Judge Cynthia A Freeland, Case Number: 37-2019-00059260-CU-PO-NC, Date: 2024-06-28 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2019-00059260-CU-PO-NC, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

SOUTH BUILDING TENTATIVE RULINGS - May 30, 2024

05/31/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited PI/PD/WD - Other Motion Hearing (Civil) 37-2019-00059260-CU-PO-NC CESENA VS. SOUTHERN CALIFORNIA EDISON COMPANY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike or Tax Costs, 03/21/2024

Defendant Southern California Edison Company ('Defendant')'s motion to strike or tax costs is granted in part and denied in part.

California Code of Civil Procedure ('CCP') § 1032(b) provides that '[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.' Cal. Code Civ. P. § 1032(b). '[S]ection 1033.5 sets forth the items that are and are not allowable as the costs recoverable by a prevailing party under section 1032[.]' Chaaban v. Wet Seal, Inc. (2012) 203 Cal. App. 4th 49, 52. CCP § 1033.5(a) enumerates the items allowable as costs, whereas CCP § 1033.5(b) lists items not recoverable as costs. See Segal v. Asics America Corporation (2020) 50 Cal. App. 5th 659, 664. The court has discretion to allow or deny costs for items not explicitly identified under CCP §§ 1033.5(a) or (b). See Cal. Code Civ. P. § 1033.5(c)(4). 'All costs awarded, whether expressly permitted under subdivision (a) or awardable in the trial court's discretion under subdivision (c), must be 'reasonably necessary to the conduct of the litigation' and be 'reasonable in amount.'' Segal, 50 Cal. App. 5th at 664 (quoting Cal. Code Civ. P. §§ 1033.5(c)(2)-(3)).

In ruling on a motion to strike or tax costs, the court first must decide whether CCP § 1033.5(a) expressly allows costs for the item objected to and whether it appears facially proper. See Gorman v. Tassajara Development Corp. (2009) 178 Cal. App. 4th 44, 71. If so, the objecting party bears the burden of establishing that the costs are unnecessary or unreasonable. Ibid. The objecting party must do more than merely allege that the costs were not necessary or reasonable; rather, he or she is obliged to present evidence proving that the claimed costs are not recoverable. See Seever v. Copley Press, Inc.

(2006) 141 Cal. App. 4th 1550, 1557. If there is a proper objection to an item, the burden shifts to the party claiming costs to prove they were necessary and reasonable. See Ladas v. California State Auto.

Assn. (1993) 19 Cal. App. 4th 761, 774. If, on the other hand, the claimed costs are not expressly authorized by statute, the party claiming them bears the burden of demonstrating that they were reasonable and necessary. See Gorman, 178 Cal. App. 4th at 71.

To start, Defendant objects repeatedly to various costs set forth in Plaintiff Patricia Cesena ('Plaintiff')'s Memorandum of Costs (the 'MOC') on the ground that Plaintiff failed to provide documentation supporting the requested costs. This argument is not well taken because Plaintiff initially was not required to submit an itemization or other supporting documentation establishing the reasonableness of the claimed costs. See, e.g., Jones v. Dumrichob (1998) 63 Cal. App. 4th 1258, 1267. Moreover, Plaintiff substantiated her claimed costs by virtue of the exhibits attached to Mr. Hulbert's declaration in support of Plaintiff's opposition to the motion. The court now will address each challenged cost in turn.

Calendar No.: Event ID: TENTATIVE RULINGS

3106457 CASE NUMBER: CASE TITLE: CESENA VS. SOUTHERN CALIFORNIA EDISON COMPANY 37-2019-00059260-CU-PO-NC Item 4 (Deposition Costs) CCP § 1033.5(a)(3)(A) expressly allows costs for '[t]aking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed.' Cal. Code Civ. P. § 1033.5(a)(3)(A).

