Jones v. Soderling

cost was unnecessary or unreasonable. Thus, as to the $453.45 under Item 4, the Motion is DENIED.

Moving party to give notice.

109 Jones vs. Motion to Tax Costs x 3 Soderling

18-01037445 Motion to Tax Costs as to Defendant, Tieback Holdings, LLC

Plaintiffs Kimberly Moffatt Jones and 150 Newport Center Drive, LLC (“Plaintiffs”), move to tax costs in the amount of $6,537.42 claimed by Defendant, Tieback Holdings, LLC (“Tieback”).

“A party’s right to recover costs is governed entirely by statute. [Citation.]” (Boonyarit v. Payless Shoesource, Inc. (2006) 145 Cal.App.4th 1188, 1192.) “To obtain costs, a party must comply with the applicable rules of court. [Citation.]” (Ibid.)

“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (California Rules of Court, rule 3.1700(a)(1).)

Here, notice of entry of judgment was filed on April 28, 2026, and served on April 27, 2026, via electronic transmission. (ROA 2764.) Therefore, a memorandum of costs was required to be filed by May 12, 2026 (15 days after April 17, 2026).

Plaintiffs provide that on or about April 30, 2026, Defendant Tieback Holdings, LLC (“Tieback”) served and filed a Memorandum of Costs seeking costs in the amount of $6,537.42. (Declaration of Nicholas Lauber (“Lauber Decl.”), ¶ 6, Ex. B.) However, the proof of service attached to Tieback’s Memorandum of Costs indicates it was served on May 6, 2026, by electronic service. (Ex. B to Lauber Decl.) More importantly, while the Memorandum of Costs may have been served, no Memorandum of Costs by Tieback appears in the Court’s file, either on April 30, 2026, May 6, 2026, or otherwise. “[I]f a claimant fails to present a cost bill, a waiver of the right to costs results.

The time provisions relating to the filing of a memorandum of costs, while not jurisdictional, are mandatory. [Citation.]” (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 929; see also Kaufman v. Diskeeper Corp. (2014) 229 Cal.App.4th 1, 6, fn. 2 [“We agree with the trial court that Diskeeper was required to file a memorandum of costs in order to recover the other costs and expenses it sought, and that Diskeeper’s failure to do so worked a forfeiture regarding them”].)

Consequently, a waiver of the right to costs results.

Based on the foregoing, due to Tieback’s failure to timely file its Memorandum of Costs, it waived the right to costs. Plaintiffs’ motion to tax costs claimed by Tieback is GRANTED.

Additionally, Tieback has filed a non-opposition indicating that it offers no opposition to Plaintiffs’ motion to tax costs.

Motion to Tax Costs as to Defendant, Newport Center Anacapa Associates, LLC

Plaintiffs, Kimberly Moffatt Jones and 150 Newport Center Drive, LLC (“150 NCD”) (collectively, “Plaintiffs”), move to tax costs in the amount of $356,119.76 claimed by Defendant, Newport Center Anacapa Associates, LLC (“NCAA”). The Motion is GRANTED, in part, DENIED, in part, as follows.

Timeliness of Motion

NCAA first contends that the Plaintiffs’ motion to tax costs should be denied as it is untimely.

Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum and is extended as provided in Code of Civil Procedure section 1013 (five days for mail), and in Code of Civil Procedure section 1010.6(a)(3) (two court days for electronic service). (California Rules of Court, Rule 3.1700(b)(1).) Parties may agree in writing to extend this deadline, or absent the parties’ stipulation, the court may extend the deadline for a period not to exceed 30 days. (California Rules of Court, rule 3.1700(b)(3).)

Contrary to NCAA’s contention that its Memorandum of Costs was served by electronic mail, the proof of service attached to the Memorandum of Costs indicates that it was served only by mail on April 30, 2026. (ROA 2766.) Since Plaintiffs’ motion to tax costs was filed and served on May 19, 2026, it was timely filed within 15 days after service of the cost memorandum, plus a five-day extension for mail. Even assuming the Memorandum of Costs was served by electronic mail on April 30, 2026, the motion was timely filed within 15 days after service of the cost memorandum, plus a two-court-day extension for electronic service.

Merits

“ ‘The right to recover any of the costs of a civil action “is determined entirely by statute.” ’ [Citation.]” (Charton v. Harkey (2016) 247 Cal.App.4th 730, 737.) “ ‘Section 1032 governs the award of costs of trial court litigation.’ [Citation.]” (Ibid.) The prevailing party is entitled in any action or proceeding. (Code Civ. Proc. § 1032(b).) Therefore, the prevailing party is entitled to all of his costs unless another statute provides otherwise. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.)

Section 1032, subdivision (a)(4), defines who is the prevailing party entitled to costs,” and the first sentence of that subdivision “ ‘describes four categories of litigants who automatically qualify as prevailing parties . . . .’ [Citations.]” (Charton v. Harkey (2016) 247 Cal.App.4th 730, 737 (“Charton”).) A “prevailing party” is defined to include “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 ....” (Code Civ. Proc. § 1032(a)(4).)

“ ‘[T]he trial court has no discretion to deny prevailing party status to a litigant who falls within one of the four statutory categories in the first [sentence] of the provision . . . .” ’ [Citations].) (Charton, supra, 247 Cal.App.4th at p. 738.) “ ‘ “Where the prevailing party is one not specified [in these four categories, the second sentence of] section 1032, subdivision (a)(4) permits the trial court to determine the prevailing party and then allow costs or not, or to apportion costs, in its discretion.

