deposition. Civ. Proc. Code § 2025.280.

On March 19, 2026 plaintiff served defendant’s counsel with a deposition notice for Lee; plaintiff noticed the deposition for April 21, 2026. Azat Decl. (ROA 286) Ex. B. Lee did not serve objections to the deposition notice, did not move to quash the notice, did not move for a protective order and did not appear for the deposition. Id. ¶¶ 6-7.

Civil Procedure Code section 2025.450(a) states: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” Code Civ. Proc. § 2025.450.

As noted, no oppositions to plaintiff’s motion have been filed. Neither defendant nor anyone else has provided any reasons