Doe v. County of Kern et al

Filing 124

ORDER ON DEFENDANTS' COST BILLS 108 110 , signed by Magistrate Judge Jennifer L. Thurston on 3/23/2018. Defendant Anderson's costs taxed in the amount of $14,713.89 and added to his judgment. Defendants' County/Appleton costs taxed in the amount of $9,400.30 and added to their judgment. (Hall, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

SAMANTHA VAZQUEZ,
Plaintiff,

12
v.

13
14

COUNTY OF KERN, et al.
Defendants.

15

) Case No.: 1:16-cv-01469 - JLT
)
) ORDER ON DEFENDANTS’ COST BILLS
)
) (Docs. 108, 110)
)
)
)
)

16
The defendants have filed their cost bills. (Docs. 108, 110) Samantha Vazquez objects and

17
18

asserts that the Court should not award costs but, if it does, the costs should be reduced in many

19

respects. For the reasons set forth below, the Court GRANTS IN PART the costs sought and the

20

plaintiff’s objections are SUSTAINED IN PART.

21

I.

22

Background
While incarcerated at juvenile hall, the plaintiff alleged she was the victim of “grooming,

23

exploitation, voyeurism and sexual abuse by Defendant Anderson.” (Doc. 37 at 2, ¶ 2) Appleton was

24

Anderson’s direct supervisor and, consequently, the plaintiff asserted that he was obligated to ensure

25

Anderson complied with policies and procedures of the institution, including those related to

26

supervising showers of wards, being alone in the rooms with wards and sexual abuse of the wards. The

27

plaintiff alleged there was evidence that Appleton was aware of Anderson’s violation of these policies

28

but failed to act. Finally, the plaintiff alleged the County of Kern had a custom or policy which caused
1

1

her to suffer constitutional deprivations. She alleged that she suffered as a result of the defendants’

2

actions and sought damages.

3

The Court granted Anderson’s and Appleton’s motions for summary judgment (Docs. 96, 97)

4

and entered judgment on behalf of all defendants (Doc. 105). For purposes of the motions, the Court

5

accepted as true that the acts at issue occurred but determined that these acts did not violate the

6

Constitution. (Doc. 97 at 18, n. 3) Ms. Vazquez appealed. (Doc. 106)

7

Despite the plaintiff’s urging, the Court refused the plaintiff’s request the stay without

8

considering the defendants’ cost bills to allow the appeal to proceed. (Doc. 119) However, it granted

9

her additional time to file her objections to the cost bill (Doc. 113). Therefore, the cost bills1 and the

10

plaintiff’s objections are now before the Court.

11

II.

Legal Standards
Rule 54 of the Federal Rules of Civil Procedure states, “[u]nless a federal statute, these rules, or

12
13

a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the

14

prevailing party.” Fed. R. Civ. P. 54(d)(1). “Rule 54(d) creates a presumption for awarding costs to

15

prevailing parties; the losing party must show why costs should not be awarded.” Save Our Valley v.

16

Sound Transit, 335 F.3d 932, 944–45 (9th Cir. 2003). A district court declining to award costs to the

17

prevailing party must specify its reasons for doing so, while a district court following the presumption

18

need not specify any reason for its decision. Id. at 945.

19

III.

Discussion and Analysis
The plaintiff argues that the Court should not award costs and relies upon Mexican-American

20
21

Educators v. State of California, 231 F.3d 572, 591 (9th Cir. 2000), for this proposition. (at 2-7) In

22

particular, Ms. Vazquez argues that her case raised issues of “substantial public importance” and argues

23

she sought to bring to light the deficiencies in the juvenile hall systems that allowed her and others to

24

be victimized. (Doc. 120 at 4-5) She argues that the case raised close and difficult issues (Id. at 5), that

25

her limited financial resources militate against an award of costs and points to the economic disparity

26

between her and the defendants Id. at 6). Finally, she argues that if costs are awarded there would be a

27
28

1

In their reply, the defendants withdraw certain costs. Thus, the Court does not consider these costs and they will not be
awarded.

2

1

chilling effect on future actions. The Court disagrees.