The statute requires the trial court to determine which party is prevailing and then exercise its discretion in awarding costs.” . . . [¶.] This prong of the statute thus calls for the trial court to exercise its discretion both in determining the prevailing party and in allowing, denying, or apportioning costs. It operates as an express statutory exception to the general rule that a prevailing party is entitled to costs as a matter of right.’ [Citation.]” (Ibid.) “In these situations, ‘the trial court in its discretion determines the prevailing party, comparing the relief sought with that obtained, along with the parties’ litigation objectives as disclosed by their pleadings, briefs, and other such sources.’ [Citation.]

Thus, the trial court determines whether the party succeeded at a practical level by realizing its litigation objectives [citation] and the action yielded the primary relief sought in the case [citation]. (Friends of Spring Street v. Nevada City (2019) 33 Cal.App.5th 1092, 1104.)

Here, NCAA is the prevailing party as to Plaintiffs’ Complaint and First Amended Complaint. Plaintiffs asserted a single cause of action for judicial dissolution against NCAA, and the Court granted summary adjudication in NCAA’s favor. (ROA 2838, Declaration on Aaron M. McKown (“McKown Decl.”), ¶ 4.)

As to NCAA’s crossclaims, on the eve of trial, Judge Gastelum bifurcated NCAA’s crossclaims, which were equitable in nature, and ordered that trial first proceed on those claims. (McKown Decl., ¶ 6, Ex. E.) Judge Gastelum retired from the bench prior to the trial date, and after Judge Gastelum was placed on the trialtrailing list, all parties stipulated to the appointment of Judge Margines as the judge pro tem for the bench trial on NCAA’s crossclaims. (Ibid.) On May 15, 2025, Judge Margines issued a final Statement of Decision as to NCAA’s four causes of action in its Cross- Complaint against 150 NC for declaratory relief, breach of contract, specific performance, and declaratory relief. (Ex.

F to McKown Decl., Statement of Decision, 2:17-3:10.) Judge Margines found in favor of NCAA as to the first and second causes of action and declared that 150 NCD became a disassociated or “Involuntary Withdrawn” member of NCAA as of December 14, 2018 and granted a preliminary and permanent injunction preventing Plaintiffs from noticing any meetings of the members, among other things. (Id. 18:23-19:12.) As to the third cause of action for anticipatory breach of contract/specific performance, the Court found in favor of 150 NCD and ordered a reappraisal of the fair market value of 150 NCD’s membership interest in NCAA to take place pursuant to the provisions of Corporations Code section 17707.03 for purchase by NCAA. (Id., 19:13-20:16.)

As to the fourth cause of action for declaratory relief, the Court found that the Operating Agreement’s procedure for acquiring 150 NCD’s membership interest was not controlling and thus found in favor of 150 NCD and exercised its equitable powers and ordered a re-appraisal of the fair market value of 150 NCD’s membership interest as stated above. (Id., 20:17-24.) NCAA’s third cause of action in its crosscomplaint against 150 NCD for specific performance sought an order requiring 150 NCD to sell its membership interests to NCAA pursuant to the procedure set forth in Article VI of the Operating Agreement, and the fourth cause of action in NCAA’s cross-complaint against 150 NCD for declaratory relief sought a declaration regarding the ongoing rights and obligations of the parties, and specifically, whether the procedure for purchasing 150 NCD’s membership interest is the one set forth in the Operating Agreement because no grounds for judicial dissolution exist or whether the procedure for purchasing 150 NCD’s interest is the one set forth under Corporations Code section 17707.03(c). (Id., 3:3-10.)

Although Judge Margines exercised his discretion and ordered the reappraisal to take place pursuant to the provisions of Corporations Code section 17707.03 instead of the Operating Agreement, NCAA ultimately received substantially all of the relief that it sought by way of the third and fourth cross-claims, and obtained the primary relief sought by way of its cross-claims. Based on the foregoing, NCAA is the prevailing party and entitled to costs. Plaintiffs do not dispute that NCAA is the prevailing party.

To the extent that Plaintiffs argue that the entire Memorandum of Costs should be taxed or stricken on the grounds that NCAA did not attach invoices, receipts, declarations, itemized summaries, or any meaningful explanation sufficient to permit judicial review, NCAA is not required to do so. “There is no requirement that copies of bills, invoices, statements, or any such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted. [Citation.] Once this occurs, the issue becomes whether the required documentation must be of evidentiary quality.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.)

Second, to the extent that Plaintiffs seek to tax all costs claimed on the ground that NCAA did not distinguish between costs incurred in what Plaintiffs describe as “Phase I” and “Phase II”, Plaintiffs fail to show that NCAA incurred costs in both the bench trial and jury trial. Instead, NCAA provides that because NCAA had already obtained summary judgment in its favor on Plaintiffs’ claims, NCAA was not a party to the subsequent jury trial, and NCAA incurred no costs related to the jury trial, and thus, that none of the costs identified in its Memorandum of Costs relate to the jury trial. (McKown Decl., ¶ 12.)

Based on the foregoing, Plaintiffs’ request to tax the entire cost memorandum is DENIED.

Item Nos. 1, 5, and 14

In their motion, Plaintiffs do not separately identify objections to Item No. 1 (filing and motion fees in the amount of $3,532.50), Item No. 5 (service of process costs in the amount of $77.99), or Item No. 14 (electronic filing and service fees in the amount of $1,496.40). As such, the Memorandum of Costs is prima facie evidence of their propriety, and Plaintiffs fail to meet their burden as the parties seeking to tax costs to show these costs were not reasonable or necessary. Thus, the Court DENIES Plaintiffs’ motion to tax as to Item Nos. 1, 5, and 14.

