Judge: Cary Nishimoto, Case: BC616313, Date: 2023-01-27 Tentative Ruling
Case Number: BC616313 Hearing Date: January 27, 2023 Dept: SWE
ONESIMO
BENITEZ HERNANDEZ AND MARICELA BENITEZ vs. KROGER CO. ET. AL.
BC616313 Hearing Date 1.27.2023 Dept SWE. Motion of Plaintiffs’ To Tax
Costs And Motion To Strike Defendant Alpha Beta’s Memorandum Of Claimed Costs of
$102,140.95. Plaintiffs’ motions to Tax and Strike are denied for
reasons stated hereinbelow except that $4,273.19
in costs has been voluntarily deleted by
defendant as costs related to litigation of cross complaints.
Plaintiff contends:
1.
that Alpha Beta is not listed as the moving
party defendant and
therefore under state and federal due process and California Rules of Court
Rule 3.1700, plaintiff does not know who is claiming costs. Defendants’
memorandum of costs served on plaintiff 11.15.2022 identifies Alpha Beta
Company dba Food 4 Less as the prevailing party. Plaintiff was present and
participated in litigation, discovery and trial and cannot reasonably contend
that it is ignorant of the capacity of Alpha Beta dba Food 4 Less as the moving
party. Additionally, Alpha Beta dba Food 4 Less was the only party defendant at
trial and its entire defense during the last three years of litigation and
trial was that the driver of the tractor-trailer rig was not an employee or
agent of Alpha Beta dba Food 4 Less but that of Ralphs. Since plaintiffs
obtained no relief from the only defendant, Alpha Beta dba Food 4 Less becomes
the prevailing party. It appears to the court and the court finds, that
defendant’s costs were reasonably necessary to the litigation and trial.
2.
Costs claimed
by Alpha Beta dba Food 4 Less were simultaneously incurred by some or all of
the other parties that Wesierski and Zürich represented during the litigation
involving the complaint and cross-complaint. This includes pleadings and
motions for leave, subsequent answers, i.e. pleadings and costs. Therefore,
plaintiff contends that under notions of equity, the costs need to be apportioned
amongst the other parties represented by Wesierski and Zürich. Again, Alpha
Beta’s entire defense is that the driver of the tractor-trailer rig was not its
employee. No other parties represented by Weiserski and Zurich were present for
trial. CCP §1032(a)(4.
3.
Plaintiffs
claim that Section 4.d of the cost memorandum bills for the depositions that
it did not take i.e. Bautista, Antonio Farias and Rodolfo Trujillo. Defendant
admits not having taken these depositions or having been present during the
depositions. These costs are for the deposition transcripts, and not for taking
or being present at these depositions. CCP §1032. Alan S. v. Superior Court
(2009) 172 Cal.App.4th 238. These costs appear to be proper on their
face and therefore, “[t]he verified memorandum is prima facia evidence that the
costs, expenses, and services herein listed were necessarily incurred by the defendant,
and the burden of showing that an item is not properly chargeable or is
unreasonable is upon the Objecting party. ‘The court’s first determination, therefore,
is whether the statute expressly allows the particular item, and whether it
appears to be proper or on its face. (Citation omitted.) If so, the burden is
on the objecting party to show them to be unnecessary or unreasonable.” Nelson
v Anderson (1999) 72 Cal.App.4th 111, 131. Plaintiffs have submitted no
evidence, substantial or otherwise, to meet their burden to show such billing
was for noticing and taking those depositions.
Further, “[A]
party’s ‘mere statements in the points and of authorities accompanying its
notice of motion to strike cost bill and the declaration of its counsel are
insufficient to rebut the prima facie showing that the costs were reasonably
incurred’.” Jones v Dumrichob (1998) 63 Cal.App.4th 1258, 1266. At page 1267, Jones concludes that ”. . .[O] nly
if the costs have been put in issue via a motion to tax costs must substantiation
be submitted. (Citation omitted.).“ Defendant, however, has submitted
documentation along with its written opposition to this motion.
Also, as
found in Seever v Copley Press, Inc (2006) 141 Cal.App.4th 1550,
1557, “ ‘If the items on the verified cost bill appear to be proper charges,
they are prima facie the evidence that the costs, expenses and services there
in were necessarily incurred.’ The Rappenecker court indicated that it is not
enough for the losing party to attack submitted costs by arguing that he thinks
the costs were not necessary or reasonable. Rather the losing party has the
burden to present evidence and prove that the claimed cost are not
recoverable.”
