Motion to Tax Costs
In re Estate of Carl J. Treise, PR040209
Hearing: Motion to Tax Costs
Date: July 15, 2026
Sandra Natali (Petitioner) filed this estate proceeding and a related trust litigation 1 to remove and surcharge Kim Marie Martel (Respondent) as administrator of the Estate of Carl J. Treise, and as successor trustee of the Trust. On March 17, 2026, the Court entered its Statement of Decision and Judgment in favor of Petitioner. On April 1, 2026, Petitioner filed a Memorandum of Costs (Cost Memo), and on April 21, 2026, Respondent filed the subject Motion to Tax Costs (Motion).
Respondent seeks to tax court fees on the ground that Petitioner could have obtained a fee waiver and therefore would never have incurred court fees. Respondent argues that the costs are not numbered and lack sufficient specificity to analyze and challenge whether they were reasonably necessary to the litigation, particularly E-Legal filing and transaction fees. Respondent complains that duplicate papers were filed in both this and the Trust Action when Petitioner could have consolidated the cases. Respondent asserts that fees for document production could have been avoided by electronic production.
Petitioner opposes the Motion contending that it does not comply with California Rules of Court, Rule 3.1700(b), in that the cost items objected to are not properly specified. Petitioner also asserts that the costs were contemporaneously recorded as they were incurred during the litigation and were reasonably necessary. Petitioner provides the declaration of her attorney, Jonas Bailey, explaining that certain fees were incurred due to Respondent’s conduct.
I. APPELLATE STAY
Respondent argues that her motion to tax costs is stayed by notice of appeal of the judgment. (Reply Memorandum in Support of Motion to Tax Costs). Generally, an appeal stays proceedings as to the judgment or order appealed from or as to matters embraced therein or affected thereby, including enforcement of the judgment or order. (Code Civ. Proc., § 916, subd. (a).) The purpose of the stay is to preserve the status quo until the appeal is decided so the appeal is not rendered futile. The “pendency of an appeal does not divest the trial court of jurisdiction to determine ancillary or collateral matters which do not affect the judgment on appeal.” (
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A motion to tax costs is an ancillary or collateral matter that does not impact the effectiveness of the appeal. (Hennessy v. Superior Court (1924) 194 Cal. 368, 372; Hoover Community Hotel Development Corp. v. Thomson (1985) 168 Cal.App.3d 485, 487.) An order on a motion to tax costs entered after final judgment is separately appealable. (Jimenez v. City of Oxnard (1982) 134 Cal.App.3d 856, 858.) “A disposition that reverses a judgment automatically vacates the costs
1 In re the Rose E. Treise Trust Dated December 21, 1989, As Amended (Trust), San Luis Obispo County Superior Court, Case No. 17PR-0109 (Trust Action).
award in the underlying judgment even without an express statement to this effect.” (Ducoing Management, Inc. v. Superior Court (2015) 234 Cal.App.4th 306, 314; see also, Higginson v. Kia Motors America, Inc. (2026) 118 Cal.App.5th 316, 353 [order awarding costs falls with reversal of judgment on which it is based].)
For these reasons, Respondent’s motion to tax costs is not stayed by the appeal.
II. LEGAL STANDARD FOR RECOVERY OF COSTS
Code of Civil Procedure section 1033.5 2 sets forth a list of recoverable and non-recoverable costs. Where a cost is expressly allowed and appears proper on its face the objecting party has the burden of showing the cost is unnecessary or unreasonable. (Nelson v. Anderson (1999) 72 Cal. App. 4th 111, 131.) Section 1033.5, subdivision (c) provides in relevant part, “[a]llowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “shall be reasonable in amount.”
California Rules of Court, rule 3.1700 does not specify a format for the memorandum of costs but requires that contested 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 unless objecting to the entire cost memorandum. (Cal. Rules of Court, rule 3.1700, subd. (b)(1).)
