Montecito Country Club LLC vs Kevin C Root et al

Case Number

21CV02227

Case Type

Hearing Date / Time

Fri, 01/17/2025 - 10:00

Nature of Proceedings

Motion to Tax Costs

Tentative Ruling

For the below reasons plaintiff’s motions to tax costs is granted in part and denied in part as follows:

1. All costs not challenged by the motion to tax costs are allowed.

2. Costs in the amount of $1,812.50, in deposition fees for the discovery referee, are taxed and are not allowed.

3. Costs in the amount of $3,976.30, for online research, are taxed and are not allowed.

4. Costs in the amount of $760.00, for online hosting of documents, are taxed and are not allowed.

5. Costs in the amount of $14,500.00, for appraisals, are taxed and are not allowed.

6. Costs in the amount of $677.50, for a background check on Kevin Root, are taxed and are not allowed.

7. Costs in the amount of $15,400.00, for plaintiff’s trial technician, are not taxed and are allowed.

Background:

Plaintiff Montecito Country Club, LLC (“MCC”) filed its original complaint on June 4, 2021, against defendants Kevin Root (“Kevin”) and Jeannette Root (“Jeannette”) (Note: as the defendants share the same surname, they will be referred to by their first names. No disrespect is intended.) On January 24, 2022, MCC filed the operative first amended complaint (“FAC”) setting forth causes of action for: (1) Quiet title (recorded easement); (2) Quiet title (prescriptive easement); (3) Enforcement of easement; (4) Declaratory relief; and (5) Injunctive relief.

As alleged in the FAC: MCC owns real property located at 920 Summit Road, Santa Barbara, California. (FAC, ¶ 11.) The property consists of several large parcels and contains a recorded easement for a cart path and greens-keepers truck purposes. (Ibid.) On July 21, 2016, defendants purchased the property located at 1059 Summit Road, which contains the easement at issue. (FAC, ¶ 17.) In 2017, defendants proposed relocating the existing boundary fence, constructing a retaining wall, and grading MCC’s easement. (Ibid.) On July 16, 2018, MCC denied defendants’ request. (Ibid.) “Four years later, while the Club was shut-down and operating on a skeleton staff due to the COVID-19 pandemic, the Root Defendants removed Plaintiff’s fencing and hedgerow plantings, constructed a retaining wall raising the grade of the easement by several feet; installed subterranean drainage for Root Defendants’ entire property; installed a wire fence and multiple ‘Keep Out’ signs, and installed a hedgerow along the boundary line of Plaintiff’s property. As a result, Plaintiff is presently unable to access or use the easement for any purpose.” (FAC, ¶ 18.) The construction and landscaping were performed without permits from the City of Santa Barbara and without the consent of MCC. (FAC, ¶ 19.) “In or about May 2021, Plaintiff decided to install a decomposed granite cart maintenance trail along the exterior of the 14th hole, approximately along the path of the cart path that existed prior to the course re-model in 2016, and utilizing Plaintiff’s existing easement over the Root Defendants’ property. Plaintiff further intends to install a line of Ficus hedgerow between the path and the boundary line of the easement, in a manner similar to that which existed from at least 2007 until Defendants’ removal of the hedgerow in approximately 2020.” (FAC, ¶ 20.) “The Root Defendants’ unpermitted and unconsented encroachment is preventing Plaintiff’s intended use of its easement, and further, is preventing any use of the easement by Plaintiff for any purpose. Plaintiff has requested that Defendants remove the encroachment, but Defendants have refused.” (FAC, ¶ 21.)

Defendants filed a verified answer to the complaint on May 24, 2022, admitting some allegations and denying others. Defendants also set forth 17 affirmative defenses.

On June 17, 2024, this matter proceeded to a bench trial that concluded on June 26, 2024. The court issued its statement of decision on July 30, 2024.

Pursuant to the judgment, executed and filed on August 19, 2024:

“1. On the First Cause of Action for Quiet Title - Recorded Easement, Plaintiff shall take judgment against Defendants. The Court finds that the Recorded Easement is valid and enforceable as of June 30, 1977, the date of execution.

“2. On the Second Cause of Action for Quiet Title - Prescriptive Easement, Plaintiff shall take judgment against Defendants. The Court finds that the Plaintiff’s permitted use of the Easement Area pursuant to the Recorded Easement was expanded by historical usage to encompass the maintenance of a boundary hedgerow on the northern-boundary of the Easement Area screening the golf course from 1059 Summit Road and to permit accessory landscaping on the Easement Area not otherwise used for cart path purposes.

