Fourth District, Division One Affirms Decision to Award Such Discretionary Costs.
Following entry of judgment, defendant filed a costs memorandum seeking $4,053.75 in filing/motion fees (which were expenses for faxing the filings to messengers who then filed the documents with the court) and $1,140.20 in attorney travel costs for hearing appearances (including airfare, airport parking, and cab fares for the appearances). Plaintiffs moved to strike the costs, but the lower court denied the objections and entered costs as prayed by the defense.
Upon plaintiff’s appeal, the Fourth District, Division One affirmed in Erickson v. Fry’s Electronics, Inc., Case No. D051814 (Nov. 25, 2008) (unpublished).
Code of Civil Procedure section 1033.5(c)(4) does allow recovery of nonspecified costs in the discretion of the court. (See also Ladas v. California State Auto. Assn., 19 Cal.App.4th 761, 776 (1993).) Nevertheless, even this discretion is tempered by the caveat that allowable costs must be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (Code Civ. Proc., § 1033.5(c)(2).)
Plaintiff suggested that his mere filing of the tax cost motion shifted the burden to the defendant for purposes of showing the costs were "reasonably necessary to the litigation."
The Court of Appeal disagreed. If the items appear to be proper charges, the verified cost memorandum is prima facie evidence that the costs were necessarily incurred, such that the burden of showing impropriety/unreasonableness remains with the objecting party. Mere statements in an opposing brief or in the declaration by the objecting counsel are insufficient to rebut the prima facie showing that costs were necessarily incurred. (Jones v. Dumrichob, 63 Cal.App.4th 1258, 1266 (1998).)
Defendant did meet its prima facie burden, and plaintiff failed to produce competent evidence to rebut the presumption that the costs were reasonable and necessary. "Fry’s counsel’s declaration adequately explained the need for the messenger services, and plaintiffs have submitted no evidence to the contrary. Plaintiffs have not provided any authority that a party whose counsel resides out of town may not have its counsel travel to court to attend hearings or that it is unreasonable to drive and park at an airport or take a cab to a hearing." (Slip Opn., at p. 18.) Because the determination of the reasonableness of costs is within the trial court’s discretion, Thon v. Thompson, 29 Cal.App.4th 1546, 1548 (1994), no abuse of discretion was shown based on the lower court proceedings below.