Filed 11/30/20 P. ex rel. Tonti v. Living Rebos CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE ex rel. ALISON 

TONTI,

Plaintiff and Appellant,

v.

LIVING REBOS, LLC, et al.,

Defendants and Respondents.

 B302774

 (Los Angeles County

 Super. Ct. No. BC674091)

APPEAL from orders of the Superior Court of Los Angeles 

County, Michael P. Linfield, Judge. Affirmed in part, reversed in 

part with instructions.

Medvei Law Group and Sebastian M. Medvei for Plaintiff 

and Appellant People ex rel. Alison Tonti.

Kirkland & Ellis, Sierra Elizabeth and James R.P. Hileman 

for Defendant and Respondent Avee Laboratories, Inc.

No appearance for Defendants and Respondents Living 

Rebos, LLC, M-Brace Treatment, Inc., Millennium Health, LLC, 

Sobertec, LLC, and Upfront Labs, LLC.
2

Plaintiff and appellant Alison Tonti appeals the awards 

of costs to defendants. Two of the defendants prevailed on 

summary judgment motions; the remainder were abruptly

dismissed with prejudice by Tonti days before their motions 

were set to be heard. The court awarded costs to all defendants. 

We conclude that Government Code section 69950 limits 

the recoverable transcription fees charged by the pro tempore 

court reporter retained by defendant Millenium Health, LLC 

to transcribe its summary judgment hearing, and that the court 

erred in awarding costs above that statutory amount. In all other 

respects, we affirm.

BACKGROUND

The underlying facts and procedural history of this 

qui tam lawsuit are described in detail in our earlier opinion, 

People ex rel. Tonti v. Living Rebos, LLC et al. (Aug. 12, 2020, 

B295815) [nonpub. opn.] (Tonti I). While the Tonti I appeal 

was pending, the two defendants whose summary judgments 

had been granted—namely, Millenium Health, LLC and Avee 

Laboratories, Inc.—submitted cost bills to the trial court. The 

remaining defendants with summary judgment motions pending 

at the time of the dismissal of the entire case—namely, Living 

Rebos, LLC, M-Brace Treatment, Inc., Sobertec, LLC, and 

Upfront Labs, LLC—also submitted cost bills to the trial court. 

Plaintiff filed motions to tax costs addressed to all four of the cost 

bills. All defendants filed written oppositions to the motions to 

tax costs, and plaintiff filed written replies.
3

The court awarded costs as follows:

Defendant(s) Request Amt. Taxed Net Award

Millenium 

Health $4,298.53 $66.50 $4,232.03

Living Rebos/ 

M Brace

$8,923.82 $1,516.31 $7,407.51

Sobertec/Upfront $3,474.80 $0.00 $3,474.80

Avee Labs $10,878.64 $4,819.15 $6,059.49

Plaintiff timely appealed these orders.

DISCUSSION

I. Standard of Review

Pursuant to Code of Civil Procedure1 section 1032, 

subdivision (b), “a prevailing party is entitled as a matter of 

right to recover costs in any action or proceeding.” Plaintiff has 

not challenged the status of the above defendants as prevailing 

parties for purposes of the cost awards at issue.2

“ ‘[S]ection 1033.5 sets forth the items that are and are 

not allowable as the costs recoverable by a prevailing party 

under section 1032[.]’ (Chaaban v. Wet Seal, Inc. (2012) 

1 Unless otherwise noted, all statutory references are to the 

Code of Civil Procedure.

2 On August 12, 2020, plaintiff filed a motion for summary 

reversal based on this court’s decision setting aside plaintiff’s 

unauthorized dismissal in Tonti I. This motion was denied on 

September 24, 2020. Plaintiff renewed the same arguments in a 

request for judicial notice filed on October 22, 2020. This request 

is likewise denied. All parties to whom costs were awarded were 

prevailing parties as of the time of the awards.
4

203 Cal.App.4th 49, 52 . . . .) Specifically, section 1033.5, 

subdivision (a) enumerates the items that are allowable as costs, 

while subdivision (b) lists the items for which costs may not be 

recovered. (§ 1033.5, subds. (a) & (b).) Under section 1033.5, 

subdivision (c)(4), however, cost items that are neither permitted 

under subdivision (a) nor prohibited under subdivision (b) may 

nevertheless be ‘allowed or denied in the court’s discretion.’

(§ 1033.5, subd. (c)(4); see also Applegate v. St. Francis Lutheran 

Church (1994) 23 Cal.App.4th 361, 363–364 . . . .) All costs 

awarded, whether expressly permitted under subdivision (a) 

or awardable in the trial court’s discretion under subdivision (c), 

must be ‘reasonably necessary to the conduct of the litigation’ and 

be ‘reasonable in amount.’ (§ 1033.5, subds. (c)(2) & (3).)

