2010-00071942-CU-PO

Megan Lynn Barker vs. David Ellis & Associates

Nature of Proceeding: Motion to Tax Costs

Filed By: Swartz, Mark R.

The motion of Plaintiff Megan Lynn Barker (“Barker”) to tax costs in the costs
memorandum filed by Defendant Jeff Ellis & Associates (“Ellis”) is GRANTED in part
and DENIED in part as follows:

In ruling upon a motion to tax costs, the trial court’s first determination is whether the
statute expressly allows the particular item and whether it appears proper on its face. (
Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29-
30.) If so, the burden is on the objecting party to show the costs to be unnecessary or
unreasonable. (Id. [quoting Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131]
[brackets in original].) Where costs are not expressly allowed by statute, the burden is
on the party claiming the costs to show that the charges were reasonable and
necessary. (Nelson, 72 Cal.App.4th at 132.) Whether a cost item was reasonably
necessary to the litigation presents a question of fact for the trial court. (Ladas v.
California (1993) 19 Cal.App.4th 761, 774; see also Gorman v. Tassajara Devel. Corp.
(2009) 178 Cal.App.4th 44, 71.)

First, Barker asks the court to tax $345.50 in costs listed on the costs memorandum as
“filing and motion fees,” but which are actually costs associated with filing a (cost-free)
Case Management Statement and making a Court Call appearance at the case
management conference. Because these costs are not expressly allowable by statute,
the burden is on Ellis to prove that the costs were reasonably necessary. Ellis
concedes that $29.75 of the disputed costs must be withdrawn as duplicative. As to
the remainder of the disputed costs, the court finds that, based on the Opposition and
Shih Declaration, the costs were reasonably necessary. Thus, the court will not tax
these costs.

Next, Barker argues that the court should tax $8,803.57 listed on Ellis’ memorandum of
costs as “other costs.” Barker asserts that these other costs are actually disallowed
costs associated with postage, telephone and photocopying charges. (See CCP §
1033.5(b)(3).) In its ruling of 09/18/13, the court agreed with Barker that Ellis may not
recover such costs. However, Ellis’ invoices submitted to support these costs reflect
additional charges (for things other than postage, telephone and photocopying) that
are allowable costs, and the court thus directed Barker to itemize the disallowed costs
and tally them. (See Ruling of 09/18/13; Shih Decl., Exh. C.) The court further
indicated that, if Barker failed to itemize and tally the disallowed costs, the court was
likely to construe that failure as her abandonment of this part of the motion. Barker did
not comply with the court’s order of 09/18/13.

At the further hearing 10/23/13, Barker’s counsel sought and obtained a further
continuance to tally the assertedly disallowed costs among Ellis’ “other costs.” Despite
having sought and received this second continuance, Barker failed once more to tally
the costs she contends are not recoverable. The court construes Barker’s failure to
comply with its directions as her abandonment of her argument that some of the other
costs are not recoverable. In reaching this conclusion, the court is aware of Barker’s
argument in her supplemental pleading filed 10/30/13 that Ellis mislabeled its other
costs, which are actually deposition costs or subpoena costs. Even if the costs were
mislabeled, Barker has not suffered any prejudice and has been given ample
opportunity to make her case that some of the costs should not be allowed.

The court disregards Barker’s request, made for the first time in the Reply, to tax costs
associated with jury fees, deposition costs and service of process. If Barker wished to
contest these costs, she was required to do so in her moving papers. The court
likewise rejects Barker’s request, made for the first time in her supplemental pleading
of 10/30/13, to tax deposition costs not disputed in the moving papers. In denying
these requests, the court is aware of Barker’s argument that she should not have been
required to dispute these costs in the moving papers because Ellis did not submit the
invoices supporting the costs in its memorandum until it opposed the instant motion to
tax. The court rejects the argument because Ellis was not required to submit the
invoices in the first instance. Rather, it was Barker’s initial burden to contest these
presumably allowable costs, and she failed to do so. (See Foothill-De Anza
Community College Dist., supra, 158 Cal.App.4th at 29-30; CRC 3.1700(b)(2).)

Ellis request for attorney’s fees is DENIED.

Conclusion

The request to tax costs is GRANTED in part in the amount of $29.75. The balance of
the motion is DENIED.

Ellis is entitled to costs totaling $14,116.99.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.