Vicki Brown DeSmet, et al. v. Gregory L. DeSmet, et al.

(b) Contesting costs

(1) Striking and taxing costs

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 by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(3).

(2) Form of motion

Unless objection is made to the entire cost memorandum, the motion to strike or tax 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.

(3) Extensions of time

The party claiming costs and the party contesting costs may agree to extend the time for serving and filing the cost memorandum and a motion to strike or tax costs. This agreement must be confirmed in writing, specify the extended date for service, and be filed with the clerk. In the absence of an agreement, the court may extend the times for serving and filing the cost memorandum or the notice of motion to strike or tax costs for a period not to exceed 30 days.

(4) Entry of costs

After the time has passed for a motion to strike or tax costs or for determination of that motion, the clerk must immediately enter the costs on the judgment. (Cal. Rules of Court, rule 3.1700, bold in original.)

DISCUSSION

Summary of Arguments

Defendants move to strike or tax the entire $20,546.11 in costs claimed in Plaintiff DPI's Memorandum of Costs. First, Defendants contend that Plaintiff Vicki Brown is not a prevailing party under Code of Civil Procedure section 1032, subdivision (a)(4), because Defendants prevailed on all claims she alleged, and therefore she is not entitled to recover costs.

Second, Defendants contend the Memorandum of Costs is incomplete and violates California Rules of Court, rule 3.1700, subdivision (a)(1), because Plaintiff DPI served only the Judicial Council Memorandum of Costs (Summary) (MC-010) and not the Memorandum of Costs (Worksheet) (MC-011), leaving Defendants and the Court unable to evaluate whether the claimed costs are permissible, reasonable, and necessary. Defendants therefore argue that the entire memorandum should be stricken or, alternatively, that Plaintiff DPI should lose the prima facie presumption that the charges are proper and every category should be taxed.

Defendants separately object to each category: (1) the $720.00 in filing and motion fees, noting that Plaintiffs' three discovery motions each sought a $60.00 fee that was denied, totaling $180.00; (2) the $1,787.35 in deposition costs on the basis that no deponents were identified; (3) the $650.39 in service-of-process costs on the grounds that defense counsel accepted service by Notice and Acknowledgment; (4) the $12,456.42 in witness fees, which Defendant calculates as far exceeding statutory ordinary witness fees and contends must be disallowed expert witness fees under section 1033.5, subdivision (b)(1); (5) the $3,587.54 in court reporter fees based on a privately retained reporter, which Defendant argues is not an allowable cost; and (6) the $1,344.41 in electronic filing and service of process fees as being unspecified.

In opposition, Plaintiff DPI contends it is the prevailing party under Code of Civil Procedure section 1032 because, following trial, the Court entered judgment in its favor on the quiet title and cancellation of instrument causes of action, declaring the quitclaim deed void and quieting title to the subject commercial property, and that the Court's Final Decision expressly provides that as the prevailing party it may recover its costs.

Plaintiff DPI argues that its verified Memorandum of Costs constitutes prima facie evidence that the claimed costs were necessarily incurred, that the MC-011 Worksheet is an optional form, and that Defendant cites no statute, rule, or decision holding that omission of the Worksheet voids a verified memorandum or requires taxation of all costs. Plaintiff DPI contends Defendant has not met his burden because he identifies no specific improper item and instead relies on conjecture that improper costs "may" have been included.

Plaintiff DPI further argues that: (1) the filing fees are recoverable and that Defendant offers no evidence the denied sanction fees were included: (2) the deposition costs, including the deposition of Scott DeSmet, were necessary; (3) service costs extend beyond the initial pleading to subpoenas and notices; (4) the witness fees, including handwriting expert Bart Baggett, are recoverable as pecuniary damages for slander of title because his testimony was necessary to clear title and rebut the forgery claim; (5) that the court reporter fees are recoverable and Defendant's counsel agreed in writing to split the trial reporter's fees; (6) and the electronic filing fees are recoverable with no specific charge shown to be improper. Plaintiff states that invoices and proofs of payment for each category are attached to counsel's declaration.

Analysis

First, as stated in the judgment, Plaintiff DeSmet Property Investments is the prevailing party and is entitled to recover costs subject to application by filing a Memorandum of Costs, and Plaintiff Vicki took nothing by way of the Complaint. (Judgment (5/19/26.) DeSmet Property Investments (DPI) is therefore entitled to costs. (Code Civ. Proc., Sec. 1032.) Also, only DeSmet Property Investments filed the Memorandum of Costs, so Defendants' arguments regarding Vicki were unnecessary.

Second, Rule 3.1700, subdivision (a)(1), only requires that a prevailing party file and served a verified memorandum of costs. It does not require the MC-011 Worksheet. (See Cal. Rules of Court, rule 3.1700, subd. (a)(1).) "Initial verification will suffice to establish the reasonable necessity of the costs claimed. There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum." (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) Accordingly, Defendants' arguments based on the lack of the MC-011 Worksheet are unavailing.

