Opinion
D052083
9-3-2008
EXPRESS COMPANIES, INC., Plaintiff and Appellant, v. BRANDON TAYLOR et al., Defendants and Respondents.
Not to be Published
Express Companies, Inc. (Express) filed this action against Brandon and Susana Taylor (together Taylors) alleging various causes of action, and Taylors cross-complained. After Taylors prevailed, they filed a cost bill and motion seeking an award of almost $85,000 as costs and more than $300,000 as attorney fees. Express opposed Taylors request for an award of costs arguing, among other things, that various items sought as costs should be taxed. The court awarded some but not all of the requested costs. Taylors then submitted a proposed judgment allegedly reflecting the courts rulings on their cost bill. The proposed judgment contained a cost award of approximately $32,000, which, over Expresss objection., the court entered on November 16, 2007.
Express argues on appeal that the November 16, 2007, judgment does not accurately incorporate the courts rulings on the various line items in the cost bill and should be reversed.
I
PROCEDURAL HISTORY
In the underlying action, Taylors prevailed on Expresss claims against them and, as to Taylors claim against Express under Business and Professions Code section 17200, the court found Express had violated that section but Taylors had suffered no resulting injury. Taylors moved for attorney fees and costs, arguing they were the prevailing party entitled to fees and costs under applicable laws. Taylors memorandum of costs, filed in conjunction with their motion, sought almost $85,000 as costs and more than $300,000 as attorney fees.
Express opposed Taylors motion and moved to tax the requested costs, arguing (1) Taylors did not qualify as the prevailing party, (2) portions of the requested costs may have been barred by res judicata or were not incurred in connection with the dispute between Express and Taylors, and (3) various line-items in the cost bill should be taxed. Taylors responded by filing extensive back-up documentation supporting the appropriateness and reasonableness of the costs claimed in their memorandum.
The parties had previously litigated a federal court action involving the same underlying conduct and the federal court had allowed some costs and disallowed others. Because Taylors memorandum of costs did not contain a breakdown detailing which costs had been incurred in which aspect of the litigation (e.g. the complaint by Express, the cross-complaint against Express, the cross-complaint against others, or the federal action) the majority of the requested amounts should be taxed. However, shortly before Express filed its opposition, Taylors filed a costs worksheet detailing the amounts contained in each category. Express responded to the worksheet detail by filing an addendum to its motion to tax costs.
The trial court granted the motion to tax costs in part, and denied it in part. Because the issue on appeal depends principally on consideration of the various items of costs, we detail the items sought and the courts rulings.
A. The Clear Rulings (Lines 1-12 of Taylors Memorandum of Costs)
The courts minute order specified it would allow all of Taylors requested filing and motion fees ($3,599), jury fees ($672.39), service of process fees ($1,360.40), model/blowup fees ($759.49), and court reporter fees ($1,507.38). The court awarded only part of Taylors requested deposition fees (Taylors had asked for $8,331.62 but the court struck numerous transcript fees and, after deducting these amounts, apparently allowed $ 4,027.71) and only part of Taylors requested witness fees (Taylors had asked for $78.20 but the court struck one fee and, after deducting that amount, apparently allowed $42.20). The court also denied Taylors request for an award of attorney fees and for the costs for court reporters transcripts.
B. The Rulings on the "Other" Costs (Line 13 of Taylors Memorandum of Costs)
Taylors requested $65,339.60 as other costs in line 13 of the memorandum of costs. These costs apparently represented $44,256.93 for expert witness fees, and $21,082.67 for miscellaneous costs, both of which Taylors claimed were recoverable under Code of Civil Procedure section 1033.5, subdivision (a)(13). The miscellaneous costs were apparently composed of (1) travel costs for the attorneys (both to a deposition in Idaho and to the courthouse for various hearings and trial), (2) legal research for various motions, (3) copies of documents and trial exhibits, and (4) obtaining the felony conviction file and plea agreements for two individuals. Although Taylors attached back-up documentation purportedly verifying the nature and amounts claimed as these miscellaneous costs, the precise amounts incurred for each subcategory within the miscellaneous costs was not specified.
Express opposed the award of expert fees on a variety of grounds. Express also opposed the award of miscellaneous fees, arguing that costs must be "required to be awarded to the prevailing party pursuant to statute" under Code of Civil Procedure section 1033.5, subdivision (a)(13) (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132-133), and the absence of any identification of how these miscellaneous costs represented items required by statute barred the award of any of those costs.
The trial courts minute order, after striking all of the expert witness fees, then addressed the remaining $ 21,082.67 sought as miscellaneous other costs. The court struck the requested costs identified as legal research costs (specifying the amount thereof at $15,856.00), trial exhibits costs (specifying the amount thereof at $3,591.49), and trial costs without specifying the amount so stricken. Although the striking of these items completely (or at a minimum almost) exhausted the remaining $21,082.67 sought as miscellaneous costs, the court (after finding that travel costs were allowable costs under Code of Civil Procedure section 1033.5, subdivision (a)(13) nevertheless awarded the entire $21,082.67 under the rubric of travel costs.
Both below and on appeal, Express claims the amounts stricken for trial costs was $2,394.67. Express appears to have derived that figure from Taylors appendix, because the $2,394.67 figure is contained in Taylors appendix in support of their motion for costs but does not appear to fall within any category of costs except the "other" category.