Item No. 9 (corrected to No. 11) – Court-ordered transcripts / Court reporter fees as established by statute NCAA first provides that costs in the amount of $12,271.74 were mistakenly identified as Category No. 9 when, in fact, it should have been listed as Category No. 11, as these costs relate to the cost of the court reporter at the 3-day bench trial, which total $12,271.74.

Code of Civil Procedure section 1033.5, subdivision (a) sets forth the items that are allowable as costs. Costs are allowable if incurred, whether paid, and allowable costs shall be reasonable in amount and “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc. § 1033.5(c)(1)-(3).) “[A]ny award of costs – whether categorically recoverable under section 1033.5, subdivision (a) or allowable in the court’s discretion under section 1033.5(c)(4) – must meet the requirements of subdivision (c)(2) and (3).” (Segal v. Asics Am. Corp. (2022) 12 Cal.5th 651, 667.)

Court reporter fees as established by statute are allowable as costs. (Code Civ. Proc. § 1033.5(a)(11).)

Government Code section 68086 states, in part:

(d) The Judicial Council shall adopt rules to ensure all of the following:

(1) That parties are given adequate and timely notice of the availability of an official court reporter.

(2) That if 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. At the arranging party's request, the court shall appoint the certified shorthand reporter to be present in the courtroom and serve as the official reporter pro tempore unless there is good cause shown for the court to refuse that appointment. The fees and charges of the certified shorthand reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law.

(3) That if the services of an official pro tempore reporter are utilized pursuant to paragraph (2), no other charge shall be made to the parties.

(e) The fees collected pursuant to this section shall be used only to pay the cost for services of an official court reporter in civil proceedings.

(Gov. Code, § 68086(d)-(e).)

Government Code section 68086(c) also states that “[t]he costs for the services of the official court reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law.”

Code of Civil Procedure section 1033.5(a)(11) allows court reporter fees as established by statute. Court reporter fees under Section 1033.5(a)(11) are distinguishable from transcripts. (See Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58 [finding court reporter fees are an entirely different expense from “transcripts of court proceedings not ordered by the court,” noting that the parties have to pay the court reporter regardless of whether anyone orders transcripts, and affirming order denying motion to tax costs].)

Code of Civil Procedure section 1033.5(b)(5) disallows “transcripts of court proceedings not ordered by the court,” unless expressly authorized by law. In a civil case, unless there is an express order by the court directing the preparation of a daily transcript of proceedings, the general rule of Government Code section 69953 prevails. (Spellens v. Spellens (1957) 49 Cal.2d 210, 226-227, fn. 6; Moore v. City & County of San Francisco (1970) 5 Cal.App.3d 728, 739-740 [no abuse of discretion in disallowance of expenditures for daily transcript as costs].)

Under Government Code section 69953, “the fees of the court reporter for the preparation of a daily transcript, used for the trial, are not a proper item of costs unless such transcript has been expressly ordered by the court. [Citations.]” (Walton v. Bank of Calif., Nat’l Ass’n (1963) 218 Cal.App.2d 527, 547-548 [finding error where trial court denied plaintiff’s motion to tax costs as to daily transcript of proceedings where there was no court order requiring the preparation of the transcript].)

NCAA provides that it attaches true and correct copies of the invoices reflecting costs in the amount of $12,271.74 as court reporter’s fees at the bench trial, as allowable under Code of Civil Procedure section 1033.5(a)(11). (McKown Decl., ¶ 13, Ex. K.) There are three invoices, one dated 9/3/24 totaling $5,493.65, a second dated 9/6/24 totaling $ 2,368.20, and a third dated 9/6/24 totaling $4,409.86. Each invoice explicitly indicates that each of these totals includes transcripts. NCAA does not submit any evidence showing that transcripts of the bench trial were ordered by the court, or that they are expressly authorized by law. Consequently, NCAA is not entitled to costs for transcripts and is only entitled to court reporter fees.

The court reporter fees for the first invoice dated 9/3/24 total $981.25 ($ 725 + $250 + $6.25). The court reporter fees for the second invoice dated 9/6/24 total $982.50 ($ 725 + $250 + $7.50). Lastly, the court reporter fees for the third invoice dated 9/6/24 are $981.26 ($725+$250+$6.26). Thus, NCAA is entitled to costs for court reporter fees (Item No. 11) in the total amount of $2,945.01.

In turn, the Court GRANTS the motion to tax corrected court reporter fees (Item No. 11) in the amount of $9,326.73 ($12,271.74-$2,945.01), and to DENIES the motion to tax $2,945.01.

Item No. 15 – Other

Plaintiffs object to “Other” costs which, as claimed in NCAA Memorandum of Costs, total $338,741.13. Plaintiffs contend that NCAA provides no invoices, receipts, declarations, itemized summaries, or explanation whatsoever concerning the nature of those expenses such that the Court cannot determine whether these costs are recoverable, reasonable, necessary, or duplicative, and that NCAA failed to meet its burden of establishing that the requested “Other” costs were recoverable under section 1033.5. Thus, Plaintiffs assert that NCAA’s claimed “Other” costs should be taxed in their entirety or, at a minimum, substantially reduced.

In response, the NCAA initially corrects the total, stating that the Memorandum of Costs stated $338,741.13, but the actual total is $328,741.13. NCAA asserts that this category of costs consists of the fees charged by JAMS for the bench trial as well as the fees charged by the appraisers used by the parties to value 150 NCD’s membership interests, and that both of these costs were necessary and reasonable.

