SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

On October 8, 2021, Plaintiff Raul Luis Hernandez (“Plaintiff”) filed this action against Defendant Angela Michelle Purcell (“Defendant”) for injuries arising from a motor vehicle collision. 

On August 1, 2022, Plaintiff filed a dismissal of the entire action without prejudice. On August 4, 2022, the clerk entered the dismissal.  

On August 19, 2022, Defendant filed and served a Memorandum of Costs requesting costs totaling $2,534.20. On March 7, 2023, Defendant served and filed a written notice of entry of dismissal. On April 12, 2023, Defendant re-filed and re-served the same Memorandum of Costs.  

II. Motion to For Costs 

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.)   

First, Plaintiff, citing to California Rules of Court, Rule 3.1700(a)(1), contends the Memorandum of Costs is untimely because it was not filed and served within 15 days after the notice of entry of judgment or dismissal by the Clerk. Plaintiff argues Defendant filed and served the notice of entry of dismissal on March 7, 2023, but did not file the memorandum of costs until April 12, 2023, which is more than 15 days. California Rules of Court, Rule 3.1700(a)(1) provides that a prevailing party claiming costs “must serve and file a memorandum of costs within 15 days 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, or within 180 days after entry of judgment, whichever is first.” [emphasis added.]  The April 12, 2023 memorandum of costs appears to be a re-filing of the same memorandum of costs Defendant initially filed on August 19, 2022. The Court’s docket shows the Clerk entered Plaintiff’s request for dismissal on August 4, 2022, and Defendant filed and served her memorandum of costs on August 19, 2022, which is exactly 15 days from the dismissal by the Clerk. Accordingly, the filing and service of the Memorandum of Costs is timely.  

Second, Plaintiff cites Civil Code section 1717(b)(2) as authority that there is no prevailing party in a case that has been voluntarily dismissed.  However, this provision is inapplicable here, because this was not an action on a contract.  Instead, the Court looks to CCP § 1032(a)(4), which defines a “prevailing party” as “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.”  (Code Civ. Proc., § 1032(a)(4).)   

A judge retains jurisdiction to award attorney's fees and costs following a voluntary dismissal. (Pittman v Beck Park Apartments Ltd. (2018) 20 Cal. App. 5th 1009, 1022; Mesa Shopping Ctr.-East, LLC v Hill (2014) 232 Cal. App. 4th 890, 898.)  A defendant is entitled to costs when the plaintiff voluntarily dismisses the action, whether with or without prejudice. (CCP § 1032(a)(4); Mon Chong Loong Trading Corp. v Superior Court (2013) 218 Cal. App. 4th 87, 93–94 [defendant is entitled to costs even if potential exists that plaintiff may refile same action].).  

Here, Defendant seeks costs for filing and motion fees, posting jury fees, service of process fees, ordinary witness fees, and expert witness fees. Civ. Proc. Code, § 1033.5 specifically allows filing, motion, jury fees, and ordinary witness fees as costs. Furthermore, in terms of expert witness fees, Defendant avers that she served Plaintiff with a CCP § 998 offer on July 7, 2022. The CCP § 998 offer expired without acceptance, and subsequently Plaintiff dismissed the complaint in its entirety without prejudice. A plaintiff's voluntary dismissal of the action, with or without prejudice, constitutes the conclusion of the action and is, therefore, an appropriate precipitating event that triggers the judge's discretion to order the plaintiff to pay the defendant's expert witness fees under CCP § 998(c), when the defendant has made a valid CCP § 998 offer to compromise that the plaintiff did not accept. (Mon Chong Loong Trading Corp. v Superior Court, supra, 218 Cal. App. 4th at 93–94.) Plaintiff does not challenge the validity of Defendant’s CCP § 998 offer to compromise.  

The items in Defendant’s cost bill appear to be proper charges, and therefore the burden is on Plaintiff to seek to tax costs and to show that they were not reasonable or necessary. However, Plaintiff did not move to strike costs.   

 

III. Conclusion 

Based on the foregoing, Defendant’s motion is GRANTED. Judgment is to be entered in favor of Defendant, and Defendant is entitled to recover costs in the amount of $2,534.20 from Plaintiff.     

 

Defendant is ordered to give notice.   

 

PLEASE TAKE NOTICE: 

Dated this 19th day of September 2023