Since CCP § 1033.5(a)(3)(A) explicitly allows the claimed charges and the costs are facially proper, Defendant bears the initial burden of providing evidence that the costs are unreasonable and unnecessary. Defendant has not met its burden. Defendant contends that the $95.00 charge for a copy of Mr. Jasper's videorecorded August 26, 2022 deposition was unreasonable and/or unnecessary because there was no indication that Mr. Jasper would be unavailable to testify at trial and, regardless, Plaintiff could have used a copy of the transcript at trial. Defendant's argument misses the mark. As Plaintiff correctly notes, Defendant, in fact, was the party who noticed Mr. Jasper's videorecorded deposition. The Notice of Deposition states that '[t]his deposition may be recorded by videotape and Defendant reserves the right to use said videotape deposition of this deponent at the time of trial, pursuant to Code of Civil Procedure Section 2025.22(a)(5).' See Hulbert Decl., Ex. 1. The court finds that it was reasonable and necessary under the circumstances for Plaintiff to order a copy of the transcript and video. Moreover, Plaintiff, in fact, did incur the cost as evidenced by Exhibit 2 to Mr.

Hulbert's declaration. Ibid., Ex. 2.

Accordingly, the court denies the motion as to Item 4.

Item 5 (Service of Process) CCP § 1033.5(a)(4) expressly allows costs for '[s]ervice of process by a public officer, registered process server, or other means . . . .' Cal. Code Civ. P. § 1033.5(a)(4). When service is effectuated by a registered process server, 'the recoverable cost is the amount actually incurred in effecting service, including, but not limited to, a stakeout or other means employed in locating the person to be served, unless those charges are successfully challenged by a party to the action.' Cal. Code Civ. P. § 1033.5(a)(4)(B). Since CCP § 1033.5(a)(4) explicitly allows the claimed charges and the costs are facially proper, Defendant bears the initial burden of providing evidence that the costs are unreasonable and unnecessary. Defendant has not met its burden. As to the service upon Dr. Dhalla and Dr. Luciano, Defendant contends that service could have been effected electronically or via mail and thus formal service of a trial subpoena was unnecessary. However, Plaintiff provides evidence by way of Mr.

Hulbert's declaration that Dr. Dhalla and Dr. Luciano resisted testifying at trial as they did not want to sacrifice an entire day of seeing patients at their respective offices. Plaintiff thus concluded, and the court agrees, that proper service of the trial subpoenas was reasonable and necessary to ensure Dr.

Dhalla's and Dr. Luciano's attendance. See Hulbert Decl., ¶¶ 4, 7, Exs. 4, 7. To the extent Defendant argues that Plaintiff's claimed charges are duplicative and/or unnecessary because the charges included failed service attempts, such contention is not well taken. To start, Defendant cites no authority for the proposition that such costs are not recoverable. More importantly, CCP § 1033.5(a)(4)(B) expressly allows costs for the amount actually incurred in effecting service, which costs include efforts expended to locate the person to be served. Even if unsuccessful service attempts were not expressly allowed under CCP § 1033.5(a)(4)(B), CCP § 1033.5(c) gives the court to discretion to allow such costs if they were reasonably and necessarily incurred. In this case, Plaintiff has provided evidence that such costs, in fact, were reasonably and necessarily incurred. Ibid., Exs. 3-9. Finally, Defendant's contention that the costs incurred to serve Dr. Stenehjem were unreasonable and/or unnecessary is unavailing. As Plaintiff correctly explains, the court sustained Defendant's counsel's objections to the extent Plaintiff attempted to elicit Dr. Stenehjem's opinions on cross-examination concerning causation. Plaintiff's proper service of a trial subpoena on Dr. Stenehjem for the purpose of securing his availability for potential rebuttal testimony was reasonable and necessary under the circumstances. Ibid., ¶ 9, Ex. 9. The fact that developments at trial ultimately rendered Dr. Stenehjem's rebuttal testimony unnecessary does not change the court's analysis.

Accordingly, the court denies the motion as to Item 5.

