Judge: Mary H. Strobel, Case: 21STCP00318, Date: 2023-01-05 Tentative Ruling

Hon. Mary H. Strobel

The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 21STCP00318    Hearing Date: January 5, 2023    Dept: 82

            On September 16, 2022, Respondent USC filed a motion to tax costs directed at the Memorandum of Costs filed by Petitioner on August 30, 2022.  The court has received Petitioner’s opposition and Respondents’ reply.

Applicable Law

Some cases hold that in writ proceedings, the award of costs is within the discretion of the court.  Tripp v. Swoap (1976) 171 Cal.3d 671, 680, overruled on other grounds, Frink v. Proc (1982) 311 Cal.3d 166, 180.  In this case the court finds Petitioner to be the prevailing party and exercises its discretion to award costs. 

Code of Civil Procedure section 1033.5 designates some costs and allowable, and others as disallowable.  “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.”  (CCP § 1033.5(c)(2).)  Cost items not expressly mentioned in section 1033.5 may be allowed in the court’s discretion if they are reasonably necessary to the conduct of the litigation.  (§ 1033.5(c)(4).)  

“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 Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)  “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.”  (Ibid.)

Analysis

            Respondent USC challenges the following items: (1) item 14 for Electronic Filing or Service in the entire amount of $139.69; (2) item 16 for Other in the entire amount of $35.42; and (3) the remaining costs of $512.54 for filing and motion fees based on the theory Petitioner had limited success and costs should be apportioned.  

Item 14: Fees for Electronic Filing or Service

Respondent challenges the request for $139.69 for electronic services or filings. (Motion at pg. 3.)

CCP § 1033.5(a)(14) includes as allowable costs: “Fees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.” In Los Angeles County, electronic filing has been mandated for Non-Complex Unlimited Civil cases where litigants are represented by counsel since January 2, 2019. (See First Amended General Order filed May 3, 2019; see also CRC, rule 2.253(b.)

Respondent argues that these fees are improper because the filings have not been specifically identified and the court has not ordered the parties to electronically file or serve documents in this case. (Motion at pg. 3.) These arguments are not persuasive. First, as noted above, electronic filing of documents is mandated in Los Angeles County. Second, while the individual invoices were not included with the Memorandum of Costs, verification of the memorandum of costs by the prevailing party’s attorney establishes a prima facie showing that the claimed costs are proper. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) To overcome this prima facie showing, the objecting party must introduce evidence to support its claim that the costs are not reasonably necessary. (Id. at pp. 1267-1268.)

Further, Petitioner has provided invoices of the electronic filings incurred and clarifies that these costs are only for electronic filing, not for electronic service. (Opposition at pg. 2; Parker Decl. ¶¶ 2, 5, Exh. 1.) In reply, Respondent USC argues that these costs remain vague because the invoices fail to identify the documents that were filed. However, as stated above, because Petitioner has established a prima facie showing that the claimed costs are proper, the burden falls on Respondent to show that the costs were unnecessary.

Respondent identifies two invoices as questionable: one dated May 3, 2021 and another dated August 30, 2022. (Reply at pg. 3; Ishikawa Decl. ¶¶ 3-4.) With regard to the May 3, 2021 invoice, Respondent USC contends that it “does not reasonably correspond to any electronic filing by Petitioner recorded on the Court register of actions or received by Respondent’s counsel in this matter.” (Reply at pg. 3; Ishikawa Decl. ¶ 3.) Upon review of the Court’s records, Petitioner filed notices of acknowledgement of receipt on May 3, 2021. Because these filings were necessary to prove that the Petition was properly served and received, this invoice is proper.

As to the August 30, 2022 invoice, Respondent contends that this is in reference to the filing of the memorandum of cost and that it is unnecessary because this filing was entirely optional. (Reply at pg. 3.) This argument is unpersuasive.  The request for fees for electronic filing of documents through an electronic service provider in the entire amount of $139.69 is proper.

            Accordingly, Respondent USC’s motion to tax costs is denied as it pertains to Item 14.

Item 16: Other – Messenger Fee

Respondent USC also challenges the request for $35.42 for “Pick Up of Administrative Record from Dept.” (Motion at pg. 4.) “Courier and messenger fees are recoverable, at the discretion of the trial court, if they are reasonably necessary to the conduct of the litigation.” (Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 696, as modified (July 18, 2019), reh’g denied (Aug. 9, 2019), review denied (Oct. 23, 2019).)

In opposition, Petitioner provides evidence the court instructed Petitioner’s counsel to make arrangements to pick up the administrative record on August 17, 2022. (Opposition at pg. 3; Parker Decl. ¶ 6, Exh. 2.) The amount of the messenger service is not unreasonable under the circumstances.  Petitioner has shown that this cost was reasonably necessary to the litigation, as it responded to a court directive.      Accordingly, the cost of $35.42 for “Pick Up of Administrative Record” is proper.

Apportionment of Costs

            Lastly, Respondent USC asserts that the court should reduce the request for $512.54 in filing and motion fees to one-third of its amount, i.e. $175.11, because Petitioner did not achieve success on some of his arguments.  As a general matter, filing and motions fees are recoverable. (CCP § 1033.5(a).) Thus, it is Respondent USC’s burden to present evidence to show the contested costs were not reasonably necessary, which has not been met. (Jones, supra, 63 Cal.App.4th at 1267-1268.) These costs consist of flat fees relating to the filing of the Summons, Petition, Civil Case Cover Sheets, and the Proposed Judgment and Writ. (See Memorandum of Costs Worksheet at ¶ 1.)  Even if Petitioner did not succeed on all of its arguments, Petitioner would have incurred the same amount of filing fees in pursuing his academic misconduct claim.

            Accordingly, the motion is denied on this ground.  

Conclusion

The motion is DENIED.