Judge Craig Griffin, Case Carranza vs. Gomez 2023-08-21 Tentative Ruling

Judge: Craig Griffin, Case: Carranza vs. Gomez, Date: 2023-08-21 Tentative Ruling

Defendant Mayra Gomez’s (“Defendant”) Motion to Strike or Tax Costs (“Motion”) from plaintiff Jennifer Carranza’s (“Plaintiff”) Memorandum of Costs (“MOC”) is tentatively GRANTED in part and DENIED in part.

Plaintiff is to appear at the hearing to provide evidence of the date expert witness fees to Officers Pardo, Velasco, and Castilla/Casillas were incurred. The court may amend the below tentative based on that information.

The prevailing party in any civil action is entitled to recover costs as a matter of right. (Civ. Proc. Code § 1032.) To claim those, the prevailing party must file and serve an MOC within 15 days from the date the clerk (or any party) mails out notice of dismissal or entry of judgment. (CA ST CIVIL RULES Rule 3.1700; Daniels v. Robbins (2010) 182 Cal.App.4th 204, 228.)

The MOC must include a supporting declaration affirming that the costs were reasonable and necessarily incurred. (CA ST CIVIL RULES Rule 3.1700(a)(1).) If the items in the cost bill appear on their face to be proper (by comparing the cost bill to the list of recoverable costs in Civ. Proc. Code § 1033.5), the verified MOC is prima facie evidence of their propriety. The burden then rests with the party seeking to tax costs to show they were improper, unreasonable, or unnecessary. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 856.) If the party seeking to tax costs makes a proper objection to an item in the cost bill (as determined after the trial court reviews the submissions), the burden then shifts back to the party claiming them as costs. (Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1380.) The propriety of costs is a question of fact to be determined by the trial court. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.)

Plaintiff is the prevailing party at trial as she obtained a monetary judgment in the amount of $12,500 against Defendant. (ROA #567.) The MOC was filed a day after the original entry of judgment. (ROA #532, 540, 542.) Although an amended MOC was apparently served by Plaintiff on Defendant, there is no evidence of such an MOC. The court will proceed with the MOC on file.

The court finds Defendant’s Civ. Proc. Code § 998 offer served on Plaintiff on 11/04/19 is the applicable offer, and not the offer Plaintiff served on Defendant on 12/19/18. (Wasson Decl. ¶¶ 4-8, Exs. A – B.) “The statute provides disincentives for rejecting a reasonable pretrial offer of settlement. The trial court may require a plaintiff, who does not accept a valid section 998 offer and then fails to obtain a more favorable judgment, to pay a defendant's reasonable postoffer expert witness costs. (§ 998, subd. (c)(1).)” (Auburn Woods I Homeowners Ass'n v. State Farm Gen. Ins. Co. (2020) 56 Cal. App. 5th 717, 724.) The statutory purpose of section 998 is to encourage settlement. Plaintiff issued a reasonable $15,000 offer five-months after Defendant filed her answer. At the time, Plaintiff’s costs were reasonably low. Defendant’s refusal to accept Plaintiff’s offer meant that Plaintiff was required to incur additional costs in prosecuting her action. It would not be consistent with the purpose of section 998 to freeze Plaintiff’s costs at the date her offer was rejected. Therefore, Defendant’s 998 offer is the applicable offer.

On 11/04/19, Defendant served her 998 offer for $15,000, with costs waived by both sides. Defendant argues that as the $15,000 was higher than the $12,500 awarded to Plaintiff at trial, that Plaintiff is not the prevailing party for purposes of a 998 offer. Plaintiff argues pre-offer expenses should be added into the judgment award to determine whether Plaintiff had a more favorable judgment than the offer. Plaintiff is correct. Plaintiff was the prevailing party at trial and was awarded $12,500 in economic damages. (Civ. Proc. Code § 1032(a)(4).) As the prevailing party, Plaintiff is also entitled to costs under Civ. Proc. Code § 1033.5.) Plaintiff’s pre-offer costs must be added to the $12,500 award to determine whether Plaintiff is the prevailing party on the 998 offer, even in instances where the offer calls for waiver of costs; post-offer costs are excluded under the code for purposes of calculation. (Civ. Proc. Code § 998(c)(2)(A); Stallman v. Bell (1991) 235 Cal. App. 3d 740, 747–49; Hersey v. Vopava (2019) 38 Cal. App. 5th 792, 798.)

Again, Defendant’s 998 offer was served on 11/04/19. It appears Plaintiff incurred pre-offer costs of at least $3,891.12, which when added to the $12,500 economic damages, equals $16,391.12. (MOC pp. 19-23, 45-54, 75-81, 88-89.) The $16,391.12 is greater than Defendant’s $15,000 offer.

Defendant’s reply brief claims certain costs related to police officers should be reduced from Plaintiff’s pre-offer costs as, for purposes of Civ. Proc. Code § 998 offers, police officers are considered experts. (Civ. Proc. Code § 998(f).) Defendant listed some $2,163.72 in pre-offer costs related to police officers, which when taken from the $16,391.12, equals $14,227.40, which would fall below Defendant’s 998 offer. There are two issues with the $2,163.72. The first is that there is no evidence the four checks made out for $275 to City of Santa Ana are for payment to the police officers as Defendant contends. (MOC pp. 19 – 22.) However, even if they were to be considered expert witness fees that are otherwise not permitted as pre-offer costs, only the combined amount of those checks ($1,100) should be reduced from the pre-judgment costs. The remaining $1,064 cited by Defendants is for service of process and deposition costs (court reporter, transcribing, etc.), which are separate recoverable costs under Civ. Proc. Code § 1033.5. Only fees paid to witnesses cannot be considered, not all costs associated with serving and deposing the expert. Therefore, even if the court were to reduce the $16,391.12 in costs/judgment by the $1,100, Plaintiff still recovered more than Defendant’s offer at $15,291.