Items not mentioned in Code of Civil Procedure section 1033.5 may be allowed or denied in the court’s discretion. (Code Civ. Proc. § 1033.5(c)(4).) “[A]ny award of costs – whether categorically recoverable under section 1033.5, subdivision (a) or allowable in the court’s discretion under section 1033.5(c)(4) – must meet the requirements of subdivision (c)(2) and (3).” (Segal v. Asics Am. Corp. (2022) 12 Cal.5th 651, 667.) Allowable costs shall be reasonably necessary for the conduct of the litigation rather than merely convenient or beneficial to its preparation and shall be reasonable in amount. (Code Civ. Proc. § 1033.5(c)(2)-(3).) The requirement that claimed costs be reasonable does not necessarily require that the costs be the very lowest. (Landwatch San Luis Obispo County v. Cambria Community Services District (2018) 25 Cal.App.5th 638, 646.)

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, internal citations omitted.) “[B]ecause the right to costs is governed strictly by statute a court has no discretion to award costs not statutorily authorized.” (Ibid., internal citations omitted.)

Here, Plaintiffs properly put at issue the “Other” costs claimed by NCAA. NCAA has submitted documentation to support costs for the appointment of Judge Margines in the amount of $34,650, and costs for the reappraisal process ordered by Judge Margines in the amount of $294,091.13.

As set forth above, prior to the trial date, Judge Gastelum retired from the bench, the parties were placed on the wheel, and after several weeks without being assigned to a court for trial, all of the parties stipulated to the appointment of Judge Margines as the judge pro tem for the bench trial on NCAA’s crossclaims. (McKown Decl., ¶ 6, Ex. E.) While the invoices attached as Exhibit J to NCAA’s counsel’s declaration totals $44,650 ($8,000+$9,500+$27,150), NCAA provides that the cost to NCAA for Judge Margines was $34,650. (McKown Decl., ¶ 11, Ex.

J.) While the appointment of Judge Margines expedited the bench trial, the evidence submitted does not show that this cost is reasonably necessary to the conduct of the litigation as opposed to merely convenient or beneficial to its preparation. The Court GRANTS the motion to tax $34,650 for the cost of the appointment of Judge Margines as judge pro tem.

With regard to the appraisal of shares, NCAA provides that it incurred $16,814.37 for a Qualified Appraiser (Kidder Mathews) to appraise the value of 150 NCD’s membership interests, pursuant to NCAA’s Operating Agreement. (McKown Decl., ¶ 4, Ex. C.) Given that Judge Margines ordered a reappraisal pursuant to Corporations Code section 17707.03 instead of the Operating Agreement, it does not appear that this cost was reasonably necessary to the conduct of the litigation. Therefore, the Court GRANTS the motion to tax in the amount of $16,814.37.

As to costs for the reappraisal ordered by Judge Margines, NCAA provides that three appraisers were appointed by Judge Margines; that the cost for Plaintiffs’ proposed appraiser of John Taylor of Alvarez & Marsal was $209,301.76; that the cost for NCAA’s proposed appraisers was $32,975 for Dennis Webb of Primus Valuations and $35,000 for James Malm of Hawran & Malm. (McKown Decl., ¶¶ 9-10, Exs. G-I.) The total cost for the reappraisal is therefore $277,573.76.

However, with regard to the reappraisal of the fair market value of 150 NCD’s membership interest in NCAA as of the date of Mr. Van Eck’s appraisal report, February 28, 2019, as ordered by Judge Margines, the Court notes that the Statement of Decision expressly states, “[t]he cost of the re-appraisal shall be borne by Cross-Complainant.” (Ex. F to McKown Decl., 19:17-20.) The Court GRANTS the motion to tax the costs incurred for the reappraisal in the amount of $277,573.76.

Based on the foregoing, the Court GRANTS the motion to tax $294,091.13 ($34,650+$277,573.76), which relates to costs for an appraisal and reappraisal, as well as $34,650, which is the cost for appointing Judge Margines as judge pro tem for the bench trial. In other words, the Court GRANTS the motion to tax the entire correct amount of $328,741.13 for “Other” costs under Item No.

15.

Motion to Tax Costs as to Defendants, Estate of Ronald Soderling, Soderling Living Trust, Tod W. Ridgeway, Tieback Holdings, LLC, and Ridgeway Development Company, Ltd.

Plaintiffs Kimberly Moffatt Jones and 150 Newport Center Drive, LLC (“150 NCD”) (collectively, “Plaintiffs”), move to tax costs in the amount of $149,267.71 claimed by Defendants, Ronald Soderling, individually and as trustee of the Soderling Living Trust, the Soderling Living Trust, Tod W. Ridgeway, and Ridgeway Development Company, Ltd. (collectively, the Soderling and Ridgeway Defendants).

Timeliness of Motion

Contrary to the Soderling and Ridgeway Defendants’ contention that their Memorandum of Costs was served by electronic mail, the proof of service attached to the Memorandum of Costs indicates that it was served only by mail on April 30, 2026. (ROA 2768.) Since Plaintiffs’ motion to tax costs was filed and served on May 19, 2026, it was timely filed within 15 days after service of the cost memorandum, plus a five-day extension for mail. Even assuming the Memorandum of Costs was served by electronic mail on April 30, 2026, the motion was timely filed within 15 days after service of the cost memorandum, plus a two-court-day extension for electronic service.

