Judge: H. Jay Ford, III, Case: 24SMCV01005, Date: 2025-04-03 Tentative Ruling

Case Number: 24SMCV01005    Hearing Date: April 3, 2025    Dept: O

  Case Name:  Wergeles, et al. v. Messinger

SUBJECT:                 MOTION TO TAX COSTS                        

MOVING PARTY:   Plaintiffs Nancy K. Wergeles and Donald S. Wergeles

RESP. PARTY:         Defendant Jami Messinger

TENTATIVE RULING

            Plaintiffs Nancy K. Wergeles and Donald S. Wergeles’ Motion to Tax Costs is GRANTED in part and DENIED in part. The Court finds that Defendant’s 998 offer is invalid for lack of fee apportionment between the two Plaintiffs. Thus, Defendant’s Post 998 Offer expert fees are not recoverable under CCP § 998. Defendant does not show that the Court ordered the expert witnesses and thus Defendant’s expert witness fees are not warranted under CCP § 1033.5(a)(8).

Plaintiffs meet their burden to show that the requested ordinary witness fees of $50 and service of process fees of $4,316.20 are not reasonable and unnecessary, while Defendant provided no evidence or argument as to why these fees were reasonable.

Plaintiffs did not meet their burden to overcome the Defendants prima facie evidence of reasonable and necessary fees via the verified memorandum of costs for Deposition Costs of $4,705.60 and Models, enlargements, and photocopies of exhibits Costs of $193.40.

            The Court orders the following costs taxed from the Defendant’s Memorandum of Costs totaling $87,378.70:

1.     $83,012.50—Item No. 8.b. (Expert Witness Fees)

2.     $4,316.20—Item No. 5 (Service of Process Fees)

3.     $50— Item No. 8.a. (Ordinary Witness Fees)

REASONING

            CCP § 1032(a)(4) defines a “[p]revailing party” as “a defendant in whose favor a dismissal is entered.” (Code Civ. Proc., § 1032, subd. (a)(4). ) CCP § 1032(b) provides: “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.” (Code Civ. Proc., § 1032, subd. (b).)

            Code of Civil Procedure § 1033.5(a) provides in part:

(a) The following items are allowable as costs under Section 1032:

(1) Filing, motion, and jury fees.

. . . .

(3)(A) Taking, 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.

. . . .

(C) Travel expenses to attend depositions.

. . . .

(4) Service of process by a public officer, registered process server, or other means . . .

 . . . .

(7) Ordinary witness fess pursuant to Section 68093 of the Government Code.

(8) Fees of expert witnesses ordered by the court.

(9) Transcripts of court proceedings ordered by the court.

 . . . .

(11) Court reporter fees as established by statute.

. . . .

(13) Models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.

(14) Fees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.

 . . . .

(16) Any other item that is required to be awarded to the prevailing party pursuant to statute as an incident to prevailing in the action at trial or on appeal.

(Code Civ. Proc., § 1033.5.)

Under CCP § 1033.5(c), costs must be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (Code Civ. Proc § 1033.5, subd. (c)(2), (3).) “The determination of the necessity and reasonableness of a particular expense was within the broad discretion of the court.” (Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 243.) “The trial court's exercise of discretion in granting or denying a motion to tax costs will not be disturbed if substantial evidence supports its decision. [citation] Whether a cost is reasonable presents a question of fact for the trial court.” (Lubetzky v. Friedman (1991) 228 Cal.App.3d 35, 39, modified (Mar. 19, 1991).)

“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, Rule 3.1700, subd. (a)(1).) If the opposing party wishes to file a motion to strike or to tax costs that motion “must be served and filed 15 days after service of the cost memorandum.” (Id., subd. (b)(1).) “Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” (Id., (b)(2).)

“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. On the other hand, 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.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 773.)

(b) Not less than 10 days prior to commencement of trial . . ., any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party. . . .

(2) If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial or arbitration.

(Code Civ. Proc., § 998, subd. (b).)

If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff 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 defendant.

(Code Civ. Proc., § 998, subd. (c)(1).)

            Plaintiffs Nancy K. Wergeles (“Nancy”) & Donald S. Wergeles (“Donald”) (collectively “Plaintiffs”) move to tax or strike all costs filed within Defendant Jami Messinger’s (“Messinger”)  arguing the Memorandum of Costs was not timely filed, the CCP 998 offer was made in bad faith and thus invalid, and the memorandum of costs contains numerous excessive, unreasonable and unnecessary costs which should be taxed.

            As a preliminary matter, is it undisputed that Messinger is the prevailing party in this matter pursuant to CCP § 1032. Judgment was entered in Messinger’s favor on 11-5-24, after a 10-15-24 jury trial finding that Messinger was not negligent. (See 11-5-24 Minute Order; 10-15-24 Minute Order.) Thus, Messinger is entitled to reasonable costs pursuant to CCP § 1033.5.

