Judge: Daniel M. Crowley, Case: 19STCV04561, Date: 2023-03-21 Tentative Ruling

Case Number: 19STCV04561    Hearing Date: March 21, 2023    Dept: 207

Background

Plaintiff Anita Dange (“Plaintiff”) brought this action for medical malpractice against Defendants Steve P. Yu, M.D., and Sonya Tat, M.D. (collectively “Defendants”). Plaintiff’s claims against Defendants were tried to a jury, and on November 29, 2022, the jury returned a verdict in favor of Defendants. On December 15, 2022, the Court entered judgment in favor of Defendants and against Plaintiff. On December 21, 2022, Defendants filed a Memorandum of Costs seeking an award of $73,728.45 in costs as the prevailing parties. Plaintiff brings this motion to tax the costs sought by Defendants. Defendants oppose Plaintiff’s motion.

At the February 16, 2023, hearing on this motion, Defendants for the first time argued they were entitled to recover their expert witness costs pursuant to Code Civ. Proc. § 998. Based on this representation, the Court ordered the parties to submit supplemental briefing on Defendants’ recovery of expert witness fees pursuant to Code Civ. Proc. § 998 and continued the hearing to March 21, 2023. The parties have submitted their supplemental briefing as directed by the Court.

Legal Standard

In general, the prevailing party is entitled as a matter of right to recover costs for suit in any action or proceeding.¿ (C.C.P.¿§ 1032(b);¿Santisas¿v.¿Goodin¿(1998) 17 Cal.4th 599, 606;¿Scott Co. Of¿Calif.¿v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.)¿ Assuming the prevailing party¿requirements are met, the trial court has no discretion to order each party to bear his or her¿own¿costs of suit. (Michell¿v. Olick¿(1996) 49 Cal.App.4th 1194, 1198;¿Nelson v. Anderson¿(1999) 72 Cal.App.4th 111, 129.)¿The term prevailing party is defined by statute to include:¿The party with a net monetary recovery;¿a¿defendant who is dismissed from the action;¿a¿defendant where neither plaintiff nor defendant recovers anything; and¿a¿defendant as against those plaintiffs who do not recover any relief against that defendant.¿ (C.C.P.¿§¿1032(a)(4).)¿

¿

Allowable costs under Code Civ. Proc.¿§¿1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount.¿An item not specifically allowable under¿§¿1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount).¿If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.¿¿(Ladas v.¿California¿State Automotive Assoc.¿(1993) 19 Cal.App.4th 761, 773-774.)¿Whereas, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Id.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.¿ (Id.)¿ However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.)¿ Discretion is abused only when, in its exercise, the court exceeds the bounds of reason, all of the circumstances being considered.¿

Analysis

            1.         Timeliness of Motion

On December 21, 2022, Defendants’ filed a Memorandum of Costs seeking an award of $73,729.45 in claimed costs. Defendants contend Plaintiff’s motion to strike should be denied because it is untimely. Plaintiff’s motion was filed and served on January 9, 2023. Defendants argue Plaintiff’s deadline to file was January 4.

California Rules of Court, rule 3.1700(b)(1) states: “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. …. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” Code Civ. Proc. § 1010.6(a)(4)(5) provides: “Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days ….”

The proof of service attached to Defendants’ cost memorandum indicates it was served electronically on Plaintiff on December 21, 2022. Absent any extension for electronic service, the deadline for Plaintiff’s motion was January 5, 2023, pursuant to rule 3.1700(b)(1), This deadline was then extended by two court days pursuant to Code Civ. Proc. § 1010.6(a)(4)(5), making Plaintiff’s deadline January 9. Defendants admit Plaintiff’s motion was filed on January 9. The Court finds Plaintiff’s motion is timely.

            2.         Request to Strike All Costs

Plaintiff moves to strike all of Defendants’ claimed costs on the basis that they did not provide proof of their costs with their cost memorandum. The Court rejects this argument. Defendants were not required to submit documentary evidence supporting their claimed costs with their cost memorandum. Rather, a “‘verified memorandum of costs is prima facie evidence of the propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.” (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486–1487.)

            3.         Expert Fees

Defendants seek $43,187 in costs for expert witness fees pursuant to Code Civ. Proc. §§ 998 and 1033.5(b)(1). A party who timely serves an offer to compromise pursuant to Code Civ. Proc. § 998 is also entitled to recover any post-offer costs where the offer is not accepted and the party who rejected the offer fails to obtain a more favorable result at trial. Section 998 offers must be made in good faith, and “[a] token or nominal offer made with no reasonable prospect of acceptance will not pass the good faith test.” (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1528.) However, “[w]hen a party obtains a judgment more favorable than its pretrial offer, [the offer] is presumed to have been reasonable and the opposing party bears the burden of showing otherwise.” (Ibid.) The pretrial offer of settlement required under section 998 must be realistically reasonable under the circumstances of the particular case. (See Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 63.) Whether a 998 offer is reasonable also depends on whether the adverse party knows, or reasonably should know, the information that makes the offer reasonable. (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699.) 

