Applegate v. St. Francis Lutheran Church

Opinion

MERRILL, Acting P. J.

Plaintiff George Applegate appeals from the portion of the judgment of the trial court awarding costs to defendants following his dismissal of the underlying action on thé day of trial. We affirm.

I

Defendant St. Francis Lutheran Church owns a building on Belcher Street in San Francisco, which it rents to defendant Friends of St. Francis Child Care Center, Inc. Plaintiff, an attorney appearing in propria persona, owns property located next door to the child care center. He filed the underlying action for declaratory and injunctive relief to abate a nuisance he alleged was caused by operation of the child care center.

[363]

On the date set for trial plaintiff moved for a continuance, and when his motion was denied, he dismissed the action without prejudice.

Defendants then filed a memorandum of costs pursuant to Code of Civil Procedure sections 1032 and 1033.5

1

seeking to recover costs totalling $2,078.01.

2

Plaintiff filed a motion to tax costs, which the court partially granted as to $828 of claimed costs. The court denied the motion as to deposition costs of $75 and as to the costs for photographs and blueprints prepared for use as trial exhibits in the amount of $1,161.01.

II

Plaintiffs first contention on appeal is that the trial court erred in allowing defendants to recover costs for photographs and blueprints made for use at trial.

3

He urges that, because the exhibits were never used at trial, they may not provide a basis for recovery of costs pursuant to section 1033.5, subdivisions (a)(12) and (c)(2).

Section 1033.5, subdivision (a) sets forth the items that are allowable as costs. Subdivision (a)(12) provides that “[m]odels and blowups of exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to aid the trier of fact.” Plaintiff maintains that where a case is dismissed before trial, costs may not be recovered for exhibits prepared for use at trial, citing