Judge: James L. Crandall, Case: 16-854377, Date: 2023-01-05 Tentative Ruling

Motion to Strike or Tax Costs

TENTATIVE RULING:

Defendant The Regents of the University of California’s (Defendant) Motion to Tax Costs (Motion), filed 10-21-22 under ROA No. 646 is GRANTED in part. Plaintiff Monica Brailsford’s Memorandum of Costs filed 10-6-22 under ROA No. 642 is taxed in the amount of $49,271.89.

Code of Civil Procedure, section 1032 allows for the recovery of costs by a prevailing party as a matter of right. (Code Civ. Proc., § 1032.) “ ‘Prevailing party’ includes 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.” (Id. § 1032, subd. (a)(4).) Pursuant to section 1033.5, subdivision (c), “(1) Costs are allowable if incurred, whether or not paid. (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount.” (Code Civ. Proc., § 1033.5, subd. (c)(1)-(3).) Items not mentioned in section 1033.5 and items assessed upon application may be allowed or denied at the court’s discretion. (Id. § 1033.5, subd. (c)(4).)

“[I]tems on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred.” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) On the other hand, the filing of a motion to tax costs may be a “proper objection,” to a cost item, “the necessity of which appears doubtful, or which does not appear to be proper on its face.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) Thus, the court’s first determination on a motion to tax costs is “whether the statute expressly allows the particular item, and whether it appears proper on its face.” (Id.) “If so, the burden is on the objecting party to show them to be unnecessary or unreasonable.” (Id.)

Defendant argues that Plaintiff’s Memorandum of Costs (Memorandum), filed 10-6-22 under ROA No. 642, must be stricken in its entirety because Plaintiff’s Code of Civil Procedure section 998 Offer to Compromise (998 Offer) for $500,000 served on 3-17-17 was unreasonable. Alternatively, Defendant argues that certain portions of the Memorandum should be stricken as unreasonable.

Reasonableness of 998 Offer

“Section 998 should be interpreted so as to effectuate its purpose of encouraging the settlement of lawsuits before trial. [citation] Section 998 achieves its aim by punishing a party who fails to accept a reasonable offer from the other party. [citation] An offeree cannot be expected to accept an unreasonable offer…Whether a section 998 offer is reasonable must be determined by looking at circumstances when the offer was made. [citation] However, the reasonableness of an offer depends upon the information used to evaluate it. In many cases, a plaintiff and a defendant will not have the same information when an offer is made. For this reason, the reasonableness of an offer may lie in the eye of its beholder. As a general rule, the reasonableness of a defendant's offer is measured, first, by determining whether the offer represents a reasonable prediction of the amount of money, if any, defendant would have to pay plaintiff following a trial, discounted by an appropriate factor for receipt of money by plaintiff before trial, all premised upon information that was known or reasonably should have been known to the defendant.” (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 698-699.)

Defendant contends that the 998 Offer was unreasonable at the time it was made for the following reasons: (1) Plaintiff was “two years cancer free” in 2017 such that she was able to work for period of time, (2) as of 2017, she had only undergone diagnostic studies and minimal treatment with good prognosis in March 2017, (3) Plaintiff’s cancer returned aggressively in 2018 causing Plaintiff significant loss of income and costs for extensive treatment. Defendant cites to the declaration of its counsel, Matthew Yarvis (Yarvis) for these arguments as well as a 2017 MediCal lien in the total amount of $2,175.53. (Motion, Exhibit C.)

In opposition, Plaintiff contends that the 998 Offer was reasonable because the offer was based on documents available to both parties prior to March 2017. Specifically, Plaintiff’s experts Gene Bruno and Catherine Graves opined based on these documents that Plaintiff had substantial past and future economic loss, in the total amount ranging from $1,092,862 to $1,521,680. Plaintiff asserts that her experts based their opinions on Plaintiff’s deposition, taken January 2017, as well as Plaintiff’s medical and employment records, all of which were available to Defendant prior to March 2017. Further, Plaintiff herself testified to her disabilities due to cancer treatment, including her inability to continue with her bachelor’s degree program due to memory and pain issues.

In reply, Defendant reiterates that as of March 2017, no one could have predicted that Plaintiff’s cancer would take a drastic turn for the worse in 2018. While there was metastasis found in 2015, it was allegedly described as metastasis to a single lymph node that was entirely removed with “clean margins.”

Defendant also argues that regardless of the opinions of Gene Bruno and Catherine Graves, neither were deposed until 3 months after the 998 Offer and therefore, Defendant neither knew nor should have known of such information at the time of the 998 Offer. Moreover, Mr. Bruno’s son Jeff Bruno also testified that his assessment of Plaintiff in 2017 was excessive.

The court does not find the Yarvis Declaration credible for Defendant’s argument that Plaintiff was in good health in 2017. Yarvis is defense counsel and does not establish personal knowledge for his statements regarding Plaintiff’s health, or qualifications to give his opinions regarding same.