A section 998 offer need not be objectively reasonable in hindsight, nor reasonable only in regard to what the responding party knew or should have known at the time. The validity of a 998 offer is premised on two considerations to be evaluated “at the time of the offer” and “not by virtue of hindsight.” (Licudine v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, 924.) The Licudine court instructs a court must consider whether the 998 offer was within the range of reasonably possible results at trial, considering the information the “offeror knew or reasonably should have known,” and then whether the offeror knew or should have known that the offeree had sufficient information to have a “fair opportunity to intelligently evaluate the offer.” (Id. at 925-26.)

Plaintiff filed this action on February 11, 2019. On August 5, 2020, Defendant Sonya Tat issued a section 998 offer to compromise Plaintiff’s claims in exchange for a waiver of costs. On February 1, 2022, Defendant Steve Yu issued his own section 998 offer to Plaintiff in the amount of $20,000. Defendants issued additional 998 offers in October 2022, offering to waive their costs to resolve Plaintiff’s claims. Plaintiff argues these section 998 offers did not carry any reasonable possibility of actual acceptance by Plaintiff in light of the extent of Plaintiff’s damages and the minimal amounts offered by Defendants.

Courts have recognized a defense offer to compromise must carry a realistic expectation of acceptance given the particular circumstances of the case to justify an award of expert fees. “A plaintiff may not reasonably be expected to accept a token or nominal offer from any defendant exposed to this magnitude of liability unless it is absolutely clear that no reasonable possibility exists that the defendant will be held liable. If that truly is the situation, then a plaintiff is likely to dismiss his action without any inducement whatsoever. But if there is some reasonable possibility, however slight, that a particular defendant will be held liable, there is practically no chance that a plaintiff will accept a token or nominal offer of settlement from that defendant in view of the current cost of preparing a case for trial.” (Wear v. Calderon (1981) 121 Cal.App.3d 818, 821.) “Although McHal's liability was tenuous indeed, having in mind the enormous exposure the trial court could find that McHal had no expectation that its offer would be accepted. From this it follows that the sole purpose of the offer was to make McHal eligible for the recovery of large expert witness fees at no real risk.” (Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 63.)

Plaintiff argues she brought this case to redress significant physical injuries. Indeed, it appears Plaintiff was claiming over $400,000 in special damages, and likely a significant amount more in general damages based on claimed lasting damage to her uterus which rendered her unable to become pregnant and forced her to resort to surrogacy to have children. Three of the four offers to compromise made by Defendants did not include any payment to Plaintiff and instead offered only a waiver of defense costs. The Court finds these offers did not carry a reasonable possibility of acceptance by Plaintiff and thus cannot justify the award of expert fees. Defendant Yu did offer a monetary payment to Plaintiff of $20,000. However, Plaintiff states that by the time this offer was made in February 2022, her costs in prosecuting the case had already exceeded $20,000 and thus Defendant’s offer would not have resulted in any net recovery for Plaintiff on her claim. For this reason, the Court finds the February 2022 offer to compromise did not carry a reasonable probability of acceptance as required under Wear and Pineda as discussed above. The Court in its discretion thus GRANTS Plaintiff’s motion to tax Defendants’ expert fees in their entirety.

            4.         Jury Fees

Defendants seek an award of $1,588.05 for jury fees. As Plaintiff points out, Defendants have submitted evidence showing they incurred a total of $863.62. (Ex. E to Vogt Decl.) The Court thus grants Plaintiff’s request to limit Defendants’ jury fees to $863.62.

            5.         Deposition Costs

Plaintiff seeks to tax $2,611.25 of the $9,679.40 claimed by Defendants for deposition costs, arguing Defendants did not use video depositions at trial and thus cannot establish costs associated with video depositions was reasonably necessary for litigation. The Court disagrees. While Defendants ultimately did not need to use the video recordings of these depositions at trial, the Court cannot say such costs were not reasonably necessary to conduct the litigation at the time they were incurred. The video recording of depositions is a commonplace occurrence and obviates any prejudice which could result from a witness being unavailable to offer live testimony at trial. That such video recordings were ultimately not used at trial does not, standing alone, mean such costs were unreasonably incurred by Defendants.

            6.         Service of Process

Defendants claim $1,320 in costs for service of process, consisting of a claimed $320 for service of deposition subpoenas and a claimed $1,000 for service of record subpoenas. Defendants have submitted documentary evidence supporting the $320 claimed in deposition subpoenas. (Ex. G to Vogt Decl.) However, Defendants have not made any showing that they incurred $1,000 in connection with record subpoenas. Defendants’ opposition refers the Court to Exhibit E to the Vogt Declaration as supporting these costs, but upon review Exhibit E does not contain any entries reflecting Defendants incurred any costs in serving record subpoenas. The Court grants Plaintiff’s request to tax $1,000 from Defendants’ claimed costs for service of process.

            7.         Models, Enlargements, and Photocopies

Plaintiff seeks to tax $493.05 of the $3,920 claimed by Defendants for models, enlargements, and photocopies, arguing Defendants’ records only indicate they incurred $3,426.95. The Court agrees. In support of these claimed costs, Defendants direct the Court to Exhibit J of the Vogt Declaration. Exhibit J contains evidence showing Defendants incurred $3,426.95 in costs for models, enlargements, and photocopies and the Court will tax $493.05 in unsupported costs from Defendants’ award.

Conclusion

Plaintiff’s motion to tax costs is granted in part and denied in part. The Court will reduce Defendants’ award of costs to $28,324.97 to account for the reductions set forth above. In all other respects, Plaintiff’s motion is denied.