Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

 

This case arises from a dispute between neighbors.  Plaintiff 991 Bel Air Road LLC owns the property located at 991 Bel Air Road, Los Angeles, California Plaintiff’s Property”).  Defendants Nader Kashfian and Rashel Kashfian own the adjoining property, located at 10535 Rocca Place, Los Angeles, California (“Defendants’ Property”).   

On October 17, 2017, Plaintiff’s Property suffered significant fire damage.  To restore the residence on the Property, Plaintiff is required to submit to the City of Los Angeles Department of Building and Safety (“LADBS”) construction plans that comply with all relevant codes, including the Baseline Hillside Ordinance.  In turn, to prepare code-compliant plans, Plaintiff’s architect and/or engineer requires certain topographical survey data regarding the retaining wall on Defendants’ Property.  The topographical survey data is needed to determine the extent to which the retaining wall provides support to the hillside that is located on Plaintiff’s Property.  

Plaintiff retained the services of a land surveyor to perform the topographical survey.  The surveyor advised that he needed access to Defendants’ Property for a short period of time, not to exceed one-and-a-half hours, to obtain various measurements.  Mr. Kashfian initially agreed to grant access, but later refused, contending there was no need to conduct a boundary survey because the parties previously agreed to the boundary lines.  

This action ensued.  The operative complaint seeks declaratory relief as to “the rights and obligations of the parties with respect to whether … Plaintiff’s land surveyor, has the right to access [Defendants’] Property to perform a topographical survey, and with respect to whether Defendants have the obligation to provide reasonable access to [Plaintiff’s land surveyor] for this purpose without undue delay.”   

The Complaint also seeks injunctive relief  “(1) prohibiting Defendants from precluding, obstructing or interfering with [the surveyor’s] access to [Defendants’] Property, with two assistants, at a time chosen by [the surveyor], so that [the surveyor] can perform the survey work for which he has been retained; and (2) mandating Defendants to grant reasonable access to [their] Property without undue delay to Plaintiff’s surveyor … and two assistants, so that [the surveyor] can perform the survey work for which he has been retained.” 

On July 18, 2024, Plaintiff filed a request for dismissal of the Complaint without prejudice.  Defendants then filed a memorandum of costs, seeking $977.36 in filing and motion fees, $175.41 in fees for electronic filing or service, and $7,301,42 for “other” costs including expert fees.   

This hearing is on Plaintiff’s motion to tax costs.  Plaintiff seeks to tax (1) $6,375 in expert costs as fees for experts not ordered by the court are not allowable, (2) $708.83 in messenger fees as such fees are not allowable and were unnecessary given the code permits electronic service of documents and Plaintiff agreed to accept email service, and (3) $142 in printing and copying costs as photocopying charges, except for exhibits, are not allowable costs.   

LEGAL STANDARD 

Generally, a “prevailing party” is entitled to costs. (Code Civ. Proc., § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606.).  “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.  (Code Civ. Proc., §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.)  

Code Civ. Proc. § 1033.5 sets forth the costs recoverable by the prevailing party. (Code Civ. Proc., § 1033.5.)  “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.”  (Code Civ. Proc., §1033.5(c)(2); Perko’s Enterprises, Inc. v. RRNS Enterprises (l992) 4 Cal.App.4th 238, 244.)  A “properly verified memorandum of costs is considered prima facie evidence that the costs listed in the memorandum were necessarily incurred.”  (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308; see also Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.)   

This puts the burden on the party seeking to tax costs to show that they were not reasonable or necessary.  (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.)  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.) 

The memorandum of costs need not contain invoices, billings, or statements.  (Bach, 215 Cal.App.3d at 308; see also Cal. Rules of Court, Rule 3.1700(a)(1) (only verification required).) “Documentation must be submitted only when a party dissatisfied with the costs claimed in the memorandum challenges them by filing a motion to tax costs.”  (Bach, 215 Cal.App.3d at 308.)     

ANALYSIS 

Expert Fees 

Plaintiff argues that Defendants are not entitled to recover fees for experts not ordered by the Court.  The Court agrees.   

Under¿Code Civ. Proc. § 1033.5(b), parties may not recover expert witness fees as costs “except when expressly¿authorized by law.”  Such express authorization exists in instances when the expert is court appointed (Code Civ. Proc., § 1033.5, subd. (a)(8)) or when the judgment awarded is lower than a rejected settlement offer (Code Civ. Proc, § 998, subds. (c)¿&¿(d); see also First Nationwide Bank v Mountain Cascade, Inc., (2000) 77 Cal. App. 4th 871, 875-76.)   