Here, Respondent objects to the entire Cost Memo and to specific cost entries. The attachments to the Cost Memo do not number the entries. Respondent cannot, therefore, be expected to use the same number where no number was given for each item of costs. The Respondent must, however, state why an item is objectionable. The Court will address each item specified in Respondent’s motion but will not address items not specified and discussed by Respondent.
As relevant to the Motion, expressly authorized costs include (1) filing fees; (2) motion fees; (3) costs for taking, 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; (4) service of process fees; (5) court reporter fees as established by statute; (6) Models, enlargements of exhibits, and photocopies of exhibits; (7) electronic filing service fees; (8) any other cost required by statute as an incident of prevailing. (§ 1033.5, subd. (a).)
Costs expressly not allowable are (1) fees of experts not ordered by the court; (2) investigation expenses; (3) postage, telephone, and photocopying charges, except for exhibits; (4) voir dire investigation costs; and (5) transcripts of court proceedings not ordered by the court. (§ 1033.5, subd. (b).)
2 Further statutory references are to the Code of Civil Procedure unless otherwise noted.
III. RECOVERABLE COSTS
A. Failure to Obtain Fee Waiver
Respondent argues that all costs should be stricken because Petitioner qualifies for and could have obtained a fee waiver. (Motion, p. 3, lns. 17-21.) A fee waiver “excuses the applicant from paying fees for the first pleading or other paper, and other court fees and costs, including assessments for court investigations....” (Gov. Code, § 68631.) It would not apply to the other costs listed in the Cost Memo. As to court fees, Respondent has not shown Petitioner would have obtained a fee waiver or that failure to do so is a basis for denying the costs.
Respondent declares that Petitioner became eligible for Social Security benefits prior to these proceedings and therefore qualified for a fee waiver. (Declaration of Kim Marie Martel (Martel Dec.), ¶ 2.) Not so. Only need-based Supplemental Security Income, rather than ordinary Social Security benefits, is listed as a basis for a fee waiver. (Gov. Code, § 68632, subd. (a).) Petitioner would have had to submit a financial statement showing her monthly income is 200 percent or less of the current poverty guidelines or that she could not pay court fees without using money that normally would pay for the common necessaries of life. (Id. at subds. (b), (c).) Respondent has not shown that Petitioner met this criteria. Nor has Respondent cited authority that failure to apply for a fee waiver renders costs unreasonable.
B. Filing and Motion Fees
Respondent argues that many of the costs listed in Attachment 1g to the Cost Memo do not provide sufficient information to determine whether they are reasonable. She specifies E-Legal fees as lacking information with some identified only by transaction ID or envelope number. (Motion, p. 4, ln. 23-p. 5, ln. 11.) The Court agrees that merely listing entries that identify E-Legal costs by numbers without any description of the reason for the cost incurred is inadequate. (Nelson v. Anderson (1999) 72 Cal. App. 4th 111, 132 [costs denied where memorandum of costs did not state how subpoenas were served and was therefore insufficient for determination of whether the items were proper].)
