Judge: Helen Zukin, Case: SC128312, Date: 2022-12-15 Tentative Ruling

Case Number: SC128312    Hearing Date: December 15, 2022    Dept: 207

Background

Plaintiff Northwestern Engineering Company (“Plaintiff”) brings this action against Defendant Joseph Shemaria (“Defendant”) concerning the use of certain real estate located in Venice, California. Defendant filed a Cross-Complaint against Plaintiff and moved for entry of a preliminary injunction. On December 15, 2020, the Court granted Defendant’s application for a preliminary injunction. Plaintiff appealed and on August 30, 2022, the Court of Appeal issued an opinion affirming the trial court’s ruling. On November 3, 2022, remittitur issued from the Court of Appeal awarding Defendant his costs on appeal. Defendant now moves to recover his costs on appeal. His motion is unopposed.

Legal Standard

Code of Civil Procedure, section 1032 allows for the recovery of costs by a prevailing party as a matter of right.¿ (C.C.P. § 1032.)¿ “ ‘Prevailing party’¿includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.”¿ (C.C.P. § 1032(a)(4).)

California Rules of Court, rule 8.278, subdivision (a)(5) permits the Court of Appeal to award or deny costs as it deems proper.  Pursuant to California Rules of Court, rule 8.278(a)(2), “The prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal.” Recoverable costs include, if reasonable, the cost of filing fees; the amount the party paid for any portion of the record; the cost to produce additional evidence on appeal; and the cost to notarize, serve, mail and file the record, briefs, and other papers. (CRC rules 8.278(d)(1)(A)-(E).) A party claiming costs on appeal must file and serve a verified memorandum of costs pursuant to California Rule of Court, rule 3.1700, within 40 days after issuance of the remittitur. (CRC rule 8.278(c).)

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 they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Id.)  

Analysis

Remittitur issued from the Court of Appeal on November 3, 2022, noting Defendant was awarded his costs on appeal. Defendant filed the instant motion on November 22, including a verified declaration stating he incurred $4,571.92 in costs in defending Plaintiff’s appeal, including filing fees and additional costs incurred in posting a $50,000 bond and preparing and filing the record, briefs, and other papers on appeal. Defendant’s motion was timely filed under California Rules of Court, rule 8.278(c). The Court notes Plaintiff has not filed an objection to the instant motion and has not moved to tax Defendant’s claimed costs under California Rules of Court, rule 3.1700. Accordingly, the Court GRANTS Defendant’s motion for costs on appeal.

Conclusion

Defendant’s motion for award of costs on appeal is GRANTED.