TENTATIVE RULING: 

Motion to Tax or Strike Costs

Plaintiff Hazel Boyd moves to tax or strike the costs of Defendants WH & S LLC and Ace Realty. For the reasons set forth below, the unopposed motion is GRANTED.

The right to recover costs of suit is determined entirely by statute. (Code Civ. Proc., § 1032.) The prevailing party is entitled to costs as a matter of right in any action or proceeding. (Code Civ. Proc., § 1032(b).) “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 are not reasonable or necessary.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

Here, it is undisputed that Defendants are the prevailing parties.

Item 4. Deposition Costs

Plaintiff argues that Defendant is not entitled to recover the court reporter fee for same-day cancellation, which is listed under “travel” for the Deposition of Brad Avrit.

Section 1033.5(a)(3) provides for the recovery of costs associated with “necessary depositions”—including costs to take, video record, and transcribe necessary depositions, registered interpreter fees, and travel expenses to attend depositions. The statute does not provide for court reporter cancellation fees. Code of Civil Procedure Section 1033.5(c)(4) provides the court discretion to award cost “[i]tems not mentioned in this section and items assessed upon application.” Where a cost is not defined as allowable under subsection (a), but not specifically barred under subsection (b), the moving party has the burden to show the cost was reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (Code Civ. Proc., § 1033.5(c).)

Here, Defendants do not meet their burden to show the cancellation fee was reasonably necessary for the conduct of the litigation.

Item 8(b). Expert Witness Fees

Plaintiff argues that Defendants are not entitled to recover expert fees.

Expert witness fees are not allowable unless ordered by the court. (Code Civ. Proc., § 1033.5(a)(8), (b)(1).) When a party serves the opposing party with a written offer to compromise under Code of Civil Procedure Section 998, and the opposing party rejects the offer, a judge may withhold or augment costs allowed under section 1033.5, as provided in section 998. (Code Civ. Proc., § 998(a).) The effect of a valid 998 offer that is not accepted is to establish a fee-shifting procedure, shifting some post-offer costs on a party’s refusal to settle—including expert fees. (Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1128–1129; Cal. Judges Benchbook Civ. Proc. Trial § 16.37; see Code Civ. Proc., § 998(c)(1).) 

Such cost shifting, however, takes place only when the 998 offer was “valid.” (Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81, 86.) “The burden is on the offering party to demonstrate that the offer is valid under section 998.” (Id. [citing Barella v. Exchange Bank (2000) 84 Cal.App.4th 793, 799.) Courts “interpret any ambiguity in the offer against its proponent.” (Id. [citing Chen v. Interinsurance Exchange of the Automobile Club. (2008) 164 Cal.App.4th 117, 122].)

Here, Defendants fail to show that the 998 offer served on Plaintiff was valid. The statutory offer included a demand for unspecified settlement terms—namely, a general release that was not attached to the offer. (Chambers Decl. ¶ 3.)

Defendants shall recover costs in the amount of $5,975.45.

Defendants shall submit a proposed amended judgment reflecting the costs award.

Plaintiff to give notice.