Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Napa County Super. Ct. No. 26-32591
Lambden, J.
Beckstoffer Vineyards II and Beckstoffer Vineyard V (collectively, the vineyards) were involved in a contract dispute with William Deem and Kimberton Wines, L.P. (collectively, the purchasers). After a bench trial where the court found in favor of the vineyards, the trial court awarded the vineyards their requested attorney fees and their costs. The purchasers appeal the attorney fees order and separately appeal the costs order. We, on our own motion, consolidate the appeals. We affirm the lower court’s rulings.
BACKGROUND
The vineyards are located in Napa County (Napa) and they sell grapes to wineries. The purchasers produce premium cabernet sauvignon wines. The vineyards and purchasers entered into five contracts for the purchase and sale of wine grapes that were delivered in 2005. Each contract contained a provision providing that the prevailing party would be entitled to recover reasonable attorney fees and costs in any legal proceedings initiated to enforce or interpret the contracts. The purchasers accepted delivery of the vineyards’ grapes, but refused to pay the entire sum due under the five contracts because they maintained that the grapes’ quality was not good enough for premium wines.
We note that the purchasers set forth facts in their brief that are not supported by any citation to the record. We will not consider facts that are not supported by the record. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.)
On February 22, 2006, the vineyards filed a complaint against the purchasers seeking $230,313.22, plus interest, for the amount still due on the five contracts. On March 28, 2006, the purchasers filed their cross-complaint, asserting that the grapes delivered by the vineyards were substandard and requesting damages in the amount of $890,000. This sum represented their alleged net loss from being unable to produce premium wine. Their claim of lost profits increased to more than $1,020,671 by the time of trial.
The matter proceeded to a bench trial on June 26, 2007. After a nine-day trial with 12 witnesses, the court filed its statement of decision on August 21, 2007. The court determined that the purchasers breached the five contracts and awarded damages in the amount of $267,576 to the vineyards. The court awarded no damages to the purchasers on their cross-complaint.
On August 29, 2007, the vineyards filed their motion for an award of attorney fees and costs. They stated that each contract contained an attorney fees provision and that they were the prevailing parties within the meaning of Civil Code section 1717. The law firm representing the vineyards, which was located in San Francisco, submitted declarations regarding the hourly rates actually charged by the attorneys for their representation of the vineyards. The law firm also submitted evidence that its rates were comparable to the rates in San Francisco of other similarly sized law firms with similar practices.
Counsel for the vineyards stated that “[t]he total [attorney] fees through the date of [the reply brief regarding the attorney fees] exceed $718,402.” According to counsel, this sum included 705.7 hours of partner time, 1,016.5 hours of associate time, and 619.6 hours of legal assistant and other time. Counsel further asserted that the actual average partner rate in this case was $465 per hour, the average associate rate was $287 per hour, and the average legal assistant/other hourly rate was $159 per hour.
On August 30, 2007, the vineyards submitted their memorandum of costs. They claimed $43,775 (this sum was later reduced by $2,338), which included $16,200 for “models, blowups, and photocopies of exhibits.” On September 19, 2007, the purchasers filed a motion to tax costs.
On October 24, 2007, the vineyards filed a corrected memorandum of costs, which reduced the claimed costs by $2,338.
The court held its hearing on the attorney fees motion on September 24, 2007. Prior to hearing argument, the court commented: “It did seem like a lot of money. I don’t find the fees unreasonable, the costs, but it did seem like a lot of money on the case. Although, it was a hard fought case all the way through.” Counsel for the purchasers argued that the vineyards presented no evidence regarding the rates in Napa. The court stated that it did not believe the rates charged by counsel for the vineyards was high. The court noted that counsel in this case had prepared for a jury trial until just before the trial was set to begin. The court concluded that the fees were reasonable. Consequently, it granted the vineyards’ motion in its entirety.
On the Friday prior to trial, for reasons related to Deem’s schedule, the parties agreed to waive the jury and conduct a bench trial.
On September 27, 2007, the trial court filed its order awarding attorney fees to the vineyards in the amount of $718,402. The purchasers filed their notice of appeal from this order on October 2, 2007.
