Judge Blaine K. Bowman, Case Number: 37-2021-00041405-CU-PO-CTL, Date: 2024-06-07 Tentative Ruling

Judge: Blaine K. Bowman, Case: 37-2021-00041405-CU-PO-CTL, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 06, 2024

06/07/2024 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited PI/PD/WD - Other Motion Hearing (Civil) 37-2021-00041405-CU-PO-CTL DOE VS RADY CHILDRENS HOSPITAL SAN DIEGO [E-FILE] CAUSAL DOCUMENT/DATE FILED:

Plaintiffs' motion to strike Defendants Rady Children's Hospital-San Diego and Rady Children's Hospital Foundation-San Diego's Memorandum of Costs is DENIED. Plaintiffs' motion to tax Defendants' Memorandum of Costs is GRANTED IN PART AND DENIED IN PART.

Preliminarily, Plaintiffs seeks to strike 'Defendants' Entire Memorandum of Costs.' The Memorandum of Costs identifies only Defendant Rady Hospital in the heading. However, Defendants Rady Hospital and Rady Foundation filed a joint opposition. Therefore, the court treats the Memorandum of Costs as having been filed on behalf of both Defendants.

The court first addresses Plaintiffs' motion to strike the Memorandum of Costs in its entirety.

Charton v. Harkey (2016) 247 Cal.App.4th 730, explains, '[t]he right to recover any of the costs of a civil action 'is determined entirely by statute.' ' (Anthony v. City of Los Angeles (2008) 166 Cal.App.4th 1011, 1014, 83 Cal.Rptr.3d 306 (Anthony ).) . . . . 'Section 1032 governs the award of costs of trial court litigation.' (Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1375, 29 Cal.Rptr.3d 306 (Acosta ).) Under section 1032, subdivision (b), a 'prevailing party' is entitled to recover costs 'as a matter of right' unless otherwise provided by statute. Section 1032, subdivision (a)(4), defines who is a prevailing party entitled to costs. The first sentence of that subdivision 'describes four categories of litigants who automatically qualify as prevailing parties. It reads: ' 'Prevailing party' includes [1] the party with a net monetary recovery, [2] a defendant in whose favor a dismissal is entered, [3] a defendant where neither plaintiff nor defendant obtains any relief, and [4] a defendant as against those plaintiffs who do not recover any relief against that defendant.' ' (Wakefield v. Bohlin (2006) 145 Cal.App.4th 963, 975, 52 Cal.Rptr.3d 400 (Wakefield ), disapproved on other grounds in Goodman v. Lozano (2010) 47 Cal.4th 1327, 1338, 104 Cal.Rptr.3d 219, 223 P.3d 77 (Goodman ).) '[T]he trial court has no discretion to deny prevailing party status to a litigant who falls within one of the four statutory categories in the first [sentence] of the provision. 'As rewritten [in 1986], section 1032 now declares that costs are available as 'a matter of right' when the prevailing party is within one of the four categories designated by statute.' ' (Wakefield, supra, 145 Cal.App.4th at p. 975, 52 Cal.Rptr.3d 400; see Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129, 84 Cal.Rptr.2d 753 (Nelson).) Charton, 247 Cal.App.4th at 737–738.

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3125811 7 CASE NUMBER: CASE TITLE: DOE VS RADY CHILDRENS HOSPITAL SAN DIEGO [E-FILE] 37-2021-00041405-CU-PO-CTL Following this court allowing Plaintiff John Doe 1 leave to amend [ROA 193], Plaintiffs filed their Third Amended Complaint, omitting John Doe 1 as a plaintiff [ROA 213]. The omission of John Doe 1 'is equivalent to a voluntary dismissal' and Defendants are entitled to recover costs as against John Doe 1.

Spreckels v. Spreckels (1916) 172 Cal. 789, 790. See also, Catello v. I.T.T. General Controls (1984) 152 Cal.App.3d 1009, 1014 ['[t]he voluntary dismissal of an action by one of several plaintiffs creates liability for costs, even though the balance of the action proceeds to trial' citing Spreckels, 172 Cal. at 790]; Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1142 ['[i]t has long been the rule that an amended complaint that omits defendants named in the original complaint operates as a dismissal as to them' citing Lamoreux v. San Diego & Arizona Eastern Ry. Co. (1957) 48 Cal.2d 617, 627–628; Browner v. Davis (1860) 15 Cal. 9, 11–12; Kuperman v. Great Republic Life Ins.

Co. (1987) 195 Cal.App.3d 943, 947, 241].

As 'a defendant in whose favor a dismissal is entered' Defendants are prevailing parties as defined under CCP § 1032(a)(4) and entitled to recover costs as a matter of right. The court also finds Defendants are prevailing parties under the following additional categories of CCP § 1032(a)(4): 'a defendant where neither plaintiff nor defendant obtains any relief' and 'a defendant against those plaintiffs who do not recovery any relief against that defendant.' The court addresses Plaintiffs' motion to tax costs.

1. Filing and motion fees: GRANTED IN PART AND DENIED IN PART.

Filing fees are recoverable as costs pursuant to CCP § 1033.5(a)(1). However, to recover such costs Defendants must establish that the costs were 'reasonably necessary to the conduct of the litigation.' CCP § 1033.5(c)(2).

The court considers that John Doe 1 pursued this case, not only on his own behalf, but also on behalf of the class. Thus, almost every filing at issue was as a result of claims by John Doe 1 on his own behalf and on behalf of the class. Based on the evidence presented, the only issue that was specific to John Doe 1 was the issue of John Doe 1's standing to represent the class. The only filing fees sought by Defendants for filings that were specific to the issue of John Doe 1's standing were the two filings on Defendants' motion for summary judgment [ROA 134, 135] with filing fees of $523.23 and $133.63.

Accordingly, the court allows costs of $656.86 ($523.23 + $133.63). As to all other filings, the court finds Defendants would have incurred these filing fees irrespective of the class representative. The court finds Defendants fail to establish that these costs were reasonably necessary to the conduct of the litigation as against John Doe 1. The court taxes costs of $1,725.99 ($1,098.61 + $1,284.24 = $2,382.85 - $656.86).

2. Jury Fees: GRANTED.

Jury fees are recoverable as costs pursuant to CCP § 1033.5(a)(1). However, as above, these fees would have been incurred regardless of the class representative. The court finds Defendants fail to establish that these costs were reasonably necessary to the conduct of the litigation as against John Doe 1. The court taxes costs of $150.00.

4. Deposition costs: DENIED.

Fees for '[t]aking, video recording, and transcribing necessary depositions' are recoverable as costs pursuant to CCP § 1033.5(a)(2). Plaintiffs argue in opposition that the depositions of Kimberly Reagles, Christina Galbo and Sarah Cooper remain relevant and will be used as evidence in the continuing litigation. However, Plaintiffs provide no evidence to support this argument. Absent such evidence, Calendar No.: Event ID: TENTATIVE RULINGS

3125811 7 CASE NUMBER: CASE TITLE: DOE VS RADY CHILDRENS HOSPITAL SAN DIEGO [E-FILE] 37-2021-00041405-CU-PO-CTL Plaintiffs fail to establish grounds for the taxing of these deposition costs. With respect to the deposition of John Doe 1's guardian ad litem, Plaintiffs submit evidence that Defendants had been aware that John Doe 1 was going to seek leave to amend to substitute new class representatives 'since mid 2023' [Declaration of Ronald A. Morron in Support of Plaintiffs Motion for Leave to Amend, ¶ 14]. The evidence before the court is that this deposition was taken on September 8, 2023, and John Doe 1's motion to amend to substitute new class representatives was not filed until March 7, 2024. Thus, John Doe 1 was still a plaintiff at the time of the taking of this deposition. In these circumstances, the court finds Defendants establish the costs for the deposition of the guardian ad litem of John Doe 1 as reasonably necessary to the conduct of the litigation against John Doe 1.

5. Service of process: DENIED.

Fees for '[s]ervice of process' are recoverable as costs pursuant to CCP § 1033.5(a)(4). It appears this service was for service of a deposition notice on counsel for John Doe 1 for the deposition of John Doe 1's guardian ad litem. For the reasons set forth above the court finds Defendants establish these costs as reasonably necessary to the conduct of the litigation against John Doe 1.

6. Attachment expenses: GRANTED.

Defendants improperly include $1,284.24 in deposition costs and $3,489.50 in additional costs under this category which is for '[e]xpenses of attachment including keeper's fees'] not for costs itemized in the attachment to the Memorandum of Costs. The court addresses the $1,284.24 in deposition costs above under 4. Deposition costs. The $3,489.50 in claimed costs for distributing/mailing the opt-out notice should have been included under item 16. Other as a discretionary cost under CCP § 1033.5(c)(4). The court exercises its discretion against the award of these costs as against John Doe 1. The court taxes costs of $3,489.50.

9. Court ordered transcripts: GRANTED.

Fees for '[t]ranscripts of court proceedings ordered by the court' are recoverable as costs pursuant to CCP § 1033.5(a)(9). Defendants fail to establish that these fees were for transcripts 'ordered by the court.' The court taxes costs of $968.40.

11. Court reporter fees: DENIED.

'Court reporter fees as established by statute' are recoverable costs pursuant to CCP § 1033.5(a)(11).

The hearings for which Defendants seek these fees are the hearings on John Doe 1's motion to compel further responses to request for production of documents and motion to compel further responses to special interrogatories from Defendant Rady Foundation. Plaintiffs again argue without evidence that this discovery is relevant to Plaintiffs' pursuit of the claims of the class. As above, absent evidence to support this argument the court finds Plaintiffs fail to meet their burden of contesting these costs.

The court taxes costs of $6,333.89.

The court awards costs of $7,406.06 in favor of Defendants Rady Children's Hospital-San Diego and Rady Children's Hospital Foundation-San Diego and against Plaintiff John Doe 1.

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3125811 7 CASE NUMBER: CASE TITLE: DOE VS RADY CHILDRENS HOSPITAL SAN DIEGO [E-FILE] 37-2021-00041405-CU-PO-CTL This ruling is without prejudice to Defendants' ability to file a motion to tax following entry of judgment in this matter.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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