Judge: H. Jay Ford, III, Case: 20SMCV00952, Date: 2023-01-26 Tentative Ruling

Case Number: 20SMCV00952    Hearing Date: January 26, 2023    Dept: O

  Case Name:  Marina Pacific Hotel & Suites, LLC, et al. v. Fireman’s Fund Insurance Company

SUBJECT:                 MOTION TO TAX COSTS

MOVING PARTY:   Defendant Fireman’s Fund Insurance

RESP. PARTY:         Plaintiff Marina Pacific Hotel & Suites, LLC

TENTATIVE RULING

            Defendant Fireman’s Fund Insurance Motion to Tax Costs is DENIED.

            A valid costs memorandum establishes a prima facie case for recovery. Thus, the burden is on the party moving to strike or tax costs to establish that each disputed item is not recoverable.  See Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308. 

            Defendant only objects to the $7061 incurred for “preparation of the original and copies of clerk’s transcript or appendix” ($5,562.50) and “printing and copying of briefs” ($1,498.50).  See Memorandum of Costs, Items 2 and 4.  Defendant argues that photocopying costs are not recoverable under CCP §1033.5(b)(3) and the amount of costs identified in Items 2 and 4 are “excessive.” 

            Defendant’s reliance on CCP §1033.5 is misplaced.  The right to recover costs on appeal is governed solely by CRC Rule 8.278.  See CCP §1034(b)(“Judicial council shall establish by rule allowable costs on appeal and the procedure for claiming those costs”); Musaelian v. Adams (2011) 197 Cal.App.4^th 1251, 1259.  Pursuant to CRC Rule 8.278(d)(1), a prevailing party on appeal is entitled to recover “the amount paid for any portion of the record, whether an original or a copy or both” and “the cost to print and reproduce any brief, including any petition for rehearing or review, answer, or reply.”  CRC Rule 8.278(d)(1)(B) and (E). Thus, the cost of photocopies in connection with the record and the briefs in support of appeal are expressly recoverable.

            Defendant argues the amount of costs sought in Items 2 and 4 of the memo of costs are excessive but fails to provide any evidence or argument in the opening brief.  On reply, Defendant argues the cost per page is unreasonable for the copies ($4.36) and the costs include attorney and paralegal time for preparation of these items. 

            Plaintiff submits invoices in opposition to support the amount of costs sought in Items 2 and 4 of the memo appellate costs.  See Opposition, Exs. 2 and 3.  The costs do not include any attorney’s fees or paralegal time based on these invoices.  Even if Defendants had satisfied their initial burden of establishing the unreasonableness of the costs sought, Plaintiff satisfies its burden of establishing their reasonableness with invoices.