State Loses Major Gun Battle. And $40.

Parker v. State of California, No. F062490 (D5 Nov. 6, 2011)

In a split decision affirming a trial court’s ruling that some gun and ammo laws are unconstitutionally vague on their face, the court also addressed whether the trial court properly declined to tax a $40 filing fee as an unrecoverable cost. The fee had been paid by plaintiff in connection with a preliminary injunction motion that was withdrawn after the trial court indicated that it was inclined to deny it. Plaintiff ultimately prevailed in the action, and filing fees are generally recoverable by a prevailing party as costs under Code of Civil Procedure § 1033.5(a)(5). But the state nonetheless argued that the plaintiff should not have been permitted to recover the fee as a cost. According to the State, by withdrawing the PI motion plaintiff was effectively conceding that it was not "reasonably necessary to the conduct of the litigation" to incur the fee under § 1033.5(c)(2). The trial court apparently disagreed and declined to tax the fee as a cost. The court of appeal affirmed, reasoning that the trial court had the discretion to decline to tax the cost as a safeguard against unfairly shifting litigation costs from one party to another. Indeed, the trial court could have readily decided that, although the motion was unsuccessful, it laid the groundwork for plaintiff’s ultimately successful summary adjudication motion on the merits. So the $40 fee could properly be included in the costs awarded to plaintiff.

Affirmed.