Second District, Division 4 Orders Denial of Motion to Tax Costs.
Civil Code section 1717 applies to fee award requests, not an award of routine costs. If a memorandum of costs itemizes routine costs authorized by statute (such as filing fees, process service fees, and exhibit copying expenses), the burden is on the party seeking to tax these costs to show they were unnecessary or unreasonable in nature. (Nelson v. Anderson, 72 Cal.App.4th 111, 131.) Defendant failed to meet that burden in the next case, although a motion to tax was erroneously granted anyway under Civil Code section 1717 (with no mention of passing on the “unnecessary/unreasonable” objection).
The Court of Appeal in Blackshear v. Brewster, Case No. B220960 (2d Dist., Div. 4 Sept. 23, 2010) (unpublished) corrected that error and also refused to remand because the back-up objection lacked merit.
In Blackshear, following a dismissal without prejudice in favor of defendant—which usually triggers an award of routine costs—defendant filed to recover $474.85 in costs consisting of filing fees, process service expenses, and exhibit copying disbursements. Plaintiff moved to tax costs on two grounds: (1) Civil Code section 1717 and the Santisas rule applied (voluntary dismissal of contract action means no 1717 exposure); and (2) the claimed costs were unnecessary. The trial court granted the motion to tax “pursuant to Code of Civil Procedure [sic—should have been Civil Code] section 1717.” Defendant appealed.