P. ex rel. Tonti v. Living Rebos CA2/1 ( 2020 )

Filed 11/30/20 P. ex rel. Tonti v. Living Rebos CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE ex rel. ALISON B302774
TONTI,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC674091)
v.
LIVING REBOS, LLC, et al.,
Defendants and Respondents.
APPEAL from orders of the Superior Court of Los Angeles
County, Michael P. Linfield, Judge. Affirmed in part, reversed in
part with instructions.
Medvei Law Group and Sebastian M. Medvei for Plaintiff
and Appellant People ex rel. Alison Tonti.
Kirkland & Ellis, Sierra Elizabeth and James R.P. Hileman
for Defendant and Respondent Avee Laboratories, Inc.
No appearance for Defendants and Respondents Living
Rebos, LLC, M-Brace Treatment, Inc., Millennium Health, LLC,
Sobertec, LLC, and Upfront Labs, LLC.
Plaintiff and appellant Alison Tonti appeals the awards
of costs to defendants. Two of the defendants prevailed on
summary judgment motions; the remainder were abruptly
dismissed with prejudice by Tonti days before their motions
were set to be heard. The court awarded costs to all defendants.
We conclude that Government Code section 69950 limits
the recoverable transcription fees charged by the pro tempore
court reporter retained by defendant Millenium Health, LLC
to transcribe its summary judgment hearing, and that the court
erred in awarding costs above that statutory amount. In all other
respects, we affirm.
BACKGROUND
The underlying facts and procedural history of this
qui tam lawsuit are described in detail in our earlier opinion,
People ex rel. Tonti v. Living Rebos, LLC et al. (Aug. 12, 2020,
B295815) [nonpub. opn.] (Tonti I). While the Tonti I appeal
was pending, the two defendants whose summary judgments
had been granted—namely, Millenium Health, LLC and Avee
Laboratories, Inc.—submitted cost bills to the trial court. The
remaining defendants with summary judgment motions pending
at the time of the dismissal of the entire case—namely, Living
Rebos, LLC, M-Brace Treatment, Inc., Sobertec, LLC, and
Upfront Labs, LLC—also submitted cost bills to the trial court.
Plaintiff filed motions to tax costs addressed to all four of the cost
bills. All defendants filed written oppositions to the motions to
tax costs, and plaintiff filed written replies.
2
The court awarded costs as follows:
Defendant(s) Request Amt. Taxed Net Award
Millenium
$4,298.53 $66.50 $4,232.03
Health
Living Rebos/
$8,923.82 $1,516.31 $7,407.51
M Brace
Sobertec/Upfront $3,474.80 $0.00 $3,474.80
Avee Labs $10,878.64 $4,819.15 $6,059.49
Plaintiff timely appealed these orders.
DISCUSSION
I. Standard of Review
Pursuant to Code of Civil Procedure1 section 1032,
subdivision (b), “a prevailing party is entitled as a matter of
right to recover costs in any action or proceeding.” Plaintiff has
not challenged the status of the above defendants as prevailing
parties for purposes of the cost awards at issue.2
“ ‘[S]ection 1033.5 sets forth the items that are and are
not allowable as the costs recoverable by a prevailing party
under section 1032[.]’ (Chaaban v. Wet Seal, Inc. (2012)
1 Unless otherwise noted, all statutory references are to the
Code of Civil Procedure.
2 On August 12, 2020, plaintiff filed a motion for summary
reversal based on this court’s decision setting aside plaintiff ’s
unauthorized dismissal in Tonti I. This motion was denied on
September 24, 2020. Plaintiff renewed the same arguments in a
request for judicial notice filed on October 22, 2020. This request
is likewise denied. All parties to whom costs were awarded were
prevailing parties as of the time of the awards.
3
203 Cal.App.4th 49, 52 . . . .) Specifically, section 1033.5,
subdivision (a) enumerates the items that are allowable as costs,
while subdivision (b) lists the items for which costs may not be
recovered. (§ 1033.5, subds. (a) & (b).) Under section 1033.5,
subdivision (c)(4), however, cost items that are neither permitted
under subdivision (a) nor prohibited under subdivision (b) may
nevertheless be ‘allowed or denied in the court’s discretion.’