Here, Defendants submitted three expert declarations in opposition to Plaintiff’s motion for a preliminary injunction, for which they seek to recover fees in the amount of $6,375 as recoverable costs.  However, none of these expert witness declarations were ordered by the Court.  As a result, these costs are not recoverable under § 1033.5(b)(1), and the Court grants the motion to tax them.   

Messenger Fees 

Plaintiff moves to tax $708.83 in messenger fees on the ground they were unnecessary.  The Court disagrees.   

Messenger fees are not among the permitted items of allowable costs enumerated in Code Civ. Proc. § 1033.5.  Notwithstanding, the Court has discretion to award costs that are not specifically enumerated in § 1033.5.  (Code Civ. Proc., § 1033.5 subd. (c)(4) (“Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”); Benach¿v.¿County of Los Angeles¿(2007) 149¿Cal.App.4th¿836, 57 Cal. Rptr. 3d 363¿(messenger fees are not expressly authorized by statute, but may be allowed in the discretion of the court).)  However, allowable costs must still be necessary and reasonable.  (See¿Code Civ. Proc., § 1033.5, subd. (c).) 

Here, Plaintiff argues the messenger fees Defendants seek to recover were entirely unnecessary because Code Civ. Proc. § 1010.6 permits documents to be served by email.  Plaintiff’s counsel proposed that “all documents served in connection with this action can be served by email in lieu of personal service, with the express understanding that service by email will be deemed personal service for all timing purposes.”  (Ex. A to Levinrad Decl. (June 26, 2024 email).)  Given that documents could have been served by email instead of by messenger, Plaintiff argues the messenger fees were unnecessarily incurred, and are not recoverable as costs.   

In Opposition, Defendants argue that the messenger fees they incurred were either for purposes of providing courtesy copies to the Court or hand-serving the parties in this action when there were time-sensitive filings. (Kashfian Decl., ¶¶ 7-9 & Exh. 1.)  Courtesy copies were required by the Court and therefore reasonably necessary to the conduct of the litigation:  

All parties are to comply with the General Order re Mandatory Electronic Filing for Civil dated November 5, 2018. Courtesy copies are required for (1) any printed document required pursuant to a Standing or General Order; (2) pleadings and motions (including attachments) of 26 pages or more; (3) pleadings and motions that include points and authorities; (4) demurrers; (5) anti-SLAPP filings; (6) motions for summary judgment/adjudication; (7) motions to compel further discovery; (8) any oppositions/replies to demurrers/anti-SLAPP, motions for summary judgment/adjudication, or motions to compel further discovery; and (9) all trial documents as described below.  

 

(Kashfian Decl., ¶ 9 & Exh. 1.)   

Moreover, it was necessary for Defendants to occasionally personally serve Plaintiff, as Plaintiff sought a temporary restraining order and later filed a motion for preliminary injunction.  (Kashfian Decl., ¶ 8.) As such, certain discovery devices were personally served, including requests for production and deposition subpoenas, so that Defendants could obtain information as soon as possible to oppose Plaintiff’s request for preliminary injunctive relief. (Id.)   Messenger service was also used to serve important documents such as those related to Plaintiff’s requests for a temporary restraining order and a preliminary injunction. (Memorandum of Costs, pp. 7-9; Kashfian Decl., ¶ 7.)  It should be noted that Plaintiff’s counsel’s office also hand-served documents in this case. (Kashfian Decl., ¶ 7.)  

In sum, the Court concludes that Defendants’ messenger fees are proper and reasonably necessary to this litigation.  

Printing and Copying Costs 

Plaintiff argues that printing and photocopying costs of $142 that Defendants seek are not allowed under §1033.5(b)(3).  The Court agrees.   

Under Code Civ. Proc. Section 1033.5(b)(3), “photocopying charges, except for exhibits,” are “not allowable as costs, except when expressly authorized by law.”  Defendants have not identified any law that entitles them to printing and photocopying costs.  Accordingly, these costs are not permitted by statute and will be taxed. 

CONCLUSION 

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiff’s motion to tax costs.  The Court awards costs of $708.83 to Defendants. 

DATED:  October 3, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court