Harmon v. Pacific Telephone & Telegraph Co.

ASHBURN, J.

This is an appeal from an order denying plaintiff's motion to tax costs, which had as its objective disallowance of an item of $61.94 representing cost of printing respondent’s brief on appeal.

Plaintiff filed his complaint for declaratory relief alleging the existence of a controversy as to the right of the respondent Pacific Telephone and Telegraph Company to charge for “message units” without identifying the calls upon demand. The demurrer of respondent was sustained without leave to amend and judgment of dismissal followed. This judgment was affirmed on appeal upon the ground that the subject matter came within the exclusive jurisdiction of the Public Utilities Commission, subject only to review by the Supreme Court.

(Harmon

v.

Pacific Tel. & Tel. Co.,

183 Cal.App.2d 1 [6 Cal.Rptr. 542].) After the remittitur went down respondent filed its memorandum of costs on appeal in the sum of $61.94 for expense incurred in printing its brief on appeal.

Appellant’s notice of motion states the grounds to be (1) that the sum of $61.94 for the printing of the brief was unnecessary and unreasonable, and (2) that in reality appellant is the prevailing party. Also it is argued that the provisions of rule 26, Rules on Appeal, deprive litigants of due process and equal protection of the law.

Under rule 26, Rules on Appeal, the prevailing party is entitled to his costs as an incident to the judgment on appeal, and such costs include “the reasonable cost of printing or reproduction of briefs by other process of duplication.”

Appellant states that ‘ ‘ a brief of like size which fully complies with the court rules can be prepared for less than $5.00,” and in support thereof asserts in his affidavit “that the cost of printing Appellant’s briefs was less than thirty cents per page including all necessary materials.” In opposition to the motion, respondent filed the affidavit of Robert M. Parker, vice-president and general manager of Parker and Son, Inc., the printer of respondent's brief, in which it is stated that the cost of the brief, consisting of six pages of text and two pages of index, was $59.40 plus tax of $2.38 and postage of $.16. It is then averred: “The standard prices of $4.90 per printed page of text, $8.00 per printed page of index and $14.00 for covers were charged to Respondent in this case. The firm of Parker & Son, Inc., has been in the