Same Rule Applies To Routine Costs Which Are Not A Matter Of Right.
This case is a good reminder for practitioners representing prevailing parties to seek discretionary costs through a noticed motion, not just through a cost memorandum.
In Neeble-Diamond v. Hotel California By The Sea, LLC, Case No. G061425 (4th Dist., Div. 3 Jan. 11, 2024) (unpublished), a FEHA prevailing defendant was awarded routine costs of $180,369.41, via a cost memorandum not timely opposed, after the lower court denied an attorney’s fees request because the plaintiff’s case was not frivolous. The 4/3 DCA reversed in a decision authored by Acting Presiding Justice Goethals. The panel found that since costs in this area were discretionary (given the lower court had to determine the case was not frivolous), a cost memorandum was an ineffective means of seeking such costs. It also cited Anthony v. City of Los Angeles, 166 Cal.App.4th 1011, 1015-1016 in support, which came to the same conclusion in the context of expert costs which were not recoverable as a matter of right under CCP § 1032.
BLOG UPDATE: We can now report that this opinion was certified for publication on February 5, 2024.