(a) Award of costs.
(1) Except as provided in this rule, the party prevailing in the Court of Appeal in a civil case other than a juvenile case is entitled to costs on appeal.
(2) The prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal. The prevailing party is the appellant if the court reverses the judgment in its entirety.
(3) If the Court of Appeal reverses the judgment in part or modifies it, or if there is more than one notice of appeal, the opinion must specify the award or denial of costs.
(4) In probate cases, the prevailing party must be awarded costs unless the Court of Appeal orders otherwise, but the superior court must decide who will pay the award.
(5) In the interests of justice, the Court of Appeal may also award or deny costs as it deems proper.
(b) Judgment for costs.
(1) The clerk/executive officer of the Court of Appeal must enter on the record, and insert in the remittitur, a judgment awarding costs to the prevailing party under (a)(2) or as directed by the court under (a)(3), (a)(4), or (a)(5).
(2) If the clerk/executive officer fails to enter judgment for costs, the court may recall the remittitur for correction on its own motion, or on a party's motion made not later than 30 days after the remittitur issues.
(Subd (b) amended effective January 1, 2018.)
(c) Procedure for claiming or opposing costs.
(1) Within 40 days after issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700.
(2) A party may serve and file a motion in the superior court to strike or tax costs claimed under (1) in the manner required by rule 3.1700.
(3) An award of costs is enforceable as a money judgment.
(Subd (c) amended effective January 1, 2016.)
(d) Recoverable costs.
(1) A party may recover only the following costs, if reasonable:
(A) Filing fees;
(B) The amount the party paid for any portion of the record, whether an original or a copy or both. The cost to copy parts of a prior record under rule 8.147(b)(2) is not recoverable unless the Court of Appeal ordered the copying;
(C) The cost to produce additional evidence on appeal;
(D) The costs to notarize, serve, mail, and file the record, briefs, and other papers;
(E) The cost to print and reproduce any brief, including any petition for rehearing or review, answer, or reply;
(F) The cost to procure a surety bond, including the premium, the cost to obtain a letter of credit as collateral, and the fees and net interest expenses incurred to borrow funds to provide security for the bond or to obtain a letter of credit, unless the trial court determines the bond was unnecessary; and
(G) The fees and net interest expenses incurred to borrow funds to deposit with the superior court in lieu of a bond or undertaking, unless the trial court determines the deposit was unnecessary.
(2) Unless the court orders otherwise, an award of costs neither includes attorney's fees on appeal nor precludes a party from seeking them under rule 3.1702.
(Subd (d) amended effective January 1, 2013.)
Rule 8.278 amended effective January 1, 2018; adopted effective January 1, 2008; previously amended effective January 1, 2013, and January 1, 2016.
Advisory Committee Comment
This rule is not intended to expand the categories of appeals subject to the award of costs. See rule 8.493 for provisions addressing costs in writ proceedings.
Subdivision (c)..Subdivision (c)(2) provides the procedure for a party to move in the trial court to strike or tax costs that another party has claimed under subdivision (c)(1). It is not intended that the trial court's authority to strike or tax unreasonable costs be limited by any failure of the moving party to move for sanctions in the Court of Appeal under rule 8.276; a party may seek to strike or tax costs on the ground that an opponent included unnecessary materials in the record even if the party did not move the Court of Appeal to sanction the opponent under that rule.
Subdivision (d)..Subdivision (d)(1)(B) is intended to refer not only to a normal record prepared by the clerk and the reporter under rules 8.122 and 8.130 but also, for example, to an appendix prepared by a party under rule 8.124 and to a superior court file to which the parties stipulate under rule 8.128.
Subdivision (d)(1)(D), allowing recovery of the "costs to notarize, serve, mail, and file the record, briefs, and other papers," is intended to include fees charged by electronic filing service providers for electronic filing and service of documents.
"Net interest expenses" in subdivisions (d)(1)(F) and (G) means the interest expenses incurred to borrow the funds that are deposited minus any interest earned by the borrower on those funds while they are on deposit.