“3. On the Third, Fourth and Fifth Causes of Action - Enforcement, Declaratory and Injunctive Relief, Plaintiff shall take judgment against Defendants. An injunction shall issue as follows:

            “a. Defendants shall immediately commence the process of removing the Encroachments from the Easement Area and restoring the Easement Area to the condition that existed on September 8, 2020, including taking all necessary steps to promptly secure the required permits from the City of Santa Barbara, or any other governmental agency.

            “b. Said restoration work shall be conducted at Defendants’ sole expense.

            “c. Defendants are prohibited from unreasonably interfering with Plaintiff’s rights pursuant to the Recorded Easement and Prescriptive Easement.

            “d. The Court shall reserve jurisdiction to monitor compliance until such time the Court-mandated removal and remediation work described in paragraph a, supra, has been fully completed.

“4. Plaintiff is awarded costs of suit.”

On September 12, 2024, MCC filed and served its memorandum of costs (“MOC”), seeking a total of $84,670.68.

Defendants now move to tax: (1) Item 4 - deposition costs in the amount of $1,812.50; and (2) Item 16 - other costs in the amounts of $3,976.30 for online research, $7,650.00 for online hosting/eDiscovery service, $14,500.00 for appraisals, $677.50 for background on Kevin Root, and $15,400.00 for paralegal costs.

MCC opposes the motion.

Analysis:

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).)

Code of Civil Procedure section 1032, subdivision (a)(4), provides, in relevant part, “‘[p]revailing 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. If any party recovers other than monetary relief and in situations other than as specified, the “ ‘prevailing party’ ” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.”

Defendants are correct that because the relief received by way of the judgment was injunctive, and not monetary, costs are discretionary. However, this court already ruled, by way of the judgment, that MCC shall recover its costs.

CCP § 1033.5(a) identifies cost items that are allowable under section 1032; CCP § 1033.5(b) identifies items that are not allowable; and CCP § 1033.5(c)(4) provides that “[i]tems not mentioned in this section … may be allowed or denied in the court’s discretion.” “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “shall be reasonable in amount.” CCP § 1033.5(c)(2) & (3). “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. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. [Citation] Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court….” Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (“Ladas”).  

“[T]he verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (612 South, LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th 1270, 1285.)

“[W]hen [costs] are properly challenged the burden of proof shifts to the party claiming them as costs.” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.)

“[T]rial courts have a duty to determine whether a cost is reasonable in need and amount.” (Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548.)

            Deposition Costs

By way of its memorandum of costs, MCC seeks to recover $20,185.97 in costs. Defendants seek to tax $1,812.50 of that amount. The amount sought to be taxed specifically covers the fees of the appointed discovery referee.

Recoverable costs include: “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.” (Code Civ. Proc., § 1033.5, subd. (a)(3)(A).

Defendants argue that the cost for the discovery referee, to oversee the deposition of Kevin, was necessitated by MCC’s counsel’s litigation tactics that resulted in defendants having to file a motion for a protective order and appointment of a discovery referee.

The court granted defendants’ motion for protective order and appointment of the discovery referee on September 15, 2023. In the court’s ruling, the court noted that neither counsel conducted themselves with the courtesy and professionalism that they should have. The court ordered the cost split and reserved jurisdiction to reallocate the fees.

According to the invoice attached to MCC’s memorandum of costs, the total bill for the discovery referee was $3,625.00. Each side paid their one-half of the discovery referee fees. Plaintiff now requests that defendants cover the entire amount.

The court does not find it reasonable that defendants should have to pay the entire amount for the discovery referee when MCC’s counsel was just as, if not more, responsible for the appointment.

The motion to tax $1,812.50 of the claimed deposition costs will be granted and the amount will be taxed.

            Online Research

MCC seeks to recover $3,976.30 for online research through Westlaw and Thompson Reuters that defendants seek to tax.

Defendants argue that Ladas, supra, holds that fees for legal research are, computer or otherwise, may not be recovered under Code of Civil Procedure section 1033.5.

MCC argues that more recent cases have distinguished the Ladas holding and have found online legal research, as opposed to factual research is an allowable cost. MCC concedes that online research costs are discretionary. (Opp., p. 11, ll. 1-3.)

MCC has failed to meet its shifted burden of proof of showing that the online research fees were reasonable and necessary. It has provided no invoices, receipts, or any document showing what was actually researched in connection with this case. As such, the motion to tax $3,976.30 or online research will be granted and the amount will be taxed.

