Judge: Donald F. Gaffney, Case: Lazo v. Vidaurreta, Date: 2022-07-27 Tentative Ruling
TENTATIVE RULING:
Motion to Tax Costs.
Plaintiff Frexiny Lazo moves to tax the memorandum of costs filed by Defendant Edwin Ashley, M.D. For the following reasons, the motion is GRANTED in part and DENIED in part. The Memorandum of Costs is taxed in the amount of $1,766.20. Defendant is allowed costs in the amount of $2,626.36.
A prevailing party is usually entitled as a matter of right to recover costs in any action or proceeding. Cal. Civ. Proc. Code § 1032(b). If the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. (Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.) The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.)
Item 1 - Appeal-related costs. The Memorandum of Costs filed on March 17, 2022, seeks an award of costs incurred in connection with Plaintiff’s successful appeal. Specifically, the Memorandum seeks a total of $866.20 in appeal-related costs. This consists of 1) Respondent’s Appellant Brief ($412), 2) a Substitution of Attorney on Appeal ($10.50), 3) a Request for Oral Argument on Appeal ($10.50), 4) Defendant’s Answer to the Petition For Supreme Court Review ($412.20), 5) a Motion to Dismiss Appeal ($10.50), and 6) a Reply to Motion to Dismiss Appeal ($10.50).
Plaintiff contends that Defendant cannot claim costs for his appeal because the time to do so has expired. California Rules of Court Rule 8.278 provides that a party must file a memo of costs from an appeal within 40 days. Here, the remitter from the Court of Appeal was filed on March 25, 2021 – almost a year before the memo of costs was filed. Thus, all of the appellate costs shall be stricken for a total of $866.20. Defendant contends he is entitled to recover such costs because the Court has discretion to award costs under Code Civ. Proc. § 1033.5(c)(4) and 1033.5(a)(1), but Defendant does not address the timeliness of his request for appeal-related costs.
The Remittitur from the appeal was issued on March 25, 2021. Substantially more than 40 days after March 25, 2021, elapsed before Defendant filed the Memorandum on March 17, 2022. (See Cal. Rules of Court, rule 8.278(c)(1) (a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs “within 40 days after issuance of the remittitur”); Moulin Electric Corp. v. Roach (1981) 120 Cal.App.3d 1067, 1070 (delay waives right to recovery).)
The Memorandum of Costs was filed after the deadline to do so expired. Accordingly, it was not timely filed and is properly stricken to the extent it seeks appeal-related costs. Thus, the Memorandum is taxed in the amount of $866.20.
Item 1 – filing fees for motions that were denied. Plaintiff seeks to tax the Memorandum in the amount of $154.25 that were incurred for a motion for protective order and motion for sanctions. Plaintiff appears to contend that, because these two motions were denied, Defendant should not be able to recover the costs incurred for these motions.
The fact that these motions were denied does not necessarily mean they were not “reasonably necessary to the conduct of the litigation.” (Code Civ. Proc. § 1033.5(c)(2).) Plaintiff provides no evidence that these costs were not reasonably necessary. The motion is denied as to these costs.
Item 11 – Court Reporter Fees. Plaintiff seeks to tax the Memorandum in the amount of $900 for court reporter fees. The Memorandum claims $900 in “Court reporter fees as established by statute.” “Court reporter fees as established by statute” are recoverable costs. (Code Civ. Proc. § 1033.5(a)(11).) Defendant, however, does not cite to any statute under which Court reporter fees are recoverable. Further, “[t]ranscripts of court proceedings not ordered by the court” are not allowable as costs unless expressly authorized by law. (Code Civ. Proc. § 1033.5(b)(5).) The Memorandum is taxed in the amount of $900 for the court reporter fees.
Item 16 – Other. The Memorandum claims $940 in other costs. This consists in part of three charges of $282 for “CourtCall telephonic appearances for counsel, client, court reporter,” and Plaintiff contends these charges are duplicative and inappropriate. Defendant has provided evidence that these costs were incurred for Defendant, Defendant’s counsel, and Defendant’s court reporter to appear at a hearing on Defendant’s Motion to Set Aside Default, which was continued twice for a total of three separate hearings. These charges are reasonably necessary to the conduct of the litigation. (Code Civ. Proc. § 1033.5(c)(2).) The motion is denied as to this charge.
In total, the Memorandum is taxed in the amount of $1,766.20 ($866.20 + $900). That leaves a remainder of $2,626.36 of allowable costs.
Defendant to give notice.