Judge: Jon R. Takasugi, Case: 21STCV00880, Date: 2023-08-10 Tentative Ruling

Case Number: 21STCV00880    Hearing Date: February 8, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion to strike costs is GRANTED IN PART. The Court strikes Defendant’s costs by $12,979.54.

On 1/8/2021, Plaintiff Alter Mermelstein (Plaintiff) initiated this action. On 1/14/2021, Plaintiff filed a First Amended Complaint (FAC) against Good Samaritan Hospital, Jonathan R. Saluta, M.D., Terrence J. Fitzgibbons, M.D., and Jigar Kadakia, M.D., alleging negligence and medical malpractice.

            Now, Plaintiff moves to tax costs.

Discussion

            Plaintiff seeks to tax the following costs:

-         Item 8b: Expert Fees: $12,747.34

-         Item 12: $1,222.20: Transcripts

As to the expert fee costs, fees of experts not ordered by the court are not ordinarily recoverable as costs. (CCP § 1033.5, subd. (b)(1).) However, such costs can be required pursuant to CCP section 998(c)(1). Plaintiff argues that Defendant cannot recover these fees because it does so based on its 998 Offer, and its 998 Offer was not made in good faith.

In Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal. App. 3rd 692, the Court there stated:

An offeree cannot be expected to accept an unreasonable offer. Hence, any subsequent punishment of the offeree for non-acceptance does not further the purpose of section 998, because the offeree would not have acted differently at the time of the offer despite the threat of later punishment. In these circumstances, later punishment of the offeree merely provides a windfall to the offeror and does not encourage settlement.

Whether a Section 998 offer is reasonable must be determined by looking at circumstances when the offer was made. [citations omitted] However, the reasonableness of an offer depends upon the information used to evaluate it. In many cases, 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.”

(Id. at 699.)

Here, Defendant made a 998 Offer of a waiver of costs and zero dollars a week after Defendant served its answer, and before there had been an opportunity for discovery. Plaintiff notes that eight months later, Defendant objected to Plaintiff’s 998 as being premature.

After review, the Court agrees that Defendant’s offer cannot meet the second prong of the Elrod test. As noted in Elrod:

If the offer is found reasonable by the first test, it must then satisfy a second test: whether defendant’s information was known or reasonably should have been known to plaintiff. This second test is necessary because the section 998 mechanism works only where the offeree has reason to know the offer is a reasonable one. If the offeree has no reason to know the offer is reasonable, then the offeree cannot be expected to accept the offer.

(Id. at 699.)

Here, at the time the 998 Offer was extended, Plaintiff had no reason to know whether the offer was a reasonable one. Moreover, Defendant has not moved for sanctions on the basis that Plaintiff’s claim was frivolous or without merit, and does not contend that Plaintiff’s claim was baseless. Finally, the ruling granting Defendant’s motion for summary judgment turned on Plaintiff’s withdrawal of his original opposition, and his failure to submit admissible expert testimony. As such, given this fact, alongside the fact that Plaintiff’s claim was not meritless, and no discovery had been conducted at the time of the 998, the Court agrees that Defendant’s offer of zero-dollars and a waiver of costs did not carry with it a reasonable prospect of acceptance. Rather, it appears to be a nominal or token offer which carried no risk while offering the reward of being able to later recover expert witness fees. As the Court noted in the People v. Lockyer (2001) 89 Cal.App.4th 1260, 1271:

The pertinent case law limitation on the operation of section 998 is simply that the offer be made in good faith: “To effectuate the purpose of the statute, a section 998 offer must be made in good faith to be valid. Good faith requires that the pretrial offer of settlement be 'realistically reasonable under the circumstances of the particular case. Normally, therefore, a token or nominal offer will not satisfy this good faith requirement ....' The offer 'must carry with it some reasonable prospect of acceptance. One having no expectation that his or her offer will be accepted will not be allowed to benefit from a no-risk offer made for the sole purpose of later recovering large expert witness fees.

(emphasis added.)

Accordingly, the Court concludes that Defendant may not recover expert fees pursuant to 998.

As to Item 12 fees, it is not clear whether or not Plaintiff is challenging the entire $1,222.20 being claimed or just the portion claimed for transcripts. Defendant concedes that the costs of the transcript for the 10/19/2023 hearing is not recoverable and will withdraw $232.20 of the requested $1,222.20. However, Defendant contends that the remaining $990 for court reporter fees are recoverable. (CCP § 1033.5(a)(11). Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58-59.) The Court agrees and strikes the cost of the transcript fees only.

Based on the foregoing, the Court strikes Defendant’s costs by $12,979.54.

It is so ordered.

Dated:  February    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.