On November 6, 2007, the trial court issued a tentative ruling granting in part and denying in part the purchasers’ motion to tax costs. No party requested oral argument, and the court adopted its tentative ruling on November 7, 2007. The court noted that the vineyards had requested costs, excluding attorney fees, in the amount of $41,437. The court denied the purchasers’ request to tax the costs for models, blow-ups, and photocopies of exhibits. It acknowledged that “many of these items were not ultimately used at trial,” but pointed out that “counsel prudently fully prepared for trial by having them available.” The court taxed the vineyards’ costs in the amount of $11,461.24, and ordered the purchasers to pay the vineyards $29,975.76 for the untaxed costs.
On November 19, 2007, the purchasers filed their notice of appeal from the lower court’s award of costs.
We, on our own motion, consolidate the purchasers’ appeals from the award of attorney fees and from the award of costs.
DISCUSSION
I. Attorney Fees
The superior court awarded $718,402 in attorney fees to the vineyards pursuant to Civil Code section 1717. The purchasers do not challenge the lower court’s ruling that the vineyards were the prevailing party and entitled to attorney fees under Civil Code section 1717. They do, however, argue that the lower court erred in using the prevailing rate in San Francisco rather than in Napa when assessing the reasonableness of the fees charged. Further, even if using San Francisco as the comparable community was proper, the purchasers maintain that the amount of the fees claimed by the vineyards was unreasonable.
A. Standard of Review
Civil Code section 1717 provides that “[r]easonable attorney’s fees shall be fixed by the court.” The trial court has broad authority to determine the amount of a reasonable fee. (Montgomery v. Bio-Med Specialties, Inc. (1986) 183 Cal.App.3d 1292, 1297 [trial court has “wide latitude in determining the amount of an award of attorney’s fees” under Civil Code section 1717]; Vella v. Hudgins (1984) 151 Cal.App.3d 515, 522 [“The amount to be awarded in attorney’s fees is left to the sound discretion of the trial court”].)
As our Supreme Court has explained: “The ‘experienced trial judge is the best judge of the value of professional services rendered in his [or her] court, and while his [or her] judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’ ” (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) “[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. ‘California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.’ ” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM Group).) “The reasonable hourly rate is that prevailing in the community for similar work.” (Ibid.) “The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. [Citation.] Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary.” (Ibid.)
As already noted, Civil Code section 1717 provides for the payment of a “reasonable” fee. Thus, “ ‘after the trial court has performed the calculations [of the lodestar], it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure.’ ” (PLCM Group, supra, 22 Cal.4th at pp. 1095-1096.) “ ‘The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.’ ” (Id. at p. 1096.)
B. The Comparable Community
As already discussed, “[t]he reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group, supra, 22 Cal.4th at p. 1095.) The purchasers claim that the lower court improperly used San Francisco rather than Napa as the comparable community and that the court merely relied on its own experience to conclude that the rates in Napa were the same as those in San Francisco. The litigation occurred in Napa, but the law firm for the vineyards was located in San Francisco.
Contrary to the purchasers’ contention, the relevant “community” for purposes of a fee award is not necessarily limited to the place where the courthouse is located. In the present case, the lower court did indicate that it believed that the fees in Napa were about the same as those in San Francisco, but it emphasized that the relevant community was the entire Bay Area. The court observed that the attorneys who appear in the Napa courts are from all over the Bay Area. The court explained: “What I see, I’ve been here two years, what I see is about half my cases have attorneys coming from either San Francisco, someplace east of San Francisco, Concord, a lot from Concord or that general area or center Sacramento [sic], that’s about half the attorneys on cases, unless you are doing something probate or family law. . . .”
Thus, the trial court considered the entire Bay Area, including San Francisco, to be the relevant community. The trial court has its own expertise and knowledge in determining reasonable attorney fees in the community. (See PLCM Group, supra, 22 Cal.4th at p. 1096.) The purchasers point to no authority that holds the community for purposes of calculating a reasonable fee must be the one in which the court is located. Indeed, our Supreme Court in PLCM Group approved of a fee award even though it was based on the rates where the law firm was located rather than on the rates where the litigation occurred. (Ibid.) In PLCM Group, the lawsuit was in the Los Angeles County Superior Court, but the superior court based its award of attorney fees on the “prevailing market rate for comparable legal services in San Francisco, where counsel [was] located.” (Ibid.) Although it does not appear that there was a specific objection to using San Francisco as the comparable community, the Supreme Court, when reviewing a challenge to the award, concluded, “No error appears.” (Ibid.)
