Motion to Strike or Tax Costs on Appeal (Judge Scott R.L. Yount)

Grassi Construction, Inc. v. Michael Ru Bello, et al. 19CV000679



Defendant Michael Ru Bello moves for an order taxing the $545 in costs on appeal claimed by Plaintiff Grassi Construction, Inc.

Defendant makes the following argument. “Plaintiff’s Memo merely lists the costs on appeal claimed. But it provides no basis or support for those costs. As such, it is not possible for Defendant, nor this Court for that matter, to review and determine whether the cost on appeal claimed by Plaintiff are valid or not. This motion should be granted in the absence of such supporting documentation or other proof.” (Support Memo at 3:10-13.)

The argument is undermined by the governing authority. “Except as provided in this rule, the party prevailing in the Court of Appeal in a civil case other than a juvenile case is entitled to costs on appeal.” (Rules of Court, rule 8.278, subd. (a).) In order to recover costs, the prevailing party is required to file and serve a Memorandum of Costs. (See Rules of Court, rules 3.1700(a), 8.278, subd. (c).) If the items listed in the Memorandum of Costs appear proper on their face, then the verified statement is prima facie evidence of their propriety. (See Bach v. Co. of Butte (1989) 215 Cal.App.3d 294, 308 [“a properly verified memorandum of costs is considered prima facie evidence that the costs listed in the memorandum were necessarily incurred”].) The burden then shifts to an objecting party. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

The costs at issue are those identified in the Memorandum of Costs on Appeal (Memo of Costs) filed by Plaintiff on January 25, 2023. The Court finds that each of the costs listed therein appears reasonable in amount and proper. The Memorandum is verified. Therefore, the Memorandum constitutes prima facie evidence that the costs are proper. Defendant presents no evidence or argument tending to show that the costs are improper.

Based on the foregoing, the motion is DENIED.