Kittel vs Southern California Edison

If the items on a verified memorandum of costs appear to be expressly allowable charges under Code of Civil Procedure section 1033.5(a), the memorandum is prima facie evidence of their propriety, and the burden is on the party contesting them to show that they were not reasonable or necessary. (Hooked Media Group, Inc. v. Apple Inc. (2020) 55 Cal.App.5th 323, 338; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131-132.)The contesting party does not meet this burden by arguing that the costs were not necessary or reasonable but must instead present evidence to prove that the costs are not recoverable. (Litt v.

Eisenhower Med. Ctr. (2015) 237 Cal.App.4th 1217, 1224; see also Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266 [“Mere statements in the points and authorities accompanying [a party’s] notice of motion to strike cost bill and the declaration of its counsel are insufficient to rebut the prima facie showing.”].)

Alternatively, if the claimed items are not expressly allowed by statute and are objected to, then the burden of proof is on the party claiming them as costs to show that the charges were reasonable and necessary. (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; see also Nelson, supra, 72 Cal.App.4th at 132.)

Although initial verification will suffice to establish the reasonable necessity of the costs claimed and there is no requirement that copies of bills, invoices, statements, or other such documents be attached to the memorandum, once costs have been put in issue via a motion to tax costs, the moving party must submit supporting documentation. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.)

1 Additional defendants either defaulted or were dismissed and therefore are not subject to this analysis.

202200568438CUOR: Kittel vs Southern California Edison

B.

Analysis

Plaintiffs challenge four main categories of costs, each of which is separately evaluated below.

1. Item #1: Filing and Motion Fees: $1,071.92

Filing and motion fees are expressly allowable costs. (Code Civ. Proc., § 1033.5, subd. (a)(1).) Because these costs are expressly allowable by statute, the burden is on Plaintiffs as the moving party to show that the charges were not reasonable or necessary.

Defendant filed three motions in this case: Motion to Strike, Motion to Deem Facts Admitted, and Motion for Judgment on the Pleadings. Plaintiffs contend that the Motion to Strike attorney fees and treble damages from the complaint was unnecessary because there was no value in determining whether these items were awardable at the beginning of the case. Plaintiffs further allege that the Motion to Deem Facts Admitted was unnecessary because Plaintiffs never served RFAs and Defendant failed to meet and confer before filing the motion.

Additionally, Plaintiffs claim that the Cross-Complaint and Amended Cross-Complaint filed by Defendant were unnecessary because Defendant did not cross-complain against Plaintiffs. Plaintiffs note that the Motion to Strike and Motion to Deem Facts Admitted were ultimately unsuccessful and the cross-defendants dismissed from the case. In its opposition, Defendant states that a prevailing party may recover filing and motion fees even for motions the court declined to grant, so long as the filing was reasonably necessary to the conduct of the litigation.

Defendant also disputes Plaintiff’s merits arguments regarding the motions (positing that Defendant did serve documents and did meet and confer).

Courts may award costs related to a defendant’s filings and motions that were ultimately unsuccessful if they were filed in good faith as a reasonable step to limit the defendant’s exposure. (Rozanova v. Uribe (2021) 68 Cal.App.5th 392, 400.) Here, Defendant’s motions aimed to reduce or eliminate its exposure to attorneys’ fees and treble damages. Moreover, confirming whether attorney fees are awardable and whether a claim is subject to treble damages early in the case may impact litigation strategy, settlement discussions, and similar matters.

Defendant’s amended cross-complaint sought indemnity and apportionment from third parties. Cross-complaining against another potentially responsible party may reduce a defendant’s liability and failing to do so might result in waiver. Therefore, the Court finds that Defendant’s cross-complaint and motions were filed in good faith and “reasonably necessary to the conduct of the litigation.”