Here, not only was counsel’s office in San Francisco, but the superior court concluded that one-half of the cases litigated in the Napa County Superior Court were by attorneys outside of Napa. Accordingly, we conclude that the lower court properly used the prevailing market rate for comparable legal services in San Francisco, where the law firm representing the vineyards is located.
C. Evidence of the Market Rate
The purchasers contend that the vineyards submitted no evidence to support their assertion that the rates charged by their attorneys was the market rate. The purchasers maintain that the trial court sustained their objections to the evidence submitted regarding the average billing rates for attorneys in San Francisco.
Preliminarily, we note that the purchasers simply assert in their brief—without any citation to the record—that they successfully objected in the court below to the vineyards’ evidence of the prevailing rate. Our review of the record establishes that the court sustained their objections to some of the evidence. The purchasers objected to the declaration of Paul B. Feasby, the chief operating officer of the law firm representing the vineyards. In his declaration, Feasby referred to a study published by Citibank and he set forth his opinion regarding the reasonableness of the law firm’s rates. The court ruled that Feasby could give his opinion regarding the basis for the law firm’s rates, but it sustained the objection to the “actual results” of the Citibank survey. Additionally, at the hearing, counsel for the purchasers argued that it was unfair for the vineyards to present new evidence in their reply papers. The court responded: “I agree with that. I didn’t consider that. I did read it on Saturday. I didn’t consider it. I relied on my own experience.” Thus, the court did not consider the evidence submitted with the vineyards’ reply papers.
The trial court did consider that portion of Feasby’s declaration where he asserted that, according to the Citibank survey for 2005 and 2006, the rates charged by his law firm were comparable to the rates in San Francisco of other similarly sized law firms with practices like his law firm. This portion of Feasby’s declaration was admissible and sufficient to establish that the law firm’s rates were reasonable as compared to the rates of other similar San Francisco law firms. “[T]he moving party may satisfy its burden through its own affidavits, without additional evidence.” (MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 13.) In addition, the vineyards submitted the invoices actually paid to their counsel, which provided prima facie evidence of the reasonable hourly rate. (Ibid.) The purchasers submitted no evidence to contradict the vineyards’ evidence and we therefore conclude that the lower court did not abuse its discretion in finding that the fees in the present case were in line with the prevailing rate in San Francisco.
D. The Reasonableness of the Total Amount
Prevailing counsel are entitled to compensation for all hours “reasonably spent unless special circumstances would render an award unjust.” (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 446, citing Serrano v. Unruh (1982) 32 Cal.3d 621, 632-633.) Time is compensable if it was reasonably expended and was the type of work that would be billed to a client. (See Hensley v. Eckerhart (1983) 461 U.S. 424, 434.)
The purchasers contend that the attorney fees awarded in the present case exceed the bounds of reason; they claim that a breach of contract action does not require in excess of 2,300 hours in order to prosecute the case. (See Harrington v. Payroll Entertainment Services, Inc. (2008) 160 Cal.App.4th 589, 594 [reviewing court reversed the denial of attorney fees and set the award at $500 after concluding requested amount was unreasonable].) They further point out that the trial was originally set for February 2007 but was continued; the vineyards claimed an additional sum of $250,000 for fees for preparation after the original date for trial. The purchasers maintain that additional preparation should not have been necessary because counsel for the vineyards should have been ready to go to trial in February 2007. The purchasers also argue that the court improperly accepted the vineyards’ argument that it was improper to break down the components of the cost of litigation and the court simply looked at the actual hours multiplied by the actual rates. (See Serrano v. Unruh, supra, 32 Cal.3d 621.)
