A. ROE v. VALLEJO CITY UNIFIED SCHOOL DISTRICT and JAMES DOE

The court notes that plaintiff requested costs be included in the judgment. However, costs may be awarded only upon the filing of a memorandum of costs under CRC 3.1700 after judgment is entered.

A. ROE v. VALLEJO CITY UNIFIED SCHOOL DISTRICT and JAMES DOE Case No. FCS059425

Plaintiff’s Motion to Strike or Tax Costs

Plaintiff A. ROE moves to strike or tax $6,425 in mediation fees claimed in Defendant VALLEJO CITY UNIFIED SCHOOL DISTRICT’s (“VCUSD”) memorandum of costs.

Code of Civil Procedure section 1032 authorizes recovery of costs for a prevailing party. VCUSD is a prevailing party entitled to recover costs following grant of its summary judgment motion. Section 1033.5 delineates the categories of recoverable costs under section 1032 and also expressly disallows some sorts of costs. If an item of costs is not expressly allowed or disallowed it may be allowed in the court’s discretion. (Code Civ. Proc., §1033.5, subd. (c)(4).) All allowed costs are only allowed to the extent they are reasonable in amount and were reasonably necessary to the conduct of litigation rather than merely convenient or beneficial. (Code Civ. Proc., § 1033.5, subds. (c)(2), (c)(3).)

If an item of costs in a proper memorandum of costs appears on its face to be proper the opposing party bears the initial burden of challenging the item’s reasonableness or necessity; once that objection is made, the burden shifts to the cost-claiming party to demonstrate reasonableness and necessity. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) The ultimate determination of whether an item was reasonable and necessary is a question of fact for the trial court. (Ibid.)

Anthony v. Li (2020) 47 Cal.App.5th 816 (Anthony) controls the instant motion. In the action underlying that case the parties participated in voluntary mediation with JAMS using a standard mediation agreement form stating that mediation fees would be split 50-50 between the parties’ counsel. (Id. at p. 819.) The parties paid the fees per the agreement but mediation was unsuccessful; the sides subsequently served section 998 settlement offers on each other, which also did not lead to resolution. (Ibid.)

At trial the parties hired a court reporter to transcribe the proceedings under an agreement to split reporter fees 50-50. (Id. at p. 820.) The plaintiff prevailed at trial and sought his costs, significantly including recovery of his share of mediation and reporter fees; the defendant filed a motion to strike or tax costs; the trial court granted the motion to tax with regard to the shared fees. (Ibid.) On appeal the plaintiff argued that the agreements to share fees did not explicitly include waivers of the right to recover fees as a prevailing party and public policy in favor of fee shifting should let him get his half back. (Id. at p. 824.)

The First District Court of Appeal disagreed, holding that where the language of a document is unambiguous a court must not restructure it and the

agreements between the parties to split fees were plainly written. (Ibid.) Rather than assuming recovery of the half fees should be allowed because it is not written that it is not allowed the appellate court found that recovery of the half fees should be forbidden because it is not written that it is permitted. (Ibid.)

Anthony is squarely on point. The parties here signed a standard mediation agreement stating that they would each pay half of the mediation fees. (Declaration of Craig N. Rosler in Support of Motion at ¶¶ 3-6, Exhibits 2-3.) VCUSD makes the same argument that the plaintiff there made, that it is free to seek recovery of its half of mediation costs because the standard mediation agreement contained no waiver of the right to recover costs. This is an unavailing argument. VCUSD’s attempt to distinguish Anthony on the basis that in the instant case the court indicated to the parties that they should try mediation is ineffective. The court’s stated preference for mediation does nothing to change the fact that the parties had an unambiguous agreement the court will not contradict.

Plaintiff’s motion is granted.

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