Taxing Party Validly Shifted Burden, Which Was Based On Hearsay “Estimate” Obtained From Court Clerk, and County Did Not Meet Its Burden.
Although routine costs are generally proven on a prima facie basis by a verified costs memorandum, this does not mean that an objecting party cannot raise objections which may shift the burden to the other side. In that case, other side, be careful how you respond, as the next case demonstrates.
In Lee v. County of El Dorado, Case No. C069049 (3d Dist. Oct. 30, 2012) (unpublished), County of El Dorado prevailed against an in pro per plaintiff both at the trial level and in a prior unpublished appellate decision in which appellate costs were awarded to County. It filed a costs memorandum seeking $456 for the preparation of a clerk’s transcript. Plaintiff actually objected to the costs item, and County opposed by submitting the declaration of a legal assistant who said she inserted this “estimate” based on a court clerk who provided her the estimate.
Plaintiff appealed and won this one.
County indeed was entitled to seek this item as costs; although it does not have to really pay this cost, Government Code section 6103.5(a) allows the item to be recovered under the general costs statute in the court’s discretion–apparently under the assumption that another government employee had to spent time actually preparing the clerk’s transcript so that the item is recoverable. (Guillemin v. Stein, 104 Cal.App.4th 156, 164, 166 (2002).)
However, plaintiff’s objection to the “estimate” did serve to shift the burden of proof to the County, which could not surmount the hearsay nature of the substantiation or speculative “estimate” challenge. Reversed as to this item, and in pro per can recover his costs on appeal–interesting reversal of fortune.
Upside down parachute. 1863. Library of Congress.