Costs: Party Opposing Costs Memorandum Did Not Shift Burden Of Proof On Most Items Through Motion To Tax Costs

 

However, 1/3 DCA Discusses Split In Opinion About Whether Exhibits Unused At Trial Are Compensable Costs, Agreeing They Are If They Could Be Found Reasonably Helpful To The Trier Of Fact.

     In Dixon Gas Club LLC v. Safeway Inc., Case No. A139910 (1^st Dist., Div. 3 July 30, 2015) (unpublished), Safeway moved for costs after prevailing against plaintiff’s Business and Professions Code section 17000/17200 unfair trade/competition claims. The trial court denied plaintiff’s motion to tax costs (except for one minor detail), awarding Safeway $103,421.38 in costs—a substantial costs award—after determining that they were reasonable and necessary in light of the litigation circumstances.

     The appellate court affirmed.

     It found no burden shifting occurs unless a costs opponent properly objects so as to shift the burden of proof to the costs claimant whose prima facie submissions are treated just like that. Plaintiff failed to present proper objections so as to not shift the BOP. (Jones v. Dumrichob, 63 Cal.App.4^th 1258, 1266-1268 (1998).)

     The real interesting aspect of this decision was the appellate court’s discussion of whether exhibits not used at a trial could be awarded as costs. It observed that Seever v. Copley Press, Inc., 141 Cal.App.4^th 1550, 1560 (2006) answered “no,” while Applegate v. St. Francis Lutheran Church, 23 Cal.App.4^th 361, 364 (1994) answered “yes.” The Dixon Gas Club panel agreed with Applegate, analyzing the CCP costs language in the process and determining they should be awardable if found the exhibits would have been reasonably helpful to the trier of fact.