Filed 7/30/15 Dixon Gas Club LLC v. Safeway Inc. CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


DIXON GAS CLUB LLC,
         Plaintiff and Appellant,
v.                                                                       A139910
SAFEWAY INC.,
                                                                         (Alameda County
         Defendant and Respondent.                                        Super. Ct. No. VG08387771)



         This is an appeal from a post-judgment order denying the motion to tax costs filed
by plaintiff Dixon Gas Club LLC (Dixon) against defendant Safeway, Inc. (Safeway).
Safeway moved for an award of costs after prevailing against Dixon in a lawsuit brought
under California’s Unfair Practices Act (Bus. & Prof. Code, § 17000 et seq.) and unfair
competition law (Bus. & Prof. Code, § 17200 et seq). Dixon then moved to tax costs,
which motion the trial court denied in all but one regard before ultimately awarding
Safeway a total of $103,421.38 in costs.1 We affirm.




1
       After Dixon filed its motion to tax costs, Safeway voluntarily withdrew one of the
challenged cost items – to wit, a $200 filing fee Safeway incurred in connection with a
court filing. The trial court thereafter denied recovery of this cost item, which is not
subject to dispute on appeal.
                                                             1
                 FACTUAL AND PROCEDURAL BACKGROUND2
       On July 5, 2013, Safeway filed a verified Memorandum of Costs pursuant to Code
of Civil Procedure section 1032 claiming $94,340.13 in costs. Safeway then filed an
amended verified Memorandum of Costs on July 8, 2013 (hereinafter, cost
memorandum), in which it added a claim for costs related to expert witness depositions,
for a revised total of $103,621.38.
       On July 18, 2013, Dixon filed its motion to tax costs. In particular, Dixon
challenged four cost items claimed by Safeway: (1) deposition costs; (2) costs for
models, blowups and photocopies of exhibits; (3) messenger service fees; and (4) trial
equipment rental costs. To support this motion, Dixon filed a one-page declaration from
its trial counsel, James Dombroski. Safeway opposed the motion, and a hearing was then
held on September 6, 2013.
       Following this hearing, the trial court denied Dixon’s motion to tax costs with the
exception of one claimed cost – to wit, a $200 court filing fee that Safeway voluntarily
withdrew when opposing the motion. In reaching this decision, the trial court found with
respect to Dixon’s challenges to particular costs items that Dixon had failed to meets its
burden of proving the claimed costs were not reasonably necessary, such that the burden
never shifted back to Safeway to prove otherwise. Alternatively, the trial court found
Safeway’s challenged cost items were in fact reasonable and necessary. With respect to
the evidentiary objections Dixon raised with respect to the declaration of Safeway’s
counsel, which was offered in opposition to the motion, the trial court found the
objections went to the weight of the evidence rather than the admissibility, and thus were
improper. This appeal followed.




2
       A complete recitation of material facts in Dixon’s underlying lawsuit against
Safeway is set forth in Dixon v. Safeway Inc., A139283, July 29, 2015 (nonpub.). In this
related decision, we affirmed the trial court’s judgment in favor of Safeway after it
dismissed Dixon’s four causes of action under the unfair competition law and the Unfair
Practices Act.
                                             2
                                       DISCUSSION
       Dixon’s challenge on appeal relates to the trial court’s award of $103,421.38 in
costs to Safeway and admission of certain evidence Safeway offered in support of these
costs. The relevant law is well-established.
       A prevailing party in a civil action or proceeding is generally entitled to recover
costs. (Code of Civil Procedure section § 1032, subd. (b).)3 “ ‘Section 1033.5, enacted in
1986, codified existing case law and set forth the items of costs which may or may not be
recoverable in a civil action. [Citation.]’ (Van de Kamp v. Gumbiner (1990) 221
Cal.App.3d 1260, 1291 [270 Cal.Rptr. 907].) An item not specifically allowable under
subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in
the discretion of the court if ‘reasonably necessary to the conduct of the litigation rather
than merely convenient or beneficial to its preparation.’ (§ 1033.5, subd. (c)(2).)” 4
(Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 773-774 (Ladas).)
       “If 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. [Citations.] Whether a cost item was
reasonably necessary to the litigation presents a question of fact for the trial court and its
decision is reviewed for abuse of discretion. [Citation.] However, because the right to
costs is governed strictly by statute [citation] a court has no discretion to award costs not
statutorily authorized. [Citations.]” (Ladas, supra, 19 Cal.App.4th at p. 774. See also
Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142 [“de novo review of . . .
a trial court [cost] order is warranted where the determination of whether the criteria for

