BRIAN GRADEN VS LEE DANA WEISS, ET AL.,

Tentative Rulings

Case Number: SC124800    Hearing Date: December 02, 2020    Dept: M

CASE NAME: Brian Graden v. Lee Dana Weiss, et al.

CASE NO.: SC124800

MOTION: Plaintiff’s Motion to Tax Costs (unopposed)

Hearing: 12/2/2020

Legal standard

A prevailing party in litigation may recover costs, including but not limited to filing fees. (Code Civ. Proc., §1033.5(a)(1).) “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after [1] the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or [2] the date of service of written notice of entry of judgment or dismissal, or [3] within 180 days after entry of judgment, whichever is first.” (CA Rules of Court, Rule 3.1700(a).)

Under Code of Civil Procedure section 1033.5(c)(2), allowable costs are only recoverable if they are “reasonably necessary to the conduct of the litigation.” Even mandatory costs, when incurred unnecessarily, are subject to section 1033(c)(2). (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.) Section 1033.5(c)(4) provides that “[i]tems 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(c)(4).)

Under California Rules of Court Rule 3.1700, a party may file and serve a motion to tax costs listed in a memorandum of costs.(See CRC Rule 3.1700(b).) Under Rule 3.1700(b)(1), “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred. (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.) A party seeking to tax costs must provide evidence to rebut this prima facie showing. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred. (Id.)

Analysis

Plaintiff seeks to tax the costs sought by Defendants Mosaic Premium Fund, Ltd. and Global Domain Vector Fund LLC in the memorandum of costs. Plaintiff requests that the Court tax and reduce the costs to $870.

Individual items

1. Line 1 – filing fees

Plaintiff argues that Defendants improperly seek $5,983.34 for filing and motion fees. Plaintiff argues, and the Court notes, that these Defendants did not actively participate in the litigation. Plaintiff requests that the Court tax $5,113.34. The motion is GRANTED as to this request. The request now reads: $870.

1. Line 14 – Fees for electronic filing and service

Plaintiff argues that $374.00 in electronic filing fees is unreasonable since First Legal only charges $6.75 per filing. Plaintiff also provides evidence of the First Legal fees. The Court agrees that these costs are unreasonable. Therefore, the Court GRANTS the motion to tax this cost.

1. Line 16 – Other

Plaintiff argues that the costs claimed in item 16 should be entirely taxed. Defendants have not included additional information as to how they incurred $1,633.50 in costs. While the Court has discretion to award costs not specifically provided for in Code of Civil Procedure section 1033.5, it is not clear to the Court how Defendants incurred these costs. Therefore, the Court exercise its discretion and disallows these costs. Therefore, the Court GRANTS the motion to tax this cost.