Merits

“ ‘The right to recover any of the costs of a civil action “is determined entirely by statute.” ’ [Citation.]” (Charton v. Harkey (2016) 247 Cal.App.4th 730, 737.) “ ‘Section 1032 governs the award of costs of trial court litigation.’ [Citation.]” (Ibid.) The prevailing party is entitled to costs as a matter of right in any action or proceeding. (Code Civ. Proc. § 1032(b).) Therefore, the prevailing party is entitled to all of his costs unless another statute provides otherwise. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.)

Here, Plaintiffs asserted eight causes of action against the Soderling and Ridgeway Defendants, and the Soderling and Ridgeway Defendants prevailed on all eight causes of action. Judgment was entered in favor of the Soderling and Ridgeway Defendants as to the first through sixth causes of action, and the seventh cause of action, as applicable, and the eighth cause of action was dismissed. (ROA 2842, Declaration of Aaron M. McKown (“McKown Decl.”), ¶¶ 2, 5, 13, Exs. A and L.) Thus, they are the prevailing parties as they are defendants against Plaintiffs did not recover any relief, and are entitled to costs. Plaintiffs do not dispute that they are the prevailing parties.

Taxing All Costs

Initially, the Memorandum of Costs claimed total costs in the amount of $149,267.71. In their opposition, the Soderling and Ridgeway Defendants correct this amount and request a total of $139,492.30 in costs.

First, as discussed in the motion to tax directed at NCAA, to the extent that Plaintiffs argue that the entire Memorandum of Costs should be taxed or stricken on the grounds that the Soderling and Ridgeway Defendants did not attach invoices, receipts, declarations, itemized summaries, or any meaningful explanation sufficient to permit judicial review, NCAA is not required to do so. (Jones, supra, 63 Cal.App.4th at p. 1267.)

Second, to the extent that Plaintiffs seek to tax all costs claimed on the ground that the Soderling and Ridgeway Defendants did not distinguish between costs incurred in what Plaintiffs describe as “Phase I” and “Phase II”, Plaintiffs fail to show that the Soderling and Ridgeway Defendants would have incurred costs for the bench trial and jury trial. Additionally, the Soderling and Ridgeway Defendants provide that they were not parties to the bench trial, incurred no costs related to the bench trial, and thus, that none of the costs identified in their Memorandum of Costs relate to the bench trial. (McKown Decl., ¶ 4.) As such, there is no need to distinguish costs as between the bench trial and jury trial. Based on the foregoing, Plaintiffs’ request to tax the entire cost memorandum is DENIED.

Item Nos. 1, 5, and 14

In their motion, Plaintiffs do not separately identify objections to Item No. 1 (filing and motion fees in the amount of $7,182.13), Item No. 5 (service of process costs in the amount of $2,604.90), or Item No. 14 (electronic filing and service fees in the amount of $406). As such, the Memorandum of Costs is prima facie evidence of their propriety, and Plaintiffs fail to meet their burden as the parties seeking to tax costs to show these costs were not reasonable or necessary. Thus, the Court DENIES Plaintiffs’ motion to tax as to Item Nos. 1, 5, and 14.

Item No. 4 – Deposition costs

Plaintiffs contend that the Soderling and Ridgeway Defendants failed to demonstrate that their claimed deposition costs in the amount of $19,624.47 were reasonable and necessary as they provide no explanation identifying which depositions are included, when the depositions occurred, whether the claimed costs relate to transcripts, video, real time reporting, expedited services, or rough drafts, whether the depositions related to the bench trial or jury trial, or whether the same deposition costs are also being sought by NCAA or Tieback.

The Soderling and Ridgeway Defendants provide that they misclassified some of the costs. Specifically, they provide that deposition costs (Item No. 4) actually total $28,175.47, as it appears that some of the deposition costs were misclassified in the total for Item No. 9. (McKown Decl., ¶ 6.) They assert that the deposition costs fall into two groups, and that the deposition costs are expressly allowable under Code of Civil Procedure section 1033.5(a)(3)(A) and were reasonable and necessary for their defense in this action.

Code of Civil Procedure section 1033.5(a)(3)(A) and (a)(3)(C) expressly allow costs for taking, video recording and transcribing necessary depositions, as well as travel expenses to attend depositions. This includes the cost of videotaping depositions even though they are not used at trial. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557, 1560.)

“Standard transcription fees for ‘necessary’ depositions are recoverable, but the extra cost for expediting transcripts may be allowed only in the exercise of the trial court’s discretion. [Citations.]” (Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330, 1342; see also Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 55 [finding the extra cost to expedite the deposition transcript to be proper where motions in limine had to be exchanged the next day and trial was scheduled to start within less than two weeks]; Heller v.

Pillsbury Madison & Sutro (1996) 50 Cal.App.4th 1367, 1396 [finding trial court did not abuse its discretion in awarding costs for expedited deposition transcripts where nine expert witnesses were deposed less than a month before trial and recognizing that expert witnesses are customarily deposed soon before the trial date, necessitating expedited transcripts].)

The Soderling and Ridgeway Defendants provide that they deposed five witnesses: (1) Plaintiff Kimberly Jones; (2) Plaintiff 150 NCD; (3) Plaintiffs’ counsel, Lee Kolodny individually and as the PMK for Barnes & Thornburg; (4) Rich McCay as the PMK for Defendant Tieback Holdings; and (5) Plaintiffs’ designated expert, Jay Hibert. (McKown Decl., ¶ 5.) They also provide that these depositions were necessary and were critical in allowing them to obtain summary adjudication and pre-trial dismissal of several claims and to prevail on the four fraud-based claims at the conclusion of the jury trial, as well as that the transcripts were used repeatedly throughout the jury trial to impeach Ms.

