I. BACKGROUND 

Plaintiff Rabie Banafsheha (“Plaintiff”) filed this breach of contract action against defendants Mordecai Notis (“Defendant”), et al. Trial in this matter commenced on February 29, 2024. The jury rendered a verdict on March 12, 2024. On May 6, 2024, judgment was entered in favor of Plaintiff.  

On May 21, 2024, Plaintiff filed and served his memorandum of costs. 

On June 5, 2024, Defendant filed and served the instant motion to tax costs on Plaintiff’s counsel. 

The motion was heard on September 4, 2024. At the time, no opposition had been filed on or before the deadline of August 21, 2024. At the hearing, Plaintiff’s counsel represented that he could not attend due to the imminent birth of his child. The Court therefore continued the hearing to October 29, 2024, but provided that no additional briefing would be allowed. (Min. Order, Sept. 4, 2024.) 

II. LEGAL STANDARD 

“ ‘The right to recover any of the costs of a civil action “is determined entirely by statute.” ’ [Citation.] “ ‘[I]n the absence of an authorizing statute, no costs can be recovered by either party.” ’ [Citation.] ‘Section 1032 governs the award of costs of trial court litigation.’ [Citation.]” (Charton v. Harkey (2016) 247 Cal.App.4th 730, 737.) 

¿ “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) (Emphasis added.) Code of Civil Procedure section 1032, subdivision (a) defines a “prevailing party” as “[1] the party with a net monetary recovery, [2] a defendant in whose favor dismissal is entered, [3] a defendant where neither plaintiff nor defendant obtains any relief, and [4] a defendant as against those plaintiffs who do not recover any relief against that defendant.” 

¿ Costs are allowable if incurred, whether or not paid. (Code Civ. Proc., § 1033.5, subd. (c)(1).) Costs must also be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and must be reasonable in amount. (Code Civ. Proc., § 1033.5, subd. (c)(2)-(3).) 

¿ “ ‘[T]he trial court has no discretion to deny prevailing party status to a litigant who falls within one of the four statutory categories in the first [sentence] of the provision. “As rewritten [in 1986], section 1032 now declares that costs are available as a ‘matter of right’ when the prevailing party is within one of the four categories designated by statute.” ’ ” (Charton v. Harkey, supra, 247 Cal.App.4th at p. 738.) 

A prevailing party claiming costs must file and serve a memorandum of costs either (1) within 15 days after the date of service of a notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5, (2) 15 days after the service of written notice of entry of judgment or dismissal, or (3) within 180 days after entry of judgment, whichever is first. (Cal. Rules of Court, rule 3.1700, subd. (a).) 

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III. DISCUSSION 

Any motion to strike or tax costs must be served and filed 15 days after service of the memorandum, plus an additional 5 days if served by mail or 2 days if served electronically. (Cal. Rules of Court, rule 3.1700, subd. (b)(1).) Plaintiff filed and served the costs memorandum on May 21, 2024, and Defendant filed and served the instant motion on June 5, 2025. The motion is therefore timely. 

“Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” (Cal. Rules of Court, rule 3.1700, subd. (b)(2).) Defendant moves to tax Item Nos. 1, 2, 4, 8, 11, 12, and 14. 

“In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face.¿If so, the burden is on the objecting party to show the costs to be unnecessary or unreasonable.” (Foothill De Anza Cmty. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 2930.) “Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court.” (Ladas v. Cal. State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) 

Defendant moves to tax $1,243.75, arguing that the “Writ (Using Religious Law in CA - 2017)” for $808.75 should be taxed because Plaintiff was not the prevailing party on appeal. Defendant does not provide any further details or information concerning a purported writ. Nonetheless, the Court has reviewed the records of this action, and is unable to locate any documents related to an appeal aside from Defendant’s recent notice of appeal, filed on August 16, 2024. 

Therefore, the motion to tax $808.75 from Item 1 is granted. 

Defendant moves to tax $1,440.19 in claimed jury fees, arguing that there is no way discern if the fees are reasonable or reasonably necessary for litigation. 

Filing, motion, and jury fees are allowable as costs. (CCP §1033.5(a)(1).) Considering this matter concluded by jury trial, the Court fails to understand the contention that jury fees were not reasonably necessary. Further, a bald assertion that the fees were unreasonable is insufficient to rebut the presumption that a verified memorandum costs is prima facie evidence that the fee was proper. A party seeking to tax costs must provide evidence to rebut this prima facie showing. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.)¿ Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred.¿ (Ibid.) 

Accordingly, the motion to tax costs from Item 2 is denied. 

Defendant moves to tax $2,222.77 in deposition costs for Defendant’s part 1 and part 2 transcriptions. As the objecting party, the burden is on Defendant to provide evidence to rebut the prima facie presumption that the cost was proper. For the same reasons as Item 2, a general assertion that the amount is excessive does not meet Defendant’s burden to rebut the presumption that the transcription fees claimed by Plaintiff were necessarily and reasonably incurred. 

