Case Number: KC066345 Hearing Date: March 01, 2018 Dept: J

Re: Arthur C/ Higgins, etc. v. Maria Lupe Higgins, etc. (KC066345)

MOTION TO TAX COSTS

Moving Party: Defendant Lupe Higgins

Respondent: Plaintiff Arthur C. Higgins, successor trustee of the Higgins Family Trust dated March 11, 1994 and in his capacity as executor of the Estate of Maria Lopez Higgins, Deceased

POS: Moving OK; Opposing served by regular mail contrary to CCP § 1005(c)

Plaintiff brought this action in his capacity as successor trustee of the Higgins Family Trust Dated March 11, 1994, and in his capacity as executor of the Estate of Maria Lopez Higgins (“decedent”). Plaintiff alleges that Defendant Maria Lupe Higgins aka Lupe Higgins (“defendant”) obtained $235,777.49 from the decedent or her trust by fraud, mistake and undue influence and seeks the imposition of a constructive trust. The complaint, filed 9/23/13, asserts causes of action against defendant and Does 1-100 for:

Constructive Trust

Constructive Trust

On 3/12/14, defendant filed her cross-complaint, asserting causes of action therein against plaintiff and Roes 1-00 for:

Intentional Interference with Prospective Economic Advantage

On 8/18/14, the court ordered the cross-complaint dismissed without prejudice, at defendant’s request.

On 5/19/15, the matter proceeded to court trial. On 6/16/15, the judgment was filed. On 6/25/15, defendant filed her “Notice of Entry of Judgment” and served same via mail. On 7/22/15, plaintiff filed his “Notice of Appeal.” On 9/5/17, the remittitur was filed; plaintiff/appellant was awarded his costs on appeal. On 10/5/17, plaintiff filed his “Memorandum of Costs on Appeal.”

A court trial as to remaining issues is set for 4/2/18.

Defendant Lupe Higgins sued herein as Maria Lupe Higgins moves the court, per

CRC Rule 3.1700(b) and 8.278(d), for an order taxing the following costs claimed

by Plaintiff Arthur C. Higgins, successor trustee of the Higgins Family Trust dated March 11, 1994 and in his capacity as executor of the Estate of Maria Lopez Higgins, Deceased (“plaintiff”) in his Memorandum of Costs on Appeal:

Item No. 4 (printing and copying of briefs): $3,494.29

“In the interests of justice, the Court of Appeal may…award or deny costs as it deems proper.” California Rules of Court (“CRC”) Rule 8.278(a)(5). “A party may recover only the following costs, if reasonable: (A) Filing fees; (B) The amount the party paid for any portion of the record, whether an original or a copy or both. The cost to copy parts of a prior record under rule 8.147(b)(2) is not recoverable unless the Court of Appeal ordered the copying; (C) The cost to produce additional evidence on appeal; (D) The costs to notarize, serve, mail, and file the record, briefs, and other papers; (E) The cost to print and reproduce any brief, including any petition for rehearing or review, answer, or reply; (F) The cost to procure a surety bond, including the premium, the cost to obtain a letter of credit as collateral, and the fees and net interest expenses incurred to borrow funds to provide security for the bond or to obtain a letter of credit, unless the trial court determines the bond was unnecessary; and (G) The fees and net interest expenses incurred to borrow funds to deposit with the superior court in lieu of a bond or undertaking, unless the trial court determines the deposit was unnecessary.” CRC Rule 8.278(d)(1).

The remittitur filed 9/5/17 expressly awards plaintiff/appellant his costs on appeal.

Plaintiff advises that he utilized the services of a firm, Counsel Press, Inc. (“CPI”) to assist in the preparation, filing and service of his opening and reply briefs on appeal, as well as in the response to a petition to review in the California Supreme Court.

In Lubetzsky v. Freidman (1988) 199 Cal.App.3d 1350, the Second District, Division Three Court of Appeal allowed as recoverable costs the costs incurred in having briefs typed and copied. Referring to former rule 26, the Court of Appeal stated, “[w]e see no reason to construe rule 26(c) to allow the cost of a printer’s typesetting and the cost of typing mimeograph and ditto stencils but not the cost of typing pages for photocopying. To exclude the latter cost would not further the obvious intent of rules 15, 44(a) and 40(i), which is simply to assure briefs of good visual quality.” Id. at 1356. In a subsequent appeal in the same case, the Second District Court of Appeal allowed as recoverable costs the costs incurred in typing, copying and binding briefs. Lubetzky v. Friedman (1991) 228 Cal.App.3d 35.

Here, CPI did not “type” the entire briefs from handwritten briefs as in Lubetzky, but reformatted and bound them, prepared the necessary cover pages and then electronically filed the briefs and served the copies. These services included 0.5 hours of paralegal time, totaling $49.00, for reformatting appellant’s brief for rule compliance, which is reasonable. “Printing” costs for a brief formerly were “the cost of a printer’s typesetting and the cost of typing mimeograph and ditto stencils.” It subsequently became typing and word processing, as allowed by Lubetzky. The services provided by CPI in this case are of a similar nature.

Plaintiff’s counsel informally produced three CPI invoices to defendant prior to the filing of the motion. Although certain entries on these invoices, such as filing, service and mailing fees, should not have been included under Item No. 4 in plaintiff’s Memorandum of Costs on Appeal, they nevertheless are recoverable, pursuant to CRC 8.278(d)(1)(D).

Accordingly, defendant’s motion to tax costs is denied.