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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


Greg Smith, et al. v. City of Santa Barbara, et al.

Case No: 18CV01590
Hearing Date: Mon Jan 27, 2020 9:30

Nature of Proceedings: Motion Tax Costs and/or Strike Memorandum of Costs


CASE:                                    Greg Smith and Judith Smith v. City of Santa Barbara, et al., Case No. 18CV01590 (Judge Sterne)


HEARING DATE:               January 27, 2020



Motion to Strike Cost Memorandum or, in the Alternative, to Tax Costs



Sabrina D. Venskus for Petitioners and Plaintiffs Greg Smith and Judith Smith

Robin L. Lewis, Assistant City Attorney, for Respondents City of Santa Barbara and Brian D’Amour

 Janet K. McGinnis for Real Parties in Interest Herbert Barthels and Herbert E. Barthels Trust


TENTATIVE RULING:     The motion of petitioners to tax real party in interest’s costs in the amount of $48.00 and $15.00 (items 15 and 16 on the memorandum of costs) is granted. In all other respects, petitioners’ motion to strike or tax costs is denied.




On March 28, 2018, petitioners Greg Smith and Judith Smith filed their verified petition for writ of mandate in this action, seeking to overturn respondent City of Santa Barbara’s determination that the real property located at 1837 ½ El Camino De La Luz possesses sufficient legal access to allow for development of the property. The matter was briefed and argued on June 3, 2019. Following the hearing on the dispute, the court denied the Smiths’ petition for writ of mandate and ordered that judgment be entered in favor of City and real parties in interest, Herbert Barthels and the Herbert E. Barthels Trust, and against petitioners. Judgment was entered on November 7, 2019. Notice of entry of judgment was filed and served on January 16, 2020.


Barthels filed his original memorandum of costs on August 29, 2019, and his revised memorandum of costs on November 14, 2019, seeking total costs in the amount of $1,098.15. Petitioners now move to strike the cost memorandum or, in the alternative, to tax certain costs. Barthels opposes the motion.  




“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Code Civ. Proc. §1032, subd. (b). The specific items that are allowable as costs are set forth in Code of Civil Procedure Section 1033.5, subdivision (a), and include filing and motion fees and other expenses “reasonably necessary to the conduct of the litigation.” If properly completed and verified, the memorandum of costs filed by the prevailing party in an action is prima facie evidence that the items claimed are recoverable. Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131. The burden is on the party objecting to the costs bill to show that an item is not properly chargeable or is unreasonable. Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, 774-776.


Petitioners move to strike Barthels’s November 14, 2019 memorandum of costs on the ground that it is untimely. “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after . . . the date of service of written notice of entry of entry of judgment or . . . within 180 days after entry of judgment, whichever is first.” Cal. Rules of Court, Rule 3.1700, subd. (a)(1). Petitioners’ motion to strike on timeliness grounds will be denied. Judgment was entered in favor of City and Barthels and against petitioners on November 7, 2019. (Judgment, filed 11-7-19.) Barthels filed and served his revised memorandum of costs on November 14, 2019, just seven days later. (Memorandum of Costs (Summary), filed 11-14-19.) The cost memorandum was therefore timely. The fact that the clerk of the court did not file and serve the notice of entry of judgment until January 16, 2020, does not invalidate Barthels’s memorandum of costs.


Petitioners next argue that Barthels’s cost memorandum should be stricken because it was not served electronically. “[A] party that is required [by local rule] to file documents electronically in an action must also serve documents and accept service of documents electronically from all parties . . . .” Cal. Rules of Court, Rule 2.251, subd. (c)(2). Santa Barbara Superior Court Local Rule 1012, subdivision (a)(1), provides:


Mandatory E-Filing. Except as set forth in subdivision (a)(2), all documents presented for filing in all civil cases, including limited, unlimited, complex, small claims, family law, and probate, must be electronically filed (e-filed) with the court as provided in Code of Civil Procedure section 1010.6 and California Rules of Court, rules 2.250 through 2.261.”


Barthels served his revised cost memorandum by regular mail on November 14, 2019. (Memorandum of Costs (Summary), Proof of Service, filed 11-14-19.) Petitioners received no electronic service of the filing. (Kimball Dec., ¶4.) However, petitioners acknowledge that they received the paper copy of the cost memorandum on November 18, 2019. (Kimball Dec., ¶4, Ex. C.) Because plaintiffs were not harmed or prejudiced by the lack of electronic service (petitioners’ motion to tax costs was timely filed under Cal. Rules of Court, Rule 3.1700, subd. (b)(1)), the court will excuse Barthels’s procedural failure regarding electronic service of the memorandum and address the merits of petitioners’ motion.


The total costs listed on Barthels’s cost memorandum are $1,098.15 and include “[f]iling and motion fees” ($930.00), “[f]ees for electronic filing or service” ($105.15), “[f]ees for hosting electronic documents” ($15.00.), and “[o]ther” ($48.00.) Petitioners move to tax the $105.15 fees for electronic filing and service, the $15.00 fees for hosting electronic documents, and the $48.00 fees for “Other” on the ground that none of the costs are supported by documentation and it cannot be determined whether the costs were “reasonably necessary to the conduct of the litigation.” Code Civ. Proc. §1033.5, subd. (c)(2). In his opposition, Barthels provided documentation for the e-filing charges in the amount of $105.15 and the “Other” charges in the amount of $48.00. (McGinnis Dec., ¶7, Ex. 3). The $48.00 charge was for a transcript of the June 3, 2019 hearing. (McGinnis Dec., ¶5, Ex. 2.) Barthels did not provide any explanation or documentation for the $15.00 fees for “hosting electronic documents.”


The court will grant petitioners’ motion to tax the transcript preparation fee of $48.00 (item 16 on Barthels’s cost memorandum). Transcripts of court proceedings not ordered by the court are not allowed as costs. Code Civ. Proc. §1033.5, subd. (b)(5); see also, Moore v. City and County of San Francisco (1970) 5 Cal.App.3d 728, 740 (unless there is an express order by the court directing preparation of a transcript of the proceedings, fees for transcripts and copies ordered by the parties shall be paid by the party ordering them). The court will also grant petitioners’ motion to tax the $15.00 fee for “hosting electronic documents” (item 15 on Barthels’s cost memorandum) since no receipt or explanation for this cost was provided. In all other respects, petitioners’ motion to tax costs will be denied.

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