I. Background   

Plaintiffs Aaron Leider, Aaron Leider as Trustee of The Aaron Glenn Leider Trust Dated August 31, 2012, and Michael Lewis (“Plaintiffs”), filed this action against defendant, Ronda Kay Duvall (“Heidi”) (“Defendant”) for private nuisance, negligence, and premises liability.   

A trial returned verdict in Plaintiffs' favor and on November 13, 2023, judgment was entered for Plaintiffs against Defendant.   

On November 27, 2023, Plaintiffs filed a Memorandum of Costs seeking a total of $36,697.91. Defendant moves to tax memorandum of costs.  

Plaintiffs oppose the motion. As of February 13, 2024, no reply was filed. 

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).) Plaintiffs mailed the cost memorandum to Defendant on November 27, 2023, and Defendant filed her motion to strike costs on December 4, 2023. Defendant’s motion 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.)    

III. Discussion 

Defendant moves to tax costs on Item 8a (Ordinary Witness Fees), Item 8b (Expert Witness Fees), and Item 11 (Models, enlargements, and photocopies of exhibits). 

Defendant contends the request for ordinary witness fees of $156.80 is erroneous, because it includes witness fees for witnesses who never appeared or testified in court. Defendant contends Plaintiffs are only entitled to $70 in costs for ordinary witness fees for the two testifying witnesses that appeared remotely.  

Plaintiffs, in opposition, stipulate to the reduction of witness fees from $156.80 to $70.  

Accordingly, the request to tax ordinary witness fees is granted.  

Defendant argues the request for expert witness fees of $22,062.50 is not recoverable in its entirety, and that the purported cost includes expert witness charges by a named percipient witness who never testified at any point in litigation or in trial. Defendant seeks to strike expert witness fees in its entirety. 

Plaintiff, in opposition, concedes that expert witness fees are generally not recoverable as costs. Plaintiff agrees to waive the contested expert witness fees.  

Accordingly, the request to tax expert witness fees is granted.  

Defendant contends the request for “Photocopies of Exhibits (6 Binders)” in the amount of  $1,309.95 is inaccurate, because it does not factor Defendant’s past payment. The parties had agreed to split the costs of all required trial binders equally, and Defendant paid for half the cost of photocopying exhibits on March 10, 2023. Defendant argues the total cost for copying was $982.48, in which $491.24 was paid by Defendant. Thus, Defendant contends Plaintiffs only incurred $491.24 in photocopying exhibits.  

 Plaintiffs, in opposition, contend the six exhibit binders consisted of three copies of a two-volume set. Plaintiffs aver Invoice #43290 reflects three sets of binders printed for a total cost of $919.68, and that Invoice #43291 reflects the cost of three additional binders and tabs that were necessary because of the volume printed, for a total cost of $62.78, totaling $982.46. Plaintiffs concede that Defendant is correct that she paid half of the printing cost in advance, in the amount of $491.24 only. However, Plaintiffs argue that the additional $327.49 in costs are related to Plaintiffs printing an additional copy of the exhibit binders to be used by their counsel at trial, and that these costs are available at the discretion of the Court. Plaintiffs used the same vendor to print a reference copy for its counsel at trial. Therefore, Plaintiffs contend they are entitled to $818.73 in printing costs. 

Defendant did not file a reply, and therefore does not address this contention. 

The Court has reviewed the invoices provided by Plaintiffs. Accordingly, the request to tax printing costs for photocopies of the exhibits is granted in part, and the amount reduced to $818.73.  

IV. Conclusion 

Based on the foregoing, Defendant’s motion to tax costs is GRANTED in part. The Court taxes $22,640.52 from Plaintiffs’ costs memorandum and awards Plaintiffs their litigation costs in the total amount of $14,057.39.   

Moving party is ordered to give notice. 

PLEASE TAKE NOTICE: 

Dated this 16th day of February 2024