Mathew Arcoleo v. John Mayer

TENTATIVE RULINGS

Mathew Arcoleo v. John Mayer (and Related Cross-Action)

(Consolidated with 25CV005325)

John Mayer’s Motion to Tax Costs

John Mayer’s Demurrer to Cross-Complaint

Hearing Date: July 10, 2026

NOTE RE TENTATIVE RULINGS

Each of these tentative rulings becomes the court’s order, and no hearing shall be held unless one of the parties contests it by following Rule 3.1308 of the California Rules of Court and Monterey County Local Rule 7.9. Those parties wishing to present an oral argument must notify all other parties and the Court no later than 4:00 p.m. on the court day before the hearing; otherwise, NO ORAL ARGUMENT WILL BE PERMITTED, AND EACH TENTATIVE RULING WILL BECOME THE ORDER OF THE COURT AND THE RELATED HEARING VACATED. You must notify the court by email or by calling the Calendar Department at 831-647-5800, extension 3040, before 4:00 p.m. on the court day before the hearing.

John Mayer’s Motion to Tax Costs

The motion of Defendant and Cross-Complainant John Mayer for an order taxing Cross- Defendant Carrie Arcoleo’s claimed costs totaling $998.76 is DENIED.

Legal Standard.

Code of Civil Procedure section 1033.5, subdivision (a) lists the items allowable as costs under section 1032.10. “An award of costs shall be subject to the following: [¶] (1) Costs are allowable if incurred, whether or not paid. [¶] (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. [¶] (3) Allowable costs shall be reasonable in amount. [¶] (4) Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” [Code Civ. Proc. § 1033.5, subd. (c).] The losing party may file a motion to dispute any or all items in the prevailing party’s costs memorandum through a motion to strike or tax costs. [Cal. Rules of Ct., rule 3.1700, subd. (b).]

If the items appearing on a cost bill are proper charges, they are prima facie evidence that the cost, expense, or service listed was necessarily incurred. [Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.] The burden is on the party seeking to tax costs to show they were not reasonable or necessary. [Ladas v. Cal. State Automobile Assn. (1993) 19 Cal.App.4th 761, 774.] However, “if the items are properly objected to, they are put in issue, and the burden of proof is on the party claiming them as costs.” [Ibid.] Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court, and its decision is reviewed for abuse of discretion. [Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989.]

Discussion.

On April 20, 2026, Mr. Mayer voluntarily dismissed Ms. Arcoleo from the Cross- Complaint without prejudice. Eight days later, Ms. Arcoleo filed her Memorandum of Costs and seeks $998.76 from Mr. Mayer. Now, Mr. Mayer moves to strike those costs because Ms. Arcoleo did not incur them and they were not reasonably necessary for the conduct of the litigation. [Notice of Motion at 1:22-24.] Ms. Arcoleo opposed the motion.

1. Incurred Costs.

The Court disagrees with Mr. Mayer’s argument that Ms. Arcoleo must show that she, rather than Discovery Charters, Inc. (“DCI”) or anyone else, incurred the costs identified in her Memorandum of Costs. The statute does not require Ms. Arcoleo to show that she paid the costs. “Costs are allowable if incurred, whether or not paid.” [Code Civ. Proc. § 1033.5, subd. (c)(1) (emphasis added).] Also, case law holds that a prevailing litigant may recover costs even though they have not paid for them out of their own pocket. [Ceranski v. Muensch (1943) 60 Cal.App.2d 751, 754 (“The code sections contain no requirement that a party claiming costs must have personally incurred the obligations enumerated in the memorandum.”); Litt v. Eisenhower Medical Center (2015) 237 Cal.App.4th 1217, 1222-1223 (same); Cell-Crete Corp. v. Federal

Ins. Co. (2022) 82 Cal.App.5th 1090, 1095-1096 (same); Ray v. Lankershim Grain Co. (1922) 57 Cal.App. 467, 469 (“It is not essential to the right of a party who claims witness fees as costs that he should have first paid the fees.”).] Nonetheless, Ms. Arcoleo attests that she incurred each cost identified in the Memorandum of Costs. [Arcoleo Decl. at ¶¶ 2-4 and Exhs. 1-3.] Accordingly, on this ground, the motion is DENIED.