Jones and Mr. Kolodny, and to lock Mr. Hibert into opinions that actually helped the Soderling and Ridgeway Defendants prove that the representations alleged were true or reasonable. (Ibid.) They provide that the deposition costs for these five deponents totaled $14,967.32, which is supported by the invoices attached, including costs for a late cancellation fee as a result of Plaintiffs’ prior counsel’s last-minute cancellation of Mr. Hibert’s original deposition and a separate non-appearance fee when Mr.

Hibert failed to appear at his conducted deposition. (McKown Decl., ¶ 5, Ex. B.) Based on the foregoing, the cost for these five depositions were reasonably necessary to the conduct of the litigation and reasonable in amount.

The Soderling and Ridgeway Defendants also provide that the remainder of the deposition costs were incurred as a result of the 15 deposition that Plaintiffs noticed, which totaled $13,208.15, and is supported by invoices, and excludes interest charges ($68.16). (McKown Decl., ¶ 6, Ex. C.) Based on the foregoing, the cost for Plaintiffs’ 15 depositions were reasonably necessary to the conduct of the litigation and reasonable in amount.

Based on the foregoing, the Court DENIES the motion to tax as to the revised total amount for deposition costs of $28,175.47 ($14,967.32+$13,208.15).

Item No. 9 – Court-ordered transcripts

Plaintiffs contend that the Soderling and Ridgeway Defendants failed to meet their burden to establish that their claimed transcript costs in the amount of $35,754.81 are recoverable, reasonable, and necessary as they provide no meaningful information regarding the transcripts at issue, including the nature of the transcripts, the proceedings to which they relate, whether they were court ordered, whether they pertain to Phase I or Phase II proceedings, or whether they were reasonably necessary to the conduct of the litigation as opposed to merely convenient to counsel, as well as that they offer no invoices, declarations, receipts, or itemized records substantiating their request for more than $35,000 in transcript-related costs.

The Soderling and Ridgeway Defendants provide that the balance of Item No. 9 should have been classified as Item No. 11 for court reporter fees as established by statute which is allowable under Code of Civil Procedure section 1033.5(a)(11). (McKown Decl., ¶ 7.) They therefore provide that with the reallocation of some of the deposition costs and eliminating the transcript cost, the amount allowable under Item No. 11 is $17,370.00, and that these costs were reasonable and necessary.

As a threshold matter, based on the above, the Soderling and Ridgeway Defendants have reclassified costs originally designated as court-ordered transcripts (Item No. 9) in the Memorandum of Costs, as deposition costs (Item No. 4) and court reporter fees as established by statute (Item No. 11), such that there are no costs for court-ordered transcripts (Item No. 9).

Code of Civil Procedure section 1033.5, subdivision (a) sets forth the items that are allowable as costs. Costs are allowable if incurred, whether or not paid, and allowable costs shall be reasonable in amount and “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc. § 1033.5(c)(1)-(3).) “[A]ny award of costs – whether categorically recoverable under section 1033.5, subdivision (a) or allowable in the court’s discretion under section 1033.5(c)(4) – must meet the requirements of subdivision (c)(2) and (3).” (Segal v. Asics Am. Corp. (2022) 12 Cal.5th 651, 667.)

Court reporter fees as established by statute are allowable as costs. (Code Civ. Proc. § 1033.5(a)(11).) Government Code section 68086 provides for recovery of costs for the services of a court reporter, as set forth above in the motion to tax directed at NCAA. Code of Civil Procedure section 1033.5(a)(11) allows court reporter fees as established by statute. Court reporter fees under Section 1033.5(a)(11) are distinguishable from transcripts. (See Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58 [finding court reporter fees are an entirely different expense from “transcripts of court proceedings not ordered by the court,” noting that the parties have to pay the court reporter regardless of whether anyone orders transcripts, and affirming order denying motion to tax costs].)

Code of Civil Procedure section 1033.5(b)(5) disallows “transcripts of court proceedings not ordered by the court,” unless expressly authorized by law.

Here, the Soderling and Ridgeway Defendants provide that removing the transcript costs and limiting the expenses only to the court reporters’ fees, the recoverable, allowable court reporter costs for the jury trial are $17,070, and that the allowable cost of the court reporter for the one ex parte hearing is $300, resulting in a total of $17,370 for Item No. 11. (McKown Decl., ¶ 8, Exs. D and E.) However, the 10 invoices attached to the McKown Declaration indicate that the corrected total claimed includes transcript costs. There is no evidence showing that transcripts for trial or an ex parte hearing were ordered by the court, or that they are expressly authorized by law. Accordingly, the Soderling and Ridgeway Defendants are not entitled to costs for transcripts, and are only entitled to court reporter fees.

In reviewing the invoices, it appears that the court reporter fee for invoices INV3387214, INV 3408130, and INV3416199 was $500 each invoice, totaling $1,500 for these three (3) invoices, and that the court reporter for invoices INV3407930, INV3401281, INV3405150, INV3405423, INV3410318, INV3413155, and INV3413426 was $250 each invoice, totaling $1,750 for these seven (7) invoices. (Ex. D to McKown Decl.) The $300 court reporter fee for the ex parte hearing is correct. (Ex. E to McKown Decl.) Therefore, the costs for court reporter fees to which the Soderling and Ridgeway Defendants would be entitled to under Code of Civil Procedure section 1033.5(a)(11) is $3,550.