2

First, the Court agrees that whether those who are vested with the responsibility to act as the

3

custodial officers of juveniles are given unchecked ability to take advantage of them is a question of

4

grave public importance. This case, however, is quite different from the situation encountered in

5

Mexican-American Educators in which the court and the public were first apprized of the claims

6

through the filing of the litigation. Indeed, by the time all three of the cases were filed, the Kern

7

County Probation Department had undertaken an investigation to determine whether the claims were

8

true in whole or in part.
Moreover, the Court is well-aware, as is counsel in this case2, that this is not the only case that

9
10

raised this issue. Indeed, the plaintiff’s attorneys filed two cases before this one raising the same

11

issues. (See Doe v. County of Kern, Case No. 1:15-cv-01637 JLT (“Doe 1”) and Doe v. County of

12

Kern, Case No.: 1:15-cv-01641 JLT and (“Doe 2”).) One of these cases specifically named Anderson

13

and alleged unlawful acts by him that, at a minimum, constituted sexual battery. These earlier cases

14

alleged that they were cases of “public interest” and that the County of Kern maintained an unlawful

15

policy of indifference to the rights and safety of the juveniles. (Doe 1 Doc 1 at ¶¶ 4, 55, 55(a)-55(g);

16

Doe 2 Doc 1 at ¶¶ 4, 53, 53(a)-53(g)) Arguably, these earlier cases asserted significantly more serious

17

claims than the ones raised here. Likewise, the Court is aware that the local media discussed these cases

18

at length such that there was no risk that the issues would not be known by the public such to pressure

19

the entity to make change.
Moreover, unlike here, during the pendency of Mexican-American Educators, the State took

20
21

mitigating action which demonstrated that the plaintiffs’ case had some legal as well as factual merit.

22

Mexican-American Educators, at 592. In contrast, in the motion for summary judgment determined

23

here, there was no challenge directed to the factual merits (though the Court understands from the

24

defendants’ positions in this litigation that the facts were disputed) but only to the legal effect of those

25

allegations. Significantly, the Court found the plaintiff’s case as framed had no legal merit.3

26
27
28

2

The same attorneys were counsel of record in the other two cases as well.
Ms. Vazquez questions the wisdom of a rule that would require her to pay the litigation costs of the person that sexually
assaulted her. The plaintiff’s outrage is equally shared by defendants who are sued despite that liability cannot be imposed.
3

3

1

Second, the legal issues raised in this case raised were not “close” nor were they particularly

2

difficult. Rather, for the plaintiff to succeed, the Court would have been required to announce a new

3

definition of “sexual assault” despite that it would have to have been different from that recognized

4

already in this Circuit. This was a keenly important impediment and would have been easy issue to

5

uncover pre-litigation and, presumably, the plaintiff knew this and the risks pursuing this course of

6

action would present her but, nonetheless, decided to engage in constitutional litigation.

7

Third, the Court is sympathetic to Ms. Vazquez’s financial condition. It appears she was

8

indigent at the time she filed this litigation, though she did not seek to proceed in forma pauperis. Now,

9

she has two children with a third due shortly and is in a live-in, romantic relationship with a man who

10

does not work. (Doc. 121-1 at 6) She, the boyfriend and her children live with the plaintiff’s parents

11

who, seemingly, provide whatever the adults and children need at least to the extent that governmental

12

aid does not cover it. Id. Thus, it appears that the plaintiff’s economic situation is arguably worse than

13

when she initiated the litigation. On the other hand, the Court presumes that before she filed suit, she

14

considered the detriments that losing this case would impose on her. Unlike many litigants in this

15

District, she had the benefit of counsel who must have advised her on this topic and, presumably, she

16

decided to assume the risk of loss nonetheless. Even still, the Court affords this factor great weight in

17

favor of refusing to award costs.

