Judge Mark H. Epstein, Case Number: 20SMCV01164, Date: 2023-08-16 Tentative Ruling

Judge: Mark H. Epstein, Case: 20SMCV01164, Date: 2023-08-16 Tentative Ruling

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Case Number: 20SMCV01164 Hearing Date: August 16, 2023 Dept: R

The unopposed motion to tax costs is GRANTED IN PART AND DENIED IN PART.

Plaintiff first argues that costs are improper where the case was dismissed without prejudice. He cites no authority for this proposition and it is clear why: it is incorrect. “ ‘A defendant in whose favor a dismissal is entered is the prevailing party and is entitled to costs. (C.C.P. 1032(a)(4).) This is true where the plaintiff voluntarily dismisses or where the trial court orders an involuntary dismissal. [Citations].” (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 92, p. 623.) Defendant is entitled to costs regardless of whether the dismissal is with or without prejudice. (§ 1032, subd. (a)(4), see e.g., Catello v. I.T.T. General Controls (1984) 152 Cal.App.3d 1009, 1012, fn. 4.)” (Cano v. Glover (2006) 143 Cal.App.4th 326, 331, parallel citations omitted.) “Indeed, voluntary dismissal of a lawsuit is always conditioned ‘upon payment of the costs,’ even if the dismissal is without prejudice and the potential exists, as in this case, for a refiling of the same action. (§ 581, subd. (b)(1); see § 1032, subd. (a)(4); Cano v. Glover, supra, 143 Cal.App.4th at p. 331; Cal. Rules of Court, rule 3.1700(a)(1)). [¶] While a lawsuit may be concluded by a voluntary dismissal, the price of such a dismissal is the payment of costs under section 1032.” (Mon Chong Loong Trading Corp. v. Superior Court (2013) 218 Cal.App.4th 87, 94, parallel citations omitted.)

Plaintiff next challenges certain requested costs. The recovery of costs is purely statutory, and a prevailing party is entitled as a matter of right to recover costs of suit in any action or proceeding. (Code Civ. Proc., § 1032, subd. (b).) Statutorily allowable costs, however, must be “reasonably necessary to the conduct of the litigation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5 subd. (c)(2), (3).) A verified memorandum of costs is prima facie evidence of its propriety. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) The party opposing those costs must show they were not reasonable or necessary. (Ibid.) It is therefore plaintiff’s burden to show the costs were not legitimate. (Fennessy v. DeLeuw–Cather Corp. (1990) 218 Cal.App.3d 1192, 1195.)

Plaintiff first asserts there is no worksheet attached to the memorandum of costs. This is true but does not automatically render the claimed costs unreasonable or unnecessary. Turning to specifics, plaintiff first argues that the filing and motion fees of $1,365.62 are excessive because the initial filing fee was $435 and there is no detail as to the remainder. Once the amount of the costs in the memorandum are challenged by way of a motion to tax costs, the burden shifts to the party seeking costs to verify that the costs were reasonable and necessary. (Jones v. Dumrichab (1998) 63 Cal.App.4th 1258.) But in this unopposed motion, there is no evidence from defendant as to what the remaining filing fees are or that they were necessary. The court will therefore GRANT the motion and tax the filing fee recovery such that the recoverable cost is $435. (The court notes that had defendant provided a worksheet or an opposition, the result might well have been different.)

Plaintiff disputes the $9.50 for models and enlargements. He says the matter never went to trial. The statute does not require that the case have gone to trial. “Models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.” (Code Civ. Proc., § 1033.5, subd. (a)(13).) That said, where the case was dismissed, this item of costs does seem improper. At least given the absence of any justification in opposition, the motion will be GRANTED to this extend.

Plaintiff contends the $174.28 for electronic filing or service is improper as well. Plaintiff does not demonstrate that the costs incurred are unreasonable or unnecessary in this action and the court is aware that there were a number of required electronic filings and many things did need to be served. The court believes that this amount is self-evidently reasonable and necessary. The motion is DENIED in that regard.