The amount of the costs, however, are not substantiated by the record. The Memorandum of Costs seeks filing and motion fees of $1,071.92, including $616.92 for court filing and motion fees; $20.00 for a stipulation and court order fee; and $435.00 for its first appearance fee. A review of filing fees within this case shows only a total of $635.00 in filing fees paid by Defendant. Once a moving party puts costs at issue, the burden shifts to the prevailing party to provide documentation of its costs. (Jones, supra, 63 Cal.App.4th at 1267.) Here, Defendant did not provide documentation of any filing or motion costs in excess of $635.00. Consequently, the Court taxes $436.92 in filing and motion costs (thereby reducing the filing and motion cost award to $635.00).

2. Item #5: Service of Process: $1,451.43

Costs incurred in connection with service of process are expressly allowed. (Code Civ. Proc., § 1033.5, subd. (a)(4).) If service is by a registered process server, the recoverable cost is the amount actually incurred in effecting service. (Ibid.) Because these costs are expressly allowable by statute, the burden is on Plaintiffs as the moving party to show that the charges were not reasonable or necessary.

Plaintiffs assert that they should not be liable for service of third-party cross-defendants, and that Defendant did not specify details of service of process and if it was done by a registered process server. Defendant counters that it is not seeking reimbursement for gratuitous courier work or convenience charges but recovery of service costs incurred to serve papers in this action, and identifies the documents served, the vendors used, and that service was effected through registered process servers (rendering the $50 limit inapplicable). For this cost, Plaintiffs have not met their burden to show that the charges were not reasonable or necessary. Nothing in the statute limits recoverable service of process costs to service on plaintiffs or restricts such costs on cross-complaints. As

202200568438CUOR: Kittel vs Southern California Edison

stated above, the cross-complaint was reasonably necessary to Defendant’s defense and indemnity rights. The Court therefore accepts Defendant’s declaration regarding these costs.

Separately, Plaintiffs argue that Defendant improperly included $834.08 in messenger fees in this category of costs and should have been placed in “other.” Defendant counters that these vendor charges were to serve Plaintiffs via mail since they were self-represented for part of the case and would not accept electronic service and avers that these costs should be awarded even if discretionary. Plaintiffs are correct that messenger fees are not expressly authorized by the Code of Civil Procedure, and Defendant is correct that they may be allowed in the discretion of the court. (Nelson, supra, 72 Cal. App. 4th at 132.)

Since these costs are not expressly authorized by statute, the burden is on Defendants to prove that they are reasonably necessary. The Memorandum of Costs worksheet under Item 5 “Name of Person Served” simply lists the “process server” and does not provide specific information on who was served. Item 5c lists the person served as “Messenger.” This information is unclear. More importantly, however, Defendant failed to explain why it required a service vendor to serve by mail. Defendant has not met its burden to prove these costs. Accordingly, the $834.08 in messenger charges are taxed for lack of documentation and explanation (resulting in a total service of process cost award of $617.35).

3. Item #14: Fees for Electronic Filing or Service: $391.50

Code of Civil Procedure section 1033.5, subdivision (a)(14), allows for recovery of “Fees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.” Because these costs are expressly allowable by statute, the burden is on Plaintiff as the moving party to show that the charges were not reasonable or necessary.

Plaintiffs argue that there were 30 filings and the costs is $11, so the costs should be $330.00 and not the claimed $391.50. Plaintiffs further allege that 11 filings were unnecessary so the costs should only be $209.00. Defendant counters that Ventura County requires represented parties to file electronically and that several of the challenged charges were court-filing-service charges for substantive filings, not flat per-filing transaction fees (and, as such, Plaintiffs’ math is wrong).

The Court rejects Plaintiffs’ argument that the 11 filings were unnecessary. Those 11 filings total $330.00. Defendants have not provided any documentation in support of the additional $61.50 in filing fees. Consequently, the Court taxes $61.50 for lack of documentation and allows the remaining $330.00 in electronic filing fees.

