Jazo v. GM

Statement of the Law

Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of

right to recover costs in any action or proceeding. (Code Civ. Proc., §1032(b).) When

authorized by contract, statute or law, reasonable attorney’s fees are “allowable costs.” (Code

Civ. Proc., §1033.5 (a)(10)(A), (B), & (C); Santisas v. Goodwin (1998) 14 Cal.4th 599, 606.)

Costs statutes are to be strictly construed. (Sequoia Vacuum Systems v. Stransky (1964) 229

Cal.App.2d 281, 289.) If the items appearing on a costs bill appear to be proper charges, the

party seeking to tax costs bears the burden of showing they are not reasonable or necessary. If

the items are properly objected to, however, then the party seeking costs bears that

burden. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)

The mere filing of a motion to tax costs may be a "proper objection" to an item, the necessity of

which appears doubtful, or which does not appear to be proper on its face. (Oak Grove School

Dist. v. City Title Ins. Co. (1963) 217 Cal. App. 2d 678, 698-699.) However, "[i]f the items appear

to be proper charges the verified memorandum is prima facie evidence that the costs, expenses

and services therein listed were necessarily incurred by the [party seeking costs] [citations], and

the burden of showing that an item is not properly chargeable or is unreasonable is upon the

[objecting party]." (Id., at p. 699; see also Miller v. Highland Ditch Co. (1891) 91 Cal. 103, 105-

106.)

Unlike the memorandum of costs, a motion to tax need not be verified. Where the objections are

based on factual matters, the motion to tax must be supported by declarations under penalty of

perjury. (County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113-1114.)

Analysis

There is no dispute that Plaintiff is the prevailing party and therefore entitled to recovery

of costs.

Defendant first asks the Court to tax $31.68 in filing fees for efiling of noticed of advanced

jury fees and the initial trial setting conference statement. Defendant argues it should not be

responsible for this payment because the case never went to trial and these expenses did

nothing to advance Plaintiff’s case. However, the mere fact that the case did not go to trial does

not mean related expenses were not justified because Plaintiff’s counsel would not have known

the case would settle until later and had to preserve Plaintiff’s right to a jury. Efiling of such

documents is a necessary and reasonable expense. Thus, the Court allows this claim.

Defendant next asks the Court to strike the $150 jury fee deposit. Defendant argues jury

fees are only recoverable when a trial occurs under Perko’s Enterprises, Inc. v. RRNS

Enterprises (1992) 4 Cal.App.4th 238, 245. However, this pinpoint citation does not preclude

recovery of the jury deposit in this situation. Again, deposit of the jury fees was reasonable and

necessary at the time even though the case ended up settling later. Thus, the Court allows this

claim.

Next, Defendant asks the Court to strike $655.08 in expenses incurred for serving

subpoenas on non-party dealership employees for depositions that never occurred. Again, when

the deposition notices were served Plaintiff’s counsel would have reasonably anticipated the

depositions would in fact go forward. These expenses were reasonable advanced and are

properly recoverable. Therefore, the Court allows this claim.

Lastly, Defendant challenges $250 in costs listed under line 15 (“Other”) on the

memorandum of costs. The motion and opposition both state that the cost is identified as

“mediation”, but no such reference appears on the memorandum of costs. Instead, the item is

entirely without explanation. Nevertheless, in opposition Plaintiff contends the reference to

mediation was in error, and the expense was for a court reporter for Plaintiff’s deposition. An

invoice is attached. (Song Decl., ¶¶7-8; Exh. A.) Although this cost was inadequately explained

in the first instance, it is now properly supported and justified. Thus, the Court allows this cost as

well and deny the motion to tax in full.