Motion to Strike or Tax Costs filed by Plaintiff Michael Farah
Plaintiff and cross-defendant Michael Farah moves for an order striking the memo of costs filed by defendants and cross-complainants Rod Van Sickle and Kim Cashman. In the alternative, Farah seeks an order taxing costs of $10,170.30.
Farah contends that the memo of costs was untimely filed and served under CRC 3.1700.
Subdivision (a)(1) of that rule provides that “[a] prevailing party who claims 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.”
Farah contends that Van Sickle and Cashman gave notice of the judgment on May 30, 2019, which makes the memo of costs filed on July 23, 2019 untimely. However, this is incorrect. The notice given on May 30, 2019 indicated that the Court had entered an order granting the motion for summary judgment on April 23, 2019, and the Court did not enter judgment until June 28, 2019. Van Sickle and Cashman then filed and served notice of entry of judgment on July 8, 2019, which makes the memo of costs timely.
Farah contends that individual costs be taxed. Under Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775, 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.
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.
Van Sickle and Cashman claim $1450.00 in filing and motion fees, and Farah objects to $80.00 as not being necessary. However, Van Sickle and Cashman have itemized the fees for filing costs as $870 for the answer, $500 for the motion for summary judgment, $60 for an ex parte application and proposed order, and $20 for the stipulation to consolidate cases and proposed orders, and this appears appropriate and therefore recoverable.
Van Sickle and Cashman claim $2873.69 for depositions and Farah contends that this amount should be taxed in its entirety because the parties did not use deposition testimony in their motions for summary judgment. He also contends that travel costs of $95.94 should be disallowed because all of the depositions were taken in Long Beach and Orange County. However, Van Sickle and Cashman have itemized the deposition costs and they are not unreasonable. Moreover, defense counsel attests in his declaration that all of these depositions were noticed by Farah’s counsel, which means that the costs were necessary.
Van Sickle and Cashman claim $255.09 in service of process costs, and Farah contends that this amount should be taxed in its entirety. Van Sickle and Cashman have itemized this cost to show that $33.85 was for service on John W. Reed, Jr., $110.62 was for service on Richard E. Masson, and $110.62 was for service on Wells Fargo Bank. These costs do not appear to be unreasonable.
Van Sickle and Cashman claim $3054.45 in attachment expenses, and Farah contends that this item should be taxed in its entirety because there was no attachment in this case. In fact, there was no attachment in this case, but a careful review of the cost bill indicates that these items were not incurred in an attachment proceeding but they are additional items listed in the attachment to the cost bill, i.e., they are listed on the additional pages rather than the main pages. The costs consist of: $1153.15 for the deposition of Rachel Puckett, $742.26 for service of process of costs (further broken down into $221.24 for service on Robert Tamez, $78.54 for service on Tesla, Inc., $221.24 for service on Richard E. Masson, $110.62 for service on Hamilton Oaks Trabuco, Inc., and $110.62 for service on Hamilton Oaks Vineyard & Winery), and $514.05 and $645.00 for court reporter fees paid to Atkinson Baker. No detail is given as to when the court reporter fees claimed in this item were incurred or for what. As a result, both amounts will be taxed for a total of $1159.05.
Van Sickle and Cashman claim an additional $995.00 in court reporter fees, and Farah contends that the amount should be taxed in its entirety because there is no explanation for them. This argument has merit because there is no indication when the fees were incurred or for what. The entire $995.00 will be taxed.
Van Sickle and Cashman claim $1796.43 for models, enlargements, and photocopies of exhibits, and Farah contends that this amount should be taxed entirely because the matter was resolved on summary judgment. Subdivision (a)(12) of Code Civ. Proc. § 1033.5 provides that the costs of models, photocopies, and blowups of exhibits “reasonably helpful to aid the trier of fact” are allowable. Van Sickle and Cashman point out that the Court looked at maps during oral argument on the motions for summary judgment, but they do not indicate what the cost of this particular exhibit was. As a result, the entire $1796.43 is taxed.
Van Sickle and Cashman claim $1115.63 for fees incurred for electronic filing or service of documents through an electronic service provider, and Farah contends that the entire amount should be taxed for lack of supporting documentation. However, the Court requires documents to be filed electronically, and there is a fee for that service, which means that the amount appears to be reasonable and necessary.
RULING: The motion of plaintiff and cross-defendant Michael Farah for an order striking the memo of costs filed by defendants and cross-complainants Rod Van Sickle and Kim Cashman is denied.
The alternative motion to tax costs is granted in part and denied in part.
The motion to tax costs is granted to the extent that the following costs are taxed: $1159.05 for court reporter fees claimed as “attachment expenses,” $995.00 for court reporter fees, and $1796.43 for models, enlargements, and photocopies of exhibits. In all other respects, the motion is denied.