“ ‘Generally, the standard of review of an award of costs 

is whether the trial court abused its discretion in making the 

award. [Citation.] However, when the issue to be determined 

is whether the criteria for an award of costs have been satisfied, 

and that issue requires statutory construction, it presents a 

question of law requiring de novo review. [Citation.]’ (Berkeley 

Cement, Inc. v. Regents of University of California (2019) 30 

Cal.App.5th 1133, 1139 . . . .) ‘ “ ‘The appropriate test for abuse 

of discretion is whether the trial court exceeded the bounds of 

reason.’ . . .’ ” [Citations.]’ (Brawley v. J.C. Interiors, Inc. (2008) 

161 Cal.App.4th 1126, 1137–1138 . . . .)” (Segal v. Asics America 

Corp. (2020) 50 Cal.App.5th 659, 664-665, italics added.)

Verification of the memorandum of costs by the prevailing

party’s attorney establishes a prima facie showing that the 

claimed costs are proper. (Jones v. Dumrichob (1998) 63

Cal.App.4th 1258, 1267.) “There is no requirement that copies

of bills, invoices, statements, or any other such documents 
5

be attached to the memorandum.” (Ibid.) To overcome this 

prima facie showing, the objecting party must introduce evidence 

to support his claim that the costs are not reasonably necessary

or are not reasonable in amount. Mere conclusory assertions 

are insufficient to rebut a prima facie showing by the prevailing 

party. (Rappenecker v. Sea-Land Service, Inc. (1979) 93 

Cal.App.3d 256, 266.)

Although all defendants filed written oppositions to

plaintiff’s motions to tax costs, only defendant Avee Laboratories,

Inc. has filed a respondent’s brief in this appeal. “[F]ailure to 

file a respondent’s brief does not mandate automatic reversal, 

however. Instead, we examine the record and reverse only 

if prejudicial error is found. (Cal. Rules of Court, rule 8.220(a), 

(b); Estate of Supeck (1990) 225 Cal.App.3d 360, 365 . . . .)”

(Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 593, fn. 2.)

II. The Costs at Issue

A. Deposition Costs

Plaintiff has challenged the trial court’s award of 

deposition costs as to all defendants. Below is a summary of the

trial court’s awards in this category:

Defendant(s) Request Amt. Taxed Net Award

Millenium 

Health $2,143.74 $0.00 $2,143.74

Living Rebos/ 

M-Brace

$2,320.00 $0.00 $2,320.00

Sobertec/Upfront $1,006.30 $0.00 $1,006.30

Avee Labs $4,493.95 $1,853.20 $2,640.75
6

Section 1033.5, subdivision (a)(3)(A) provides that 

costs for “[t]aking, video recording, and transcribing necessary

depositions” are allowable, as are travel expenses to attend 

depositions. These costs all relate to the cost of transcripts of 

plaintiff’s deposition, which each of the four defendant groups 

ordered. Plaintiff contends that once a single defendant has paid 

for the cost of reporting the deposition, the remaining defendants 

have no obligation to pay for their own certified copies of the 

transcripts or recordings. We disagree. Plaintiff cites no 

authority for this proposition, and plaintiff’s contention is 

contrary to the regulations under which deposition reporters 

operate.

3 The record indicates that each defendant group ordered 

copies of the deposition to support their motions for summary 

judgment. Thus, they were reasonably necessary for the conduct 

of the defense. Nor do the costs appear to be excessive. 

Plaintiff further argues that the reporting of this 

deposition should have been subject to the limited transcription 

fees for official court reporters set forth in Government Code 

section 69950. But “[s]ections 69950 and 69954 regulate only 

transcription fees for proceedings in the superior court. The 

statutes do not prevent a private reporter from charging contract 

rates for court appearances and costs incurred while serving 

as an official reporter pro tempore or for producing deposition 

3 California Code of Regulations, title 16, section 2403,

subdivision (b)(9) and (10) provide that the deposition reporter 

must “promptly transmit[ ] [the deposition transcript] to the 

attorney for the party who noticed the deposition” and “mak[e] a 

transcript of [the] deposition testimony available to any party 

requesting a copy, on payment of a reasonable charge.”
7

transcripts.” (Burd v. Barkley Court Reporters, Inc. (2017) 17 

Cal.App.5th 1037, 1050 (Burd), italics added.) 