3
        Unless otherwise stated, all statutory citations herein are to the Code of Civil
Procedure.
4
        The following items are statutorily prohibited as costs: “(1) Fees of experts not
ordered by the court. [¶] (2) Investigation expenses in preparing the case for trial.
[¶] (3) Postage, telephone, and photocopying charges, except for exhibits. [¶] (4) Costs in
investigation of jurors or in preparation for voir dire. [¶] (5) Transcripts of court
proceedings not ordered by the court.” (§ 1033.5, subd. (b).)
                                               3
an award of attorney fees and costs in [a particular] context have been satisfied amounts
to statutory construction and a question of law”]; accord Baker-Hoey v. Lockheed Martin
Corp. (2003) 111 Cal.App.4th 592, 596.)
       Here, Safeway’s memorandum of costs included a total of $103,621.38 in costs
“as a matter of right” under section 1033.5, subdivision (a). This amount included
$2,033.35 in filing and motion fees (§ 1033.5, subd. (a)(1)), $68,067.57 in deposition
costs (id., subd. (a)(3)), $17,501.61 in exhibit-related costs (including models, blowups
and photocopies) (id., subd. (a)(13)), and $16,018.85 in “other costs” (including
messenger filing fees and expert witness deposition fees). Dixon contends certain of
these costs were excessive, not recoverable, unnecessary, or lacking adequate evidentiary
support (such as itemized bills or records).5 In addition, Dixon challenges the
admissibility of the declaration submitted in support of Safeway’s cost memorandum by
its trial counsel, Andrew Lanphere, which Dixon claims is conclusory, not based on
personal knowledge and in violation of the best evidence rule.
       Before addressing Dixon’s challenges to Safeway’s specific cost items, we first
consider its more general argument relating to the applicable burden of proof. As set
forth above, “[i]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.” (Ladas, supra, 19
Cal.App.4th at p. 774.) Dixon insists this rule applies here to shift the burden to Safeway
to prove the challenged items of cost were reasonably necessary. We, however, agree
with the trial court that burden shifting is not called for on this record. As the above-cited
authority makes clear, burden-shifting occurs where cost items have been “properly

5
        Specifically, Dixon’s motion to tax costs challenged four categories of cost items:
travel-related deposition costs for 14 witnesses or potential witnesses (item 4 of the
amended memorandum of costs); costs for models, blowups and copies of trial exhibits
(including 13 demonstrative exhibits not used at trial); trial equipment rental costs (item
11); and “other” costs, including messenger fees incurred in connection with court filings
(item 13).
                                              4
objected to.” (Ibid.) Here, the trial court found that Dixon failed to properly object to
Safeway’s verified cost memorandum, or Safeway’s supportive declaration (the Lanphere
declaration), such that Dixon had the burden to prove the challenged cost items
unreasonable or unnecessary. The trial court’s decision in this regard was appropriate.
       In particular, we reject Dixon’s claim that the Lanphere declaration should have
been excluded as wholly conclusory “in terms of establishing what sums were incurred or
paid” and not based on personal knowledge. In making this claim, Dixon insists “it
defies logic to believe the declarant had personal knowledge as to what was expended or
why the expenditure . . . was necessary.”6 We disagree. It is indeed quite reasonable for
the attorney charged with representing a client at trial to have personal knowledge of the
expenses incurred by or on behalf of the client during the litigation. Dixon offers no
evidence in this case to prove otherwise. Instead, Dixon offers an assertion by its own
counsel that, “Upon information and belief, the amounts [claimed by Safeway] which are
either not recoverable or excessive [are]: messenger filing fees; depo travel fees for [13
named deponents]; all depo videotaping and transcribing; all trial exhibits, including
equipment costs; all messenger fees.” The trial court was under no obligation to accept
this conclusory statement, lacking, as it were, any basis in actual fact, as a sufficient
rebuttal to Safeway’s prima facie showing that its claimed costs were recoverable. (See
Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266-1268 [mere assertions that
claimed costs are not necessary or reasonable are insufficient to shift burden of proof to
the moving party]; accord Ladas, supra, 19 Cal.App.4th at pp. 774-775.)
       Moreover, with respect to Dixon’s related contention, we know of no authority
requiring a verified memorandum of costs to include actual “checks, bills or invoices” for