Calendar No.: Event ID: TENTATIVE RULINGS

3106457 CASE NUMBER: CASE TITLE: CESENA VS. SOUTHERN CALIFORNIA EDISON COMPANY 37-2019-00059260-CU-PO-NC Item 8(a) (Ordinary Witness Fees) Defendant challenges witness/mileage fee charges for Dr. Dhalla ($71.40) and Mr. Alvarado ($55.00).

CCP § 1033.5(a)(7) expressly allows costs for '[o]rdinary witness fees pursuant to Section 68093 of the Government Code.' Cal. Code Civ. P. § 1033.5(a)(7). California Government Code ('CGC') § 68093 provides that '[e]xcept as otherwise provided by law, witness' fees for each day's actual attendance, when legally required to attend a civil action or proceeding in the superior courts, are thirty-five dollars ($35) a day and mileage actually traveled, both ways, twenty cents ($0.20) a mile.' Cal. Gov't Code § 68093. In this case, the court respectfully disagrees with Defendant that the ordinary witness fee charges for Dr. Dhalla is duplicative of the costs set forth in Item 8(b). The costs set forth in Item 8(b) consist of conferences, consultations, and trial testimony. They do not explicitly include mileage/witness fees. Consequently, the claimed costs are allowable as to Dr. Dhalla. As to Mr. Alvarado, the court agrees with Defendant that the claimed charges under Item 8(a) are not allowable because Mr. Alvarado neither appeared nor testified at trial. As set forth above CCP § 1033.5(a)(7) and CGC § 68093 limits recoverable costs to each day's actual attendance.

Accordingly, the court grants the motion in part as to Item 8(b) and taxes the MOC in the total amount of $55.00.

Item 8(b) (Expert Witness Fees) Expert fees not ordered by the court are not allowable as costs except when expressly authorized by law. See Cal. Code Civ. P. § 1033.5(b)(1). However, CCP § 998(a) augments or limits costs allowed under CCP § 1032. See Cal. Code Civ. P. § 998(a). More specifically, '[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 other than an eminent domain action, the court or arbitrator, 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.' Cal. Code Civ. P. § 998(d). CCP § 998(d) does not limit expert witness fees to instances where the court expressly orders them. See Chaaban, 203 Cal. App. 4th at 55. In this case, it is undisputed that on January 27, 2022, Plaintiff served on Defendant a Statutory Offer to Compromise in the amount of $1,950,000.00, which offer Defendant did not accept. It further is undisputed that Defendant failed to obtain a more favorable judgment at trial, with Plaintiff ultimately securing a jury verdict in the total amount of $3,323,237.00. See Hulbert Decl., Ex. 12. Consequently, Plaintiff is entitled to the expert fees incurred after January 27, 2022. That being said, the court has carefully reviewed the invoices attached to Mr. Hulbert's declaration independently and has determined that certain charges for the various experts should be taxed as set forth below.

First, as to Mr. Beels, there are several claimed charges that are not fully explained/substantiated, duplicative, and/or excessive. Specifically: - The various charges for '10% General and Administrative expenses' are vague as the court does not know what those expenses entailed. The court taxes the MOC in the amount of $6,272.00.

- Defendant represents that it paid Mr. Beels' fee for his July 20, 2022 deposition testimony in full. The court taxes the MOC in the amount of $1,815.00.

- The September 12, 15, and 16, 2022 entries to review the case file in preparation for the September 16, 2022 deposition testimony appear duplicative. The court taxes the MOC in the amount of $3,330.00.

- The November 8 through 30, 2022 entries for work performed by 'C. Phillips' is duplicative given that Mr. Beels also would have needed to perform those tasks. Additionally, the November 22, 2022 entry to review the case file, including Ms. Pena's transcript, appears duplicative and excessive. The court taxes the MOC in the amount of $3,357.00.

- The February 10 through 14, 2023 entries for work performed by Lisa Davey is duplicative given that Mr. Beels also would have needed to perform (and seemingly did perform) those tasks. The court taxes the MOC in the amount of $4,680.00.

