Judge Jill Feeney, Case 20STCV33205 2022-10-17 Tentative Ruling

On September 1, 2020, Plaintiff Cynthia Chamberlain filed her complaint against Defendants the City of Los Angeles (“City”) and Donald Ho, Trustee of the Ho Family Revocable Trust (“Trust”). This action arises from a slip and fall incident which took place on Beverly Boulevard in Los Angeles in 2019. Plaintiff alleges she fell due to a raised sidewalk when she was walking home with a bag of groceries and became distracted by trash and overgrown trees by the sidewalk. Plaintiff alleges causes of action for premises liability and negligence against Trust.

Plaintiff moves to strike, or in the alternative, tax Trust’s Memorandum of Costs. Plaintiff argues that Trust’s demand for filing and motion fees, expert fees, and other costs should be stricken because they are not expressly allowed by statute.

Trust argues that its costs for experts are appropriate because the cost was incurred after Plaintiff rejected its 998 settlement offer. Trust argues that other costs are similarly appropriate and allowable.

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. section 1032, subd. (b). Under CCP section 1033.5, subd. (c)(2), allowable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” Subdivision (3) requires: “Allowable costs shall be reasonable in amount.” There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted. (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308.)

Where a cost item does not appear proper and necessary on its face, the burden of proof is on the claimant to show the cost is appropriate. (Murphy v. F.D. Cornell Co. (1930) 110 Cal. App. 452, 454.) If the items appear to be proper charges, the burden is on the party seeking to tax costs to show they were not reasonable or necessary. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761.) Where items are properly objected to as not reasonable or necessary, however, they are put in issue and the burden of proof is on the party claiming them as costs. (Id.) The trial court’s determination on a motion to tax or strike costs will be reversed only for an abuse of discretion. (Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 121.)

"If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover post offer 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 plaintiff, in addition to plaintiff's costs." (Code Civ. Proc., section 998, subd. (d).)

998 offers must be made in good faith, and “[a] token or nominal offer made with no reasonable prospect of acceptance will not pass the good faith test.” (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1528.) However, “[w]hen a party obtains a judgment more favorable than its pretrial offer, [the offer] is presumed to have been reasonable and the opposing party bears the burden of showing otherwise.” (Ibid.) The pretrial offer of settlement required under section 998 must be realistically reasonable under the circumstances of the particular case. (See Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 63.) Whether a 998 offer is reasonable also depends on whether the adverse party knows, or reasonably should know, the information that makes the offer reasonable. (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699.)

Plaintiff objects to and seeks to strike portions of Trust’s memorandum of costs demanding costs for (1) filing and motion fees, (2) expert witnesses, (3) deposition subpoenas.

Throughout the motion, Plaintiff argues the burden is on the party claiming the costs to show the charges were reasonable and necessary. To the contrary, if the charges appear proper on their face, the burden is on the party seeking to tax costs to show they were not reasonable or necessary. Because Trust’s costs appear proper on their face, Plaintiff bears the burden of showing they are not reasonable or necessary.

Plaintiff only specifically contests Trust’s filing fees for its motion for summary judgment. It does not appear the motion for summary judgment was frivolous, thereby entitling Trust to recover filing and service fees for these papers. (Greene v. Dillingham Construction, N.A., Inc. (2002) 101 Cal.App.4th 418, 424, quoting Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 250 [“Attorneys generally must pursue all available legal avenues and theories in pursuit of their clients' objectives; it is impossible, as a practical matter, for an attorney to know in advance whether or not his or her work on a potentially meritorious legal theory will ultimately prevail.”].)

Plaintiff argues that filings ordered by the Court including declarations regarding service of the original motion for summary judgment and filings for updated service lists should not be Plaintiff’s burden to bear. Plaintiff requests an itemization of filing fees being claimed. However, there is no requirement for itemization of filing fees and there is no requirement that Trust’s costs be supported with documentation. $500 for filing fees on a motion for summary judgment are reasonable on their face and Plaintiff has not shown that the fees were not reasonable or necessary. This cost should not be taxed.

Trust alleges it incurred $3,192.50 in witness fees. Trust retained an arborist and a surveyor to mount a defense in the instant matter. (Fairchild Decl., ¶7.) The arborist, Guy Stivers, worked 17 hours on this matter and traveled 10 miles. (Id., ¶9.) The surveyor, Chris Nelson, worked for 17.5 hours providing surveying and mapping services. (Id., ¶11.) These costs are allowable because they were reasonably necessary to mount a defense against Plaintiff’s claims after Plaintiff did not accept Trust’s settlement offer. Trust relied upon testimony from both experts in its successful motion for summary judgment. (Id., ¶12.) Given the time and effort each expert spent on this matter, the fees are reasonable. Trust’s explanation of the cost and its necessity for litigation appear reasonable on its face. This cost should not be taxed.

Plaintiff argues the expert fees are not allowable under Code Civ. Pro. section 1033.5, subd. (b) and that Plaintiff has no knowledge of the work Stivers performed. However, the expert cost is allowable under Code Civ. Proc. section 998(d) because it was a necessary cost incurred in preparation for trial after Plaintiff’s refusal of a 998 settlement offer. Again, there is no requirement that Trust support its demands for costs with documentation because the costs are reasonable on their face.

Trust alleges it incurred $1,238.55 in deposition subpoena costs. Trust used the deposition testimony for its motion for summary judgment. The testimony was thus necessary for the litigation. The cost is also allowable under Code Civ. Proc. section 1033.5 subd. (a)(3)(A). This cost should not be taxed.