Marylin Castillo, et al. v. King Taco Restaurant, Inc., et al.

MOTION TO TAX COSTS

MOVING PARTY: Plaintiffs Marilyn Castillo, America Esmeralda Romero and Samantha Romero, by and through her Guardian Ad Litem, America Esmeralda Romero

RESPONDING PARTY(S): Defendants Fortress Security Corporation, Inc. and Francisco Mejia

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs were at a King Taco restaurant when a fight broke out between other patrons. The security guards refused to protect any patrons. Defendant Mejia began recklessly emptying his pepper spray, harming Plaintiffs.

After a jury verdict for Defendants, judgment was entered against Plaintiffs.

Plaintiffs move to tax Defendants Fortress Security Corporation, Inc. and Francisco Mejia’s memorandum of costs.

TENTATIVE RULING:

Plaintiffs Marilyn Castillo, America Esmeralda Romero and Samantha Romero, by and through her Guardian Ad Litem, America Esmeralda Romero’s motion to tax costs from the memorandum of costs filed by Defendants Fortress Security Corporation, Inc. and Francisco Mejia is GRANTED in the amount of $300 as to Item No. 1 (Filing and Motion Fees), DENIED as to Item No. 2 (Jury Fees) in its entirety, DENIED as to Item No. 4 (Deposition Costs) in its entirety, DENIED as to Item No. 5 (Service of Process Fees) in its entirety, GRANTED in the amount of $2,407.10 as to Item No. 8 (Witness Fees), GRANTED in the amount of $1,841.22 as to Item No. 11 (Court Reporter Fees), GRANTED in the amount of $16,149.00 as to Item No. 13 (Interpreter Fees), and GRANTED in the total amount of $59,780.35 as to Item No. 16: Other (Expert Witness Fees).

DISCUSSION:

Motion To Tax Costs

Initial verification will suffice to establish the reasonable necessity of the costs claimed. There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum [of costs]. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted. (Citation omitted.) Once this occurs, the issue becomes whether the required documentation must be of evidentiary quality. Rule 870(a)(1) does not specify the type of documentation required.

Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267 (bold emphasis added).

Defendants seek to recover $720.00 in filing and motion fees.

The prevailing party is entitled to recover filing and motion fees per CCP § 1033.5(a)(1).

Plaintiffs seek to strike $720.00 in filing and motion fees, arguing that some of the fees listed to do not correspond to any motions actually filed on or near those dates. The Court finds this argument to be persuasive as to the following items listed in Exhibit A attached to the Memorandum of Costs:

TOTAL TO BE TAXED: $300

The motion to tax Item No. 1 is GRANTED in the amount of $300.

Defendants seek to recover $848.88 in jury fees.

The prevailing party is entitled to recover jury fees per CCP § 1033.5(a)(1).

The nonrefundable advance jury fee of $150 is set forth at Item 68 of the Fee Schedule.

Subsequent (daily) jury deposits ($15 per day plus mileage of $0.34 per mile one way, per juror) is set forth at Item 69 of the Fee Schedule.

Attachment A to the Memorandum of Costs (reflects that the jury fees claim are $150.00 (December 17, 2015) and $698.88 for January 30, 2018 – February 24, 2018 The $150.00 jury fee deposit per Item 68 of the Fee Schedule is recoverable as a matter of right. On March 2, 2018, another Civil Deposit sheet was filed indicating a deposit of $698.88 in daily jury fees for 1/30/18 – 2/14/18. Because these costs were not awarded to King Taco in the prior motion to tax, the entire amount will be awarded here to Fortress/Mejia.

Accordingly, the motion to tax Item No. 2 (Jury Fees) is DENIED in its entirety.

Defendants seek to recover $17,226.82 in deposition costs.

The prevailing party is entitled to the following deposition costs per CCP § 1033.5(a)(3).

(3)

(A) 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.

(B) Fees of a certified or registered interpreter for the deposition of a party or witness who does not proficiently speak or understand the English language.

(C) Travel expenses to attend depositions.

§ 1033.5.

The deposition costs listed in Exhibit A are proper under CCP § 1033.5(a)(3), and Defendants have submitted supporting invoices for each cost, attached to the Opposition as Exh. B. The costs will be allowed in their entirety.

The motion to tax Item No. 4 is DENIED in its entirety.

Defendants seek to recover $1,748.52 in service of process fees.

The prevailing party is entitled to the following service of process fees pursuant to CCP § 1033.5(a)(4):

(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).

CCP § 1033.5.

The service of process fees listed in Exhibit A are proper under CCP § 1033.5(a)(3), and Defendants have submitted supporting invoices for each cost, attached to the Opposition as Exh. B. The costs will be allowed in their entirety.

The motion to tax Item No.5 is DENIED in its entirety.

Defendants seek to recover witness fees in the amount of $2,561.50.

The prevailing party is entitled to recover “[o]rdinary witness fees pursuant to Section 68093 of the Government Code.” CCP § 1033.5(a)(7)(bold emphasis added).

