Judge Barbara M. Scheper, Case Number: 20STCV14138, Date: 2024-02-09 Tentative Ruling

Judge: Barbara M. Scheper, Case: 20STCV14138, Date: 2024-02-09 Tentative Ruling

Case Number: 20STCV14138 Hearing Date: February 9, 2024 Dept: 30

Dept. 30

Calendar No.

Piedmont Capital Management, LLC vs. McElfish, et. al., Case No. 20STCV14138

Tentative Ruling re: Defendant’s Motion to Tax Costs

Defendant moves to strike the Memorandum of Costs on Appeal filed by Plaintiff filed on December 18, 2023, or in the alternative, tax the costs. The motion is denied.

A prevailing party in litigation may recover costs, including but not limited to filing fees. (Code of Civ. Proc. §1033.5, subd. (a)(1).) Under Code of Civil Procedure section 1033.5, subdivision (c)(2), allowable costs are only recoverable if they are “reasonably necessary to the conduct of the litigation.” Even mandatory costs, when incurred unnecessarily, are subject to section 1033, subdivision (c)(2). (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.)

“‘[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. “As rewritten [in 1986], section 1032 now declares that costs are available as a ‘matter of right’ when the prevailing party is within one of the four categories designated by statute.”’” (Charton v. Harkey, supra, 247 Cal.App.4th at p. 738.)

Cost may also be recovered on appeal. According to Code of Civil Procedure § 1034(b), the Judicial Council establishes the allowable costs on appeal and the procedure for recovering these costs. Furthermore, California Rules of Court, rule 8.278, sets forth the procedural mechanism for recovery of costs on appeal.

Any motion to strike or tax costs must be served and filed 15 days after service of the memorandum, plus an additional 5 days if served by mail or 2 days if served electronically. (Cal. Rules of Court, rule 3.1700, subd. (b)(1).) “Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” (Cal. Rules of Court, rule 3.1700(b)(2).)

Defendant argues that Plaintiff’s costs are unreasonable, specifically as to item number 1, filing fees and item number 6, transmitting, filing, and serving of record, briefs, and other papers. Defendant also states that Plaintiff’s failure to attach receipts or documentation substantiating the requests for the costs alleged makes it unable to assess whether the costs are allowable or reasonable pursuant to California Rule of Court, rule 8.278(d).

As to item number 1, Defendant states that the California 2023 filing fee to file a Notice of Appeal is $775.00. Plaintiff seeks recovery of $875.00 in filing fees. Defendant states it is unclear whether the additional $100 Plaintiff alleges it incurred was an allowable charge without invoices or receipts. Thus, Defendant requests that the Court strike the request amount or tax in the amount of $100.

As to item number 6, Plaintiff seeks $318.36 for transmitting, filing, and serving of record, briefs, and other papers. Defendant states it is unclear whether the amounts incurred were allowable costs and what specific amounts are being charged without documents, invoices, or receipts. Thus, defendant requests that the Court strike or tax this cost in the amount of $318.36.

In opposition, Plaintiff states that a failure to attach receipts of documentation does not bar recovery of costs; all that is required on a memorandum of costs is: “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) [made applicable here by Rule 8.278(c)(1)].

As to the $875.00 filing fees, Plaintiff states the $100 fee is mandated by Government Code section 68926.1(a)(1), entitled “Deposit of fee upon filing notice of appeal; additional fee” and states: “Upon filing a notice of appeal for which a fee is paid pursuant to Section 68926, the appellant shall deposit the sum of one hundred dollars ($100) with the clerk of the originating court. The deposit shall be credited against the amount chargeable for the preparation of the clerk's transcript or any other appeal processing or notification.” Although ultimately applied to the costs of the clerk’s transcript, Plaintiff claims it is initially categorized as a filing fee.

As to the $318.36 for the “transmitting, filing, and serving of record, briefs, and other papers,” Plaintiff argues that Defendant fails to meet his burden in showing that these costs are unreasonable or unnecessary as he simply argues that there is no documentary support provided for these charges and fails to point to any particular item or amount as being excessive or improper. Notwithstanding, Plaintiff provides documentation of the payment of the $100 fee and of the $318.36 charges.

Defendant provides no arguments in reply.

The Court finds that Plaintiff sufficiently shows that the items at issue are reasonable and necessary. Plaintiff provides sufficient statutory authority for these costs as allowable as well as providing documentation to support these costs. The Court also agrees with Plaintiff that Defendant fails to meet his burden in showing the costs in number 6 are unreasonable.