Specifically, the purchasers assert that it was beyond reason that the motion for attorney fees could cost $60,000, as claimed by the vineyards. Further, they maintain that “[t]here is simply no explanation as to how it would take nearly three hours to analyze” the Code of Civil Procedure section 998 offer that the purchasers made in the amount of $186,000 within days of the filing of the complaint. They also assert that “[i]t is inconceivable that it takes two lawyers 27 hours to draft a request for production of documents and interrogatories” and there is no explanation for taking 9.4 hours to answer an unverified cross-complaint.
The purchasers argue in their statement of facts that attorney fees charged by counsel for the vineyards were unreasonable. We do not consider arguments in the statement of facts and have limited our review to the challenges specifically raised in the argument section.
We note that when making these arguments, the purchasers make almost no citations to the record.
Counsel for the vineyards submitted to the court detailed billing invoices showing the time expended on each task, and there is nothing in this record to suggest that the superior court did not review each component of the litigation and determine that the hours for each component were reasonable. The court explained that it “did go through everything,” including all of the billing. The judge elaborated: “. . . I was impressed with the fact that it was set up as a jury trial[,] which I realize by the presentation and preparation was that—and [there] did not seem to me to be much unreasonable . . . .” The court further explained that in a relatively similar case before a jury it awarded $1 million in attorney fees; the court believed that the present case had to be considered like a jury trial. The court emphasized that the case was hard fought and commented: “And I think, I think the costs are reasonable. I don’t know where to cut.” The court continued: “I don’t see a good ground, anything I can actually cut out that wasn’t reasonable. I think it was properly done.”
The lower court tried the case and was in the best position to determine the reasonable amount of time for each task. We will not reassess the amounts for each component of the litigation. “ ‘ “We do not want ‘a [trial] court, in setting an attorney’s fee, [to] become enmeshed in a meticulous analysis of every detailed facet of the professional representation. It . . . is not our intention that the inquiry into the adequacy of the fee assume massive proportions, perhaps dwarfing the case in chief.’ ” ’ [Citation.] Indeed, such wholly ancillary litigation on the question of salaries and costs and the internal economics of a law office could lead to an increase rather than a diminution of the costs of fee awards under Civil Code section 1717.” (PLCM Group, supra, 22 Cal.4th at p. 1098.)
The problem with attempting to review on appeal each component of the litigation is that the costs for each component must be examined within the proper context. For example, the purchasers complain that opposing counsel’s spending almost three hours to review an offer pursuant to the Code of Civil Procedure section 998 is on its face unreasonable. The vineyards, however, explain that the purchasers served the section 998 on both plaintiffs jointly and did not apportion separate amounts to each plaintiff and therefore legal research was necessary to determine whether such an offer was legally defective. The trial court, which was familiar with all of these detailed aspects of the litigation, was in the best position to determine whether legal research was warranted prior to responding to the offer.
With regard to the purchasers’ argument that the attorney fees increased by $250,000 between the original date of the trial in February 2007 and the actual trial date in June 2007, we note that the purchasers fail to make any citation to the record in support of this $250,000 figure. The vineyards counter that this amount is inaccurate. We need not settle this factual dispute because the purchasers have not shown that any of the legal work provided during this period was unnecessary or duplicative.
The purchasers also protest the sum charged for the vineyards’ motion for attorney fees. The vineyards assert that this sum included drafting a statement of decision, reviewing and filing a response to the purchasers’ objections to the proposed statement of decision, revising the statement of decision, responding to the purchasers’ ex parte application for a hearing regarding their objections to the statement of decision, preparing a judgment, drafting the motion for attorney fees, reviewing the opposition to the motion for attorney fees, drafting a reply paper for the attorney fees motion, preparing the bill of costs, attending the court hearing, and communicating with the various parties. Other than set forth their general complaint regarding the total charge, the purchasers have failed to establish that the hours spent during this period were unreasonable.
Finally, the purchasers have not established that the hours spent by the vineyards’ counsel on discovery, pre-trial preparation, and responding to the cross-complaint were excessive. As the vineyards point out, the majority of the early pre-trial work was performed by the associate on the matter, rather than the partner. Further, the vineyards had to file motions to compel. In any event, the purchasers have failed to establish that the hours expended were unreasonable, unnecessary, or duplicative.
