I. BACKGROUND   

Plaintiff Celedonio Alabat (“Plaintiff”) filed this action against defendants, Linda Rivero and Israel Rivero for damages arising from a motor vehicle incident.  

On November 21, 2021, defendant Linda Rivero served Plaintiff with an offer to compromise per CCP §998 to waive defense costs and defense fees in exchange for dismissal of the action. Plaintiff did not accept the offer. 

On August 29, 2023, defendant Israel Rivero was dismissed with prejudice. (Order of Dismissal, Aug. 29, 2023.)  

After multiple trial calls, Plaintiff filed a voluntary request for dismissal of the entire action, with prejudice; dismissal was entered on December 5, 2023.  

On December 21, 2023, defendant Linda Rivero (“Defendant”) filed a Memorandum of Costs seeking total costs of $18,011.90. Plaintiff moves to tax memorandum of costs. Defendant opposes the motion, and Plaintiff filed a reply.  

II. MOTION TO TAX COSTS 

 “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum… If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (Cal. Rules of Court, Rule 3.1700(b)(1).) The cost memorandum was served on December 21, 2023. The instant motion to tax costs was filed on January 5, 2024 and is therefore timely.  

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP §1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.) 

Allowable costs under CCP Section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount.  An item not specifically allowable under Section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). 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, 773-774.) 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.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Ibid.)  However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized.  (Id.)  Discretion is abused only when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances being considered.”  (Ibid.)    

Furthermore, whether or not an item is “reasonably necessary” is not the same as “merely convenient of beneficial to its preparation.” (Ladas, supra, 19 Cal.App.4th at 774.) Once proper objections are asserted, the burden of proof rests with the party seeking to recover its costs. (Ibid.) When items are properly challenged by a motion to tax costs and do not appear on their face to be proper and necessary, or if necessity is doubtful, the burden of establishing necessity is on the party claiming those items of costs. (Ibid.) “[T]he mere filing of a motion to tax costs may be a ‘proper objection’ to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. [Citation.] However, ‘[i]f the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].’ [Citations.]” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) 

III. DISCUSSION 

A party claiming costs must serve and file a memorandum of costs within a specified time after “the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal.” (CRC 3.1700(a)(1).) Costs may be recovered after a voluntary dismissal without the need for a judgment. (Fries v. Rite Aid Corp. (2009) 173 Cal. App. 4th 182.) 

Plaintiff moves to tax costs on Item 4 & 11 (deposition costs/court reporter fees), Item 6 (attachment expenses), and Item 16 (“Other” - Sanctions). 

Plaintiff argues that Defendant lumps court reporter fees, which is a category under Item 11, with Item 4 for deposition costs. Here, the cost memorandum is blank for Item 11, and Item 4 sets forth the amount of $11,977.05. Plaintiff contends that $3,310.01 represents the deposition cost, and $9,720 represents court reporter fees for the dates which the parties appeared for trial call. In terms of the deposition cost, Plaintiff contends the certificate of non-appearance for Dr. Koorosh Joshua Elihu, M.D. (“Dr. Elihu”) was neither necessary nor reasonable to the litigation, nor was this transcript used by Defendant in preparation for trial, and that no invoices or bills were provided to show it was actually incurred. Further, Plaintiff contends that Defendant is making an attempt of double recovery for Plaintiff’s November 21, 2022 certificate of non-appearance for $440 and the amount of $426.80 that was part of the Court’s June 28, 2022 sanctions order, which is already addressed under Item 16 (“Other”).  

“[T]he verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285.) Evidence is generally required in order to support an objection, and the mere submission of conclusions or bare allegations typically does not justify taxing costs. (See County of Kern v. Ginn (1983) 146 Cal.App.3d 1107) (bare allegation that depositions were neither necessary nor reasonable insufficient to overcome right to costs). Allegations are sufficient, however, if they depend upon undisputed facts where nothing more needed to be, or could have been, added by additional declarations or affidavits. (Fennessy v. Deleuw-Cather Corp. (1990) 218 Cal.App.3d 1192, 1196.) 