6
        Dixon’s reliance on the best evidence rule as a basis for challenging the
admissibility of the Lanphere declaration is misplaced. As Safeway notes, this rule
applies where oral testimony is offered to prove the content of a particular writing. (See
Evid. Code, §§ 1521, 1523.) Here, to the contrary, the declarant’s statements were
offered to prove that Safeway reasonably and necessarily incurred certain costs during
trial, which costs were then recorded in the cost memorandum; it was not offered to prove
the content of that cost memorandum.
                                               5
those costs in order to be successful. As such, we conclude the trial court had a proper
basis for overruling Dixon’s evidentiary objections and accepting Safeway’s prima facie
showing of recoverable costs, particularly given that, as the court noted, “[Dixon] made
no attempt to meet [its] burden with evidence of its own.” (See People v. Alvarez (1996)
14 Cal.4th 155, 203 [the “appellate court reviews any ruling by a trial court as to the
admissibility of evidence for abuse of discretion”].)
       We briefly address Dixon’s alternative argument in attempting to avoid its burden
of proof. Specifically, Dixon points to the general principle that, where evidence needed
to establish an essential fact is “peculiarly within the knowledge and competence of one
of the parties,” that party has the burden of producing evidence as to that fact even where
the other party has raised the underlying claim. (E.g., Amaral v. Cintas Corp. No. 2
(2008) 163 Cal.App.4th 1157, 1189.) According to Dixon, essential facts related to the
costs Safeway incurred in the trial court are “exclusively within [its] possession” and,
thus, that Safeway bears the burden of proving those costs reasonable and necessary. We
again disagree. The law, set forth above, is well-settled regarding the parties’ respective
burdens of proof when a prevailing party seeks to recover costs pursuant section 1032.
(E.g., Ladas, supra, 19 Cal.App.4th at p. 774; Jones v. Dumrichob, supra, 63 Cal.App.4th
at pp. 1266-1267.) Moreover, we find no reason on this record to stray from this
established law. Indeed, this litigation spanned nearly five years, and the bench trial
alone lasted three weeks. While Dixon suggests only Safeway acquired the knowledge
and competence required to establish the reasonableness of its claimed cost items, Dixon
points to no reason or circumstance why this would be true. To the contrary, the record
reflects the parties mutually engaged in the discovery and trial process, such that there is
no evident reason why Dixon’s counsel would have been deprived of the necessary facts
to challenge a particular cost item. Dixon’s general assertion, without factual
underpinning, that only Safeway had access to this knowledge must therefore be rejected.
       Lastly, we turn to the challenges raised on appeal to specific cost items claimed by
Safeway, which appear to be limited to the amounts expended on messenger services for
filing court documents, certain exhibit-related costs (primarily, costs for exhibits not used

                                              6
at trial), equipment rental (including electronic devices), and deposition-related costs
(including travel costs for depositions).
       First, with respect to the deposition costs incurred by Safeway, the bulk of which
appear to relate to travel or recording/transcribing expenses, the following legal
principles apply. “The necessity for a deposition and for the related expenditures is a
question for the trial court’s sound discretion. [Citation.] The burden of proof that the
deposition was unnecessary or that the costs of taking the deposition were unreasonable
is on the party seeking to have that item taxed or reduced.” (County of Kern v. Ginn
(1983) 146 Cal.App.3d 1107, 1113 (Ginn).)
       In Ginn, the reviewing court held that the party moving to tax had failed its burden
to prove the claimed deposition costs were not reasonably necessary where “[the moving
party] merely alleged that the depositions were neither necessary nor reasonable under
the circumstances.” (146 Cal.App.3d at pp. 1113-1114.) We reach the same conclusion
here. As discussed above, Dixon merely asserts that certain deposition costs incurred by
Safeway were either unreasonable or unnecessary, without any explanation or supportive
evidence. Such a showing, without more, does not overcome Safeway’s verified cost
memorandum, which states under penalty of perjury that all claimed items in the cost bill
were reasonably and necessarily incurred, including those costs incurred to drive to San
Jose and Sacramento to depose several witnesses, and to travel (airfare and lodging) to
Southern California and New Jersey to depose three other witnesses. Indeed, as
Safeway’s counsel pointed out, in all but the case of the witness deposed in Sacramento,
the depositions requiring travel were noticed by Dixon and involved individuals
subsequently included on Dixon’s witness list for trial. On this record, Dixon has not met
its burden of disproving Safeway’s verified statements. We thus affirm the trial court’s
finding that the claimed deposition costs were reasonably necessary within the meaning
of section 1033.5, subdivision (a)(3). (§ 1033.5, subd. (a)(3) [authorizing costs for
“Taking, video recording, and transcribing necessary depositions including an original
and one copy of those taken by the claimant and one copy of depositions taken by the
party against whom costs are allowed, and travel expenses to attend depositions”] (italics