B. Filing and Motion Fees

Plaintiff has challenged the trial court’s award of filing and 

motion fees as to all defendants. Below is a summary of the trial 

court’s awards in this category:

Defendant(s) Request Amt. Taxed Net Award

Millenium 

Health $1,520.14 $0.00 $1,520.14

Living Rebos/ 

M-Brace

$4,913.16 $61.65 $4,851.51

Sobertec/Upfront $2,170.00 $0.00 $2,170.00

Avee Labs $4,605.84 $1,224.20 $3,381.64

Pursuant to section 1033.5, subdivision (a)(l), filing 

and motion fees are allowable costs, and under section 1033.5, 

subdivision (c), related expenses that are “reasonably necessary” 

to the conduct of the litigation are allowable in the court’s 

discretion.

Plaintiff’s principal objection to all the costs claimed by the

various defendant groups is that, except for Avee Laboratories,

these defendants did not submit detailed invoices or other records 

showing that these amounts were actually incurred. But such 

an objection, essentially stating that the opposing party does not 

believe that the costs were actually incurred, is not sufficient to 

shift such burden to the parties claiming costs. “[T]he mere filing 

of a motion to tax costs may be a ‘proper objection’ to an item, the 

necessity of which appears doubtful, or which does not appear 

to be proper on its face. (See Oak Grove School Dist. v. City Title 
8

Ins. Co. (1963) 217 Cal.App.2d 678, 698–699 . . . .) However, ‘[i]f 

the items appear to be proper charges, the verified memorandum 

is prima facie evidence that the costs, expenses and services 

therein listed were necessarily incurred by the defendant 

[citations], and the burden of showing that an item is not 

properly chargeable or is unreasonable is upon the [objecting 

party].’ (Id. at p. 699 . . . .)” (Nelson v. Anderson (1999) 72 

Cal.App.4th 111, 131.) Here, all the categories of charges were 

properly recoverable under section 1033.5 and supported by 

declarations of the respective attorneys. Thus, defendants met 

their burden to support recovery of their costs. The plaintiff’s 

mere objection that the costs were not actually incurred or were 

excessive was insufficient to meet her burden or to shift the 

burden to the defendants to further support their requests.4

C. Reporter Pro Tempore Cost

Millenium Health arranged for a private reporter to report 

the court hearing on its summary judgment motion. The reporter 

was appointed as an official court reporter pro tempore pursuant 

to Government Code sections 68086 and 70044 and rule 2.956 of 

the California Rules of Court.

The trial court approved reimbursement to Millenium 

Health of $568.15 for this privately retained reporter. Plaintiff 

asserts that the trial court should not have awarded more 

than the statutory rate for official court reporters set forth in 

Government Code section 69950, and that $568.15 is in excess of 

4 Avee has agreed on appeal to reduce its claim in this 

category by $66.60 to account for possible duplication of charges.
9

the amount authorized by that section.

5 Plaintiff is correct as 

to the law. As noted above, Government Code section 69950 

regulates costs for the transcription of superior court proceedings, 

a category into which a summary judgment hearing falls.

In Burd, supra, 17 Cal.App.5th 1037, the court 

concluded that “[t]he plain language of [Government Code] 

sections 69950 and 69954 apply the statutory transcription rates 

to reporters serving as official reporters or as official reporters 

pro tempore in the superior courts, regardless of whether they 

are employed by the court or privately retained by a party.” 

(Id. at pp. 1050–1051, italics added; see id. at p. 1047 [the 

Legislature intended “to apply statutory transcription rates to 

official reporters pro tempore generally, whether employed by 

the court or privately retained by a party”].) Thus, plaintiff is 

correct that the reporter pro tempore allowable cost is limited by

the fee schedule set forth in Government Code section 69950.6

5 Government Code section 69950, subdivision (a), provides: 

“The fee for transcription for original ribbon or printed copy is 

eighty-five cents ($0.85) for each 100 words, and for each copy 

purchased at the same time by the court, party, or other person 

purchasing the original, fifteen cents ($0.15) for each 100 words.”

6 Dicta in a case predating Burd—Urban Pacific 

Equities Corp. v. Superior Court (1997) 59 Cal.App.4th 688 

(Urban Pacific)—notes that “[a]lthough the fees charged 

by court-retained reporters are fixed by statute (Gov. Code, 

§§ 69947, 69948, 69950), there is no statute regulating the fees 

charged by private reporting firms, and deposition reporters 

are free to charge all the market will bear.” (Urban Pacific, 

supra, at pp. 691–692.) But Urban Pacific dealt with deposition 

transcription services, to which, as noted, Government Code 

section 69950 does not apply.
10

Accordingly, the costs for this transcript should have 

been taxed to the amount computed under Government Code 

section 69950, subdivision (a).

DISPOSITION

The award for the pro tempore court reporter costs to 

Millenium Health is reversed and the trial court is instructed to 

tax those costs in accordance with the applicable rates set forth 

in Government Code section 69950, subdivision (a). In all other 

respects the awards are affirmed.

All parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY J.

BENDIX, J.