Motion – Tax Costs
Plaintiffs’ motion to tax costs is granted in part and denied in part. The Court taxes the following costs: $239.25 for motion and filing fees, $15,563.76 for transcripts of court proceedings, and $1,128,20 for deposition costs. After deducting these costs from Defendant’s Memorandum of Costs, Defendant is entitled to recover $1,350 for filing and motion fees, $12,600 for court reporter fees, and $4,176 in deposition costs.
There are two items of costs for which the Court has insufficient information to rule on Plaintiffs’ motion: (1) $169.35 for filing and motion fees for the items identified as 12/4/26 SPO - $59.75, 1/12/26 Notice - $5.60, and 1/20/26 Withdraw motion - $104.00; and (2) witness fees for appearances at depositions. If Defendant provides sufficient documentation at the hearing demonstrating its entitlement to these costs as well as the amount, the Court will deny Plaintiffs’ motion to tax these costs. If Defendant does not provide such documentation, the Court will grant the motion as to these costs.
I.
Procedural History
Plaintiffs Anas Ryadi and Chelsie Alia Earl filed their Complaint against Defendant BMW of North America, LLC on January 17, 2024, alleging breach of express and implied warranties under the Song-Beverly Consumer Warranty Act. Following a jury trial, the jury reached a verdict in favor of Defendant, finding that the vehicle did not have a defect covered by the written warranty and that the vehicle was of the same quality as those generally acceptable in the trade. Judgment was entered in favor of Defendant on January 16, 2026. Notice of Entry of Judgment was filed and served on January 30, 2026.
On February 6, 2026, Defendant filed a Memorandum of Costs (“Memorandum”) seeking $26,326.62 in total costs. The proof of service on the Memorandum reflects that it was served by email on Plaintiffs’ counsel on February 6, 2026.
On February 24, 2026, Plaintiffs filed a motion to tax costs, challenging all of the costs identified in the Memorandum.
II. Standard
Pursuant to Code of Civil Procedure Section 1032(b), “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Section 1033.5 lists certain allowable costs under subsection (a), certain excluded costs under subdivision (b), and gives the trial court discretion to allow or deny other costs not specifically listed in either subdivision (a) or (b). (See El Dorado Meat Co. v. Yosemite Meat & Locker Serv., Inc. (2007) 150 Cal.App.4th 612, 616.) “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (
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If the items on a memorandum of costs appear to be proper charges, the verified memorandum is prima facie evidence that the costs identified therein were necessarily incurred by the defendant, and the objecting party has the burden of showing that an item is not properly chargeable or is unreasonable. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) If the items are properly objected to, those items are put in issue and the burden of proof is on the party claiming them as costs. (Ibid.)
III.
Discussion
A. Timeliness
Defendant argues that Plaintiffs’ motion should be denied because it is untimely.
“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)(3).” (Cal. Rule of Court 3.1700(b)(1).) Section 1010.6(a)(3) provides in part that “[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days . . . .”
Here, Defendant served its Memorandum by email on February 6, 2026. Fifteen days from February 6th is February 21st, a Saturday. Two court days beyond this date is February 24, 2025. Plaintiffs filed their motion on that day and their proof of service reflects service on that day. The motion is therefore timely.
B. Organization of Motion
Defendant argues that the motion is procedurally defective because it does not “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” as required by Rule 3.1700(b)(2). While the Court agrees that the motion could have been organized in a manner more consistent with the rule, the motion still identifies specific costs and identifies the basis for the challenge for each of these costs. The Court therefore rules on the motion, as follows.
C. Specific Costs
1. Filing and motion fees
Filing and motion fees are recoverable as costs. (Code Civ. Proc. § 1033.5(a)(1).) Plaintiffs argue that the Court should not award the $1,758.66 in filing and motion fees requested by Defendant (Item 1 on the Memorandum) because Defendant submitted a stack of invoices from multiple cases without identifying which invoices were related to the instant action. 1 Page 4 of the Memorandum identifies the specific costs requested:
Filing and motion fees 2/9/24 Answer - $527.41 7/1/2024 CMS - $16.15 12/4/26 SPO - $59.75 1/10/25 CMS - $39.75 10/23/25 Motion and ex parte app - $220.75 10/24/25 Settlement conference statement - $45.50 10/24/25 Proof of service - $45.50 10/30/25 Attorney declaration - $45.50 10/30/25 Delivery to local court of supplemental attorney decl. - $81.50 12/11/25 Motion and ex parte app - $239.50 12/26/25 Oppositions to MILs - $91.00 1/8/26 Trial documents - $148.25 1/12/26 Notice - $5.60 1/14/26 Motion - $88.50 1/20/26 Withdraw motion - $104.00
The Court agrees that Defendant included with their Memorandum multiple invoices from other cases that are irrelevant to their request for costs. Defendant should be more concise with its filings so as to not burden other parties and the Court. However, by searching through the documents by Plaintiff’s name and the amount number, the Court found invoices matching the following costs on pages 60, 71, 73-79 and 85 of the 106-page document filed by Defendant:
1 Plaintiffs also argue that the Court should not award costs for motions that were withdrawn, but they do not identify any such motions in their papers.