            Online Document Processing and Hosting

MCC seeks to recover $7,650.00 for online document processing and hosting that defendants seek to tax.

“Fees for the hosting of electronic documents if a court requires or orders a party to have documents hosted by an electronic filing service provider. This paragraph shall become inoperative on January 1, 2022.” (Code Civ. Proc., § 1033.5, subd. (a)(15).)

Again, MCC concedes that recovery of costs for online document processing and hosting is discretionary. MCC argues that the services were reasonably necessary and that the amount is reasonable, given that MCC were “required to collect, sort through, review and maintain thousands of documents from multiple custodians, and over the course of the litigation produced approximately 4,500 pages of documents.” (Opp., p. 8, ll. 2-7.)

 

The court finds that the online document processing and hosting was not reasonably necessary. Rather, it was merely convenient. As such, the motion to tax the costs for online document processing and hosting will be granted and the amount will be taxed.

            Appraisals

MCC seeks to recover $14,500.00 in appraisal costs that defendants seek to strike, arguing that they are specifically disallowed pursuant to Code of Civil Procedure section 1033.5, subdivision (b) as investigation expenses.

MCC argues that the appraisals were not an investigation expense but, rather, they were incurred in connection with the parties’ unsuccessful attempt at mediation, and are discretionary.

Whether the costs are labeled as investigation expenses, or not, does not change the court’s opinion that the costs were not reasonably necessary for the conduct of the litigation. At most, the appraisals were a convenience for MCC in their unsuccessful negotiations. The motion to tax the $14,500.00 in appraisal costs will be granted and the amount will be taxed.

            Investigation Costs

Defendants seek to tax $677.50 in costs for conducting a background investigation of Kevin. MCC concedes, by way of its opposition, that this in not a recoverable cost and agrees that it should be taxed. As such, the amount will be taxed.

            Paralegal/Trial Technician Fees

Defendants seek to tax $15,400.00 in what they refer to as paralegal fees, for work performed by Madison Miller, who is an employee of MCC’s counsel’s law firm.

Defendants argue that all of the work performed by Miller was typical paralegal work and not recoverable.

MCC argues that Miller was performing as a trial technician and that if they did not use her, they would have been required to hire a third-party trial support vendor.

Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1104, cited by defendants, holds: “The 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. The item is not recoverable.”

The acceptance and use of technology at trial has increased greatly since 1995. As one result of this fact, Code of Civil Procedure section 1033.5, subdivision (a)(13) was amended to include, as a recoverable cost, “the electronic presentation of exhibits.” This addition reveals the legislature’s recognition of the persuasive effect of technological presentations at trial and the acknowledgment that presenting such evidence results in costs.

This acceptance of the use of technology can also be seen in the language of more recent cases. For example: “Almost 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. In a witness credibility case such as this, it would be inconceivable for plaintiff’s counsel to forego the use of technology to display the videotapes of plaintiff’s interviews after his beating, in the patrol car and at the sheriff's station, and key parts of other witnesses’ depositions. The court in Science Applications was ‘troubled by review of a case in which a party incurred over $2 million in expenses to engage in high-tech litigation resulting in recovery of only $1 million in damages.’ (Science Applications, supra, 39 Cal.App.4th at p. 1105, 46 Cal.Rptr.2d 332.) This is not such a case. The costs at issue total just over $24,000, and the trial court specifically found the trial technology enhanced counsel’s advocacy and was reasonably necessary to the conduct of the litigation. The court acted well within its discretion in allowing recovery of these costs.” (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 991.)

Defendants’ argument that the costs should not be recoverable because they were incurred by a paralegal is not persuasive. Paralegal costs are discretionary when they are “incurred for preparation and presentation of electronic evidence, including videos of deposition testimony, exhibits and excerpts from audio recordings, at trial.” (Green v. County of Riverside (2015) 238 Cal.App.4th 1363, 1373.) “These costs are neither specifically allowable under Code of Civil Procedure section 1033.5, subdivision (a) nor prohibited by subdivision (b). They may be awarded provided they are ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’ (Id. subd. (c)(2).)” (Id. at p. 1374.)

Here, although a bench trial rather than a jury trial, the court found the presentation of evidence helpful. The costs incurred were reasonably necessary to the conduct of the litigation. While defendants take issue with Miller being billed out at $200.00 per hour, the court finds the amount to be reasonable and within the range that other paralegals are billed out for in Santa Barbara. The costs will be allowed.