Judge: Deborah C. Servino, Case: 30-2019-01058756, Date: 2023-08-25 Tentative Ruling

Plaintiff Amanda Neeble-Diamond’s motion to strike or tax costs is denied.

Plaintiff moves for an order striking or taxing Defendant Hotel California By The Sea LLC’s memorandum of costs on appeal (ROA 1087), on the grounds that Defendant “is not entitled to any costs in a FEHA action unless the employee-plaintiff’s case was frivolous,” and “FEHA requires the court to consider the parties’ respective economic resources when determining what constitutes reasonable costs.” (Memo. of P&A at 2 [ROA 1120].)

California Rules of Court, rule 8.278 orders the clerk or executive officer of the Court of Appeal to “enter on the record, and insert in the remittitur, a judgment awarding costs to the prevailing party under (a)(2) or as directed by the court under (a)(3), (a)(4), or (a)(5).” (Cal. Rules of Court, rule 8.278(b)(1).) A party claiming costs awarded by the reviewing court must file and serve its verified memorandum of costs within 40 days after issuance of the remittitur. (Cal. Rules of Court, rule 8.278(c)(1).)

“A party may serve and file a motion in the superior court to strike or tax costs claimed under (1) in the manner required by rule 3.1700.” (Cal. Rules of Court, rule 8.278(c)(2).) Under rule 3.1700, “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (Cal. Rules of Court, rule 3.1700(b)(1).)

The parties may agree to extend the time for filing and service of the motion, but “[t]his agreement must be confirmed in writing, specify the extended date for service, and be filed with the clerk.” (Cal. Rules of Court, rule 3.1700(b)(3).) “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.” (Ibid.)

Here, the memorandum of costs on appeal was filed and served, via mail and electronic service, on March 3, 2023. (ROA 1087.) Absent an extension, Plaintiff’s motion to tax or strike was due at the latest by March 23rd. Plaintiff did not file her the memorandum of points and authorities, until April 19, 2023, which is nearly a month too late. Indeed, she did not even file her notice of the motion until May 19, 2023.  (See ROA 1137.)  There is no record of an agreement by the parties to extend the deadline.  There was no request for an extension from the court.

Even if this motion had been timely filed, the court would still be compelled to deny it. As reflected in its opinion, the appellate court affirmed the judgment and stated “HCBTS is entitled to its costs on appeal.” (ROA 1072 [Opinion at p. 17].) This award was reflected in the Remittitur issued on or about February 6, 2023. (ROA 1085.) The appellate court “determines the final award of costs on appeal (who shall recover the same),” while the trial court “determines the specific judgment (what items of costs the entitled party may recover under the general award).” (Ramirez v. St. Paul Fire & Marine Ins. Co. (1995) 35 Cal.App.4th 473, 478.) “When an appellate court directs in its opinion that the appellant is to recover its costs on appeal, ‘no one, neither the lower court nor any of the unsuccessful respondents . . . [is] entitled to overrule [the] court by analyzing ... [its] order[ ] awarding costs and in part setting aside [the] order[ ] for judgment.’” The “losing party seeking an allocation of costs on appeal must direct its request to the appellate court.” This request “should normally be made before the court loses its jurisdiction over the matter by issuance of the remittitur.” (Ibid.; see Eisenberg, et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2022) at ¶ 14:70.1.)

This court does not have authority to decide the issue of entitlement to costs. Although Plaintiff made an alternative request for the court to tax costs, by “apply[ing] a blanket reduction to an amount that is reasonable,” it is Plaintiff’s burden to object to each item and state why the item is objectionable. (Cal. Rules of Court, 3.1700(b)(2).) There is no reason for the court to tax the cost items that appear reasonable on the face of the verified memorandum.  Accordingly, the motion is denied.

The Clerk shall give notice of the ruling.