Costs: Prevailing Defendant Did Not Have To Raise Winning Arguments Earlier In The Litigation, Through A Demurrer, In Order To Recoup Routine Costs

CCP § 1033.5 Has No Optimal Efficiency Requirement, Only That The Costs Were “Reasonably Necessary” To The Litigation.

            The losing plaintiff on a summary judgment motion contested an award of routine costs in Harris v. VII Pier Pointe Owner, LLC, Case No. B280729 (2d Dist., Div. 4 Oct. 14, 2019) (unpublished).  Plaintiff’s argument was that defendant did not have to wait until summary judgment to raise the winning argument, which could have been made instead through an earlier demurrer.  Plaintiff contended, on this basis, that routine costs were not “reasonably necessary” to the litigation based on the premise the winning argument could have been raised earlier.  The appellate court was not impressed, putting it this way: “[Plaintiff] cites no authority, however, for the proposition that to recover costs, a party must raise its ultimately winning argument at the earliest opportunity. Code of Civil Procedure section 1033.5 does not require absolute necessity or optimal efficiency -- the prevailing party’s costs need only be ‘reasonably necessary.’”  Not to mention, a defendant may have good reasons to not tip its hat on a meritorious argument too early in the litigation or raise it on demurrer only to have a favorable ruling reversed on appeal given the stricter review standards applicable to demurrer dismissals.