Case Number: 17STCP00007 Hearing Date: May 30, 2018 Dept: 94

Plaintiff’s motion to tax costs is DENIED in Part and GRANTED in Part.

Background

Petitioner Edna Wenning represented Respondent Judith Hunt in an underlying disciplinary hearing with the Los Angeles Unified School District. Following the conclusion of the hearing, Petitioner sent an invoice for services rendered and costs. Respondent disputed the charges and the parties participated in arbitration. On October 4, 2017, the arbitrator awarded Petitioner $9,956.44 in fees and costs–$14,070 in fees less $5,000 prior payment, plus $886.44 in costs.

On October 4, 2017, Petitioner filed a petition to confirm the award. On April 12, 2018, the court granted the petition to confirm the arbitration award.

On May 7, 2018, Petitioner filed a memorandum of costs for the costs associated with the petition. The instant motion was filed on April 18, 2018.

Legal Standard

Code of Civil Procedure section 1033.5 sets forth the costs recoverable by the prevailing party. To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount. (Perko’s Enterprises, Inc. v. RRNS Enterprises (l992) 4 Cal.App.4th 238, 244.) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.) On the other hand, 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. (Id.)

California Rule of Court, Rule 3.1700 requires that “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” by to 20 days. (CRC, Rule 3.1700(b)(1).) Additionally, “[T]he court may extend the times for serving and filing the cost memorandum or the notice of motion or tax costs for a period not to exceed 30 days. (CRC, Rule 3.1700(b)(3).)

Discussion

On May 7, 2018, Petitioner filed a memorandum of costs for the costs associated with the petition. The instant motion was filed on April 18, 2018.

Respondent moves to strike items 10 (attorney fees), 12 (models, enlargement, and photocopies), and 14 (electronic filing costs) on grounds that petitioner lacks support for the subject items. Respondent also moves to reduce the amount requested on item 5 (service of process fees) on grounds of lack of supporting documentation. Petitioner in opposition states the motion constitutes an improper challenge to the arbitration award, which awarded $9,956.44 in fees and $886.44 in costs.

The items addressed in the motion in fact at least partially challenge the amounts awarded by the arbitrator, specifically, the claim for attorney fees (identified as $9,070, rather than the actual awarded amount of $9,956.44), $811.44 in photocopying fees, and $75 fee for Astro Messenger. Respondent also challenges $211.65 for electronic service fees, and $219.95 for service of process charges. A $219.95 service of process fee and $199.75 for electronic filing fees appears on the May 7, 2018 Memorandum of Costs. It’s not clear whether Respondent means to challenge these items, as the motion was filed on April 18, 2018, which is before the May 7, 2017 filing of the Memorandum of Costs.

The subject motion is not the proper means of challenging the cost items awarded by the arbitrator. The award was confirmed, and therefore not the subject matter of a motion to tax costs. (Cal. Rules of Court, Rule 3.1700.) Furthermore the May 7, 2018 Memorandum of Costs does not seek attorney fees or photocopying costs.

The right to recover costs associated with the petition is otherwise not challenged. Petitioner was the prevailing party, and therefore entitled to recover statutorily available costs. (Code Civ. Proc., § 1032, subd. (b).) This leaves the $219.95 service of process fee and $199.75 for electronic filing fees as listed on the May 7, 2018 Memorandum of Costs.

Petitioner presents sufficient support for both the $69.95 fee incurred in attempting to serve Respondent with the Petition, as well as the subsequent $150 charge for successful service of the petition. This item is separate and apart from the amount awarded by the arbitrator to Astro Messenger. Service of process is a recoverable fee. (Code Civ. Proc., § 1033.5, subd. (a)(4)(B).) The motion is therefore denied as to this item.

As for the $219.95 in electronic filing service, a prevailing party may require electronic filing fees if the “fees for the electronic filing or service of documents through an electronic filing service provider” were required by a court or court order. (Code Civ. Proc., § 1033.5, subd. (a)(14).) Respondent provides no argument regarding a court order requiring mandatory electronic filing. The item is therefore merely a convenience. “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).)

The subject items indicate a convenience rather than a necessity. The incurrence of $199.75 in said fees does not render the fees valid. The motion to tax item 14 is therefore granted.

Accordingly, Respondent’s motion to tax costs is therefore Granted as to Items 14 and Denied as to the remainder.

Clerk to give notice.