Gov. Code § 68093 provides: “Except as otherwise provided by law, witness’ fees for each day’s actual attendance, when legally required to attend a civil action or proceeding in the superior courts, are thirty–five dollars ($35) a day and mileage actually traveled, both ways, twenty cents ($0.20) a mile.” Practically all of the witness fees listed in Exhibit A (page 4) attached to the Memorandum of Costs do not fall within Gov. Code § 68093. The only witness fees which do appear to fall with § 68093 are the August 9, 2017 fees of $38.60 each for Araceli Salicillo, Evelia Roman, Cesar Romero and Robert Romero ($154.40 total). The other costs appear to be costs of custodian of records or services of subpoenas, which do not qualify under Gov. Code 68093. Thus, on $154.40 in witness fees will be permitted, with the remainder of the costs disallowed.

Accordingly, the motion to tax Item No. 8 is GRANTED in the amount of $2,407.10.

Court reporter fees as established by statute are recoverable by the prevailing party per CCP § 1033.5(a)(11). Gov. Code § 68086(a) provides for a fee representing the services of an official court reporter for each proceeding lasting more than one hour, as follows:

(a) In addition to any other fee required in civil actions or cases:

. . .

(2) For each proceeding lasting more than one hour, a fee equal to the actual cost of providing that service shall be charged per one-half day of services to the parties, on a pro rata basis, for the services of an official court reporter on the first and each succeeding judicial day those services are provided pursuant to Section 269 of the Code of Civil Procedure.

(A) All parties shall deposit their pro rata shares of these fees with the clerk of the court as specified by the court, but not later than the conclusion of each day’s court session.

(B) For purposes of this paragraph, “one-half day” means any period of judicial time, in excess of one hour, but not more than four hours, during either the morning or afternoon court session.

(b) The fee shall be waived for a person who has been granted a fee waiver under Section 68631.

(c) The costs for the services of the official court reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law.

Gov. Code, § 68086.

Defendant seeks to recover $3,682.44 for court reporter fees. Exhibit A. However, as it appears this costs was jointly incurred by all Defendants, as admitted in the Opposition at Page 5:20, Defendants Fortress Security/Mejia will only be permitted to recover half by way of its memorandum of costs.

As such, the motion to tax Item No. 11 is GRANTED in the amount of $1,841.22.

Defendants seek to recover $16,149.00 in interpreter fees.

Interpreter fees are recoverable in the following circumstances:

(a) The following items are allowable as costs under Section 1032:

. .

(B) Fees of a certified or registered interpreter for the deposition of a party or witness who does not proficiently speak or understand the English language.

CCP § 1033.5(a)(3)(B)

(12) Court interpreter fees for a qualified court interpreter authorized by the court for an indigent person represented by a qualified legal services project, as defined in Section 6213 of the Business and Professions Code, or a pro bono attorney, as defined in Section 8030.4 of the Business and Professions Code.

CCP § 1033.5(a)(12).

Per Exhibit B attached to the Opposition Defendants seeks to recover for the interpreter fees of Miguel Acevedo. There is no indication that Acevedo is a qualified or registered interpreter for purposes of CCP § 1033.5(a)(B). Moreover, most of Acevedo’s services were not rendered in connection with the deposition of a party.

Accordingly, the motion to tax Item No. 13 is GRANTED in the amount of $16,149.00.

Defendants seek $128,914.00 in Expert Witness Fees.

(c)

(1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff 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 defendant.

CCP § 998(c)(1)(bold emphasis added).

Defendants made a CCP § 998 offer to Plaintiff on May 19, 2017 which was not accepted by Plaintiff. As such, Defendants are entitled to recover post-offer expert witness fees actually incurred and reasonably necessary for trial.

Defendants admit that the expert witness fees sought for Mark Mooring were jointly incurred with King Taco and Defendants withdraw such request to the extent they are awarded to King Taco. As this Court previously ruled, the Court found that the $23,462.52 billed by Mooring was unreasonable, and that all things considered, the amount of expert witness fees to be taxed as unreasonable is $7,753.75. Accordingly, because these costs have already been taxed and awarded to King Taco, they are entirely duplicative as to Fortress Security/Mejia here, and will be taxed from these Defendants’ Memorandum of Costs in the amount of $23,462.52.

As for the expert fees billed by Steven Simons, M.D. in the total amount of $20,880.00 (see Memorandum of Costs, Exh. A and Opposition, Exh. B), the Court finds that the reasonable fees incurred by Simons totals $18,417.50. As such, the expert fees of Simons will be taxed in the amount of $2,462.60.

As for the expert fees billed by Park, Dietz & Associates, Mark Cohen, M.D. in the total amount of $56,785.00 (see Memorandum of Costs, Exh. A and Opposition, Exh. B), the Court finds that the reasonable fees incurred by Park, Dietz & Associates/Cohen totals $43,145.00. As such, the expert fees Park, Dietz & Associates/Cohen will be taxed in the amount of $13,640.00.

As for the expert fees billed by Trialspeak (see Memorandum of Costs, Exh. A and Opposition, Exh. B) billed in the total amount of $20,215.25, the Court finds that the services rendered by Trialspeak (rendering of 3-D model) do not qualify as expert witness fees. As such, the expert fees billed by Trialspeak will be taxed in the amount of $20,215.25.

Accordingly, the motion to tax Item No. 16: Other is GRANTED in the total amount of $59,780.35.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: November 5, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at [email protected] by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.