| Case | County / Judge | Motion | Ruling | Indexed | Hearing |
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Motion to Strike or Tax Costs
Plaintiffs Francisco Iniguez Vazquez and Hector Iniguez Vazquez’ motion to strike and/or tax costs is DENIED.
Code Civ. Proc. §1032, subdivision (b) states: “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”
Code Civ. Proc. §1033.5 sets forth the specific items of costs which may and may not be recoverable in a civil action. (Code Civ. Proc. § 1033.5(a), (b).) An item not specifically allowable under subdivision (a) or specifically prohibited under subdivision (b) may nevertheless be recoverable in the court’s discretion if “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc. § 1033.5(c)(2).)
There are three categories of costs: (1) those specifically enumerated as “allowable” (§ 1033.5, subd. (a)); (2) those specifically enumerated as “not allowable ... except when expressly authorized by law” (§ 1033.5, subd. (b)); and (3) those “not mentioned” in the statutes, which are recoverable “in the court's discretion” (§ 1033.5, subd. (c)(4)). (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.)
Any costs awarded must be “reasonably necessary to the conduct of the litigation” and “reasonable in amount.” (§ 1033.5, subds. (c)(2) & (3).) “The opposing party may move to strike or tax costs.” (Rojas v. HSBC Card Services Inc. (2023) 93 Cal.App.5th 860, 892
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In assessing a motion to tax or strike costs, a burden shifting analysis is used. The cost claimant bears the initial burden of establishing prima facie entitlement to the recovery of costs. The claimant meets its burden if the verified cost bill “‘appears proper on its face.’” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 855; Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)
“If items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) Once the opposing party makes such a showing, in support of a motion to tax costs, the challenged items are put in issue and the burden shifts back to the party claiming them as costs. (Ibid.) But conclusory assertions alone are not enough to cause this shift to happen. “[I]t is not enough for the losing party to attack submitted costs by arguing that he thinks the costs were not necessary or reasonable. Rather, the losing party has the burden to present evidence and prove that the claimed costs are not recoverable.” (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.)
Here, Moving Party challenges the following items of costs:
Filing and Motion Fees ($612.25); Jury Fees ($1,045.00); Court Reporter Fees ($8,734.00); Models, Enlargements, and Photocopies of Exhibits ($2,184.58); Fees for Electronic Filing or Service ($1,852.25)
Plaintiffs have not sufficiently shown that the costs sought in items 1, 2, 11, 13, and 14 were not reasonable or necessary such that they have failed to shift the burden to Defendant to justify these costs. Plaintiffs do nothing more than make a conclusory assertion that these costs are not reasonable or substantiated even though the memorandum of costs was accompanied by exhibits showing that they were in fact incurred. Plaintiff makes no showing that any of these claimed costs were not reasonable or unnecessary
Even if Plaintiff’s objections are credited, Defendant has sufficiently substantiated the reasonableness and necessity of these costs and their amount by attaching invoices showing a basis for the claimed costs. Accordingly, the motion is DENIED as to these items of costs.
Other – Expert Fees and Services ($27,913.75)
Item 15 is “Other” expenses and consists entirely of $27913.75 in fees paid to Defendant’s retained experts. Typically, fees of experts retained by the parties are not recoverable costs under Code Civ. Proc. §1033.5. (See Code Civ. Proc. §1033.5, subd. (b)(1) [“(b) The following items are not allowable as costs, except when expressly authorized by law: (1) Fees of experts not ordered by the court.”
However, Code Civ. Proc. §998 provides a modification to the usual manner of determining responsibility for paying costs.
Section §998, subd. (b) provides that a party “may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party.”
Pursuant to §998, subd. (c)(1), “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover their post offer costs and shall pay the defendant’s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover post offer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.” [Emphasis Added]
Here, Defendant made such an offer to Plaintiffs on 9/6/23 (See Memorandum of Costs, Ex. F.) The Offer was not accepted. At trial, the jury returned a verdict for the defense. Accordingly, Plaintiffs did not accept an offer made by Defendant and failed to obtain a more favorable result at trial. Defendant contends that it is thus entitled to recover expert witness fees as costs pursuant to Code Civ. Proc. §998, subd. (c)(1). Plaintiffs do not dispute the validity of the §998 offer, nor do they dispute that they did not accept the offer and failed to obtain a better result at trial. Rather, Plaintiff’s argument consists entirely of vague assertions that the amount of costs sought has not been substantiated, notwithstanding the detailed invoices provided in conjunction with Defendant’s memorandum of costs. Accordingly, the motion is DENIED with respect to this item of costs.