After the court entered its ruling on the cost request, Taylors submitted a proposed amended judgment that added costs, in the total amount of $32,527.82, to the judgment. Express objected to the judgment and moved ex parte for an order clarifying that the court had only awarded $11,209.08 as costs and the final judgment should reflect the lower amount of the cost award. Taylors opposed the ex parte application, asserting Expresss calculations ignored the courts award of travel costs in the amount of $21,082.67 as part of the recoverable costs, and therefore the proposed amended judgment accurately reflected the courts cost award. The court, after considering Expresss ex parte application, concluded the judgment reflected its rulings on costs and signed and entered the amended judgment submitted by Taylors.
II
ANALYSIS
The parties agree on appeal that, as to those costs sought by Taylors on lines 1 through 12 of Taylors memorandum of costs, the courts order (after striking various items) clearly awarded $11,209.08 as costs, and neither party challenges the propriety of the courts determinations as to these items of costs. It is the courts treatment of the $ 65,339.60 of costs sought on line 13 that gives rise to this appeal. Express, focusing on those aspects of the courts minute order striking all of the expert witness fees, legal research costs, trial exhibits costs, and trial costs, argues the court struck an amount totaling in excess of $65,339.60 and therefore argues it was error to include costs in the judgment beyond the $11,209.08 awarded as costs for lines 1 through 12. Taylors, focusing on the aspect of the courts minute order awarding "travel costs" of $21,082.67, argue it was proper to add that amount to the costs awarded for lines 1 through 12.
We conclude the irreconcilable inconsistency among the rulings contained in the minute order requires reversal. (Cf. Cavallaro v. Michelin Tire Corp. (1979) 96 Cal.App.3d 95, 101 [where court findings are contradictory on material issues essential to sustaining the judgment the inconsistency is reversible error].) As previously discussed, Taylors sought (and provided documentation supporting) $65,339.60 of costs for line 13. The amount was composed of expert witness fees of $44,256.93 (which the court struck) and another $21,082.67 for miscellaneous costs. The court both struck the $ 21,082.67 sought as miscellaneous costs (by striking three subcategories within the miscellaneous costs in a total amount approaching or exceeding $21,082.67) and allowed $21,082.67 as miscellaneous costs (under the rubric of travel costs). We cannot reconcile these rulings, and Taylors do not suggest any logical way to resolve the apparent inconsistency. Because the courts rulings on issues material to the cost award were contradictory, the inconsistency constitutes reversible error.
The irreconcilable inconsistency becomes highlighted if we construe the minute order as evidencing the courts intent to find that the entire balance of $21,082.67 (remaining after it struck the expert fees from the amounts sought by Taylors line 13) was recoverable as travel costs under Code of Civil Procedure section 1033.5, subdivision (a)(13). First, although Taylors provided documentation (in the form of exhibit I lodged in support of Taylors request for costs) supporting the $21,082.67 sought as miscellaneous costs within line 13, the vast bulk of the documented costs were for legal research and trial costs, and there was no evidence Taylors paid travel costs anywhere approaching $21,082.67. Moreover, as to the fraction of the $21,082.67 the evidence supported as travel costs, it appears there is no legal basis supporting an award of most of those travel costs. Almost all of the documented "travel costs" appear to involve local mileage charges incurred for local travel by the attorneys, ordinarily not recoverable (Ladas v. California State Auto Assn., supra, 19 Cal.App.4th at pp. 775-776), and outside the scope of the section (e.g. Code Civ. Proc. § 1033.5, subd. (a)(13)) cited by the trial court.
The biggest component of costs listed in Exhibit I were legal research costs, apparently in the amount of $15,856.00, which the court correctly struck. (Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761, 776.) The bulk of the remaining documented costs, denominated as "trial exhibits" costs (in the apparent amount of $3,591.49) and trial costs (an amorphous category of ill-defined expenses), were also properly stricken by the court. (Id. at pp. 775-776.)
Thus, the judgment relies on apparently contradictory rulings on the same items, and the foregoing evidentiary and legal lacunas preclude us from construing the award in a fashion that would permit affirmance of the judgment. However, because there may exist some evidentiary and legal basis for recovering some portion of the requested travel costs, we must preserve to Taylors the option of seeking on remand a reduced cost award encompassing recoverable travel costs.
Specifically, at least one of the travel costs allegedly involved "travel costs for the deposition of Gay Henry in Idaho." Because that may be an allowable cost (see Code Civ. Proc., § 1033.5, subd. (a)(3)), Taylors were entitled to seek to recover such cost.
DISPOSITION
The judgment is affirmed except the cost award is vacated and the matter is remanded for a new hearing on the costs sought as travel costs only. However, if respondent shall, within 30 days from the date of our remittitur, file pursuant to California Rules of Court, rule 8.264(d) a written consent to a reduction of the cost award to the sum of $11,209.08, the judgment will be modified to award respondent costs in that amount, and as so modified will be affirmed in its entirety. (Rosener v. Sears Roebuck & Co. (1980) 110 Cal.App.3d 740, 757.) The parties shall bear their own costs on appeal.
We concur:
HALLER, Acting P. J.
OROURKE, J.