Judge: Deborah C. Servino, Case: 30-2020-01145245, Date: 2022-08-26 Tentative Ruling
Plaintiff N.M. Son’s (“Plaintiff”) motion to strike or tax the costs of Defendant Gail Ross, M.D. (“Defendant”) is granted in part and denied in part, as set forth below.
The right to recover costs of suit is determined entirely by statute. (Code Civ. Proc., § 1032, et seq.) Unless otherwise expressly prohibited by statute, a prevailing party is entitled to recover costs as a matter of right. (Code Civ. Proc., § 1032, subd. (b).) Code of Civil Procedure section 1033.5, subdivision (a) specifies cost items that are allowable, including filing and motion fees, deposition costs, and court reporter fees. (Code Civ. Proc., § 1033.5, subd. (a)(3).) Allowable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5, subd. (c).)
If the items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774-776; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266 [mere statements in points and authorities and declaration of counsel insufficient to rebut prima facie showing]; see Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 777-778 [prevailing defendant properly awarded its photocopying costs which were supported by invoice from copy company, when plaintiffs failed to present any evidence showing that copying could have been done for less]. On the other hand, items that are properly objected to are put in issue, and the burden of proof is on the party claiming them as costs. (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at pp. 774-776.)
It is undisputed that Defendant is the prevailing party. Her summary judgment motion directed at Plaintiff’s Second Amended Complaint was granted on April 1, 2022. (4/1/2022 Minute Order.) On May 4, 2022, Defendant filed a memorandum of costs, claiming a total of $6,261.50 in costs. The costs are comprised of: (1) filing and motion fees in the amount of $1,893.31; (2) jury fees in the amount of $473; (3) deposition costs in the amount of $2,943.10; and (4) service of process costs in the amount of $952.09. (Register of Actions [“ROA”] 485.)
Plaintiff argues that the memorandum of costs was untimely filed. This argument lacks merit. Notice of entry of judgment was served on April 25, 2022. (ROA 478.) The memorandum of costs was filed on May 4, 2022. Therefore, the memorandum of costs was timely filed. (Cal. Rules of Court, rule 3.1700.)
Plaintiff also argues that Defendant’s claimed $473 in jury fees is excessive given that jury fees are only $150. In her opposition, Defendant acknowledges that this was an error, and the costs of jury fees were $150. As a result, the jury fees are taxed $323.
The Court taxes an additional $966 from the claimed filing and motion fees. Defendant claims a total of $1,893.31. However, the costs that are listed add up to only $1,400.31. And, Item 1.b, indicates that the filing fee for the “Notice of Posting Jury Fees” was $473. This filing fee does not appear to correspond with the Court’s Fee Schedule and appears to be a similar error as Item 2 (Jury Fees).
The remainder of Plaintiff’s arguments are that Defendant did not support her claimed costs with any invoices, bills or declarations. There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. (See Wegner et al., Cal. Practice Guide: Civ. Trials & Evid. (The Rutter Group 2016) ¶ 17:131.1.) Plaintiff does not go into any detail or elaborate further on how the costs are allegedly unreasonable. In County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113–1114, the court held the following:
In this case defendant submitted no affidavits in support of her motion to tax costs. Defendant merely alleged that the depositions were neither necessary nor reasonable under the circumstances. Opposed to this was the county's declaration under penalty of perjury that each item in the cost bill was reasonably incurred. In this situation, defendant has not met her burden of showing that the depositions were unnecessary.
Similarly, Plaintiff fails to meet his burden as the party challenging the costs. With the exception of the costs noted above, on their face, Defendant’s costs appear proper. Plaintiff has not shown that these costs are improper on their face. (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 774 [“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that were not reasonable or necessary.”].) Plaintiff did not meet his burden to show these costs were unreasonable or unnecessary.
Based on the foregoing, the court taxes a total of $1,289 ($323 + $966 = $1,289) in costs. Defendant is awarded $4,972.5 in costs.
Defendant shall give notice of the ruling.