Based on the foregoing, the Court DENIES the motion to tax as to $3,550 for court reporter fees (Item No. 11). The Court GRANTS the motion to tax as to $13,820 ($17,370 - $3,550).

Item No. 13 – Models, enlargements, and photocopies of exhibits

Plaintiffs contend that the Soderling and Ridgeway Defendants failed to meet their burden to establish that their claimed costs for models, enlargements, and photocopies of exhibits in the amount of $32,887.42 are recoverable, reasonable, and necessary.

The Soderling and Ridgeway Defendants contend that Item No. 13 is comprised of three charges: (1) the photocopy charges for the witness and court exhibit binders; (2) the cost of the technology vendor needed to present the exhibits and deposition testimony to the jury; and (3) the cost to store the trial exhibits from the initial trial date through the end of trial, which total $32,945.82. It is noted that this is an increased amount from what was claimed in the Memorandum of Costs. They assert that the photocopy charges are expressly allowable while the other two costs were reasonable and necessary for trial and may be awarded within the discretion of the Court.

Code of Civil Procedure section 1033.5(a)(13) allows for the recovery of costs for “[m]odels, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, . . . if they were reasonably helpful to aid the trier of fact.” Section 1033.5(a)(13), encompasses exhibits filed in support of a motion. (Rozanova v. Uribe (2021) 68 Cal.App.5th 392, 405–406 [finding Section 1033.5(a)(13) may support an award of costs for photocopies of exhibits filed in support of a vexatious litigant motion].)

A prevailing party is not entitled to recover costs associated with preparing photocopies of exhibits and demonstratives under section 1033.5(a)(13) if the items were not presented to the trier of fact. (Segal v. Asics Am. Corp. (2022) 12 Cal.5th 651, 665.) “[T]he most natural reading of section 1033.5(a)(13) and section 1033.5, subdivision (c)(2) is that the ‘reasonably helpful to aid the trier of fact’ clause (§ 1033.5(a)(13)) was not meant to capture all exhibit-related costs that were in some way helpful to the orderly and efficient conduct of the litigation — a consideration already accounted for in subdivision (c)(2) — but was instead more narrowly focused on the helpfulness of the demonstratives and photocopied exhibits to the adjudication of factual issues by the trier of fact.” (Id. at p. 663.)

Exhibits and exhibit-related items, such as demonstrative slides prepared for closing argument, that were excluded from trial may be awarded in the trial court’s discretion. (Id. at pp. 667-667.) The trial court in its discretion may award costs incurred in preparing demonstratives and photocopies of trial exhibits, even though they were not ultimately used at trial, when such materials are reasonably necessary to the conduct of the litigation and reasonable in amount under section 1033.5(c)(4). (Id. at p. 665, 667.)

Here, the Soderling and Ridgeway Defendants provide that they incurred costs for photocopies of exhibits for the jury trial which totaled $2,289.78, which is supported by an invoice. (McKown Decl., ¶ 9, Ex. F.) This cost is expressly allowed and appears reasonably necessary to the conduct of the litigation and reasonable in amount. Thus, the Court DENIES the motion to tax $2,289.78 for Item No.

13.

The Soderling and Ridgeway Defendants also seek costs for a trial vendor and provide that they hired a trial vendor Gold Trial Services, LLC, in order to present exhibits, deposition transcripts, and videotaped deposition testimony to the jury, which cost totaled of $24,921.00. (McKown Decl., ¶ 10, Ex. G.)

Exhibit costs that may not be authorized by Section 1033.5(a)(13), may still be allowed in the trial court’s discretion pursuant to Code of Civil Procedure section 1033.5(c)(4). (Applegate v. St. Francis Lutheran Church (1994) 23 Cal.App.4th 361, 363-364.) “Use of such technology, including a technician to monitor the equipment and quickly resolve any glitches, has become commonplace, if not expected by jurors. [Citation.] The trial court did not abuse its discretion in allowing these costs as reasonably helpful to aid the jury. (Green v.

County of Riverside (2015) 238 Cal.App.4th 1363, 1373-1374.) Where trial technology enhanced counsel’s advocacy and was reasonably necessary to the conduct of the litigation, a court acts within its discretion in allowing recovery of costs for trial technology consisting of trial video computer, powerpoint presentation and videotaped deposition synchronizing, and the cost of a trial technician, as well as costs for creating designated excerpts from deposition transcripts and video, converting exhibits to computer formats, and design and production of electronic presentations. (Bender v.

County of Los Angeles (2013) 217 Cal.App.4th 968, 990.)

The Soderling and Ridgeway Defendants provide that both parties used technology vendors to present hundreds of exhibits to the jury and to impeach witnesses with their deposition transcripts, and that the vendor was critical in the presentation of counsel’s opening and closing statement. (McKown Decl., ¶ 10.) Although this cost item not expressly authorized, this cost should be allowed in the Court’s discretion as the cost for the trial vendor appears reasonably necessary to the conduct of the litigation and reasonable in amount. Thus, the Court DENIES the motion to tax $24,921.00 for Item No.

13.

Finally, the Soderling and Ridgeway Defendants provide that the last group of expenses in Item No. 11 relates to the vendor expense they incurred to maintain electronically the trial exhibits as trial was originally set for June 7, 2021, and in order to prepare and maintain the trial exhibits in this case, counsel for the Soderling and Ridgeway Defendants began using a third party vendor (LexBe) in December 2020 to maintain the trial exhibits in a searchable and readily usable database. (McKown Decl., ¶ 11.)