                                              7
added). See also Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1560
[concluding “the trial court was well within its discretion in awarding travel costs to
depositions”] (Seever).)
       Next, with respect to the messenger service costs, Dixon correctly notes these
costs do not fall within any of the statutorily-delineated categories of permissible cost
items and, as such, are not recoverable unless the moving party proves them reasonably
necessary. (See Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.) California courts
have recognized that messenger service charges may be permitted under section 1033.5,
subdivision (c)(4), based upon a proper showing by the prevailing party that such charges
were reasonably necessary. In Ladas, for example, the reviewing court affirmed a
decision by the trial court to permit recovery of messenger charges where the declaration
submitted by the prevailing party demonstrated that these charges were related to trial
preparation and “incurred for such matters as filing documents with the court, complying
with appellants’ document demands, and transporting exhibits to and from the
courtroom.” (Ladas, supra, 19 Cal.App.4th at p. 776.)
       This same reasoning applies here. The trial court acted within its broad discretion
in accepting Safeway’s evidence, including its verified cost memorandum and declaration
from trial counsel, that the costs claimed for messenger services in connection with court
filings were reasonably necessary. In the absence of any contrary showing by Dixon, at
least, beyond its mere assertion that Safeway could have used a more cost-effective
service for its filing needs, Dixon’s challenge must fail. (See Serrano v. Priest (1977) 20
Cal.3d 25, 49 [no reversal absent evidence of a manifest abuse of discretion].)
       Finally, we consider Safeway’s cost items related to exhibits, including costs
incurred for renting equipment to display evidence and to show video clips of deposition
testimony; preparing and copying binder sets of both parties’ trial exhibits for use by the
court, witnesses and parties; and preparing and copying demonstrative exhibits intended
for, among other things, cross-examining witnesses and closing arguments. Under
section 1033.5, subdivision (a)(13): “Models and blowups of exhibits and photocopies of


