To the victor go the spoils. But that doesn’t mean the prevailing party can get whatever it wants in claimed costs. If you disagree with the costs listed in the prevailing party’s costs memorandum, file and serve a motion to tax costs. Here’s how.
The opposing party has the burden of overcoming the prima facie evidence of a verified memorandum of costs. A party can overcome this evidence by establishing that a charge was excessive or not actually incurred.
First, you have to file your motion to tax costs on time. Timing depends on how the prevailing party served you with the memorandum of costs (Cal Rules of Ct 3.1700(b)(1)):
- Personal service. If the prevailing party personally served the memorandum of costs, you must move to tax costs within 15 days after memorandum was served.
- Service by mail. If the prevailing party served the memorandum by mail (see CCP §1013(a)), you must move to tax costs within 20 calendar days if mailed from or to opposing party at an address in California; 25 calendar days if mailed from or to opposing party at an address outside California but in the United States; or 35 calendar days if mailed from or to opposing party at an address outside the United States.
- Service by fax/overnight mail. If the prevailing party served the memorandum by fax, Express Mail, or other overnight delivery, you must file your motion to tax costs within 15 days plus 2 court days after service. CCP §1013(c), (e). Service by fax requires the agreement of both parties, confirmed in writing. CCP §1013(e).
Failing to timely file the motion to tax costs is fatal. Rule 3.1700(b)(4) provides that, “[a]fter the time has passed for a motion to strike or tax costs or for a determination of that motion, the clerk must immediately enter the costs on the judgment,” causing one court to note that “[t]here is not a lot of forgiveness for missing the deadline there.” Alan S. v Superior Court (2009) 172 CA4th 238, 260. But the parties can always agree by written stipulation to extend the deadline to file the motion to tax costs. Cal Rules of Ct 3.1700(b)(3).
Next, be specific and clear as to what costs you are targeting. Make sure that your motion to tax costs both (Cal Rules of Ct 3.1700(b)(2)):
- refers to each item objected to by the same number and in the same order as the item appears in the memorandum, and
- states why that item is objectionable.
Finally, you must file the original motion to tax costs in the trial court and serve a copy of the motion on the prevailing party. Cal Rules of Ct 8.278(c)(2).
Courts generally have to decide your motion within 90 days; otherwise, the judge won’t receive his or her salary. See Cal Const art VI, §19. With that sword hanging over, you can expect the decision to be timely!
For help with the many procedural details once a trial court decision is final, turn to CEB’s step-by-step Action Guide Handling Civil Appeals.
Other CEBblog™ posts you may find useful:
- Did the Trial Court Get the Factual Determination Wrong?
- What Are My Prospects on Appeal?
- Defendants: Reject §998 Settlement Offers at Your Peril
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Filed under: Appeals/Post-Trial Matters, Civil Litigation, Legal Topics, Litigation Strategy | Tagged: cost memorandum, motion to strike costs, motion to tax costs, post-trial motion, prevailing party, trial costs |