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Rodriguez v. Honeywell International12/29/2003
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In Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774, the court held that " f 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." The Ladas burden-shifting language was further refined in Nelson v. Anderson (1999) 72 Cal.App.4th 111,131 (Nelson), where the court found that "the mere filing of a motion to tax costs may be a `proper objection' to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. [Citation.] However, ` f the items appear to be proper charges the verified memorandum of costs is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].' [Citations.] [ ] The [trial] court's first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. [Citation.] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. [Citation.]"
The cost memoranda involved in this appeal consisted of charges specifically allowable by statute. These included filing and motion fees (§ 1033.5, subd. (a)(1)), deposition costs (§ 1033.5, subd. (a)(3)), and service of process fees (§ 1033.5 (a)(4)). The costs can best be described in three categories: (1) those pertaining solely against Honeywell (i.e., service of process on Honeywell); (2) those pertaining solely to other defendants (i.e., service of process on other defendants) and (3) common costs (i.e., filing the complaint, deposition costs, and combined motions.)
The trial court taxed the common filing and motion fees and deposition costs by dividing the total costs of each item by the number of defendants that appeared in each case. There is no statutory authority to apportion costs in this manner. In fact, case law expressly prohibits this type of apportionment. In Nelson, supra, 72 Cal.App.4th 111, the court reversed an order taxing costs, which reduced the prevailing party's costs by two-thirds. (Id. at p. 137.) There, three plaintiffs sued two defendants. (Id. at p. 117.) Prior to trial, two plaintiffs settled with the defendants. (Ibid.) At trial, the jury found in favor of one defendant and against the other. (Id. at p. 122.) The prevailing defendant then claimed costs against the remaining plaintiff. (Ibid.) The court granted the plaintiff's motion to tax and disallowed two-thirds of the costs, which it apportioned to the two settling plaintiffs. The court found that "an across-the-board reduction based upon the number of plaintiffs, without regard to the reason the costs were incurred, is not a determination of the necessity or reasonableness of costs." (Id. at p. 130, italics added.) Nelson does not foreclose a trial court's ability to apportion costs in all instances. Rather, any reduction or apportionment must be the product of a reasoned analysis. (Ibid.)
Here, the trial court, like the court in Nelson, impermissibly apportioned costs by mechanically reducing them based on the number of parties. Inasmuch as the claimed costs were expressly allowed by statute and were not subject to any facial attack, the burden remained with Honeywell to show them to be unnecessary or unreasonable. (Nelson, supra, 72 Cal.App.4th at p. 131.)
In attempting to meet its burden, Honeywell relied on Fennessy v. DeLeuw-Cather Corp
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