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.)

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.”

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

Deposition costs are expressly allowed by Code Civ. Proc., Sec. 1033.5(a)(3). Costs of videotaping necessary depositions are allowed by Code Civ. Proc., Sec. 1033.5(a)(3)(A). Need for depositions should be determined “from the pretrial vantage point of a litigant.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.)

“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.”)

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.)

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.)