Judge: Elaine W. Mandel, Case: 22SMCV00689, Date: 2024-11-04 Tentative Ruling

Case Number: 22SMCV00689    Hearing Date: November 4, 2024    Dept: P

Tentative Ruling

Hartford Fire Insurance v. John Labib & Associates, Case no. 22SMCV00689

Hearing date November 4, 2024

Plaintiff Hartford’s Motion to Tax Costs

Plaintiff and subrogee for the Bradmore Group Hartford Fire Insurance Company sued defendant John Labib & Associates, Structural Engineers for negligence arising from cracked trusses at a commercial property in Marina Del Rey. The case went to trial 7/8/24, and the jury returned a defense verdict. Defendant filed and served a memorandum of costs seeking $35,118.80. Decl. Delinko para. 4. Plaintiff moves to tax costs, item no. 8b, claimed expert fees of $15,360.00, arguing some claimed costs are not supported by the memorandum, defendant has not established entitlement to an award of expert witness fees and has not established the reasonability of those fees.

Defendant opposes, offering declarations of expert witnesses Zeno Martin, P.E., S.E., and structural engineer Thomas A. Sabol, who testified at trial. Defendant notes the memorandum of costs erroneously seeks $15,360; defendants actually seek $14,472.50.

CCP §1032(b) provides a “prevailing party” may recover litigation costs. Not all costs are recoverable and are limited to those permitted under CCP §1033.5(a). The recovery of costs is limited to costs “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” CCP §1033.5(c)(2). The costs must be “reasonable in amount.” CCP § 1033.5(c)(3). The party challenging the memorandum of costs bears the burden of demonstrating the amounts were not “reasonable or necessary.” Ladas v. CA State Auto. Ass’n. (1993) 19 Cal. App. 4th 761, 774. However, “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.

The award of expert witness expenses where there is a failure to accept a pretrial CCP §998 offer is discretionary, not automatic. Santantonio v. Westinghouse Broadcasting Co., Inc. (1994) 25 Ca. App. 4th 102, 121. Plaintiff argues defendant served an offer to compromise for $50,000 pursuant to CCP §998 6/26/24, 6 days before trial. Decl. Delinko para. 5. Trial was scheduled for 7/8/24 and began 7/9/24, 14 days after service of the CCP §998 offer. The offer was timely.

Expert fees incurred prior to the CCP §998 offer are not recoverable. CCP §998(d). Plaintiff argues defendant’s memorandum of costs only provides a single line entry listing an amount for each expert without specifying the dates costs were incurred. Defendant asserts all expert costs sought were incurred after 6/26/24. See Decl. Martin para. 3, ex. B; Decl. Sabol para. 4, ex. D. Defendant substantiated the requested fees and dates incurred with declarations and invoices. All post-date the 998 offer.

Plaintiff argues the fees are not reasonable. Defendant seeks $470/hour for 12 hours of structural engineer Sabol’s time. Decl. Sabol ex. C, D. Defendant seeks $270/hour for 32.8 hours of civil engineer Martin’s time. Decl. Martin ex. A. Both testified in this case, which relied on expert testimony due to its technical nature. Defendant’s incurred costs are reasonable. There is no basis to tax defendant’s requested costs. DENIED.