Plaintiff has not met his burden, with any evidence, that the depositions were not necessary or reasonable and challenges the amount in a conclusory fashion. Further, the Court finds that Defendant noticing the deposition of Dr. Elihu was necessary, because he was designated by Plaintiff as an expert. For the same reasons, Plaintiff’s argument that the court reporter fees are not supported, and that the fees are excessive and unreasonable, does not overcome the prima facie presumption that they are proper. There is no requirement that Defendant present supporting documentation in connection with the memorandum of costs unless the charges do not appear proper on its face. Nonetheless, Defendant provides a copy of the deposition and court reporter invoices in opposition. (Bakshandeh Decl. ¶¶ 7-8; Exhs. B and C.) The amount for deposition costs and court reporter fees due to multiple trial calls all appear to be proper charges, and Plaintiff has not met his burden demonstrating otherwise.  

Nonetheless, the Court agrees that monetary sanctions previously awarded are not appropriate. Sanction orders are enforceable as money judgments, and the remedy to enforce payment of monetary sanctions is to obtain and levy a writ of execution on assets of the debtor. (Newland v. Superior Court (1995) 40 Cal.App.4th 608.) To allow sanctions on costs would provide a party double recovery. Thus, because $440 of court reporter fees for the certificate of non-appearance was contemplated as part of the Court’s June 28, 2022 sanctions order, this amount is taxed. 

Accordingly, Plaintiff’s request to tax Item 4 is GRANTED IN PART, and the amount is reduced to $11,537.05. 

Defendant seeks $2,623.75 as attachment expenses for “Trace America,” “Array,” “Compex,” and “Unisource.” Plaintiff contends that this portion should be stricken in its entirety because they are unsubstantiated and omits crucial information for the parties to determine whether the costs sought are recoverable and reasonable in nature. In opposition, Defendant provides that Trace America was a cost incurred to search for medical providers Plaintiff treated with, Array was for trial binders, Compex was for subpoena expenses, and Unisource was also for subpoena expenses. Defense counsel provides the invoices in his declaration. (Bakshandeh Decl. ¶ 9; Exh. D.) Defendant avers that even if the costs were mislabeled as “attachment expenses” instead of properly itemizing it to its particular category, that the costs are still recoverable. Plaintiff, in reply, contends that expenses were for an investigative services company and medical record retrieval company that are not statutorily authorized.  

 The Court agrees that the expense for Trace America in the amount of $1,392 appears to be an investigation expense, which is expressly not allowable as costs. However, the other costs for subpoena expenses and trial binders are reasonably necessary to conduct litigation, and items not mentioned in CCP § 1033.5 and items assessed upon application may be allowed or denied in the court’s discretion. (CCP § 1033.5(c)(4).) The Court notes Defendant’s failure to properly separate the expenses into its appropriate categories and cautions defense counsel to provide more accurately itemized costs memorandums in the future.  

Accordingly, Plaintiff’s request to tax expenses provided in Item 6 is GRANTED IN PART, and the amount is reduced to $1,231.75. 

Defendant seeks $2,226.30 for monetary sanctions ordered by the Court as a result of her motions to compel. As previously stated, sanction orders are enforceable as money judgments, and the remedy to enforce payment of monetary sanctions is to obtain and levy a writ of execution on assets of the debtor. (Newland v. Superior Court (1995) 40 Cal.App.4th 608.) To allow past monetary sanctions as costs would provide Defendant with an inappropriate avenue for double recovery.  

Accordingly, Plaintiff’s request to tax Item 16 for sanctions is GRANTED. 

IV. CONCLUSION 

Based on the foregoing, Plaintiff’s motion to tax costs is GRANTED IN PART. The Court taxes $4,058.30 from Defendant’s costs memorandum and awards Defendant her litigation costs in the total amount of $13,953.60.    

Moving party is ordered to give notice. 

PLEASE TAKE NOTICE: 

Dated this 22nd day of March 2024