            Additionally, Messinger made a CCP § 998 offer for $250,000 on 8-15-24. (Stroman Decl., ¶ 4; Ex. A.) It is undisputed that Plaintiff rejected the offer because the settlement was not reached and the case went to trial. Messinger argues that Plaintiff made a counter CCP § 998 offer for $995,000.00 which Messinger allegedly rejected, however, neither Messinger nor Plaintiffs provided a declaration to this alleged offer.

I.      While Premature, the Court Treats the Memorandum of Costs as Timely Filed

            Plaintiffs first argue that due to the premature filing of Defendant’s Memorandum of Costs on 10-29-24 prior to an entry of Judgment, the Memorandum of Costs should be stricken or otherwise disregarded pursuant to Cal. Rules of Court, Rule 3.1700(a). (See Motion, pp 8–9; see also Cal. Rules of Court, Rule 3.1700(a).) Plaintiffs provide no authority that a prematurely filed memorandum of costs is grounds to strike or disregard Memorandum of Costs.

            “The premature filing of a memorandum of costs is treated as “a mere irregularity at best” that does not constitute reversible error absent a showing of prejudice.” (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 880.) Plaintiffs do not provide a showing of prejudice for the premature filing, and thus the Court will treat the prematurely filed cost memorandum as “being timely filed.” (Ibid.)

            The Court finds that the Plaintiffs timely filed their motion to tax costs pursuant to Rule 3.1700(b) on 11-15-24, within 15 days, plus two days after electronic service, of the filing and service of the memorandum of costs on 10-29-24. (See Code Civ. Proc., §1010.6, subd. (a)(4)(B).)

II.         While Plaintiffs Fail to Show the 998 offer was made in bad faith, the Offer is invalid because if failed to apportion the settlement amount between the two plaintiffs.,

            Plaintiffs argue that Messinger’s CCP § 998 offer was made to both Plaintiffs jointly, not separately, without allocation and thus is ineffective and invalid.  Specifically, Plaintiffs argue the request for $82,962.50 in expert witness fees, item No. 8b within the Memorandum of Costs, is excessive and invalid due to the bad faith CCP § 998 offer.

            “Where the defendant obtains a judgment more favorable than its offer, the judgment is prima facie evidence that the [998] offer was reasonable.” (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 471.) Here, Messinger undisputably received a more favorable judgment as analyzed above.  Thus, the judgment is prima facie evidence that the 998 offer was reasonable.

            The burden shifts to the Plaintiffs to show that the 998 offer was made in bad faith or as a “token”. (See Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 116 [“It is the general rule that where a party shows a prima facie entitlement to costs, the burden is on an objector to prove the costs should be disallowed.”].)

            “[M]ere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of . . . counsel are insufficient to rebut the prima facie showing.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 265.) “Whether an offer to compromise is made in good faith, however, cannot be measured by the amount of claimed damages or a party's subjective belief in the case's value.” (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1530.) “[A] modest settlement offer’ may be in good faith if it is believed the defendant has a significant likelihood of prevailing at trial.” (Id., at p. 1529.) Merely Stating that a party made a “unrealistic and unreasonable” 998 offer “solely in order to gain a strategic advantage,” without pointing to anything “in the record to support the contention factually,” will not create a bad faith 998 offer. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1263.)

            A 998 offer “must be sufficiently specific to permit the recipient meaningfully to evaluate it and make a reasoned decision whether to accept it, or reject it and bear the risk he may have to shoulder his opponent's litigation costs and expenses.” (Berg v. Darden (2004) 120 Cal.App.4th 721, 727, as modified (July 16, 2004).) “[T]he legislative purpose of section 998 is best served in multiplaintiff cases by requiring that section 998 offers be separately prepared and served on individual plaintiffs, allowing each individual the opportunity to accept individually.” (Menees v. Andrews (2004) 122 Cal.App.4th 1540, 1546 [finding an offer made jointly to husband and wife with only a single acceptance signature line, addressed to their counsel, to be invalid].)

            “A single, lump sum offer to multiple plaintiffs which requires them to agree to apportionment among themselves is not valid.” (Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 130.) “To be effective, an offer to multiple parties under section 998 must be explicitly apportioned among the parties to whom the offer is made so that each offeree may accept or reject the offer individually.” (Ibid.)

            Messinger’s 998 offer included one lump sum of $250,000 for both Plaintiffs, and did not specifically apportion any amount between the two Plaintiffs, nor did Messinger provide two separate 998 offers, one for either Plaintiff. (Stroman Decl., ¶ 4; Ex. A.)

            Thus, the Court finds that Messinger’s 998 offer is invalid. Messinger was required to explicitly apportion settlement amounts among the two Plaintiffs allowing each offeree to meaningfully evaluate the offer, and to accept or reject the offers individually. Messinger failed to do so. Plaintiffs offer further arguments regarding Messinger’s bad faith 998 offer, however the Court need not analyze them. Messinger’s 998 offer is procedurally invalid as the offer was not explicitly apportioned between the Plaintiffs.