2/9/24 Answer - $527.41 7/1/2024 CMS - $16.15 1/10/25 CMS - $39.75 10/23/25 Motion and ex parte app - $220.75 10/24/25 Settlement conference statement - $45.50 10/24/25 Proof of service - $45.50 10/30/25 Attorney declaration - $45.50 10/30/25 Delivery to local court of supplemental attorney decl. - $81.50 12/11/25 Motion and ex parte app - $239.50 1/14/26 Motion - $88.50
The Court will award the $1,350.06 in filing and motion fees for the filings identified above.
The Court also located three invoices which may reflect three of the charges listed on page 4 but the description and/or date do not match completely. These invoices are as follows:
12/4/26 SPO - $59.75: There is an invoice for $59.75 on page 72/106, dated December 2, 2024, for the filing of a Stipulation and Order. While the amount and pleading at issue are consistent, the date of the invoice does not match the date identified on page 4 of the Memorandum.
1/12/26 Notice - $5.60. There is an invoice for $5.60 on page 13/106, dated January 13, 2026, for “Declaration”. The amount is the same and the invoice was dated one day after the date listed on page 4 of the Memorandum, which could reflect an invoice issued the day after the document was filed.
1/20/26 Withdraw motion - $104.00. There is an invoice for $104 on page 14/106, dated January 22, 2026, for “Declaration”. The amount is the same and the invoice was dated two days after the date listed on page 4 of the Memorandum, which could reflect an invoice issued two days after the document was filed.
The Court will award these fees (total $169.35) to Defendant if Defendant submits a declaration clarifying that the invoices on pages 13, 14 and 72 accurately reflect these three charges.
The Court did not find any invoices for the following and therefore does not award these amounts (total $239.25) to Defendant. Defendant had an opportunity to provide or otherwise address these invoices with its Opposition but failed to do so. The Court taxes the following costs (total $239.25):
12/26/25 Oppositions to MILs - $91.00 1/8/26 Trial documents - $148.25
In sum, the Court awards $1,350.06 in filing and motion fees. The Court may increase this amount up to an additional $169.35 if Defendant submits the declaration referenced above at the hearing on this matter.
2. Court reporter fees
“Court reporter fees as established by statute” are recoverable as costs. (Code Civ. Proc. § 1033.5(a)(1).) However, transcripts of court proceedings not ordered by the court are not allowable as costs. (Code Civ. Proc. § 1033.5(b)(5).)
Defendant seeks $15.463.76 for “court reporter fees”. Page 4 of its Memorandum identifies these fees as follows:
Sulliven Court reporter Per Diem Trial Job # J14086974 - $4,971.56 Sulliven Court reporter Per Diem Trial Job # J14086982 - $3,650.50 Sulliven Court reporter Per Diem Trial Job # J14087087 - $3,675.78 Sulliven Court reporter Per Diem Trial Job # J14087088 - $3,265.92
The invoices for these amounts are on pages 11, 12, 17 and 18 of the 106 page document filed by Defendant.
Defendant can recover the court reporter fees but not the transcripts and related expenses because it does not provide any showing that the transcripts were ordered by the Court. (See Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58 [costs for court reporter fees are “an entirely different expense” from those for transcripts].) 2 The total charged for court reporter fees, as reflected in the four invoices, was $12,600. Defendant can recover the $12,600 in court reporter fees. Plaintiffs’ motion to tax the trial transcript charges ($15,563.76) is granted.
3. Deposition costs
Deposition costs are recoverable as costs. (Code Civ. Proc. § 1033.5(a)(3).) Specifically, the prevailing party can recover costs incurred in “[t]aking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed.” (Code Civ. Proc. § 1033.5(a)(3)(A).)
