Judge: Barbara M. Scheper, Case: 23STCV13508, Date: 2023-11-01 Tentative Ruling

Case Number: 23STCV13508    Hearing Date: January 11, 2024    Dept: 30

Dept. 30

Calendar No.  

Castro vs. Room Forty, Inc., et. al., Case No. 23STCV13508

Tentative Ruling re:  Plaintiff’s Motion to Tax Costs

Plaintiff Amber Castro (Plaintiff) moves to tax the Memorandum of Costs filed by Defendants Room Forty Inc. and Hospitality Collaborative, LLC (collectively, Defendants). The motion is granted in part.

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.)

The memorandum of cost is a verified statement by the party, attorney, or agent that the costs are correct and were necessarily incurred in the case. (Cal. Rules of Court, rule 3.1700(a)(1).) If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses, and services listed therein were necessarily incurred. (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698 (Oak Grove).) “The trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face; if so, the burden is on the objecting party to show the costs to be unnecessary or unreasonable.” (Foothill-DeAnza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29 (Foothill-DeAnza).) The burden of showing that an item is not properly chargeable or is unreasonable is upon the party challenging the costs. (Wilson v. Nichols (1942) 55 Cal.App.2d 678, 682-683 (Wilson).)

Where the items are properly objected to, they are put at issue, and the burden of proof is on the party claiming them as costs. (Oak Grove, supra, 217 Cal.App.2d at p. 698.) In other words, the burden is initially on the objecting party to show that the costs are not proper on their face. Then, the burden shifts to the moving party to justify its costs and expenses. If the costs are not facially proper, that is, the costs are not expressly allowed under a statute, then the moving party must justify the requests for the expenses.

Under section 1033.5, “[a]n item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).)

On November 1, 2023, the Court sustained Defendants’ demurrer to the Second Amended Complaint without leave to amend and granted Defendants’ spoken motion to dismiss. On December 4, 2023, Defendants filed a Notice of Entry of Dismissal and filed their Memorandum of Costs the same day.

Plaintiff moves to tax Defendants’ Memorandum in full as untimely, arguing that Defendants were required to serve and file the Memorandum by November 16, 2023, 15 days after the Court’s Minute Order sustaining Defendants’ demurrer. The Court disagrees.

Under Rules of Court, rule 3.1700, “[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.” Here, the Court’s November 1, 2023 Minute Order was not served on the parties and so did not trigger the time limit for Defendants to file a memorandum of costs. The Memorandum was timely filed within 15 days of the” Defendants’ service of the Notice of Entry of Dismissal on December 4.

            Plaintiff also argues that the Memorandum should be taxed because it was not verified and lacked any information regarding the claimed costs. Following the filing of Plaintiff’s motion, Defendants filed a Notice of Errata correcting the lack of verification. Defendants state that they were unaware that the Judicial Council Worksheet was mandatory when filing the Memorandum, and provide a breakdown of the requested costs with their opposition. (Opposition, Ex. 3, Ex. 4.)

            Of the specific items claimed, Plaintiff challenges $267.69 requested for delivery of courtesy copies. (Opposition, Ex. 4.)

“Costs for courier or messenger fees are not specifically enumerated as allowable costs in Code of Civil Procedure section 1033.5, subdivision (a), neither are they prohibited in subdivision (b). Thus, messenger fees may be recoverable in the trial court's discretion if ‘reasonably necessary to the conduct of the litigation.’” (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30.)

This Court does not require courtesy copies and it does not appear that costs for delivering pleadings to the courtroom were reasonably necessary.  Accordingly, the Court taxes costs in the amount of $267.69.  The motion is otherwise denied.