Case Name: Merritti v. Mozilo, et al.

Case No.: 1-09-CV-159993

Motion by Plaintiffs David Merritt and Salma Merritt to Strike or Tax Cost Memorandum of Defendant John Benson

By remittitur filed November 17, 2014, , the Court of Appeal ordered that Defendant Benson recover his costs incurred on Plaintiffs’ appeal. On December 22, 2014, Defendant filed his Memorandum of Costs, using Judicial Council form MC-010 “Memorandum of Costs” rather than MC-013 “Memorandum of Costs on Appeal”.

Rule of Court 3.1700 applies to a motion to strike or tax costs on appeal. (Rule of Court 8.278(c)(2).)

Plaintiffs’ motion attacks Defendant’s cost memorandum first on the ground that Defendants failed to present proof of costs in the first instance. However, a properly verified memorandum of costs, as is Defendant’s in this case, is prima facie evidence that the listed costs were necessarily incurred, and the party claiming these costs is not required to submit supporting documentation unless and until the cost memorandum is challenged. (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308.)

On its face, Plaintiffs’ motion seeks striking or taxing of Defendant’s entire cost memorandum. (Notice of Motion, at 1:9-12 and 21.) The motion does not refer by number to any item on the cost memorandum, as is required when a motion seeks relief as to only a portion of a cost memorandum. (Rule of Court 3.1700(b)(2).) However, the substance of the motion appears to address two specific items in the cost memorandum: “court-ordered transcripts” at item 9, and “models, blowups and photocopies of exhibits” at item 11. (Memorandum in Support of Motion (pages not numbered), at 1:23-2:5.) As Defendant has not argued this point, the court will consider Plaintiffs’ challenges to the two specific items notwithstanding Plaintiffs’ failure to comply with the Rule of Court.

It appears that, based on Defendant’s use of MC-010, Plaintiffs assume the application of the trial court rules as to allowable costs (Code of Civil Procedure section 1033.5) rather than the appellate rules set forth in Rule of Court 8.278(d). The costs for preparation of the reporter’s transcript and the clerk’s transcript are allowed under Rule of Court 8.278(d)(1)(B). The cost to print and reproduce briefs is allowed under Rule of Court 8.278(d)(1)(E), and Defendant reduces his claim to $695.70.

Finally, Plaintiffs request that the court exercise its discretion to reduce or eliminate costs entirely on the basis of their financial condition, citing Sutter County v. Superior Court (1966) 244 Cal.App.2d 770 (approving trial court order allowing indigent personal injury plaintiff to proceed without providing security for costs), Bank of America v. Superior Court (1967) 255 Cal.App.2d 575 (denying bank’s writ petition to bar further proceedings when bankrupt plaintiff failed to provide security for costs), and Conover v. Hall (1974) 11 Cal.3d 842, 852 (affirming issuance of injunction in favor of welfare recipients without posting of bond: Plaintiffs’ reference to n.7 appears to be an error). In opposition, Defendant points out that in none of these cases is there a holding taxing costs otherwise properly allowed on the basis of financial condition. In reply, Plaintiffs repeat their arguments without addressing Defendant’s opposition.

The motion is granted to the extent of $900.80 and is otherwise denied. The total amount of costs owing is $2,447.70.