As all parties agree, this was a simple breach of contract claim, but the cross-complaint raised the issue of defective goods and therefore there were issues of proof involving perishable items. The trial court was in the best position to consider the vineyards’ argument that the purchasers engaged in discovery misconduct that increased the costs of litigation. Specifically, the vineyards asserted that the purchasers destroyed and failed to produce evidence. The trial court carefully considered these issues when determining the reasonableness of the attorney fees.
We conclude that the purchasers have failed to establish that the lower court abused its discretion when calculating the attorney fees based on the actual hours charged by the law firm for the vineyards.
II. Costs
The trial court awarded the vineyards $27,945.04 in costs after deducting $11,461.24 from the amount requested. The purchasers contend that the court erred in allowing $16,200 for the cost of photocopying exhibits. The vineyards prepared copies of 202 exhibits for trial, of which 61 were actually used at trial. They prepared a set of exhibits for the court, a set for each witness, a set for counsel, and a backup set of exhibits.
The vineyards did not request photocopy costs incurred during the investigation or during the preparation for trial.
We review whether the photocopying of exhibits is permitted under the statute de novo. (See, e.g., People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) 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. (Lubetzky v. Friedman (1991) 228 Cal.App.3d 35, 39.)
As the prevailing party, the vineyards were entitled to costs under Code of Civil Procedure section 1032, subdivision (b). Code of Civil Procedure section 1033.5 specifies those costs allowed and those not allowed. It provides in relevant part that costs for “[m]odels and blowups of exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to aid the trier of fact.” (Code Civ. Proc., § 1033.5, subd. (a)(12).) The statute does not allow costs for “[p]ostage, telephone, and photocopying charges, except for exhibits.” (Id., § 1033.5, subd. (b)(3).) The statute further provides that any award of costs are allowable only if they are “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Id., § 1033.5,subd. (c)(2).) Finally, the statute states that “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” (Id., § 1033.5, subd. (c)(4).)
If items in a cost bill appear to be proper, the burden is on the opposing party to show that they were not reasonably necessary. If a proper objection is made, however, the burden of proof shifts to the party claiming the items as costs. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).) Here, the purchasers objected to the costs of photocopying exhibits not used at trial.
The purchasers contend that the lower court did not have the authority under Code of Civil Procedure section 1033.5 to award the vineyards their costs for photocopying exhibits not used at trial. They maintain that this interpretation was confirmed in Ladas, supra, 19 Cal.App.4th 761. They claim that rather than follow our court’s holding in Ladas, the lower court improperly followed the holding of the Second District in Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836 (Benach). The purchasers argue that Benach was wrongly decided and that the holding of our court in Ladas was binding.
In Ladas, judgment was entered in favor of the defendant insurance company prior to trial. (Ladas, supra, 19 Cal.App.4th 761.) The insurance company claimed costs, the plaintiff moved to tax costs, and the trial court denied the motion to tax costs in a one-sentence minute order. (Id. at p. 773.) On appeal, this court concluded that, since the case was dismissed before trial, the insurance company failed to qualify for recovery of exhibit costs under Code of Civil Procedure section 1033.5, subdivision (a)(12). (Ladas, supra, at p. 775.) The court remarked that “[t]hese items should have been disallowed in their entirety.” (Ibid.)
The court in Ladas did not consider whether the photocopying costs of exhibits were permitted under the court’s discretion under Code of Civil Procedure section 1033, subdivision (c)(4). Indeed, this court in Applegate v. St. Francis Lutheran Church (1994) 23 Cal.App.4th 361 (Applegate) expressly discussed the limited applicability of the holding in Ladas. In Applegate, Division Three of this court held that it was within the trial court’s discretion to allow the costs for photographs and blueprints made for trial pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(2) if they were reasonably necessary to the conduct of the litigation, despite the fact that the matter was dismissed. (Applegate, supra, at p. 364.) The court explained: “Until a dismissal was filed, defendants were forced to continue preparing for trial in the matter. The exhibits prepared were ‘reasonably necessary to the conduct of the litigation.’ An experienced trial judge recognized that it would be inequitable to deny as allowable costs exhibits which a prudent attorney would prepare in advance of trial, and which were not used only because the action was dismissed by the opposing party on the day of trial.” (Ibid.)
