Court: California Court of Appeal; May 5, 1959; California; State Appellate Court
In the case of William Muller v. Charles Reagh, the California Court of Appeals addressed an appeal concerning the recovery of costs. Following a prior successful appeal, Muller filed a memorandum of costs amounting to $262, which the court reduced to $91.50 after striking several items.
Key points include:
1. **Struck Items**: The court denied costs for jury fees, reporter's fees, and jury mileage from the first day of trial, as these expenses are not recoverable under rule 26 of the Rules on Appeal, which specifies allowable costs do not include trial expenses.
2. **Notary Fees**: An affidavit of service's notary fee was also denied; while recoverable under certain conditions, the court deemed it unfair to charge this cost to the opposing party since it was incurred solely for their convenience.
3. **Preparation Costs**: The court rejected claims for costs associated with preparing a proposed settled statement and various briefs, stating that while preparation costs may be recoverable, the plaintiff failed to prove actual expenses incurred.
4. **Statutory Basis**: The court cited section 1034 of the Code of Civil Procedure as the basis for allowable costs, emphasizing that only amounts actually paid out for the appeal and record preparation are recoverable, aligning with precedents like Turner v. East Side Canal Irr. Co.
Overall, the appellate court affirmed the trial court's discretion in determining recoverable costs, noting no abuse of discretion occurred in the decisions made regarding the items claimed by Muller.
The claimant bears the burden of proving the costs requested, as established in City of Los Angeles v. Abbott (1933). The plaintiff did not provide any receipts or vouchers during either hearing and did not seek an opportunity to present them. The trial court described the evidence regarding incurred costs as weak and unsatisfactory. The plaintiff claimed $155 for three items, but acknowledged including his own typing work in this amount. The court ultimately awarded $75, which was deemed fair given the lack of proof for the actual costs. Section 1034 aims to reimburse a successful litigant for out-of-pocket expenses, not for personal labor. Consequently, the trial court's denial of the plaintiff's request to increase a specific cost item from $70 to $81.25 was justified. The plaintiff argued that only the appellate court has the authority to reduce costs, referencing section 1034 and rule 26(a), but the trial court retains this power when a cost memorandum is filed. Attempts by the plaintiff to contest the record were dismissed, as the reviewing court is limited to the record presented. The appellate court affirmed the trial court's order.
