Case Number: BC516962 Hearing Date: July 21, 2016 Dept: 51

BC516962

Plaintiff’s Motions to Tax Costs

Background

This is a personal injury case. Plaintiff alleged that David Fong, a minor, knocked plaintiff to the ground while running unsupervised through defendant United Christian Church’s (United) crowded facility.

On March 9, 2016, the Court entered a judgment on special verdict in defendant United’s favor. On March 22, 2016, United served by mail the subject memorandum of costs. On April 6, 2016, United filed the memorandum of costs.

On April 11, 2016, plaintiff filed the instant motion to tax costs. United opposes.

The Court has considered the moving and opposition papers, and rules as follows.

Timeliness

“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after 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 the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” CRC, rule 3.1700(a)(1).

A motion to strike or tax costs must be served and filed within 15 days after service of the costs memorandum. This period is extended by five days as provided by Code of Civil Procedure section 1013 if the costs memorandum was served by mail. The parties may also agree in writing to extend the time period. Such an agreement must be filed with the court clerk specifying the extended date. Absent such an agreement, the court has the discretion to extend the deadline for up to 30 days. CRC, rule 3.1700(b)(1).

Here, on March 9, 2016, the clerk served by mail the notice of entry of judgment. Thus, United had until March 29, 2016 to serve and file a memorandum of costs. United timely served the memorandum on March 22, 2016. The memorandum displays a “received” stamp with the date March 23, 2016. Therefore, the memorandum of costs is timely.

Concerning the motion, plaintiff had until April 11, 2016, 20 days after service, to serve and file the instant motion. Plaintiff did so. The motion is timely.

Improper Form of Motion

Plaintiff’s counsel should note: “Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” CRC, rule 3.1700(b)(2). Here, plaintiff refers to the contested items in the following order: 12, 11, 13. The Court addresses the items in order.

Motion to Strike or Tax Costs Standard

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. CCP § 1032(b).
The losing party may dispute any or all of the items in the prevailing party’s memorandum of costs by a motion to strike or tax costs. CRC, rule 3.1700(b). Technically, a motion to strike challenges the entire costs bill whereas a motion to tax challenges particular items or amounts.

Verification of the memorandum of costs by the prevailing party’s attorney establishes a prima facie showing that the claimed costs are proper. Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267. “There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum.” Jones, supra, 63 Cal.App.4th at 1267. To overcome this prima facie showing, the objecting party must introduce evidence to support his claim that the costs are not reasonably necessary. The objecting party may do this by way of declaration; but mere conclusory assertions are insufficient to rebut a prima facie showing by the prevailing party. Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.

Item No. 11: Projector Fees

The Court agrees that the use of the Elmo projector was not reasonably helpful to aid the trier of fact or reasonably necessary to the conduct of the litigation. CCP §§ 1033.5(a)(13), 1033.5(c)(2). Additionally, the rental cost was excessive, as there is no reasonable dispute that less expensive equipment was available, even to purchase outright. CCP § 1033.5(c)(3). Finally, the $150 fee to set up the projector was for convenience. CCP § 1033.5(c)(2).

Item No. 12: Reporter Fees

The parties agree that the reporter fees should be reduced by half.

Item No. 13: Expert Witness Fees

United withdraws $1,000 of the $6,465 requested.

As plaintiff argues, United fails to account for $65 of the $6,465 requested. United does not address the $65 in opposition or correspondence attached as an exhibit. Cooper Decl. ¶ 2, Exh. A.

Concerning the remaining $5,400, plaintiff argues United is not entitled to recover this amount under Code of Civil Procedure section 998.

“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 his or her postoffer costs and shall pay the defendant’s costs from the time of the offer. In addition, … the court …, in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer 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 during trial …, of the case by the defendant.” CCP § 998(c)(1).

This version of the statute became effective on January 1, 2016. United offers no authority supporting its assertion that an earlier version of the statute was materially different or that it should control based on the timing of the section 998 offer, November 2, 2015. Rather, the current version controls because United filed and served the memorandum of costs after January 1, 2016.

United’s counsel stated that $5,000 was incurred before the offer and $400 after. Cooper Decl. ¶ 2, Exh. A. Accordingly, $5,000 is unrecoverable. Only $400 is recoverable.

Conclusion

The motion is GRANTED as follows: Item No. 11 is taxed by half; Item No. 12 is taxed entirely, Item No. 13 is taxed by $6,065. Plaintiff to give notice.