            Because Messinger’s 998 offer is invalid, Messinger is only allowed recoverable costs as a prevailing party pursuant to CCP §§ 1032, 1033.5(a).  Messinger does not show that the expert witness fees were ordered by the Court pursuant to CCP § 1033.5(a)(8), or that Messinger has a right to recover expert witness fees pursuant to another statute.

            Thus, the requested expert witness fees of $83,012.50, within the memorandum of costs, are taxed.

III. Plaintiffs Objection to other costs as unreasonable and excessive

a.     Deposition Costs

            Plaintiffs argue that Item No. 4, the deposition costs, within the Memorandum of Costs include rush fees that were “solely incurred as a result of [Messinger’s] counsel’s unavailability to conduct discovery due to another trial he was engaged in at the time that this matter was set for trial,” and those rush fees specifically should be taxed. (Motion, p. 15.)

            Messinger argues that he is entitled to deposition costs as the prevailing party and points to his memorandum of costs as evidence that he is entitled to $4,705.60. (See 10-29-25 Memorandum of Costs, ¶ 4.) A verified Memorandum of Costs “is prima facie evidence . . . of the items listed on it, and the burden is on the party challenging the costs to demonstrate they were not reasonable or necessary.” (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486.) “Whether an item listed on the memorandum was reasonably necessary is a question of fact to be decided by the trial court.” (Ibid.)

            Plaintiffs do not point to any specific rush fees incurred within the deposition costs. The listed deposition costs appear to be reasonable. Messinger lists twelve separate people that were deposed with costs for each person ranging from $342.00 to $556.32, totaling $4,705.60. Without any provided evidence to the contrary, the Court cannot find that the deposition costs are unreasonable or excessive.

            Plaintiffs Motion to Tax Deposition Costs for Item No. 4 is DENIED

b.     Item No. 5 (Service of Process)

            Plaintiffs argue that the service of process fees totaling $4,146.20 in Item No. 5 are “unreasonably excessive costs for witnesses whose depositions either never took place,” or for witnesses that were ultimately deposed by Plaintiff and not by Defendant. (Motion, p. 15:7–16.) Plaintiff provides a declaration attesting to the facts that Kalnel Living PMK, Stephanie Altamirano, Hennessy Hernandez, George Muschel, Michael Saucedo, and Officer Brian A. Osborn were all eventually deposed by Plaintiffs and Defendants never arranged depositions after multiple unsuccessful service attempts. (Stroman Decl., ¶¶ 15–20.)

            Plaintiffs meet their burden to provide evidence challenging the costs within Item No. 5. The burden then shifts to Defendants to show these costs were reasonable and necessary, however, Defendants do not provide any arguments or evidence to make this showing. The memorandum of costs is only prima facie evidence and not enough to show reasonableness after Plaintiff has met their burden to challenge the costs.

            The Court finds that the service of process fees totaling $4,146.20 for multiple unsuccessful attempts at subpoenaing witnesses that were either eventually deposed by Plaintiffs only, or never scheduled for deposition by Defendants, are not reasonable and necessary costs.

            Plaintiffs’ motion to tax costs for service of process fees totaling $4,146.20 is GRANTED.

c.      Item No. 8a (Ordinary witness fees)

            Plaintiffs argue that Item No. 8a, the Ordinary Witness Fee, includes fees for witnesses that were never deposed, with both witnesses noticed for deposition after the close of discovery, and Plaintiffs objected to these deposition subpoenas on 8-27-24. (See Motion, p. 15:17–21; see also Stroman Decl., ¶¶ 7, 15, 19.) Messinger does not provide any argument or reasoning as to why these charges are reasonable and necessary.

            The Court finds that charges for witnesses subpoenaed after the close of discovery are not reasonable and necessary charges pursuant to CCP § 1032. Thus, Plaintiffs’ Motion to Tax Ordinary Witness Fees is GRANTED.

d.     Item No. 11 (Models, enlargements, and photocopies of exhibits)

            Plaintiffs argue that Item No. 11 requesting $193.40 for models enlargements and exhibit photocopies is not reasonable and excessive because Defendants did not specify what the costs are for within the MC-11 worksheet, and Plaintiffs “provided both sides with all copies of exhibit binders, trial binders, and the like.” (Motion, p. 17:12–17.) However, Plaintiffs do not provide a declaration to these facts.

            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, supra, 199 Cal.App.4th at p. 1486.) Defendants provided a verified memorandum of costs with a reasonable figure for modes, enlargements, and exhibit photocopies. Thus, without a declaration or evidence showing the figures are unreasonable Plaintiffs do not meet their burden.

            Plaintiffs Motion to Tax costs for Item No. 11 in the memorandum of costs is DENIED.