2. Reasonably Necessary and Jointly Incurred Costs.

Ms. Arcoleo requests costs for filing and motion fees ($495), her deposition transcript ($474.85), and e-filing costs ($28.91). All of these are allowable costs under the statute and appear, on their face, to be reasonably necessary for the conduct of the litigation. [Code Civ. Proc. §§ 1032, 1033.5, subds. (a)(1), (3)(A), and (14).] Furthermore, Ms. Arcoleo has shown that each of these costs or expenses was incurred, reasonable, and necessary. [Arcoleo Decl. at ¶¶ 2-4 and Exhs. 1-3.] Contrary to Mr. Mayer’s belief, no court order is needed to recover costs for obtaining a copy of a deposition transcript. [See Code Civ. Proc. § 1033.5, subd. (a)(3)(A).] However, a court order is required to recover costs for transcripts of court proceedings. [Id. at subd. (a)(9).]

Mr. Mayer objects on two grounds. First, as discussed above, the statute and case law reject his argument that Ms. Arcoleo must demonstrate that she, rather than DCI, incurred the costs she seeks to recover. Second, Mr. Mayer asserts that the $60 filing fee for the motion to bifurcate and all the e-filing costs should be taxed accordingly because they were actually incurred jointly by Ms. Arcoleo and her husband, Plaintiff and Cross-Defendant Mathew Arcoleo. [See Motion at 4:1-8, 21-23; Reply at 2:11-18.] Therefore, under Fennessy v. Deleuw- Cather Corp. (1990) 218 Cal.App.3d 1192, Mr. Mayer argues that Ms. Arcoleo’s recoverable costs are limited to the portion of the costs she actually incurred that were incurred jointly.

Mr. Mayer’s reliance on Fennessy is misplaced. In that case, six defendants filed for summary judgment, but only one succeeded. The prevailing defendant requested costs while the case against the other defendants was still ongoing. The court clarified that, to prevent “the likelihood of additional litigation,” when a successful party incurs costs jointly with others still involved in the case, they can recover only the costs actually incurred in prosecuting or defending the case. [Fennessy, 218 Cal.App.3d at 1196; see also Jonkey v.

Carignan Construction Co. (2006) 139 Cal.App.4th 20, 26.] Fennessy did not establish that a prevailing defendant, like Ms. Arcoleo here, must prove personal liability for the costs. Instead, a prevailing defendant is entitled to recover costs “actually incurred by a party or in its behalf in prosecuting or defending the case.” [Fennessy, 218 Cal.App.3d at 1196.]

Fennessy does not hold that this Court must wait until all litigation is finished before allocating costs between the Arcoleos. [Quiles v. Parent (2018) 28 Cal.App.5th 1000, 1017.] Instead, this Court can determine the cost award for the prevailing party by examining why each cost was incurred, whether it was reasonably necessary, and whether the amount was reasonable. [Ibid.] In this case, the motion to bifurcate aimed to separate the Complaint from the Cross- Complaint. Ms. Arcoleo was a cross-defendant in 10 of the 12 causes of action in the latter pleading. She benefited from the ruling, and considering the motion’s purpose, the Court finds it

appropriate to award her the $60 filing fee, the related e-filing costs, and the $15.56 e-filing cost for the Answer to the Cross-Complaint now, rather than waiting until the litigation concludes.

Accordingly, on those grounds, the motion is DENIED.

Conclusion.

Mr. Mayer’s motion to tax is DENIED in full. Ms. Arcoleo shall prepare the Proposed Order consistent with this Tentative Ruling.

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