The Court finds the following items listed in Attachment 1g to the Cost Memo, which total $524.05, insufficient to support a cost award:
12/15/2022 E-file 3.5 12/15/2022 E-file 3.5 12/14/2022 E-Legal Filing 3.5 12/14/2022 E-Legal Filing 3.5 12/9/2022 E-Legal Filing 3.5 12/9/2022 E-Legal Filing 3.5 12/9/2022 E-Legal Filing 3.5 12/8/2022 E-Legal Filing 3.5 12/6/2022 E-Legal Filing 3.5 12/6/2022 E-Filing service fee 3.5 12/5/2022 E-Filing Service Fee 3.5
1/13/2023 E-file Transaction Id: 16766307 65.25 1/31/2023 E-file Transaction Id: 16989915 65.25 E-File Transaction ID: 17346615 3.6 2/16/2023 E-File Transaction ID: 17200500 65.25 9/27/2023 eFile - Transaction ID. 013135859-0 Case No. PR040209 3.6 10/26/2023 eFile - Transaction ID. 013418277-0 Case No. PR040209 3.6 10/16/2023 eFile - Transaction ID. 013316350-0 Case No. PR040209 3.6 10/13/2023 eFile - Transaction ID. 013234995-0 Case No. PR040209 3.6 11/21/2023 eFile - Transaction ID. 13657076 Case No. PR040209" 3.6 11/14/2023 eFile - Transaction ID. 13590260 Case No. 17PR-0109 65.25 11/14/2023 eFile - Transaction ID. 13589967 Case No. PR040209 65.25 11/1/2023 eFile - Transaction ID. 13475022 Case No. PR040209 65.25 11/1/2023 eFile - Transaction ID. 13474769 Case No. PR040209 65.25 1/31/2024 Envelope ID 14277078 3.6 1/31/2024 Envelope id 14274352 3.6
Respondent also argues that filing fees for filing proofs of service with the Court were unnecessary. The Court disagrees. Filing a proof of service is critical to every court filing and failure to file a proof of service can have significant consequences. Respondent’s reference to defaulted parties is not supported by evidence that Petitioner filed a proof of service on a defaulted party.
Respondent also complains that duplicate filings were made in this and the Trust Action, suggesting Petitioner should have consolidated the actions. She cites no authority for taxing costs resulting from the prevailing party’s decision not to consolidate cases. The cases were coordinated for purposes of trial only and documents concerning both cases had to be filed in both cases. The filing fees for duplicate filings are recoverable.
C. Deposition Costs
Respondent argues that costs for a late canceled deposition and incomplete service due to a bad address are not reasonable. Absent evidence as to why these costs were incurred, they do appear unreasonable. Petitioner addresses the issue but offers no explanation as to why a deposition was canceled late or why the process server had a bad address. (See, Opposition, p. 7, lns. 3-10.) As for Respondent’s objection to charges for incomplete service on Shelby Treise Emerald, Thomas Treise, and Beverly Treise, there is nothing in the item entries that indicates the failure to effect service arose from an unreasonable error of Petitioner or her counsel. There are many reasons multiple attempts at service may be necessary, and Respondent has not shown Petitioner’s ineffective attempts were unnecessary.
The Court finds the following items listed on Attachment 4e to the Cost Memo, totaling $590.00, insufficient to support a cost award:
7/11/2024 "McDaniel Reporting Invoice No. 127623 Services Rendered: Late Cancellation Fee" 350; 5/1/2024 "E-Legal Services Invoice No.: C118297-01-01 Case No.: PR-040209 Location and Description of Services Rendered: Bad Address: Paso Robles Service
of Process: Templeton Fees Advanced Processing Fee Regarding: Estate of J. Carl Treise at Wayne Lewis, BHHS Hallmark Realty Paso Robles" 240.
Respondent further argues that it was unnecessary to personally serve banks with deposition subpoenas rather than by mail. However, personal service is required by statute. (§ 2020.220, subd. (b).)
D. Service of Process Costs
Respondent contends that costs for reproduction of trial exhibits and postage costs are not recoverable. Photocopying and postage costs are expressly not recoverable. (§ 1033.5, subd. (b).) Petitioner offers no authority that photocopying and postage incurred as part of service of process are recoverable and case law holds otherwise. (See, Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, 775; Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1627-1628.)