                                              8
exhibits may be allowed if they were reasonably helpful to aid the trier of fact.”
(§ 1033.5, subd. (a)(13) (italics added).)
       There appears to be a split in authority as to whether costs related to exhibits not
ultimately used at trial are recoverable, either within the court’s discretion pursuant to
section 1033.5, subdivision (c), or under section 1033.5, subdivision (a)(13). Subdivision
(c)(4), recall, provides that “[i]tems not mentioned in this section and items assessed
upon application may be allowed or denied in the court’s discretion.” Section 1033.5,
subdivision (c)(2), in turn, provides that items not specifically allowable under
subdivision (a) and not prohibited under subdivision (b) may nevertheless be recoverable
in the discretion of the court if “reasonably necessary to the conduct of the litigation
rather than merely convenient or beneficial to its preparation.”7 (See Ladas, supra, 19
Cal.App.4th at pp. 773-774.)
       On one hand, our appellate colleagues in Seever held: “On its face this statutory
language [of section 1033.5, subd. (a)] excludes as a permissible item of costs exhibits
not used at trial, which obviously could not have assisted the trier of fact.” (Seever,
supra, 141 Cal.App.4th at pp. 1557-1558; see also Ladas, supra, 19 Cal.App.4th at p. 775
[“fees are not authorized for exhibits not used at trial”].) The Seever court reasoned:
“Because the Legislature has expressly stated in subdivision (a)(12) [currently,
subdivision (a)(13)] what is allowable (exhibits used at trial that are reasonably helpful)
and implicitly what is not, the discretion granted in section 1033.5, subdivision (c)(4), to
award costs for items not mentioned in section 1033.5 is simply inapplicable.” (Seever,
supra, 141 Cal.App.4th at pp. 1559-1560.)
       On the other hand, the reviewing court in Applegate v. St. Francis Lutheran
Church (1994) 23 Cal.App.4th 361, 364 (Applegate), held that the prevailing party could
recover costs for exhibits not used at trial where the lawsuit was dismissed on the day of
trial pursuant to section 1033.5, subdivision (c)(4), which allows items “not mentioned in
this section and items assessed upon application [to the trial court].” Thus, contrary to
7
       Undisputedly, exhibits not used at trial are not among the cost items prohibited
under section 1033.5, subdivision (b).
                                              9
Seever, the Applegate court read the relevant statutory language as being silent as to
exhibits not used at trial. The Applegate court then concluded that whether this particular
cost item would be allowed was a matter for the trial court’s discretion under section
1033.5, subdivision (c)(4), so long as the proper showing was made under subdivision
(c)(2) that the item was “reasonably necessary” to the conduct of the litigation.
(Applegate, supra, 23 Cal.App.4th at p. 364.)
       We believe Applegate is more consistent with general principles of statutory
construction. Specifically, focusing on the statutory language that allows costs for
models, blowups and photocopies of exhibits “if they were reasonably helpful to aid the
trier of fact” (§ 1033.5, subd. (a)(13), italics added), we find no clear prohibition on
exhibits not used at trial. Rather, the identified language, reasonably interpreted, requires
an exhibit to meet an objective standard of being “reasonably helpful to aid the trier of
fact.” This language does not, however, require the trier of fact to have been, in fact,
aided by the particular exhibit. Instead, the focus of the statutory language is on the
character of the exhibit, not the conduct of the trier of fact. For this reason, we believe
the Seever court read something into the statutory language that, quite simply, is not there
– to wit, a complete prohibition on the recovery of costs for exhibits not used at trial,
even where, as here, the exhibits could in fact have been reasonably helpful to the trier of
fact in understanding a material issue in the litigation, but were ultimately rendered moot
by a successful motion for judgment following the plaintiff’s case-in-chief. We decline
to so read this statute. Had the legislature intended to bar recovery of these costs under
all circumstances, the legislature could have (but did not) include them in the list of items
“not allowable as costs” set forth in subdivision (b) of section 1033.5. (See Great
Western Bank v. Converse Consultants, Inc. (1997) 58 Cal.App.4th 609, 613-614 [“ ‘one
should not read into the statute allowing costs a restriction which has not been placed
there’ ”].)
       Accordingly, we agree with the Applegate court that, under the relevant statutory
scheme, whether to award the prevailing party its costs for exhibits prepared for trial, but
not ultimately used, is a matter left to the court’s discretion in accordance with section

                                             10
1033.5, subdivision (c). (Accord Great Western Bank v. Converse Consultants, supra, 58
Cal.App.4th at p. 615 [concluding the trial court did not abuse its discretion in declining
to award costs to prevailing party for models, blowups, and photocopies of exhibits
where good faith settlement was reached just prior to the commencement of trial].)
       The issue remains, however, whether the trial court in this case abused its
discretion when finding that Safeway’s costs for models, blowups and photocopies of
exhibits not used at trial were “reasonably necessary” to the conduct of the litigation.
(Applegate, supra, 23 Cal.App.4th at p. 364 [whether a cost item was “reasonably
necessary” to the litigation is a question of fact reserved for the trial court and reviewed
only for abuse of discretion]; Ladas, supra, 19 Cal.App.4th at p. 774 [same].) We
conclude the trial court committed no such abuse. As Safeway points out, the trial in this
case was well underway – indeed, three weeks underway – when the trial court granted
its motion for judgment under section 631.8 at the conclusion of Dixon’s case-in-chief.
Under these circumstances, it is not at all surprising that Safeway had already incurred
costs to prepare exhibits intended for use at trial to, among other things, impeach Dixon’s
witnesses and in closing arguments. In addition, the Lanphere declaration states that
Safeway incurred costs preparing binder sets of both parties’ trial exhibits for use by the
court, the witnesses, and the parties, pursuant to an agreement reached prior to trial.
Regardless of whether all exhibits in the binder set were admitted and deemed helpful by
the trial court, it could nonetheless have reasonably found Safeway’s exhibit-related costs
were reasonably necessary to the conduct of the litigation. As such, we decline to disturb
the trial court’s judgment on this issue, based, no doubt, on a much more complete
understanding of the litigation than this court is able to have.

                                      DISPOSITION
       The order denying Dixon’s motion to tax costs is affirmed. Dixon shall bear costs
on appeal.




                                              11
                                              _________________________
                                              Jenkins, J.


We concur:


_________________________
Pollak, Acting P. J.


_________________________
Siggins, J.



Dixon Gas Club LLC v. Safeway Inc., A139910




                                       12
