In re Consumer Privacy Cases CA1/5 filed

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Filed 3/30/11 In re Consumer Privacy Cases CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION FIVE A128862 IN RE CONSUMER PRIVACY CASES (San Francisco City & County Super. Ct. JCCP No. 4211) Renee M. Garvin (appellant), an objector to a class action settlement, appeals an order awarding the class action plaintiffs (respondents) $1,149.15 as costs on appeal. She contends the court s approval of respondents counsel s $0.25 per page copying cost and cost to prepare 10 copies of the record for service on their co-counsel was unreasonable. We reject the contentions and affirm. BACKGROUND This is the second appeal in this case. In the first appeal, filed in June 2009, this court rejected an appeal by appellant and others from a trial court order approving a class action settlement. Appellant unsuccessfully argued that class members were not given adequate notice of the settlement; the settlement was not fair, reasonable and adequate; and the court erred in approving attorney fees to class counsel. (Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 549.) In October 2009, this court s remittitur issued. In November 2009, respondents filed a memorandum of costs on appeal, requesting $1,149.15 in total costs. Item 5 of the costs memorandum, Production of additional evidence, sought $838.50. Thereafter, appellant filed a motion to tax the $838.50 cost item on the ground that no explanation was provided for that item in the 1 costs memorandum. A supporting declaration by appellant s counsel stated that if respondents provided adequate information to justify this cost, appellant would withdraw the motion. Thereafter, respondents counsel clarified that this cost item represented the cost of reproducing 13 copies of the 258-page respondents joint appendix at a cost of $0.25 per page. In March 2010, appellant filed a supplemental memorandum in support of her motion to tax cost item 5, arguing that the $0.25 per page cost was unreasonable and was not actually incurred. She also argued that respondents counsel s service of co-counsel with copies of respondents joint appendix was unnecessary and unreasonable. An opposing declaration by Pamela Parker, an attorney with the law firm of Coughlin, Stoia, Geller, Rudman & Robbins (Coughlin Stoia) stated: Coughlin Stoia is one of the firms representing respondents. The joint appendix was necessary because various important documents were omitted from appellant s appendix. The joint appendix was prepared, copied and served solely by Coughlin Stoia. The $0.25 per page copying charge was the law firm s standard per-page charge for reproducing documents. An opposing declaration by Jeffrey Light, also an attorney with Coughlin Stoia, stated, This firm s standard in-house copying charge is [$0.25] per page. We routinely use that charge in calculating our in-house copying expenses for purposes of our applications for attorneys fees and expenses in successful litigations. That charge was used in connection with our applications for fees and expenses in all of the above-named consumer privacy actions, including this one. This [c]ourt awarded all of this firm s requested attorneys fees and expenses in each of those litigations. Following a hearing, the court denied appellant s motion to tax costs. The court found it was reasonable for Coughlin Stoia to charge its regular copying charge of $0.25 per page. In addition, it found that the recipients of the copies of the joint appendix were affected by the prior Court of Appeal proceedings and they were therefore entitled to 2 those copies. As to payment for those copies, the court stated, I think the law on copies is broad enough to include the copies being charged here. 1 DISCUSSION I. Standard of Review A trial court s grant or denial of a motion to tax costs is reviewed for abuse of discretion. (Van de Kamp v. Gumbiner (1990) 221 Cal.App.3d 1260, 1291.) Whether a particular cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.) The right to recover costs on appeal is governed solely by California Rules of Court, rule 8.278.2 (Lavine v. Jessup (1959) 175 Cal.App.2d 136, 138; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 14:55, p. 14-12.) Rule 8.278 provides, in relevant part: (a) Award of costs (1) Except as provided in this rule, the party prevailing in the Court of Appeal in a civil case other than a juvenile case is entitled to costs on appeal. . . . [¶] . . . [¶] (d) Recoverable costs (1) A party may recover only the following costs, if reasonable: [¶] . . . [¶] . . . (B) The amount the party paid for any portion of the record, whether an original or a copy or both. The cost to copy parts of a prior record under rule 8.147(b)(2) is not recoverable unless the Court of Appeal ordered the copying. . . . The Advisory Committee Comment to rule 8.278(d)(1)(B) provides: Subdivision (d)(1)(B) is intended to refer not only to a normal record prepared by the clerk and the 1 The court s written order contains an apparent clerical error in that it states [appellant s] motion [to tax costs] is granded [sic] for the reasons stated on the record. However, it also states that respondents are awarded $1,149.15 in costs on appeal, the full amount requested by respondents in their costs memorandum. There appears to be no dispute that the court denied appellant s motion to tax costs and awarded respondents their requested costs. 