(§ 1033.5, subd. (c)(4); see also Applegate v. St. Francis Lutheran
Church (1994) 23 Cal.App.4th 361, 363–364 . . . .) All costs
awarded, whether expressly permitted under subdivision (a)
or awardable in the trial court’s discretion under subdivision (c),
must be ‘reasonably necessary to the conduct of the litigation’ and
be ‘reasonable in amount.’ (§ 1033.5, subds. (c)(2) & (3).)
“ ‘Generally, the standard of review of an award of costs
is whether the trial court abused its discretion in making the
award. [Citation.] However, when the issue to be determined
is whether the criteria for an award of costs have been satisfied,
and that issue requires statutory construction, it presents a
question of law requiring de novo review. [Citation.]’ (Berkeley
Cement, Inc. v. Regents of University of California (2019) 30
Cal.App.5th 1133, 1139 . . . .) ‘ “ ‘The appropriate test for abuse
of discretion is whether the trial court exceeded the bounds of
reason.’ . . .’ ” [Citations.]’ (Brawley v. J.C. Interiors, Inc. (2008)
161 Cal.App.4th 1126, 1137–1138 . . . .)” (Segal v. Asics America
Corp. (2020) 50 Cal.App.5th 659, 664-665, italics added.)
Verification of the memorandum of costs by the prevailing
party’s attorney establishes a prima facie showing that the
claimed costs are proper. (Jones v. Dumrichob (1998) 63
Cal.App.4th 1258, 1267.) “There is no requirement that copies
of bills, invoices, statements, or any other such documents
4
be attached to the memorandum.” (Ibid.) To overcome this
prima facie showing, the objecting party must introduce evidence
to support his claim that the costs are not reasonably necessary
or are not reasonable in amount. Mere conclusory assertions
are insufficient to rebut a prima facie showing by the prevailing
party. (Rappenecker v. Sea-Land Service, Inc. (1979) 93
Cal.App.3d 256, 266.)
Although all defendants filed written oppositions to
plaintiff ’s motions to tax costs, only defendant Avee Laboratories,
Inc. has filed a respondent’s brief in this appeal. “[F]ailure to
file a respondent’s brief does not mandate automatic reversal,
however. Instead, we examine the record and reverse only
if prejudicial error is found. (Cal. Rules of Court, rule 8.220(a),
(b); Estate of Supeck (1990) 225 Cal.App.3d 360, 365 . . . .)”
(Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 593, fn. 2.)
II. The Costs at Issue
A. Deposition Costs
Plaintiff has challenged the trial court’s award of
deposition costs as to all defendants. Below is a summary of the
trial court’s awards in this category:
Defendant(s) Request Amt. Taxed Net Award
Millenium
$2,143.74 $0.00 $2,143.74
Health
Living Rebos/
$2,320.00 $0.00 $2,320.00
M-Brace
Sobertec/Upfront $1,006.30 $0.00 $1,006.30
Avee Labs $4,493.95 $1,853.20 $2,640.75
5
Section 1033.5, subdivision (a)(3)(A) provides that
costs for “[t]aking, video recording, and transcribing necessary
depositions” are allowable, as are travel expenses to attend
depositions. These costs all relate to the cost of transcripts of
plaintiff ’s deposition, which each of the four defendant groups
ordered. Plaintiff contends that once a single defendant has paid
for the cost of reporting the deposition, the remaining defendants
have no obligation to pay for their own certified copies of the
transcripts or recordings. We disagree. Plaintiff cites no
authority for this proposition, and plaintiff ’s contention is
contrary to the regulations under which deposition reporters
operate.3 The record indicates that each defendant group ordered
copies of the deposition to support their motions for summary
judgment. Thus, they were reasonably necessary for the conduct
of the defense. Nor do the costs appear to be excessive.
Plaintiff further argues that the reporting of this
deposition should have been subject to the limited transcription
fees for official court reporters set forth in Government Code
section 69950. But “[s]ections 69950 and 69954 regulate only
transcription fees for proceedings in the superior court. The
statutes do not prevent a private reporter from charging contract
rates for court appearances and costs incurred while serving
as an official reporter pro tempore or for producing deposition
3 California Code of Regulations, title 16, section 2403,
subdivision (b)(9) and (10) provide that the deposition reporter
must “promptly transmit[ ] [the deposition transcript] to the
attorney for the party who noticed the deposition” and “mak[e] a
transcript of [the] deposition testimony available to any party
requesting a copy, on payment of a reasonable charge.”
6
transcripts.” (Burd v. Barkley Court Reporters, Inc. (2017) 17
Cal.App.5th 1037, 1050 (Burd), italics added.)