Defendant seeks to recover $5,304.20 in deposition costs. Defendant’s Memorandum identifies these costs on page 4 as follows:
7/31/24 Dan Mark Transcript - $244.00 11/26/25 Plaintiff' s Expert - $884.20 1/5/26 Plaintiff' s Expert - $1,870.00 1/6/26 Plaintiff' s Expert - $1,906.00 1/8/26 Ricky Jimenez Transcript - $400.00
2 Defendant’s citation to Government Code Section 68086(c) is misplaced as Defendant provides no showing that these charges were from an official court reporter or official reporter pro tempore.
The invoices for the last four depositions identified above are on pages 7, 9, 10 and 23 of the 106 page document submitted by Defendant. The Court could not locate an invoice for the Dan Mark deposition. Further, Plaintiffs argue that Mr. Mark’s deposition was useless because he was no longer Defendant’s PMK. Defendant does not dispute this and provides no explanation as to why this deposition was reasonably necessary to the conduct of the litigation. (See Code Civ. Proc. § 1033.5(c)(2).) The Court grants the motion to tax this cost.
Plaintiffs also challenge the $400 fee for the deposition of Mr. Jimenez, who took Mr. Mark’s place as Defendant’s PMK, but provide no explanation as to why costs for this deposition should be disallowed. Defendant can recover costs for this deposition.
Plaintiffs also challenge the three deposition charges for their experts. Plaintiffs state that no deposition actually took place on November 26, 2025 (the second charge, above) due to Defendant’s own scheduling error and they should not be compelled to pay for Defendant’s mistake. Plaintiffs also state that as a result of Defendant’s mistake, depositions then took place on January 5, 2026 (the third charge, above) and January 6, 2026 (the fourth charge). While the Court agrees that Plaintiffs should not be required to pay for the $884.20 charge for the deposition that did not occur on November 26, 2025, Plaintiffs provide no reason why the Court should tax the costs for the depositions that were in fact subsequently taken. Therefore, the Court grants Plaintiffs’ request to tax the $244 and $884.20 charges but denies their request as to the remaining three charges ($4,176 total).
4. Witness fees
“Ordinary witness fees pursuant to Section 68093 of the Government Code” are recoverable as costs. (Code Civ. Proc. § 1033(a)(7).) Expert fees not ordered by the court are not recoverable. (Code Civ. Proc. § 1033(a)(7).)
Defendant cannot recover expert fees because there is no showing that these fees were ordered by the Court. (See Code Civ. Proc. § 1033.5(a)(8), (b)(1).) Defendant can recover ordinary witness fees pursuant to Government Code Section 68093, which provides that “[e]xcept as otherwise provided by law, witness’ fees for each day's actual attendance, when legally required to attend a civil action or proceeding in the superior courts, are thirty-five dollars ($35) a day and mileage actually traveled, both ways, twenty cents ($0.20) a mile.”
The fees Defendant seeks are flat rate appearance fees of Plaintiffs’ experts, Messrs. Bounds and Sayegh, who apparently appeared for the November deposition that did not happen and then again for deposition in January, which depositions did happen. Specifically, page 4 of the Memorandum identifies the fees as follows:
11/22/25 Expert Depo Fee - $1,900.00 1/5/26 Expert Depo Fee - $950.00 1/6/26 Expert Depo Fee - $950.00
For the reason discussed above, Plaintiffs should not be required to pay for witness fees for the November depositions as Defendant does not dispute that those did not take place due to its own error. Defendant is entitled to witness fees for the depositions in January, but only at the
rate set forth in Section 68093 and not the experts’ flat fee appearance rates. If Defendant provides a declaration at the hearing identifying the specific amount to which it is entitled for regular witness fees on January 5 and 6, 2026, the Court will allow Defendant to recover those fees.
5. Defendant’s 998 Offer
Plaintiffs argue that Defendant’s 998 Offer for $10,000 was not made in good faith. However, as Defendant points out in its Opposition, it seeks to recover fees under Section 1033.5 and not any 998 Offer. The Court therefore need not address Plaintiffs’ arguments about the validity of the 998 Offer.
All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.
The Zoom appearance information for June 2026 is as follows: https://marin-courts-cagov.zoomgov.com/j/1615487764?pwd=Ob4B5J7LLKcpnkxzJjjEOSHNzEGafG.1 Meeting ID: 161 548 7764 Passcode: 502070
If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov