Judge: Daniel M. Crowley, Case: 21STCV08166, Date: 2023-02-15 Tentative Ruling

Case Number: 21STCV08166    Hearing Date: February 15, 2023    Dept: 28

Plaintiff Ismael Solis’ Motion to Tax Costs

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On March 2, 2021, Plaintiff Ismael Solis (“Plaintiff”) filed this action against Defendants Joseph F. Coyne, Jr. (“Joseph”) and Melinda W. Coyne (“Melinda”) for general negligence and premises liability.

On June 15, 2021, Joseph filed an answer. On December 5, 2022, the Court granted judgment for Joseph.

On January 4, 2023, Plaintiff filed a Motion to Tax Costs to be heard on February 15, 2023. On February 1, 2023, Joseph filed an opposition. On February 7, 2023, Plaintiff filed an opposition.

Trial is currently set for June 21, 2023.

PARTY’S REQUESTS

Plaintiff requests the Court tax or reduce certain costs sought by Joseph.

Joseph requests the Court deny the motion.

LEGAL STANDARD

Generally, a “prevailing party” is entitled to costs, unless otherwise expressly provided by statute. (Code of Civ. Proc. § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606.). A prevailing party includes “a defendant in whose favor a dismissal is entered,” and a “defendant where neither plaintiff nor defendant obtains any relief.” (Code of Civ. Proc. § 1032(a)(4).) “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment…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.” (Cal. Rules of Court, rule 3.1700.)

The losing party may contest the costs that a prevailing party seeks. (CCP §1034(a).) The challenging party has the burden of demonstrating that those costs are unreasonable or unnecessary. (Adams v. Ford Motor Co., (2011) 199 Cal. App. 4th 1475, 1486; 612 South LLC v. Laconic Limited Partnership, (2010) 184 Cal. App. 4th 1270, 1285.)  If items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Id.)  “Defendant's mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of its counsel are insufficient to rebut the prima facie showing.”  (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.)

CRC 3.1700 requires any notice of motion to tax costs be served and filed 15 days after service of the cost memorandum. Furthermore, “the party claiming costs and the party contesting costs may agree to extend the time for serving and filing the cost memorandum and a motion to strike or tax costs. This agreement must be confirmed in writing, specify the extended date for service, and be filed with the clerk. In the absence of an agreement, the court may extend the times for serving and filing the cost memorandum or the notice of motion to strike or tax costs for a period not to exceed 30 days.”

DISCUSSION

Plaintiff first identifies $408.30 in electronic filing fees for service of documents through an electronic filing service provider, claiming these are not substantiated. Joseph is not required to substantiate his costs, so long as he provides a proper declaration. Joseph has done so—these costs will not be taxed.

Joseph seeks $435.00 in costs for the “First Appearance Fee of Melinda Coyne.” The Court agrees this is an improper cost—Melinda has yet to appear in this action, and summary judgment was only granted as to Joseph. Joseph argues that he paid an appearance fee for Melinda, his deceased wife. He states he was required by the file clerk to pay an appearance fee when filing a joint stipulation to continue trial. The Court still does not file a basis for granting this cost—the fact Joseph paid Melinda’s fee does not make it Joseph’s cost. It is still a cost for Melinda, who has not been granted judgment in this action. This is not a properly recoverable cost.

Joseph seeks $1,704.87 for service of process costs, which Plaintiff believed to be costs for serving deposition subpoenas. Plaintiff claims that because the method of service is unlisted, there is no way to determine if this cost is proper. The court disagrees. CCP § 1033.5 allows for the recovery of service of subpoenas as a recoverable cost, even if there is no clear outline as to the method of service. These costs will not be taxed.

Plaintiff requests the Court deny costs as to $121.31 spent on messenger service for the MSJ, as documents in this case have previously been served electronically. Joseph alleges this was necessary to allow for timely service of the Motion for Summary Judgment. The Court finds a basis for the cost; this cost will not be taxed.

Plaintiff requests the Court deny costs as to the $900.00 in court reporter fees for the MSJ hearing, noting these are not guaranteed under CCP § 1033.5(a)(9). A prevailing party may seek costs for transcripts ordered by the Court or for Court reporter fees as established by statute. There is no relevant statute that would give rise to recovery of court reporter fees here. Joseph did not provide any statutory basis in his opposition. The Court finds the court reporter fees should be taxed.

CONCLUSION

Plaintiff Ismael Solis’ Motion to Tax Costs is GRANTED, in part. The Court taxes the $435.00 cost for the “First Appearance Fee of Melinda Coyne” and $900.00 in “Court Reporter Fees” at the hearing on the motion for summary judgment. Plaintiff’s requests are otherwise DENIED.

Moving Party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.