4.
Also billed
in Section 5.d for service of process for witnesses that Alpha Beta dba Food 4
Less never called at trial (Gross, Smith, Williams, Nogales, McNamara, Jones
and Amey). However, ordinary witnesses can be subpoenaed for trial because they
have potentially relevant evidence, regardless of whether they actually testify
at trial. CCP §3021; Prichard v Southern Pac. Co. (1935) 9 Cal.App.2d 704, 706.
Plaintiff has not shown otherwise.
5.
Plaintiffs urge
that expert costs of $45,775.00 in section 8.b of the memorandum cannot be
claimed because (a) defendant’s §998 offer (Exhibit A) served on
plaintiff on June 2, 2022, “impermissibly” required him to release all of
defendants represented by Wesierski & Zurich; and (b) under
Valentino v Elliott Sav-On-Gas, Inc. (1998) 201 Cal.App.3d 692, the CCP §998
offer required plaintiff to dismiss Maricela Benitez’s claim; and (c) under
Sanford vs. Rasnick (2016) 246 Cal.App.4th 1121, the §998 offer required
plaintiff to “execute more than a general release as to “all existing and
future medical, legal and other liens arising in any way from the subject
accident.
Plaintiffs’
contention that the §998 offers were invalid is based on the contention that
the §998 offers required plaintiffs to “execute more than a general release,
that is, as to “all existing and future medical, legal, and other liens arising
in any way from the subject accident.” Plaintiffs cite and rely on Sanford v
Rasnick (2016) 246 Cal.App.4th 1121, 1130, 1131 for the proposition
that the §998 Offer was invalid based on the acceptance of the “settlement”
agreement, without describing what the specific terms plaintiff would be
agreeing to. More relevant to the issue, Sanford also found that “. . .
case law does allow for releases . . . [but] a release is not a settlement
agreement . . .“.
Plaintiffs next
contend that the §998 Offer was invalid under Valentino v Elliott Sav-On-Gas,
Inc. (1998) 201 Cal.App.3d 692 because the CCP §998 offer required plaintiff to
dismiss all Kroger entities, not just Alpha Beta dba Food 4 Less. In
Hernandez’s claim against Alpha Beta dba Food 4 Less there is no need or
requirement for the type of apportionment in Valentino because plaintiff received
a flat out defense verdict. That result left nothing to apportion since
apportionment would lead to the same result. Plaintiffs Onesimo and Maricela
Benitez each would have been better off had each accepted the statutory §998
Offers.
Plaintiff
is alleging that the §998 offers required dismissal of Maricela Benitez’s claim
based on the use of the term “entire action” in the CCP §998 Offer. However, in
2020, separate §998 Offers were made to each plaintiff.
Further,
under CCP §998, defendant Alpha Beta dba Food 4 Less’s 2022 Offer to Onesimo
did not require dismissal of Maricela’s claim. A single statutory offer to
compromise to a married couple is not invalid under Farag v ArvinMeritor, Inc. (2012)
205 Cal.App.4th 372, 379. Defendant’s 998 Offer was not conditioned
on acceptance by both plaintiffs and did not have to be accepted by both
spouses to be effective. Barnett v First National Insurance Co. of America
(2010) 184 Cal.App.4th 1454, 1460. In any event, defendant’s 2020
§998 Offer was made specifically to Maricela Benitez. Ms. Benitez’ claim of
loss of consortium is not dependent on the success of Onesimo’s claim; rather
it is independent and can be brought separately and apart from the claim of the
spouse. Leonard v John Crane, Inc. (2012) 206 Cal.App.4th 1274,
1279-1280.
As the
prevailing party, defendant Alpha Beta dba Food 4 Less is entitled to recover
its costs from the time of the offer(s), including expert witness services. CCP
§998(c)(1). Aside from expert
costs allowed under CCP §998, all other costs are expressly recoverable under
CCP §1032.5; Sub. (a)(3); Sub (a)4; Sub. (a)(7).
ATTORNEY
RAYMOND FELDMAN
Law
Offices of John C. Ye, APLC
3030
West 6th Street
Los
Angeles, CA 90020
ATTORNEY
JENNIFER NAPLES
Wesierski
& Zurek, LLP
100
Corson Street, Suite 300
Pasadena,
CA 91103