B. Filing and Motion Fees
Plaintiff has challenged the trial court’s award of filing and
motion fees as to all defendants. Below is a summary of the trial
court’s awards in this category:
Defendant(s) Request Amt. Taxed Net Award
Millenium
$1,520.14 $0.00 $1,520.14
Health
Living Rebos/
$4,913.16 $61.65 $4,851.51
M-Brace
Sobertec/Upfront $2,170.00 $0.00 $2,170.00
Avee Labs $4,605.84 $1,224.20 $3,381.64
Pursuant to section 1033.5, subdivision (a)(l), filing
and motion fees are allowable costs, and under section 1033.5,
subdivision (c), related expenses that are “reasonably necessary”
to the conduct of the litigation are allowable in the court’s
discretion.
Plaintiff’s principal objection to all the costs claimed by the
various defendant groups is that, except for Avee Laboratories,
these defendants did not submit detailed invoices or other records
showing that these amounts were actually incurred. But such
an objection, essentially stating that the opposing party does not
believe that the costs were actually incurred, is not sufficient to
shift such burden to the parties claiming costs. “[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. (See Oak Grove School Dist. v. City Title
7
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 defendant
[citations], and the burden of showing that an item is not
properly chargeable or is unreasonable is upon the [objecting
party].’ (Id. at p. 699 . . . .)” (Nelson v. Anderson (1999) 72
Cal.App.4th 111, 131.) Here, all the categories of charges were
properly recoverable under section 1033.5 and supported by
declarations of the respective attorneys. Thus, defendants met
their burden to support recovery of their costs. The plaintiff ’s
mere objection that the costs were not actually incurred or were
excessive was insufficient to meet her burden or to shift the
burden to the defendants to further support their requests.4
C. Reporter Pro Tempore Cost
Millenium Health arranged for a private reporter to report
the court hearing on its summary judgment motion. The reporter
was appointed as an official court reporter pro tempore pursuant
to Government Code sections 68086 and 70044 and rule 2.956 of
the California Rules of Court.
The trial court approved reimbursement to Millenium
Health of $568.15 for this privately retained reporter. Plaintiff
asserts that the trial court should not have awarded more
than the statutory rate for official court reporters set forth in
Government Code section 69950, and that $568.15 is in excess of
4 Avee has agreed on appeal to reduce its claim in this
category by $66.60 to account for possible duplication of charges.
8
the amount authorized by that section.5 Plaintiff is correct as
to the law. As noted above, Government Code section 69950
regulates costs for the transcription of superior court proceedings,
a category into which a summary judgment hearing falls.
In Burd, supra, 17 Cal.App.5th 1037, the court
concluded that “[t]he plain language of [Government Code]
sections 69950 and 69954 apply the statutory transcription rates
to reporters serving as official reporters or as official reporters
pro tempore in the superior courts, regardless of whether they
are employed by the court or privately retained by a party.”
(Id. at pp. 1050–1051, italics added; see id. at p. 1047 [the
Legislature intended “to apply statutory transcription rates to
official reporters pro tempore generally, whether employed by
the court or privately retained by a party”].) Thus, plaintiff is
correct that the reporter pro tempore allowable cost is limited by
the fee schedule set forth in Government Code section 69950.6
5 Government Code section 69950, subdivision (a), provides:
“The fee for transcription for original ribbon or printed copy is
eighty-five cents ($0.85) for each 100 words, and for each copy
purchased at the same time by the court, party, or other person
purchasing the original, fifteen cents ($0.15) for each 100 words.”
6 Dicta in a case predating Burd—Urban Pacific
Equities Corp. v. Superior Court (1997) 59 Cal.App.4th 688(Urban Pacific)—notes that “[a]lthough 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 deposition reporters
are free to charge all the market will bear.” (Urban Pacific,
supra, at pp. 691–692.) But Urban Pacific dealt with deposition
transcription services, to which, as noted, Government Code
section 69950 does not apply.
9
Accordingly, the costs for this transcript should have
been taxed to the amount computed under Government Code
section 69950, subdivision (a).
DISPOSITION
The award for the pro tempore court reporter costs to
Millenium Health is reversed and the trial court is instructed to
tax those costs in accordance with the applicable rates set forth
in Government Code section 69950, subdivision (a). In all other
respects the awards are affirmed.
All parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY J.
BENDIX, J.
10