Judge: Layne H. Melzer, Case: 2017-00921063, Date: 2022-10-27 Tentative Ruling

DEF Veronica Murdock; DEF Brett Murdock

Motion to Strike or Tax Costs

Defendants Veronica Murdock’s and Brett Murdock’s motion to strike and/or tax the costs claimed by Plaintiffs Setsuko Mori’s and Hiroshi Ogino’s on appeal is denied.

The right to recover costs on appeal is governed by CRC 8.278. (CCP §1034, CRC 8.278(a)). This is distinct from the statutes governing cost awards for prevailing at the trial court level.

CRC 8.278 provides in pertinent part:

(d) Recoverable costs

(1) A party may recover only the following costs, if reasonable:

(A) Filing fees;

(B) The amount the party paid for any portion of the record, whether an original or a copy or both. The cost to copy parts of a prior record under rule 8.147(b)(2) is not recoverable unless the Court of Appeal ordered the copying;

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(D) The costs to notarize, serve, mail, and file the record, briefs, and other papers;

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Defendants challenge the following claimed costs:

Preparation of clerk’s transcript/appendix: $448.50

and

Preparation of reporter’s transcript: $2,274

In challenging these costs, Defendants cite to Code Civ. Proc., § 1033.5 (b)(5) which states that these are not recoverable if they were not ordered by the Court. 

Defendants fail to meet their burden to show that these costs were not reasonably incurred.  Defendants base their motion on the wrong statutes. (See Alan S. v. Superior Ct. (2009) 172 Cal.App.4th 238, 261-262 (holding that reliance on Section 1033.5 was misplaced as it should be confined to the trial court context).)  The costs of “for any portion of the record” are specifically allowed as costs of appeal pursuant to Rule 8.278(d)(B).  It is routine appellate practice to obtain a copy of the Reporter’s and Clerk’s Transcripts from the Court.  The Court finds that these costs were thus reasonable. 

Transmitting, filing serving of record: $229

Defendants argue that Plaintiffs’ claimed costs should be disallowed because they filed several requests for extensions of time to file, had various documents rejected by the Court, and filed a notice of change of address. Defendants cite to Code. Civ. Proc., § 1033.5(c)(2, 3 and 4.)  As noted above, these statutes are inapplicable.

Costs to serve, mail, and file the record, briefs, and other papers are specifically permitted by Rule of Court 8.278(d)(D).  It is not unusual at all in appellate proceedings to request an extension or have documents rejected.  The Court therefore allows these costs.

Plaintiffs shall give notice.