Third, the Court finds Defendants' arguments concerning a number of the claimed costs unpersuasive. Defendants' only objection concerning the filing and motion fees is that three of Defendants' discovery motions, each of which sought a $60.00 filing fee as part of a sanctions request, were denied. Under California law, filing and motion fees are generally allowable as costs to a prevailing party. (See Cal Code Civ Proc Sec. 1033.5, Perko's Enterprises, Inc. v. RRNS Enterprises, 4 Cal. App. 4th 238.)

However, a prevailing party does not have an absolute right to recover the filing fees for a discovery motion that was previously denied. The recovery of these fees is subject to the trial court's statutory discretion to disallow costs that were not reasonably necessary to the conduct of the litigation. (Perko's Enterprises, Inc., supra, 4 Cal. App. 4th at pp. 241-245; Rozanova v. Uribe, 68 Cal. App. 5th 392, 399-401.) Although the Court denied the requests for monetary sanctions, the Court finds that the motions were reasonably necessary to the conduct of the litigation.

The Court therefore DENIES the Motion as to Plaintiff's filing and motion fees.

As for deposition costs, those are expressly allowed. (Code Civ. Proc., Sec. 1033.5, subd. (a)(3).) Defendants do not identify any particular deposition as unnecessary; they only object to the absence of itemization, which fails for the reasons set forth above. The Court also notes that Defendants' Reply withdraws their objections to the deposition costs. (Reply, 4:4-13.) The Court therefore DENIES the Motion as to Plaintiff's deposition costs.

Regarding service of process, Plaintiff DPI provided invoices supporting the costs of attempted service of the summons and complaint, which are allowable costs. (See Code Civ. Proc., Sec. 1033.5, subd. (a)(4).) As such, the fact that Defendants' counsel later accepted service of the Summons and Complaint in this action via Notice and Acknowledgement of Receipt does not render the prior costs reasonably incurred unrecoverable. The Court therefore DENIES the Motion as to Plaintiff's service costs.

However, the Court finds problems with some of Plaintiff DPI's other claimed costs. Code of Civil Procedure section 1033.5, subdivision (a)(8), only allows expert fees when ordered by the court. (Code Civ. Proc., Sec. 1033.5, subd. (a)(8).) Plaintiff concedes that the claimed witness fees are for Plaintiff's handwriting expert. (Opp., 7:6-9; Sallus Decl., P. 11, Ex. F.) The Court did not order any such expert witness testimony. Also, Plaintiff's contention that such expert fees are recoverable as pecuniary damages for Plaintiff's slander of title claim is unavailing for the same reason the Court awarded Plaintiff no attorney fees on that claim, i.e., they are an element of damages that required a presentation of evidence at trial. (See Final Decision After Court Trial (4/24/26); Sumner Hill Homeowners' Assn., Inc. v.

Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1030 ["attorney fees and litigation costs are recoverable as pecuniary damages" when necessary to prove a slander of title claim]; Brandt v. Superior Ct. (1985) 37 Cal.3d 813, 819 ["Since the attorney's fees are recoverable as damages, the determination of the recoverable fees must be made by the trier of fact unless the parties stipulate otherwise. [Citation]"].) Plaintiff DPI has not shown these are proper costs. The Court therefore GRANTS the Motion as to Plaintiff's witness fees in the amount of $12,456.42.

Finally, with respect to court reporter fees, the Court finds them not allowable in this case. While court reporter fees are generally recoverable as costs, (see Code Civ. Proc., Sec. 1033.5, subd. (a)(11); Gov. Code, Sec. 68086; Cal. Rules of Court, rule 2.956), case law also holds that where "the parties agree to share costs during litigation, the courts will enforce those agreements as written...." (Anthony v. Li (2020) 47 Cal.App.5th 816, 824.) Plaintiff's Opposition shows that the parties agreed to split court reporter fees for the trial, and there is no indication that there was a reservation for prevailing party recovery. (Sallus Decl., Ex. I.) Plaintiff's invoices also show that the charges were incurred solely in connection with the trial and the hearing on the Court's final decision. (Sallus Decl., Ex. G.) Accordingly, the Court GRANTS the Motion as to the $3,587.54 in costs.

Based on the foregoing, the Court GRANTS in part the Motion.

CONCLUSION

The Court GRANTS in part Defendants' Motion to Tax Costs. The Court hereby STRIKES the $12,456.42 in witness fees and the $3,587.54 in court reporter fees. The Court DENIES the Motion in all other respects. Plaintiff DPI is ordered to give notice of the Court's ruling within five calendar days of this order.

[1] The Court refers to Vicki, Gregory, and Scott by their first names only to avoid confusion and intends no