General Rule

“In Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, 439, the California Supreme Court explained: ‘The cost of a civil action consist of the expenses of litigation, usually excluding attorney fees. Under the common law rule, parties to litigation must bear their own costs. The right to recover any of such costs is determined entirely by statute. It is axiomatic that the right to recover costs is purely statutory, and, in the absence of an authorizing statute, no costs can be recovered by either party.’” (Gorman v. Tassajara Dev. Corp. (2009) 178 Cal.App.4th 44, 71.)

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.)

Timing and Procedural Requirements

California Rule of Court 3.1700(a)(1) states in pertinent part, “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing 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. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.”

Motion Opposing or Contesting costs

California Rule of Court 3.1700(b) states:

1. Striking and taxing costs — 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 as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).
2. Form of motion – 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.
3. Extensions of time — The party claiming costs and the party contesting costs may agree to extend the time for serving and filing the cost memorandum and a motion to strike or tax costs. This agreement must be confirmed in writing, specify the extended date for service, and be filed with the clerk. In the absence of an agreement, the court may extend the times for serving and filing the cost memorandum or the notice of motion to strike or tax costs for a period not to exceed 30 days.
4. Entry of costs — After the time has passed for a motion to strike or tax costs or for determination of that motion, the clerk must immediately enter the costs on the judgment.

Standard

A prevailing party (including a “defendant as against those plaintiffs who do not recover any relief against that defendant”) is “entitled as a matter of right to recover costs in any action or proceeding” under Code Civ. Proc., Secs. 1032(a)(4) and (b).

A “Memorandum of Costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (CRC, Rule 3.1700(a)(1).)

“If the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant, and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) “[I]f the correctness of the memorandum is challenged either in whole or in part by the affidavit or other evidence of the contesting party, the burden is then on the party claiming the costs and disbursements to show that the items charged were for matters necessarily relevant and material to the issues involved in the action.” (Id. at 699.)

Code Civ. Proc., Sec. 1033.5(c) provides, in relevant part, that “any award for costs shall be subject to the following:

1. Costs are allowable if incurred, whether or not paid.
2. Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.
3. Allowable costs shall be reasonable in amount.
4. Items not mentioned in this section… may be allowed… in the Court’s discretion.”

“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. If so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.) “Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.” (Id.) “Whether a costs item was reasonably necessary to the litigation presents a question of fact for the trial court.” (Id.)

“There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) Once a party shows that an expense or cost was necessarily incurred “the burden is upon the moving party to establish the illegality of the challenged items; otherwise the amount demanded in the verified cost bill is controlling.” (Wilson v. Nichols (1942) 55 Cal.App.2d 678, 682-683.) “[T]he losing party has the burden to present evidence and prove that the claimed costs are not recoverable.” (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.) “[Nevertheless], because the right to costs is governed strictly by statute . . . a court has no discretion to award costs not statutorily authorized.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) California Code of Civil Procedure, Section 1033.5(c)(4) gives a court discretion to allow or deny a claimed cost where it is not explicitly allowed or prohibited by Section 1033.5.

Calculating Costs

“Mere statements in the points and authorities accompanying [a party’s] notice of motion to strike cost bill and the declaration of its counsel are insufficient to rebut the prima facie showing [that the costs were necessarily incurred].” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.)

Code Civ. Proc., Sec.1033.5(a)(13) states that a party may recover costs for “[m]odels and enlargements of exhibits and photocopies of exhibits if they were reasonably helpful to aid the trier of fact.” “On its face this statutory language excludes as a permissible item of costs exhibits not used at trial, which obviously could not have assisted the trier of fact.” (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557; see also Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761, 775 (“fees are not authorized for exhibits not used at trial.”)

Deposition Costs

California Code of Civil Procedure, Section 1033.5(a)(3)(A) allows for “[t]aking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed.” California Code of Civil Procedure, Section 1033.5(c)(4) says that “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”

Need for depositions should be determined “from the pretrial vantage point of a litigant.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.)

Witness Fees

For ordinary witnesses within the meaning of California Code of Civil Procedure, Section 1033.5(a)(7).

Jury Fees

Under California Code of Civil Procedure, Section 1033.5(a)(1) jury fees are allowable as costs. A verified memorandum of costs, when presented, is prima facie evidence that costs were necessarily incurred.

Court-Ordered Transcripts

Under California Code of Civil Procedure, Section 1033.5(a)(9) “[t]ranscripts of court proceedings ordered by the court” are recoverable as a cost. “Transcripts of court proceedings not ordered by the court” are not recoverable as a cost under California Code of Civil Procedure, Section 1033.5(b)(5).

Court Reporter Fees

As established by statute.

Fees for Hosting Electronic Documents

California Code of Civil Procedure, Section 1033.5(a)(15) says that “[f]ees for the hosting of electronic documents” are recoverable as a cost “if a court requires or orders a party to have documents hosted by an electronic filing service provider.”

Service of Process

California Code of Civil Procedure, Section 1033.5(a)(4) allows for service of process by a public officer, registered process server, or publication to be recovered as a cost. A party’s memorandum of costs must state how a subpoena was served or how service was effectuated for the Court to determine whether the costs are recoverable. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.) “Whether and in what amount the expenses for service of process are allowed depends upon who served the process.” (Id.) Costs for service of process can be recovered where service was effectuated by a registered process server. (Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 506 (costs recoverable for service of process where party set forth in detail in its memorandum of costs each item of service claimed and attached copies of proofs of service for each item claimed in the cost memorandum which was served by a registered process server.)

Tax Costs

“There is no statute requiring the filing of a motion to tax costs. Section 1034, subdivision (a) provides that "costs allowable under this chapter shall be claimed and contested in accordance" with the California Rules of Court. ” (Gorman v. Tassajara Dev. Corp. (2009) 178 Cal.App.4th 44, 69.)

As this court explained in Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29-30: “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.... ‘If so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.’” (Gorman v. Tassajara Dev. Corp.(2009) 178 Cal.App.4th 44, 71; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary. (Nelson, supra, at 132.) “Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)

Deadline to File and Extension of Time to File

CRC 3.1700(a)(1) provides:

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. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.

Under Rule 3.1700(b)(3), absent the agreement of the parties, the court can only extend the time within which a Memorandum of Costs can be filed for a period not to exceed 30 days.

Public Entity

A public entity, may recover its filing and motion fees under Government Code § 6103.5(a). California Government Code, Section 6103.5(a) says that “[w]henever a judgment is recovered by a public agency . . . either as plaintiff . . . or defendant . . . in any action or proceeding to begin, or to defend” for which “no fee for any official service rendered by the clerk of the court . . . has been paid . . . the clerk entering the judgment shall include as a part of the judgment the amount of the filing fee . . . which would have been paid.” “It is apparent that section 6103.5 considers the filing fees to be an existing debt that simply remains unpaid. Filing fees are therefore costs incurred but not paid, which are recoverable under the general costs statute. Moreover, section 6103.5 specifically prescribes the inclusion of these fees as costs in a judgment; therefore a trial court does not have any discretion to tax them.” (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 164.)