Further, the court is persuaded by Plaintiff’s arguments in reliance on the Bruno and Graves Declarations that Plaintiff’s total estimated economic loss was significantly higher than the 998 Offer even as of 2017. Plaintiff represents that both experts based their opinions on records and Plaintiff’s deposition, all of which was available prior to March 2017. Although Defendant argues that it did not depose Bruno or Graves until August 2017, Defendant does not dispute that the documents Bruno and Graves relied upon were available prior to the March 2017 998 Offer. Defendant gives no explanation for why it should not have conducted its investigation into the value of the instant action sooner.

Based on the foregoing, the court finds that Plaintiff’s 998 Offer was reasonable. The court will analyze the reasonableness of Plaintiff’s requested costs.

Reasonableness of Requested Costs

Expert Witness Fees

Defendant challenges the following expert witness fees:

· Dr. Savalia: Defendant argues that the amount requested for Dr. Savalia is unreasonable given that he testified at trial for no more than 90 minutes and requests $18,725, greater than all but one of Plaintiff’s desgianted experts.

· Dr. Goldfarb: Defendant argues that the amount requested for Dr. Goldfarb is unreasonable given that he was never called as a trial witness.

· Dr. Harness: Defendant asserts that the amount requested is unreasonable given that Dr. Harness was not designated as a retained or non-retained expert.

In opposition, Plaintiff submits invoices and billing records in support of her requested costs as Exhibits 6-14 to the Opposition. Specifically, Plaintiff’s counsel Ronald Harrington attests as follows in support of the Opposition: “Attached hereto as Exhibit 10 is a true and correct copy of the rate sheet which I was required to follow, along with checks and billing records for Nirav Savalia, M.D. Total $18,725 [Memo of Costs 8.b.(5)]. Dr. Savalia's testimony describing his July, 2015 Oncoplastic Reconstruction (removal and re-arrangement of breast tissue) was extremely important in refuting Defendant's contention that in July, 2018 Plaintiff had a "new primary" as opposed to a "recurrence" [¶] Attached hereto as Exhibit 13 is a true and correct copy of the time and billing records for Jay Harness, M.D. Total $7,000 [Memo of Costs 8.b.(8)]. Although Dr. Harness was not a retained or non-retained expert in this case, Dr. Harness had to travel round trip from Santa Barbara to testify at Trial. Dr. Harness' testimony that neither he nor his office received the subject faxed Breast Surgical Referral from the Regents' Appointment Coordinator was critical in refuting the Regents' claim [¶] Attached hereto as Exhibit 14 is a true and correct copy of the time and billing records for Paul M. Goldfarb, M.D. Total $9,750 [Memo of Costs 8.b.(9)]. Commencing December 14, 2021 through March 13, 2022. Dr. Goldfarb prepared for and gave his Second Deposition on January 31, 2022. Dr. Goldfarb ultimately was not called at Trial because Dr. Harness was available and able to appear and testify at Trial.” (Harrington Decl., ¶¶ 11, 14, 15.)

Based on the foregoing, the court finds that Plaintiff’s requested fees for Drs. Savalia and Harness are unreasonable and will tax the total expert witness fees in the amount of $25,725.

First, the Harrington Declaration and Exhibit 10 to the Opposition fail to demonstrate that $18,725 is a reasonable amount of fees for Dr. Savalia because it includes no information about the amount of hours Dr. Savalia spent on the case to incur those costs. Mr. Harrington merely attests that Dr. Savalia’s fee schedule is one he “had to follow,” which is insufficient.

Second, Plaintiff admits that Dr. Harness was not designated as an expert. Plaintiff does not otherwise demonstrate why Dr. Harness is entitled to expert witness fees given that he was not designated. Therefore, the court strikes Dr. Harness’ fees from the Memorandum.

Transcripts

Defendant moves to strike $1,268.60 requested for transcripts on the grounds that such costs are not recoverable under Code of Civil Procedure section 1033.5. In opposition, Plaintiff concedes that the $1,268.60 in this category is not recoverable.

Therefore, the court strikes $1,268.60 from the Memorandum.

Other Costs

Defendant contends that Plaintiff’s request for $42,347.17 in “other” costs is unreasonable. Such costs refer to fees for the trial technician from Verdict Video, for which there is a 9-12-22 invoice reflecting a total of $26,942.84. Additionally, Defendant asserts that after applying the parties’ agreement to split fees, the total amount remaining should be $13,471.42. (see Motion, Exhibit D.)

In opposition, Plaintiff contends that trial technician costs are recoverable and the full amount is reasonable given that the court is aware that Verdict Video performed extensive work. Plaintiff submits an invoice from Verdict Video as Exhibit 15 to the Opposition.

Plaintiff’s invoice demonstrates that she incurred $19,978.88 in costs through Verdict Video after applying a split of fees with defense counsel. Therefore, the court will tax the Memorandum in the amount of $22,278.29 because Plaintiff does not demonstrate that this amount was reasonably incurred.

In summary, Defendant The Regents of the University of California’s (Defendant) Motion to Tax Costs (Motion), filed 10-21-22 under ROA No. 646 is GRANTED in part. Plaintiff Monica Brailsford’s Memorandum of Costs filed 10-6-22 under ROA No. 642 is taxed in the amount of $49,271.89.

Defendant is to give notice.