Calendar No.: Event ID: TENTATIVE RULINGS

3106457 CASE NUMBER: CASE TITLE: CESENA VS. SOUTHERN CALIFORNIA EDISON COMPANY 37-2019-00059260-CU-PO-NC - The December 20 and 21, 2023 entries to prepare for telephonic conferences and trial testimony are slightly duplicative and should be reduced. The court taxes the MOC in the amount of $500.00.

- The January 9 and 10, 2024 entries to review the case file in preparation for the January 11, 2024 trial testimony are duplicative and must be reduced. The court taxes the MOC in the amount of $1,050.00.

As to Mr. Remas, Defendant's contention that the claimed charges are unsubstantiated is not a legally sufficient basis to strike or tax costs. Moreover, the court, having independently reviewed the invoices attached as Exhibit 14 to Mr. Hulbert's declaration, finds that the claimed charges were reasonably and necessarily incurred. Consequently, the court will not strike or tax the costs associated with Mr. Remas's services.

As to Dr. Morris, the invoices attached as Exhibit 15 to Mr. Hulbert's declaration are vague as to the $8,000.00 in 'Expert services rendered' on December 7, 2023. According to the emails attached to the invoice, the Zoom meeting began at 1:30 p.m. thus rendering it unclear how Plaintiff could have incurred what appears to be a full day's worth of charges as to Dr. Morris. The court taxes the MOC in the amount of $8,000.00.

As to Dr. Murphy, Defendant's contention that the claimed charges are unsubstantiated is not a legally sufficient basis to strike or tax costs. Moreover, the court, having independently reviewed the invoices attached as Exhibit 16 to Mr. Hulbert's declaration, finds that the claimed charges were reasonably and necessarily incurred. Consequently, the court will not strike or tax the costs associated with Dr. Murphy's services.

As to Ms. Spoon, Ms. Spoon testified as Plaintiff's expert economist and was helpful for developing a damages presentation for trial as well as prosecuting various motions in limine. However, as was the case with work performed by Mr. Beels' staff, certain charges as they pertain to work performed by Brian Minns are duplicative given that Ms. Spoon would have needed to perform such services in preparation for trial. The court taxes the MOC in the amount of $3,720.00.

As to Dr. Magnusson, Defendant claims that Dr. Magnusson's $2,500.00 retainer fee is not allowable because the expense was generated and/or incurred before Plaintiff served her CCP § 998 offer on January 27, 2022. This is true; however, a review of the invoices attached as Exhibit 17 to Mr. Hulbert's declaration shows that the services were provided, and thus the fees incurred, in April 2022 – after the CCP § 998 offer was served. Consequently, the court will not strike or tax the costs associated with Dr.

Magnusson's services.

As to Mr. Matuszak, the court respectfully disagrees with Defendant that Mr. Matuszak was withdrawn as a designated expert – he remained as an expert consultant, though his trial testimony ultimately was deemed unnecessary. Regardless, his deposition testimony was reasonably necessary to Plaintiff's trial preparation. Moreover, Mr. Matuszak's services were provided, and thus the fees incurred, in June 2022 – after the CCP § 998 offer was served. Consequently, the court will not strike or tax costs associated with Mr. Matuszak's services.

As to Mr. Stephens, the invoice and communication attached as Exhibit 20 to Mr. Hulbert's declaration make clear that the $1,260.00 charge was for Mr. Stephens' initial document review and the February 2, 2023 conference call. The court finds that the claimed costs were reasonably and necessarily incurred.

Consequently, the court will not strike or tax costs associated with Mr. Stephens' services.

As to Dr. Luciano, the court finds that the $11,000.00 charge for preparing for and attending trial was reasonably and necessarily incurred given that his testimony was important in establishing the causation aspect of Plaintiff's case. It was Dr. Luciano's QME evaluation which led to the diagnosis of Plaintiff's left shoulder and bilateral knee injuries, the disabilities caused by those injuries, and the need for future surgeries to treat those injuries. See Hulbert Decl., ¶ 21, Ex. 21. Consequently, the court will not strike or tax costs associated with Dr. Luciano's services.