18

Fourth, though the Court recognizes that the plaintiff and the County of Kern have significantly

19

different economic realities, this is true for even the wealthiest of people. It is the rare person indeed

20

who has assets that could compare to those of a governmental entity. Thus, the Court rejects that this

21

factor weighs too heavily here. On the other hand, the Court has no information about the economic

22

condition of either individual defendant. The Court can surmise that because they are both employed,

23

they are financially better able than Ms. Vasquez to bear the costs of their defense4, but this is not

24

necessarily the case.5

25
26
27
28

Thus, though the Court agrees with and understands the plaintiff’s position, the Court is not permitted to question the
wisdom of enacting Rule 54; rather, it is required to apply the law others have decided to enact.
That being said, at this stage, the Court does not doubt that sexual assault occurred or assume that it did occur.
This determination was simply unnecessary to the Court’s calculus and, consequently, was not made.
4
The plaintiff seems to assume that the County of Kern will pay the individual defendants’ costs. Though this seems to be a
good assumption as to Mr. Appleton, the Court has no evidence this is true as to Anderson. Due to the fact that County

4

1

Finally, the Court rejects any substantial chilling effect would arise if the Court imposes costs in

2

this case award is any different from the chilling effect posed by the mere existence of Rule 54. Indeed,

3

as noted above, the plaintiff would have had to have received advice from her attorney warning her that

4

if she lost her case that, in general, the Court would be obligated to award costs against her. To be of

5

any value, part of this advice had to include the amount of discovery that would be needed such to

6

provide some estimate of the potential costs. Despite the state of the law related to costs under Rule 54

7

and despite the relatively minimal discretion of courts to deny costs, Ms. Vazquez decided to sue in this

8

forum, nevertheless.

9
10

However, based upon the considerations of the equities, the Court will refuse to award certain
costs that it might otherwise allow.

11

A.

Costs

12

The Court may impose only those costs which were “necessarily incurred in the case.” 28

13

U.S.C. § 1924; L.R. 292(b). However, “the better course” when deciding whether to award specific

14

costs to a prevailing party was “to hew closely to the statute's language, scheme, and context,

15

recognizing that § 1920 is narrow, limited, and modest in scope.” Kalitta Air LLC v. Central Texas

16

Airborne Sys. Inc., 741 F.3d 955, 957–59 (9th Cir. 2013). The Supreme Court has emphasized that

17

“taxable costs are limited by statute and are modest in scope.” Taniguchi v. Kan Pac. Saipan, Ltd., 566

18

U.S. 560, 563 (2012).

19

“Taxable costs are limited to relatively minor, incidental expenses as is evident from § 1920,

20

which lists such items as clerk fees, court reporter fees, expenses for printing and witnesses, expenses

21

for exemplification and copies, docket fees, and compensation of court-appointed experts. Indeed, “the

22

assessment of costs most often is merely a clerical matter that can be done by the court clerk.” Hairline

23

Creations, Inc. v. Kefalas, 664 F.2d 652, 656 (C.A.7 1981). Taxable costs are a fraction of the

24
25
26
27
28

Counsel did not represent Mr. Anderson, it appears that he was either denied representation by the County (Cal. Gov. Code
§§ 995.2, 996.4) or it was provided under a reservation of rights. Either way, the Court can only speculate whether he will
be required to pay the cost bill. Similarly, the Court is unaware of whether Ms. Vazquez’s counsel agreed in the fee
agreement to pay the costs of litigation in the event she did not succeed. She does not state in her declaration that she will
bear the burden of a cost award or, even, bear the costs incurred in the prosecution of her own case. Her declaration seems
to belie any assertion that she will.
5
The Court is aware that Anderson’s Skelly hearing has not been completed, but the Kern County Probation Department
seeks to fire him.

5

1

nontaxable expenses borne by litigants for attorneys, experts, consultants, and investigators. It comes as

2

little surprise, therefore, that “costs almost always amount to less than the successful litigant's total

3

expenses in connection with a lawsuit.” 10 Wright & Miller § 2666, at 203.” Taniguchi, at 573.

4

Taniguchi continued, “Because taxable costs are limited by statute and are modest in scope, we see no

5

compelling reason to stretch the ordinary meaning of the cost items Congress authorized in § 1920. Id.

6

The facts and equities, and the plaintiff’s indigent status require the same outcome here.
A.

7

Plaintiff’s Objections
1.