They provide that their small firm does not have any technology as software programs like Relativity which is prohibitively expensive for their firm. (Ibid.) They provide that this database was used for all matters that were set for trial and a monthly allocation report for each matter, including this case, was provided by the vendor; that the monthly cost for the database used for the trial exhibits in this case was $89.61; and that there were a total of 64 months from when the database was first used based on the original trial date through the jury trial resulting in total costs of $5,735.04. (Ibid., Ex.

H-I.) This cost item is not expressly authorized, but does not appear reasonably necessary to the conduct of the litigation as opposed to convenient or beneficial to its preparation. Thus, the Court GRANTS the motion to tax $5,735.04 for Item No.

13.

In sum, the Court DENIES the motion to tax $27,210.78, and GRANTS the motion to tax $5,735.04 for Item No.

13.

Item No. 15 – Other

Plaintiffs contend that the Soderling and Ridgeway Defendants failed to support the “Other” category which seeks $50,807.98 in unidentified “Other” costs. Plaintiffs assert that Defendants provide no explanation regarding the nature of these expenses, when they were incurred, whether they relate to the bench trial or jury trial, or whether the same costs are also being sought by other defendants in this action, such that the request is insufficient to permit meaningful judicial review.

The Soderling and Ridgeway Defendants provide that they are entitled fees and costs of up $50,000 pursuant to Corporations Code section 17709.02(c)(1) as ordered by Judge Gastelum when he ordered Plaintiffs provide a bond in that amount, which Plaintiffs did, plus $807.98 for some of the parking costs and mileage expense to travel to and park at the court during the 12- day jury trial, pursuant to Code of Civil Procedure section 1033.5(c)(4).

Items not mentioned in Code of Civil Procedure section 1033.5 may be allowed or denied in the court’s discretion. (Code Civ. Proc. § 1033.5(c)(4).) “[A]ny award of costs – whether categorically recoverable under section 1033.5, subdivision (a) or allowable in the court’s discretion under section 1033.5(c)(4) – must meet the requirements of subdivision (c)(2) and (3).” (Segal v. Asics Am. Corp. (2022) 12 Cal.5th 651, 667.) 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. (Code Civ. Proc. § 1033.5(c)(2)-(3).)

It appears that the Soderling and Ridgeway Defendants are seeking $50,000 for attorney’s fees incurred in defending against 150 NCD’s derivative claim, citing to Corporations Code section 17709.02(c)(2).

“[E]ach party to a lawsuit is responsible for his or her own attorney’s fees in the absence of an agreement between the parties for fees or a statute specifically authorizing fees. [Citations.]” (Pederson v. Kennedy (1982) 128 Cal.App.3d 976, 979.) Under Code of Civil Procedure section 1032, attorney’s fees are recoverable as costs when authorized by statute. (Code Civ. Proc. § 1033.5(a)(10)(B).)

“ ‘[T]he [party] . . . seeking fees and costs “ ‘bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.’ [Citation.]” ’ (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320, 81 Cal.Rptr.3d 866.) ‘ “To that end, the court may require [a] defendant[] to produce records sufficient to provide ‘ “a proper basis for determining how much time was spent on particular claims.” ’ [Citation.]” ‘ (Ibid.) ‘The evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended. [Citation.]’ (Ibid.) “The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records.” (Raining Data Corp. v.

Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) The determination ordinarily begins with ascertainment of the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (EnPalm, LLC v. Teitler Family Trust (2008) 162 Cal.App.4th 770, 774; see Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 271-282 [discussing general principles governing attorney fee awards].)

Here, Corporations Code section 17709.02(c)(2) states, in part, that “the moving party [to require the plaintiff to furnish a security] shall have recourse to the security in the amount that the court determines upon the termination of the action.” (Corp. Code § 17709.02(c)(2).) This statute does not clearly provide for the recovery of attorney’s fees, nor do the Soderling and Ridgeway Defendants cite to any authority supporting that Corporations Code section 17709.02(c)(2) permits recovery of attorney’s fees as costs under Code of Civil Procedure section 1033.5. Thus, they do not meet their burden to show that they are entitled to attorney’s fees under Corporations Code section 17709.02(c)(2).

Additionally, the declaration and invoices provided by the Soderling and Ridgeway Defendants do not provide sufficient information to establish that the attorney’s fees incurred were for defending against 150 NCD’s derivative claim, or that the hourly rates for each timekeeper are reasonable, to support $50,000 in attorney’s fees. Further, the invoices include charges for filing, which presumably would have been sought under Item No. 1 as filing and motion fees and therefore would be duplicative.

Based on the foregoing, the Court GRANTS the motion to tax $50,000 from Item No.

15.

Lastly, the Soderling and Ridgeway Defendants provide that the balance of this category ($807.98) is for some of the parking costs and mileage expense to travel to and park at the Court during the 12-day jury trial, and that this amount is less than the actual amount incurred, as the parking costs alone for Mr. McKown, Mr. Ridgeway, Mr. Biram (the trustee of the Soderling Trust), and Giovanna Castro-Kalagian totaled $908.00. (McKown Decl., ¶ 16, Ex. O.) They provide that the attendance of each of these individuals was necessary at trial. Though not expressly allowed or expressly disallowed, the parking charges alone appear reasonably necessary to the conduct of the litigation and reasonable in amount. The Court DENIES the motion to tax $807.98 from Item No.

15.

Plaintiffs to give notice of all motions.