Calendar No.: Event ID: TENTATIVE RULINGS

3106457 CASE NUMBER: CASE TITLE: CESENA VS. SOUTHERN CALIFORNIA EDISON COMPANY 37-2019-00059260-CU-PO-NC Accordingly, the court grants the motion in part as to Item 8(b) and taxes the MOC in the total amount of $32,724.00.

Item 11 (Court Reporter Fees as Established by Statute) CCP § 1033.5(a)(11) expressly allows costs for '[c]ourt reporter fees as established by statute.' Cal. Code Civ. P. § 1033.5(a)(11). Since CCP § 1033.5(a)(11) explicitly allows the claimed charges and the costs are facially proper, Defendant bears the initial burden of providing evidence that the costs are unreasonable and unnecessary. In this case, while Defendant did not meet its evidentiary burden, Plaintiff, in her reply, has acknowledged that certain charges set forth in the MOC are not recoverable.

Consistent with Plaintiff's offer to withdraw certain charges, the court taxes the MOC in the total amount of $1,981.60.

Accordingly, the court grants the motion in part as to Item 11 and taxes the MOC in the total amount of $1,981.60.

Item 12 (Models, Enlargements, and Photocopies of Exhibits) CCP § 1033.5(a)(13) expressly allows costs for '[m]odels, the enlargement of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, . . . if they were reasonably helpful to aid the trier of fact.' Cal. Code Civ. P. § 1033.5(a)(13).

Since CCP § 1033.5(a)(13) explicitly allows the claimed charges and the costs are facially proper, Defendant bears the initial burden of providing evidence that the costs are unreasonable and unnecessary. Defendant has not met its evidentiary burden. Moreover, the court, having independently reviewed Exhibits 25-43 to Mr. Hulbert's declaration, finds that the claimed costs were reasonably and necessarily incurred. Defendant takes issue with the $20,583.00 in costs for printing services completed internally; however, Mr. Hulbert has provided documentation of the claimed costs and conceded that copies were erroneously charged at an inflated rate. Plaintiff also has voluntarily reduced various other charges consistent with the attached documentation.

Accordingly, the court grants the motion in part as to Item 12 and taxes the MOC in the total amount of $15,964.29.

Item 16 (Other) Plaintiff's claimed costs for 'other' expenses is not explicitly identified under CCP §§ 1033.5(a) or (b).

Therefore, Plaintiff bears the burden of demonstrating that the charges were reasonably and necessarily incurred. Moreover, the court has discretion to allow or deny the claimed costs if it determines that they were not reasonably and necessarily incurred. In this case, Defendant has objected to Plaintiff's claimed charges for: (1) messenger service (Item 16(b)); (2) Court Call fees (Item 16(c)); (3) investigation for process servers (Item 16(d)); and (4) photocopies of court documents (Item 16(e)). The court finds that Plaintiff has demonstrated that the claimed costs were reasonably and necessarily incurred and otherwise were reasonably helpful to the trier of fact. This includes the Court Call appearance fees, which Plaintiff has demonstrated were not incurred merely for convenience given the COVID-19 pandemic. Moreover, and as set forth above, the fees associated with locating Mr. Murray are allowable.

The court accepts Plaintiff's withdrawal of $13.00 in charges to purchase copies of court documents from the Register of Actions.

Accordingly, the court grants the motion in part as to Item 16 and taxes the MOC in the total amount of $13.00.

In light of the foregoing, the court grants the motion to strike or tax costs as set forth herein. The court allows costs in the total amount of $269,263.28.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, May 31, 2024. If no party appears at Calendar No.: Event ID: TENTATIVE RULINGS

3106457 CASE NUMBER: CASE TITLE: CESENA VS. SOUTHERN CALIFORNIA EDISON COMPANY 37-2019-00059260-CU-PO-NC the hearing, this tentative ruling will become the order of the court as of May 31, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

Calendar No.: Event ID: TENTATIVE RULINGS

3106457