4. Item #15: Other $872.52

Code of Civil Procedure section 1033.5, subdivision (c)(4) provides that “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” (Code Civ. Proc., § 1033.5, subd. (c)(4).) Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary. (Foothill-De Anza, supra, 158 Cal.App.4th at pp. 29-30.)

a. Attorney Travel: $477.67

Plaintiffs argue that Code of Civil Procedure section 1033.5 only provides for attorney travel when it is to depositions and that since Defendant claims CourtCall fees for some hearings, there was no necessity in the extra expense in having an attorney physically attend any of the hearings in person (citing Ladas v. California State Auto Assn. 19 Cal.App.4th 761, 775-776 for the proposition that routine expenses for local travel are not an allowable costs). Defendant counters that its travel was not routine local travel as in Ladas but instead was travel from Los Angeles County to Ventura County to appear at two substantive hearings (the Motion to Deem Matters Admitted and Motion for Judgment on the Pleadings).

Although routine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation under Ladas, courts have awarded costs for legal staff traveling from one county to another for trial and hearings. (See, e.g., Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 696 [allowing meals and lodging expenses for legal assistant who traveled from outside of county to assist at trial].) Here, however, Defendant did not provide any

202200568438CUOR: Kittel vs Southern California Edison

explanation of the nature of the travel expenses or any supporting documentation to substantiate this cost. Therefore, the $477.67 is taxed.

b. Court Call: $288.00

Plaintiffs assert that there were only 5 hearings in this case, Defendant’s counsel attended two of those hearings in person, and one of the remaining three hearings (the Motion to Strike) was unnecessary. Plaintiffs claim that costs should be awarded for only two CourtCalls, resulting in a total of $144.00 allowed charges instead of the $288.00 sought.

Defendant argues that the CourtCall charges should be allowed as it is a court-appearance mechanism that allowed counsel to appear remotely in a case venued in Ventura while avoiding the greater cost of physical attendance and that courts recognize that telephonic-appearance fees are recoverable in the Court’s discretion. Defendant posits that it incurred four net CourtCall charges (after one cancelled appearance was credited) and that Plaintiffs’ assertion that only two appearances should count is unsupported and contradicted by Defendant’s records.

Defendant’s counsel’s declaration states Defendant incurred telephonic-appearance fees on January 18, 2023; July 21, 2023; November 6, 2023; January 10, 2024; and April 5, 2024, with a credit for a cancelled appearance credited, resulting in four net appearances totaling $288.00. (Opp., Bachor Decl. ¶ 8.) Defendant has therefore met its burden of substantiating this cost. This portion of Plaintiff’s motion is denied.

c. Postage and Copying: $10.85

Plaintiffs cite to Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1627 and Code of Civil Procedure section 1033.5(b)(3) to argue that posts and copying costs are not allowed. Defendant concedes this cost. The $10.85 in costs for postage and copying is consequently taxed.

d. Records Retrieval: $96

Plaintiffs argue that these must be disallowed as there is no indication as to what the records are and why it was necessary to have their retrieval. Defendant’s counsel’s declaration states that on March 1, 2026, he obtained recorded deeds and parcel maps from the Ventura County Recorder, at a cost of $96.00, for use in evaluating and defending the easement issues Plaintiffs placed at issue. In their Reply, Plaintiffs note there is no substantiation of the costs. Because Defendant failed to provide documentation of this cost, this cost is taxed.

C.

Conclusion

The Motion is GRANTED in part as to:

(1) Item 1 Filing and Motion Fees: Reduced to $635 per court record of filing fees (Taxed $436.92); (2) Item 5 Service of Process: Reduced to $617.35 (Taxed $834.08); (3) Item 14 Fees for Electronic Filing or Service: Reduced to $330.00 (Taxed $61.50); and (4) Item 15 Other: Reduced to $288.00 for CourtCall appearances (Taxed $584.52).

The Motion is DENIED as to all other challenged items.

Defendant Southern California Edison Company’s Memorandum of Costs in the amount of $3,937.37 is hereby ORDERED TAXED in the amount of $1,917.02. Defendant, thus, shall recover its reasonable costs against Plaintiffs in the reduced sum of $2,020.35.

Counsel for the moving party to give notice of the Court’s ruling.

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