8

Fee for service

9

The plaintiff objects that the amount sought related to service of subpoenas is excessive because

10

they exceed that charged by the U.S. Marshal’s service. The Court agrees and will reduce each service

11

fee to $65 per service. (Local Rule 292 (f)(2)) This equates to service fees, including mileage fees, for

12

the County of Kern for $656 and for Anderson to $365.517.
The Court will also grant witness fees that were actually paid to witnesses who actually

13
14

submitted to deposition, though not those fees merely advanced by the process server. Thus, the

15

County will be awarded $81.508 and Anderson will be granted $1289.

16

2.

Transcript Costs

17

Title 28 U.S.C. § 1920(2) in turn provides that a “judge or clerk of any court of the United

18

States may tax as costs ... fees for printed or electronically recorded transcripts necessarily obtained for

19

use in the case.” Likewise, Local Rule 292(f)(3) provides that items taxable as costs include “Court

20

reporter fees (28 U.S.C. 1920(2)).” Thus, if found to be necessary to the litigation of a case, the costs of

21

transcripts of depositions taken in a case may be taxed as costs under Rule 54 and § . See Aflex Corp.

22

v. Underwriters Laboratories, Inc., 914 F.2d 175 (9th Cir. 1990).

23
24
25
26
27
28

6

The Court declines to award investigator fees given the lack of showing that this effort could not have been conducted
without an investigator and without justification why this witness was so crucial that the huge amount should have been
spent in trying to locate her. In addition, review of the bill indicates that many of the sources used are internet based and,
indeed, ultimately she was located merely by repeatedly checking Facebook.
7
The Court declines to award costs for “attempted service” as to witnesses never deposed because there is no showing as the
necessity of their testimony. In addition, the Court declines to award “attempted service” fees for witnesses who were
deposed given the lack of showing related to how the bad addresses were discovered, why they were used, etc.
8
For Yahil Morales and Deborah Cresswell.
9
For Anallely Villegas and Andriena Rea.

6

1

The plaintiff objects that the defendants’ attorneys should have shared copies of the deposition

2

transcripts so that only one copy was needed. Though this argument would have merit if counsel were

3

in the same office—or, even, in the same town—represented the same defendants or had no need to file

4

motions, there is no showing how sharing transcripts could work given that the actual facts of this case.

5

Thus, the Court does not find that it was unnecessary for both defense counsel to have copies of the

6

transcripts or that buying separate copies was unreasonable. Therefore, the Court will award costs for

7

the deposition transcripts to the County defendants in the amount of $9,253.80. It will award

8

deposition transcript fees to Anderson in the amount of $14,163.39.
a.

9
10

Video and video synchronization

It declines to award costs related to video recording because these costs are not recoverable. In

11

Kalitta Air LLC v. Central Texas Airborne Sys. Inc., 741 F.3d 955, 957–59 (9th Cir. 2013), the Court

12

held that video synchronization, “while convenient, [it] was not an act of copying or exemplification

13

and was not truly necessary for trial.” (citing In re Williams Sec. Litig.–WCG Subclass, 558 F.3d 1144,

14

1147 (10th Cir. 2009) [“The ‘necessarily obtained for use in the case’ standard does not allow a

15

prevailing party to recover costs for materials that ‘merely added to the convenience of counsel’ or the

16

district court.”]).

17

3.

18

Though the plaintiff objects to an award of copying charges, Local Rule 292(f)(5) permits these

Copy charges

19

costs if necessarily expended. The Court agrees that obtaining the Juvenile Court records were

20

necessary in this case. Thus, the Court will award Anderson $21 in copy charges.

21

4.

22

The Court declines to award the mileage sought by Anderson to reimburse his counsel. The

23

Attorney mileage

Court finds that upon the facts and equities of this case, an award to cover mileage will not be granted.
ORDER

24
25

Based upon the foregoing, the Court ORDERS:

26

1.

27

judgment;

28

2.

Costs for Anderson (Doc. 108) are taxed in the amount of $14,713.89 and added to his

Costs for the County/Appleton (Doc. 110) are taxed in the amount of $9,400.30 and
7

1

added to their judgment.

2
3
4
5

IT IS SO ORDERED.
Dated:

March 23, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8