The Court finds the following items listed on Attachment 5d to the Cost Memo, totaling $302.45, insufficient to support a cost award:
3/28/2017 Copied Verified Petition, Summons, Notice of Hearing, and Notice and Acknowledgment of receipt at FedEx to serve on opposing and beneficiaries. 81.95 3/28/2017 Served opposing and beneficiaries with Petition/Summons/Notice of Hearing/Notice and Acknowledgment of Receipt using USPS 33.25 10/31/2024 "E-Legal Services Invoice No.: C118893-01-01 Services Rendered: Prints, B&W and Color Rush Service" 187.25
E. Transcripts of Court Proceedings
Respondent contends that all charges for court transcripts listed in Attachment 11 to the Cost Memo are not recoverable. Petitioner counters that the Court has discretion to award costs for trial transcripts not ordered by the Court. Section 1033.5, subdivision (c)(4), gives a court discretion to award costs for “items not mentioned in this section.” Section 1033.5, subdivision (b)(5), expressly states that “[t]ranscripts of court proceedings not ordered by the court” are not recoverable. The Court has no discretion to award such costs. “Court reporter fees as established by statute,” however, are expressly allowed as recoverable costs. (§ 1033.5, subd. (a)(11).)
The Court finds the following items listed on Attachment 5d to the Cost Memo, totaling $7,507.19, insufficient to support a cost award:
9/2/2022 1 copy of reporter’s transcript of proceedings 28.28 10/10/2023 1/2 of Cost of 10/10 Motion to Release Funds Hearing Transcript 291.79 7/24/2024 "Veritext Legal Solutions Invoice No.: 7585029Services Rendered: Transcript Services, Exhibits, Logistics, Processing & Electronic files" 1403.1 Trial Transcript 8/28/24, Split between offices Per Diem Split" 604.18 8/29/2024 "McDaniel Reporting Invoice No.: 127997 Services Rendered: Original
and (1) Certified Transcript of Trial, Split" 618.32 8/19/2024 "McDaniel Reporting Invoice No.: 128052 Services Rendered: Original and (1) Certified Copy of Trial Transcripts 8/19/24, Split" 179.56 8/20/2024 "McDaniel Reporting Invoice No.: 128058 Services Rendered: Original and (1) Certified Copy of Trial Transcripts 8/20/24, Split" 248.38 8/22/2024 "McDaniel Reporting Invoice No.: 128059 Services Rendered: Original and (1) Certified Copy of Trial Transcripts 8/22/24, Split" 291.16 8/21/2024 "McDaniel Reporting Invoice No.: 128060 Services Rendered: Original and (1) Certified Copy of Trial Transcripts 8/21/24, Split" 159.1 8/26/2024 "McDaniel Reporting Invoice No.: 128068 Services Rendered: Original and (1) Certified Copy of Trial Transcript, Split Court Per Diem; Half-Day, Split" 494.44 8/27/2024 "McDaniel Reporting Invoice No.: 128081 Services Rendered: Trial on 8/27/24 Court per diem, full day; split Original and (1) Certified Copy of Transcript on trial date 8/27/24" 894.88 9/25/2024 "Jill Carrera Invoice No.: 1060 Transcript deposit, split between firms" 1000 10/9/2024 "Jill Carrera Invoice No.: 1062 Remainder due for trial transcripts, split between firms" 1294
E. Trial Binders
Respondent admits that trial exhibits are recoverable costs but argues that Petitioner provided insufficient information to determine whether the amount is reasonable. The services rendered and costs are sufficiently described and Respondent offers no evidence that the cost is unreasonable.
F. Costs of Obtaining Trust and Estate Records
Respondent argues that costs Petitioner incurred in scanning Trust and Estate documents Respondent failed to produce are photocopies that are not recoverable. On the contrary, Respondent had a duty to produce the documents and refused to do so. Petitioner obtained a court order to scan the records. (Bailey Dec., ¶¶ 8, 9.) The Court has discretion to award discovery costs as they are not mentioned in section 1033.5. (Hooked Media Group, Inc. v. Apple Inc. (2020) 55 Cal.App.5th 323, 338-339.)
G. Discovery Referee Costs
The Court ordered the parties to engage the services of a discovery referee. (Bailey Dec., ¶ 5.) The payment of discovery referee costs may be awarded as costs. (Glickman v. Krolikowski (2025) 109 Cal.App.5th 527, 532.)
IV. RULING
The motion to tax costs is granted as to $8,923.69. Petitioner is awarded costs in the sum of $53,971.85.