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Lara v. Buckley Boradcasting Corporation of Monterey1/30/2002
she was a party. Second, she argues that as the prevailing party she was entitled to her costs as a matter of right, such that the court had no power, in the absence of a motion to tax costs, to deny her claim.
The recovery of costs is governed by section 1032 of the Code of Civil Procedure, which provides in subdivision (b) that " xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." A "prevailing party" is defined in subdivision (a)(4) to include "a defendant as against those plaintiffs who do not recover any relief against that defendant." It follows Clemons was the prevailing party as against Lara, since judgment was entered in her favor.
Section 1033.5 of the Code of Civil Procedure identifies which specific items of cost are allowable and which are not, and provides that costs not expressly mentioned in this section may be allowed or denied in the court's discretion. It also provides that any allowable costs must be "reasonably necessary to the conduct of the litigation" as well as "reasonable in amount." (Code Civ. Proc., § 1033.5, subds. (c)(2) and (c)(3).) Thus, the court has the discretion to disallow costs it determines were unnecessary or unreasonable, including costs otherwise allowable "as a matter of right." (Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238.)
A party claiming costs must file a memorandum of costs, which shall be verified by a statement of the party that the costs were "necessarily incurred." (Cal. Rules of Court, rule 870(a).) A party contesting the costs must file a motion to strike or tax costs setting out his or her objections. (Cal. Rules of Court, rule 870(b).) "After the time has passed for a motion to strike or tax costs or for a determination of that motion, the clerk shall enter the costs on the judgment forthwith." (Cal. Rules of Court, rule 870(b)(4).)
"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. 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. [Citations.] 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. [Citation.]" (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)
A party who fails to file a timely or proper objection to the memorandum of costs thereby waives the right to object to any part of it that complies with the statute, and the cost bill then becomes conclusive. (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.)
Clemons argues the trial court lacked the discretion to deny her cost bill because, as the prevailing party, she was entitled to recover all her costs "as a matter of right," and because Lara failed to file a motion to tax costs and so waived her right to object. As we have already explained however, some costs are allowable as a matter of right, some are allowable at the discretion of the trial court, and some are not allowable at all. (Code Civ. Proc., § 1033.5.) Moreover, the court may disallow costs otherwise recoverable as a matter of right if it finds they were unnecessary or unreasonable. (Ibid.) Thus it simply is not the case, notwithstanding Clemons's assertion to the contrary, that recovery of all her claimed costs was automatic once it was established she was the prevailing party.
The record before us includes neither Clemons's memorandum of costs nor a reporter's
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