2 All further rule references are to the California Rules of Court. 3 reporter . . . but also, for example, to an appendix prepared by a party under rule 8.124. . . . (Advisory Com. com, West s Ann. Codes, Rules (2010 Supp.) foll. Rule 8.278, p. 44.) II. The $0.25 Per Page Copying Charge Appellant contends respondents never sought to establish that $0.25 per page represented a cost actually incurred. She asserts that respondents counsel s statement that $0.25 per page is Coughlin Stoia s standard in-house copying charge does not establish that as the actual copying cost. She argues that respondents failure to explain how the in-house $0.25 rate was arrived at suggests the $0.25 rate includes a profit embedded in a purported cost. Appellant s assertion lacks merit. Rule 8.278(d)(1)(B) provides that a party may recover as costs, The amount the party paid for any portion of the record, whether an original or a copy or both. Parker s declaration established that respondents paid $0.25 per page for copying the joint appendix. Nothing more was required. Consequently, respondents established the actual amount incurred for copying. Appellant also contends that a $0.25 per page copying charge is not reasonable. She relies on the declaration of her counsel s legal assistant stating that in February 2010, three copy services in San Francisco charged between $0.035 and $0.06 per page to copy 258 pages. She also relies on a Georgia federal district court case, Carpenters Health & Welfare Fund v. Coca-Cola Co. (N.D. Ga. 2008) 587 F.Supp.2d 1266, 1273 (Carpenters) in asserting the $0.25 per page copying charge is excessive and therefore, unreasonable. In that case, the court disallowed a $0.25 per copy charge for class counsel s in-house copying. The court stated, Paper, copier toner, wear and tear on a copier, and administrative assistant time are overhead costs that this [c]ourt will not reimburse. Moreover, Coughlin s out-of-pocket costs for copies could not have come close to reaching $0.25 per page. (Ibid.) However, as appellant concedes, Carpenters did not apply California law, or, in particular, rule 8.278(d)(1)(B). Consequently, it is inapposite. Reasonable costs of producing briefs by an authorized method are recoverable even though a less expensive method of production was available. The only 4 requirements . . . are that the cost be actually incurred and that it be reasonable. (Johnson v. Workers Comp. Appeals Bd. (1984) 37 Cal.3d 235, 243 [ fact that the brief could have been printed by some other printer, or produced by some other process, at a lesser cost is not controlling ; Bank of Idaho v. Pine Avenue Associates (1982) 137 Cal.App.3d 5, 19].) (Eisenberg et al., Practice Guide: Civil Appeals and Writs, supra, ¶ 14:86, p. 14-18.) Moreover, what is reasonable is a question of fact for the factfinder. (Johnson v. Workers Comp. Appeals Bd., supra, 37 Cal.3d 235, 243.) Here, the court was presented with evidence establishing a range of per page copying charges. It found that $0.25 per page was respondents counsel s regular charge and concluded that charge was reasonable. Appellant has failed to establish that the court s finding of reasonableness was an abuse of its discretion. III. Preparation of Copies of Joint Appendix for Co-Counsel Finally, appellant notes that of the thirteen copies of the joint appendix for which respondents sought costs, ten were for the preparation of the record for Coughlin Stoia s co-counsel. She contends that preparation and service of the record on co-counsel in this complex litigation proceeding was unnecessary for the conduct of the litigation or the response to [appellant s] appeal, and was merely done for informational purposes. Citing rule 3.510(b), appellant argues that it was unreasonable for respondents counsel to serve their 10 co-counsel with copies of the joint appendix. Rule 3.510 is contained within Article 2, entitled, Procedural Rules Applicable to All Complex Coordination Proceedings. Rule 3.510(b) provides: Except as provided in rule 3.506(c) [service on party that has requested special notice], any party for whom liaison counsel has been designated may be served by serving the liaison counsel. Appellant s argument ignores rule 3.510(a) which provides: Except as otherwise provided in the rules in this chapter, all papers filed or submitted must be accompanied by proof of prior service on all other parties to the coordination proceeding, including all parties appearing in all included actions and coordinated actions. Service and proof of such service must be made as provided for in civil actions generally. While rule 3.510(b) provides that any party for whom liaison counsel has been designated may be 5 served by serving the liaison counsel, it does not provide that it is unreasonable to serve the other counsel of record. Moreover, other than a conclusory argument, appellant does not provide evidentiary support to establish that respondents counsel s service of the joint appendix on co-counsel was unnecessary for the conduct of the litigation. The court found otherwise. Again, no abuse of discretion is shown. DISPOSITION The order is affirmed. Costs on appeal to respondents. SIMONS, J. We concur. JONES, P.J. BRUINIERS, J. 6

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