Accordingly, the motion to tax costs from Item 4 is denied. 

Defendant moves to tax $5,812.40 in witness fees, arguing that Plaintiff did not include any ordinary witness fees nor court-ordered expert fees. Plaintiff claims $5,1812.40 in costs for expert fees per CCP section 998 for Rabbi Elie Spitz. Defendant argues that Plaintiff did not make a section 998 settlement offer. 

Pursuant to CCP section 1033.5, expert witness fees are allowable as costs if the expert witnesses were ordered by the court. (Code Civ. Proc., § 1033.5(a)(8).) Expert witness fees are not allowable as costs when not ordered by the court. (Id., § 1033.5(b)(1).)¿However, pursuant to CCP section 998, if an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the court may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.¿(Id., § 998(c)(1).) 

There is no evidence that Plaintiff sought or received court approval for expert witness costs prior to filing the memorandum of costs. Further, Plaintiff did not oppose the motion to dispute Defendant’s contention that Plaintiff did not serve a section 998 offer and failed to obtain a more favorable judgment, such that Plaintiff could recover post-offer expert witness fees. 

Accordingly, the motion to tax costs from Item 8 is granted. 

Defendant seeks the entirety of the court reporter fees in the amount of $15,584.57 to be taxed, arguing that the costs are excessive based on a typical daily rate for a court reporter.  

Defendant asserts that the Los Angeles Superior Court fee schedule provides that court reporters receive $764 for proceedings over 4 hours, $382 for proceedings between 1 and 4 hours, and a per diem of $30 for proceedings under 1 hour.  

Here, Plaintiff claims court reporter costs for the following: FSC/Hearing on Motion to Dismiss on January 30, 2024 in the amount of $831.86, FSC/Hearing on Motion to Dismiss on February 2, 2024 in the amount of $819.21, FSC/Hearing on Motion to Dismiss on February 9, 2024 in the amount of $510.07, trial on March 4, 2024 for $1,152.03, trial on March 5, 2024 for $2,979.94, trial on March 6 for $2,531.21, trial/hearing on trial documents on March 7, 2024 for $2,226.50, trial on March 8, 2024 for $2,283.75, and jury deliberation/verdict on March 12, 2024 for $2,250.00. Defendant argues that the costs claimed include not only the court reporter’s rate for attendance, but the cost of preparing transcripts and other unauthorized services not contemplated by statute. Defendant argues the invoice was not properly categorized, and that transcript fees are a separate matter. 

Pursuant to Code of Civil Procedure § 1033.5(a)(11), court reporter fees are recoverable as costs. (See also Gov’t Code § 68086(d)(2).) However, other related fees are only recoverable when ordered by the court. (Code Civ. Proc. § 1033.5(a)(9), (b)(5).)¿¿Fees for transcripts of court proceedings are recoverable if ordered by the court.  (See Code Civ. Proc., § 1033.5(a)(9).) Fees for transcripts of court proceedings not ordered by the court are not allowable costs, except when expressly authorized by law. (See id., § 1033.5(b)(5).) Defendant has rebutted the presumption that the costs were reasonable and necessarily incurred. Plaintiff did not oppose the motion demonstrating otherwise. 

Accordingly, the motion to tax costs from Item 11 is granted. 

Defendant seeks to tax the entirety of Plaintiff’s $6,750.78 claim for photocopying of exhibits, trial binder, and deposition transcripts, arguing that the costs are high and include expenditures not allowed under the statute. 

Costs for “[m]odels, 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(a)(13).)¿Defendant does not state which portion of the photocopying is not allowed nor reasonably helpful to the jury, nor does Defendant provide any evidence as to how such charges should be adjusted for the Court to be persuaded by the contention that the costs are “incredulously high.” 

 Accordingly, the motion to tax costs from Item 12 is denied. 

Defendant seeks to tax electronic filing fee and service costs of $765.26. CCP section 1033.5(a)(14) provides that allowable costs include fees for electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.  (Code Civ. Proc., § 1033.5(a)(14).) 

For the same reasons as Items 2 and 4, Defendant has not provided any evidence to rebut the presumption that these allowable costs were necessary and reasonable. 

Accordingly, the motion to tax costs from Item 14 is denied. 

IV. CONCLUSION 

Based on the foregoing, Defendant’s motion to tax costs is GRANTED IN PART. 

The Court orders $808.75 from Item 1 (Filing and Motion Fees), $5,812.40 from Item 8 (Expert Fees), and $15,584.57 from Item 11 (Court Reporter Fees) stricken from the memorandum of costs. Plaintiff is thus awarded costs in the amount of $11,613.00. 

Moving Party is ordered to give notice. 

DATED: October 28, 2024 

__________________________ 

Hon. Michelle C. Kim 

Judge of the Superior Court 

PLEASE TAKE NOTICE: