Judge: Alison Mackenzie, Case: BC684669, Date: 2025-03-18 Tentative Ruling

Case Number: BC684669    Hearing Date: March 18, 2025    Dept: 55

NATURE OF PROCEEDINGS: Hearing on Motion to Tax Costs

BACKGROUND

Plaintiff Camila Lopez Magallanes (“Plaintiff”), by and through her guardian ad litem Cristofina Lopez, sued defendant Los Angeles Unified School District (“Defendant”) for negligence, negligent supervision, and dangerous condition of public property. After a six-week trial, the jury came back with a verdict against Defendant in the amount of $7,083,194.86. The Court entered judgment for Plaintiff, and included a finding that Plaintiff served an offer to compromise on Defendant on February 26, 2021, for $5,750,000.00, less than Plaintiff’s ultimate recovery in the case.

On January 30, 2025, Plaintiff timely filed her memorandum of costs. Based on her status as a prevailing party and on Defendant’s refusal of Plaintiff’s CCP 998 Offer to Compromise (“998 Offer”), Plaintiff claims costs totaling $945,533.57.

Defendant timely filed a motion to tax Plaintiff’s costs bill.

LEGAL STANDARD

Pursuant to Code of Civil Procedure section 1032, subdivision (b), a prevailing party is entitled to recover costs. Code of Civil Procedure section 1033.5, subdivision (c)(1) provides that certain items are allowable costs, including filing and motion fees, court-ordered transcripts, court reporter fees as established by statute, fees for electronic service or filing, and models, enlargements, and photocopies of exhibits. Code of Civil Procedure section 1033.5, subdivision (b) sets forth items that are not allowable as costs, including transcripts of court proceedings not ordered by the court.

Costs must be both reasonable in amount and reasonably necessary to the conduct of the litigation. Code Civ. Proc., § 1032; § 1033.5(c)(2) and (3).) To obtain a costs award, the prevailing party must serve and file a memorandum of costs. Cal. Rules of Court, rule 3.1700(a). If items on their face appear to be proper charges, 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. ‘On the other hand, if items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.’ However, whether a cost item was reasonably necessary is still a question of fact to be decided by the trial court.” Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266 (quoting Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774. Supporting documentation such as bills or invoices are not required, unless costs are put in issue by a motion to tax costs. Id. at p. 167.

Code of Civil Procedure section 998 may augment the costs allowable under section 1032.5 where “[n]ot less than 10 days prior to commencement of trial . . . , any party [serves] an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time.” Code Civ. Proc., § 998(a). Where a 998 offer is served and “[i]f an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding . . . , the court . . . , in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff's costs.” Id., subd. (d).

DISCUSSION

It is undisputed that Plaintiff prevailed and timely filed and served her memorandum of costs. Defendant argues that she is not entitled to 998 costs and/or that her costs bill exceeds what is reasonable and necessary, on various grounds.

            Expert Costs According to Section 998

Plaintiff includes expert costs in her memorandum under the line item for “witness fees” because she issued a timely 998 Offer to Defendant, Defendant denied her offer, and Defendant failed to obtain a result more favorable than what Plaintiff offered.

Defendant argues Plaintiff’s expert costs should be denied entirely because her $5.75 million offer was not reasonable when made. The Court disagrees. A jury determined Plaintiff’s claim to be worth more than $7 million. Defendant contends Plaintiff’s offer was unreasonable because she did not have access to the same evidence she presented at trial when she made her offer, so she overestimated her chance to prevail. Defendant also argues that because Plaintiff’s medical condition worsened after she made her 998 Offer, her offer stated an excessive, speculative value for her claim.

Even if Plaintiff’s Offer was based on estimated future, rather than past, damages, she still valued her claim accurately, as reflected by the jury’s verdict. And it is infeasible and illogical for the Court to evaluate the strength of Plaintiff’s proof at an earlier stage of the litigation and determine her offer was unreasonable on that basis, where a jury later decided she had compromised her claim by $1.25 million.

Plaintiff is entitled to costs based on Code of Civil Procedure section 998 as well as section 1032.

            Costs Incurred Prior to Plaintiff’s 998 Offer

Plaintiff concedes she cannot recover for fees incurred prior to her Offer, and voluntarily adjusts her bill downward by $125,745.36 on that basis. The Court therefore will grant the motion to tax the fees in the amount of $125,745.36.

            Unnecessary or Unreasonable Costs

Defendant otherwise challenges Plaintiff’s expert costs as unreasonable or unnecessary. Because Defendant properly objects, it is Plaintiff’s burden to prove her prima facie case as it appears on her costs memorandum. As to her expert fees, she has done so. Plaintiff’s opposition explains each expert’s specific contribution to her case and the work they performed. The number of her experts is not unreasonable. Their areas of expertise do not unreasonably overlap. All made necessary contributions to her case. No individual expert’s billed hours or rates are unreasonable.

Defendant suggests at several points that Plaintiff should not recover costs for experts’ services outside of trial testimony, or that she should not recover for experts who did not testify, or that she should not recover if the experts did not persuade the jury on a particular matter. But section 998 permits recovery for “postoffer costs of the services of expert witnesses . . . actually incurred and reasonably necessary in either, or both, preparation for trial . . . , or during trial . . . , of the case[.]” (Code Civ. Proc., § 998, italics added.) Plaintiff demonstrates her experts’ costs were incurred for services performed in preparation for trial. And there is no requirement that experts persuade the jury on each matter within their expertise, nor is it feasible for the Court to parse the trial record to determine as much.

The Court finds Plaintiff’s adjusted expert fees otherwise necessary and reasonable, and awards them in full.

            Prejudgment Interest

Plaintiff also claims prejudgment interest beginning on the date of her 998 Offer, February 26, 2021, according to Civil Code section 3291.

Section 3291 expressly exempts public entities from its terms. Plaintiff does not argue otherwise. Plaintiff’s request for prejudgment interest based on section 3291 is denied.

            Individual Challenged Items

Defendant also challenges several individual items of Plaintiff’s ordinary prevailing-party costs. Specifically, Defendant argues Plaintiff should not recover (1) costs for a particular brain animation she used at trial, (2) costs for depositions that Plaintiff cancelled, (3) $198,048.91 listed under the line item of “court reporter fees as established by statute,” (4) various “other” costs (“Court Call, Record Retrieval, Mandatory Courtesy Copy”) included in Plaintiff’s bill, and (5) court interpreter fees.

Plaintiff concedes that the brain animation Defendant identifies that was not used at trial should be taxed. That animation cost $484.00 and so the motion is granted as to that amount. The Court finds that the remainder of the line-item amount for models, enlargements, and photocopies of exhibits is reasonable and necessary.

The Court similarly finds Nos. (4) and (5) reasonable and necessary.

The Court agrees that No. (2), Plaintiff’s $5,290.00 in “late cancellation fees” are not reasonable; although deposition cancellations are reasonably common during litigation, last-minute cancellations are not. The Court grants the motion as to these items.

As for No. (3): although reporter fees are awardable under section 1033.5, transcript costs are expressly not. (Code Civ. Proc., § 1033.5(b)(5).) Defendant argues Plaintiff has included transcript costs under the heading of “Court Reporter Fees” in Attachment 11c to its costs bill. Plaintiff concedes this point. (See Opp., 14:9 [referring to “the transcripts at issue”].) Plaintiff’s argument that the transcripts were “not merely convenient[, but] essential tools” – i.e., that they were reasonable and necessary costs – relies on the premise that the costs for transcripts not ordered by the court are “costs not expressly listed as recoverable”. (Opp., 14:7.) But transcript costs are not costs “not listed”. They are costs expressly listed, as not recoverable.

Although it appears Attachment 11c includes both court reporter fees, which are recoverable, and transcript fees, which are not, it was Plaintiff’s burden to justify its costs upon Defendant’s proper objection. Plaintiff did not attempt in her opposition to separate the awardable reporter fees from transcript costs. Therefore, Plaintiff has not carried her burden to show the reporter fees are reasonable and necessary. (Defendant also raises arguments regarding duplicative deposition costs in its Reply. (Reply, 12:7-17.) The Court disregards these arguments, as they were not raised in the moving papers.)

The Court grants Defendant’s motion as to transcript costs, and Plaintiff does not carry its burden to separate these from awardable court reporter fees; thus, the Court strikes the $198,048.91 appearing in Plaintiff’s Attachment 11c.

CONCLUSION

Defendants’ motion is granted in part and denied in part.

The Court strikes a total of $329,568.27 from Plaintiff’s costs bill and awards Plaintiff a total of $615,965.30 in costs.