Judge: Gregory Keosian, Case: 21STCV45735, Date: 2023-12-12 Tentative Ruling

Case Number: 21STCV45735    Hearing Date: April 8, 2024    Dept: 61

Plaintiff Cindy Tea’s Motion to Strike the Memorandum of Costs Filed by Defendants The Boeing Company, Sean Downey, and Reed Rowbotham is GRANTED.

Plaintiff to provide notice.

I.                   MOTION TO TAX COSTS

“Any 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).” (California Rules of Court Rule 3.1700, subd. (b)(1).)

“Code of Civil Procedure section 1032, subdivision (b) [], guarantees prevailing parties in civil litigation awards of the costs expended in the litigation: ‘Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.’” (Williams v. Chino Valley Independent Fire Dist. (“Williams”) (2015) 61 Cal.4th 97, 100.).

“If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) Although individual cost items are ordinarily challenged by a motion to tax costs, no cost-item is effectively put in issue by “mere statements” claiming them to be unreasonable. (Ibid.) However, where “it cannot be determined from the face of the cost bill whether the items are proper,” “the mere filing of a motion to tax costs may be a ‘proper objection’ to an item.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, 132.)

Plaintiff Cindy Tea (Plaintiff) moves to strike the memorandum of costs filed by Defendants The Boeing Company, Sean Downey, and Reed Rowbotham (Defendants) seeking $8,513.73 in costs. Plaintiff cites Government Code § 12965, which states that “a prevailing defendant [in a FEHA case] shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (Gov. Code § 12965, subd. (c)(6).) Plaintiff argues that if Defendants wanted to seek costs under this provision, they should have filed a motion and presented evidence and argument on the question of frivolousness. (Motion at pp. 4–5.) Applicable case authority suggests that a prevailing defendant in a FEHA case must file a noticed motion for costs in order to obtain them. (See Neeble-Diamond v. Hotel California By the Sea, LLC (2024) 99 Cal.App.5th 551, 558.) No such motion has been filed here.

The motion to strike the costs memorandum is therefore GRANTED.