Subsequently, Division Seven of the Second District disagreed with the Applegate court to the extent it interpreted the discretionary provision under the Code of Civil Procedure section 1033.5 as allowing recovery of costs for photocopying exhibits not used at trial. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1559-1560 (Seever).) It stated that the statutory language “excludes as a permissible item of costs exhibits not used at trial, which obviously could not have assisted the trier of fact.” (Id. at p. 1557.) The Seever court concluded that Code of Civil Procedure section 1033.5, subdivision (a)(12) “allows the recovery of the cost of photocopies of exhibits, but only if they were reasonably helpful to aid the trier of fact. Because the Legislature has expressly stated in subdivision (a)(12) 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, at pp. 1559-1560.)
The following year, Division Eight of the Second District, in Benach, supra, 149 Cal.App.4th 836, disagreed with the reasoning of Seever and applied the holding in Applegate to its consideration of the award of costs for exhibits prepared for trial but not actually used at trial. (Benach, supra, at pp. 855-857.) In Benach, the trial court awarded the prevailing party costs for photocopying exhibits even though most of the exhibits were not actually used at trial. (Id. at pp. 855-856.) The Second District concluded that Code of Civil Procedure section 1033.5, subdivision (c)(4) authorized the lower court to award these costs because counsel for the prevailing party “presented her declaration stating the parties specifically agreed to and completed a mutual exchange of exhibits in advance of trial, and prepared exhibit binders for use by the court, witnesses and [the plaintiff].” (Benach, supra, at p 856.) The court concluded that, although most of the exhibits were not used at trial, nothing in the record indicated that counsel could have anticipated that they would not be used. (Ibid.) The court observed: “An experienced trial judge would recognize that it would be inequitable to deny as allowable costs exhibits any prudent counsel would prepare in advance of trial.” (Ibid.)
We agree with the reasoning of Applegate and Benach. These decisions underscore the point that a trial court may in its sound discretion determine what is a reasonable and recoverable cost based on the particular circumstances before it. The statute expressly permits costs for the photocopying of exhibits if the exhibits were “reasonably helpful to aid the trier of fact” (Code Civ. Proc., § 1033.5, subd. (a)(12)) and it permits the court to consider items not mentioned in the statute at the court’s discretion (id., § 1033.5, subd. (c)(4)). The statute bars the costs of photocopying, “except for exhibits.” (Id., § 1033.5, subd. (b)(3).) Thus, the statute does not expressly disallow photocopying exhibits that are not used for trial; such costs, when reasonably necessary to the conduct of the litigation, may be awarded by the trial court under subdivision (c)(4) of section 1033.5 of the Code of Civil Procedure.
Not only did the trial court have the discretion to award the costs for photocopying these exhibits, we conclude that it did not abuse its discretion in its award of costs. The vineyards explained that the parties exchanged their lists of intended trial exhibits and, when it was determined there was substantial overlap, counsel for the vineyards agreed to provide copies of all exhibits that were identified by both parties. Considering this evidence as well as reviewing all of the exhibits prepared for trial, the lower court determined that the photocopying of all of these exhibits was necessary to prepare for trial. The court explained: “Although many of these items were not ultimately used at trial, counsel prudently fully prepared for trial by having them available. [I]t would be inequitable to deny costs incurred to fully prepare for trial.” The purchasers presented no evidence that the lower court abused its discretion in determining that it was unreasonable or unnecessary for counsel to prepare these exhibits for trial.
The purchasers argue that the vineyards submitted no evidence to show what amount was spent on photocopying the potential exhibits, and they assert that the vineyards simply claimed $16,200 as the costs for “[m]odels, blowups, and photocopies of exhibits[.]” The record establishes that the vineyards did submit evidence in support of this amount; they presented their verified memoranda of costs. The trial court found that the costs were reasonable and the “verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) The purchasers have pointed to no evidence in the record indicating that these costs were not reasonable.
Accordingly, we conclude the lower court did not abuse its discretion in its award of costs.
DISPOSITION
The judgment is affirmed. The purchasers are to pay the costs of appeal.
We concur: Kline, P.J., Richman, J.