Judge: Gregory Keosian, Case: BC687134, Date: 2022-10-05 Tentative Ruling

Case Number: BC687134    Hearing Date: October 5, 2022    Dept: 61

Plaintiffs Michael A. Nichols, Mindy K. Nichols, and Georgia A. Nichols’s Motion to Shrike or Tax Costs is DENIED.

I.                   MOTION TO TAX COSTS

“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 by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (California Rules of Court Rule 3.1700, subd. (b)(1).)

“Code of Civil Procedure section 1032, subdivision (b) [], guarantees prevailing parties in civil litigation awards of the costs expended in the litigation: ‘Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.’” (Williams v. Chino Valley Independent Fire Dist. (“Williams”) (2015) 61 Cal.4th 97, 100.).

“If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) Although individual cost items are ordinarily challenged by a motion to tax costs, no cost-item is effectively put in issue by “mere statements” claiming them to be unreasonable. (Ibid.) However, where “it cannot be determined from the face of the cost bill whether the items are proper,” “the mere filing of a motion to tax costs may be a ‘proper objection’ to an item.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, 132.)

Plaintiffs Michael A. Nichols, Mindy K. Nichols, and Georgia A. Nichols (Plaintiffs) object to several cost items contained in the memorandum of costs submitted by Defendants Geragos & Geragos, Mark J. Geragos, Ben J. Meiselas, and James Wong (Defendants), which seeks $74,073.38 in costs. Plaintiffs object that the costs are not substantiated by documentation and not itemized by which party incurred them. (Motion at pp. 3–4.) Plaintiffs further object that Defendants are not prevailing parties because Geragos & Geragos dismissed its cross-complaint. (Motion at p. 4.) They argue that the filing fees sought for summary judgment are unnecessary as the motion was not successful; that the deposition costs, reporter costs, and service of process costs include no receipts; and that the expert witness fees suffer from the same infirmity, and improperly include expenses for deposing Plaintiffs’ experts. (Motion at pp. 4–5.)

Defendants in opposition provide the receipts upon which the costs are based. (Lupton Decl. Exhs. 1a–1d, 2a, 4a–4p, 5a–5i, 8a–8e, 12a, 12b, 14.)

Plaintiff in reply argues only that the offer of compromise under Code of Civil Procedure § 998, pursuant to which Defendants seek expert witness fees, was invalid because it was a single offer sent to multiple plaintiffs and conditioned upon their universal acceptance. (Reply at p. 2.)

The arguments that Plaintiffs raise in their motion are generally without merit. Plaintiffs’ primary objection is the lack of receipts for various cost items, but items on a verified cost bill, if apparently proper, are prima facie evidence of their necessity. (See Rappenecker, supra, 93 Cal.App.3d at p. 266.) In any event, Defendants have remedied the absence of documentation in their opposition by providing receipts, for which Plaintiffs offer no rebuttal in reply.

Defendants are also the prevailing parties in this action. A prevailing party for the purposes of an award of costs is “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Code Civ. Proc., § 1032, subd. (a)(4).) Although Defendants dismissed their cross-complaint before trial, Defendants obtained a dismissal of Plaintiffs’ claims after an order granting their motion for nonsuit, and as such are both “a defendant in whose favor a dismissal is entered” and “a defendant where neither plaintiff nor defendant obtains any relief.” (See Zintel Holdings, LLC v. McLean (2012) 209 Cal.App.4th 431, 438 [“[A] defendant who defeats the plaintiff's claim on a complaint, but who recovers nothing on his [or her] cross-complaint against the plaintiff, is nevertheless a prevailing party entitled to costs.”].)

The sole argument of substance that Plaintiff advances is that the section 998 offer pursuant to which Defendants claim expert fees was an invalid offer sent to multiple plaintiffs, without apportionment between them:

In general, “ ‘a section 998 offer made to multiple parties is valid only if it is expressly apportioned among them and not conditioned on acceptance by all of them.’ ” (Burch v. Children's Hospital of Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537, 544, 135 Cal.Rptr.2d 404; see Weinberg v. Safeco Ins. Co. of America (2004) 114 Cal.App.4th 1075, 1086, 8 Cal.Rptr.3d 224 (Weinberg ) [“ ‘an offer to two or more parties, which is contingent upon all parties' acceptance, is not a valid offer under [998]’ ”]; Meissner v. Paulson (1989) 212 Cal.App.3d 785, 791, 260 Cal.Rptr. 826 (Meissner ) [“as a matter of law only an offer made to a single plaintiff, without need for allocation or acceptance by other plaintiffs, qualifies as a valid offer under section 998”].) There is an exception to this rule: where there is more than one plaintiff, a defendant may still extend a single joint offer, conditioned on acceptance by all of them, if the separate plaintiffs have a “unity of interest such that there is a single, indivisible injury.” (Weinberg, supra, at p. 1087, 8 Cal.Rptr.3d 224.)

(Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498, 505.)

The offer that supports Defendants’ request for $29,900.33 in expert fees is indeed one made to all Plaintiffs collectively, for $28,750.00, without apportionment between them. (Lupton Decl. Exh. B.)

However, as Defendants argue in their supplemental briefing, the injury that Plaintiffs claimed in this matter, at the time that the section 998 offer was served in February 2021, was that the state-created danger had made them, as a family, fear for their lives and go into hiding. (Supp. Opp. At p. 3.) Because the injury that they asserted was not differentiated between them, Plaintiffs had a unity of interest and a single indivisible injury that made one section 998 offer appropriate.

Defendants note, additionally, that other section 998 offers were served that furnish an alternative basis to claim expert fees, such as offers served on each Plaintiff independently in October 2019. (Lupton Decl. ¶¶ 5–7, Exhs. E–G.) Although a second offer was later served, because the relief offered in the first offers exceed the relief that Plaintiffs obtained, “the trial court retains discretion to order payment of expert witness costs incurred from the date of the first offer.” (Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1026.) Thus the court agrees that these other offers provide a basis to seek expert fees.

Plaintiffs finally argue in a supplemental reply that Defendant cannot seek fees for deposing the experts designated by the opposing party. (Supp. Reply at p. 3.) This is incorrect: Section 998 “allows recovery of costs incurred for ‘the services of expert witnesses,’ without qualification as to the sponsoring side.” (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 54.)

The motion to strike or tax costs is therefore DENIED.