Plaintiff is therefore the prevailing party both at trial and on the applicable 998 offer. Plaintiff is entitled to recover all permitted costs as well as post-offer expert witness costs.

Plaintiff requests a total of $45,819.94 in costs. Defendant requests the following items be struck/taxed from the MOC:

Section 1:

- The total is inaccurate. Plaintiff requests $2,077.20 in filing and motion fees, but only produced $2,003.20 in costs. Plaintiff concedes the amount is incorrect and should be reduced. The motion is GRANTED as to these fees and the amount is taxed by $74 to the correct sum of $2003.20;

- $42.20 filing fee for Mediation Brief (MOC § 1e) as it was “unnecessary” as mediation did not take place in this action. Plaintiff states this was mislabeled and it should be a filing fee for the MSN brief and not a Medication brief. Plaintiff indicated it would be corrected. The motion is DENIED at to this fee;

- $42.20 for “filing fee” (MOC § 1j) is undefined or not properly identified. Plaintiff’s opposition identified this amount as a filing fee for filing the stipulation and proposed order to continue trial (ROA #61). The motion is DENIED as to this fee;

Plaintiff is entitled to recover a total of $2,003.20 under this section.

Section 4:

- $653.00 for videotaping Ranjan Gupta, M.D.’s deposition. (MOC § 4a.) The invoice for videotaping was actually $610. (MOC p. 95.) Plaintiff indicated that the court reporter invoice included a “video” charge of $43, which was reduced from the “transcribing” costs and added to the “videotaping” cost. The motion is DENIED as to these items;

- $700.50 for videotaping Eugene Vanderpole, MSME’s deposition. (MOC § 4b.) the invoice for videotaping was actually $657.50. Plaintiff indicated that the court reporter invoice included a “video” charge of $43, which was reduced from the “transcribing” costs and added to the “videotaping” cost. The motion is DENIED as to this item;

Plaintiff is entitled to recover a total of $10,116.42 under this section.

Section 5:

- $633 for registered process service on Officer Robert Velasco. (MOC § 5c) The invoices from the process server were for $179. (MOC pp. 73, 79.) The motion is GRANTED in part, and the amount taxed by $454 to the billed $179.

- $279 in costs related to Officer Manuel Pardo as unnecessary (MOC § 5b). The motion is GRANTED in part at least at to $100 for service of process as the invoices for service add up to $179 and not the $279 identified (MOC § 5b and pp. 72, 78). The amount is taxed by $100.

- $400 in costs related to Martin Leyva as unnecessary (MOC § 5e). Plaintiff has produced documentation showing $400 in costs for multiple service attempts. (MOC pp. 75, 80, 82.) The motion is DENIED as to these costs;

- $1,151 in costs related to April Castilla as unnecessary. (MOC § 5f.) It appears there are typos regarding this individual who is listed alternatively as April Castilla or April Casillas in the MOC. It appears only $389 was incurred for service of process instead of the requested $1,151. (MOC pp. 74, 81, 83.) The motion is GRANTED in part, but only by taxing the requested amount by $762 down to the $389 shown by evidence produced.

Plaintiff is entitled to recover a total of $1,866 under this section.

Section 8:

- $11,750 charged by Kendall Wagner, M.D. for medical report review. (MOC § 8b.) Defendant contends that Wagner’s $500/hr. billing rate for medical record review and $5,000 for half-day deposition testimony is excessive. Defendant states that Wagner admitted at trial he only reviewed three records (Gupta’s medical report, MRI, and Plaintiff’s deposition) and one image, yet he charged 8.5 hours for medical record review. Defendant also argues Wagner is not qualified to opine on Plaintiff’s neck, back, rotator cuff, and/or wrist injuries as Wagner’s specialty appears to be foot and ankle. Wagner is a Board Certified orthopedic surgeon. Plaintiff requests the amount for Wagner be reduced by $8,250, and only allow 2 hours for review and deposition and two hours for follow-up review and trial. Plaintiff is the prevailing party at trial and on the applicable 998 offer (infra) and as such, Plaintiff can recover post-offer expert witness fees. Plaintiff incurred $2,500 for Wagner pre-offer, which would not be recoverable under Civ. Proc. Code § 998 or 1033.5. The maximum Plaintiff can recover for Wagner is $9,250. This amount is closer to the requested $8,250 Defendant put forth. The motion is GRANTED in part, but only in as much as removing the pre-offer fees as Wagner’s testimony was necessary and proper. The amount for Wagner is lowered to $9,250;

- $550 for expert witness fees to Officer Manuel Pardo. (MOC § 8b). It is unclear if the expert witness fees were incurred before or after the offer was made. Plaintiff is to present information at the hearing on this issue;

Plaintiff is entitled to recover a total of $10,625 under this section if Pardo’s expert fees were incurred post-offer. Plaintiff is entitled to recover a total of $10,075 under this section if Pardo’s expert fees were incurred pre-offer.

The total recoverable by Plaintiff in costs is $41,929.94 if Pardo’s expert fees were post-offer and $41,379.94 if Pardo’s expert fees were pre-offer.

Defendant to give notice.