Thursday, October 1, 2020
Page 3
Court of Appeal:
Claiming Filing Fee As Cost of Enforcing Judgment Requires Judicial Approval
By a MetNews Staff Writer
The $60 filing fee a creditor must pay to conduct a judgment debtor examination may not be included in a memorandum of costs unless approved by the judicial officer supervising the examination, the Fifth District Court of Appeal declared yesterday.
An unpublished “By the Court” opinion relied on Code of Civil Procedure §685.070(a)(5) which provides that costs in connection with such proceedings must “have been approved as to amount, reasonableness, and necessity by the judge or referee conducting the proceeding.”
The opinion—signed by Acting Presiding Justice M. Bruce Smith and Justices Thomas DeSantos and Donald R. Franson Jr.—says:
“We give the words in subdivision (a)(5) of section 685.070 their plain meaning and conclude the filing fee qualifies as a cost and, as such, the fee must be approved by the judge or referee conducting the examination proceeding before the fee can be claimed in a memorandum of costs. This literal interpretation is appropriate because not all judgment debtor examinations are reasonable or necessary. Where the examination itself is unnecessary or unreasonable, so is the filing fee. Because the judge conducting the examination proceeding did not approve the proceeding itself or the filing fee as reasonable and necessary, the fee could not be recovered using a memorandum of costs.”
The opinion reverses an order by Fresno Superior Court Judge Rosemary T. McGuire denying a judgment debtor’s motion to tax costs. The examination had been conducted before Judge Mark E. Cullers,
Maria Banda is the judgment creditor and John Wash is the judgment debtor. The opinion does not explain why the parties are referred to by their first names.
The case is Banda v. Wash, F077727.
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