Judge Kerry Bensinger, Case 21STCV27787 2023-01-27 Tentative Ruling

Jehan Zeb Mir (“Plaintiff”) was involved in a four-vehicle rear-end collision. Plaintiff filed suit against Loren Jacob Goldman (“Goldman”), Dawnyell Trashawna Dixon (“Dixon”), Andres Lauro Sanchez Garcia (“Garcia”), and Does 1 through 10 (collectively, “Defendants”) on July 28, 2021 asserting causes of action for (1) motor vehicle and (2) general negligence.

On September 13, 2022, the Honorable Elaine Lu issued an order dismissing this case, along with related cases 21NWCV00424, 21STCV03643, and 20STCV17339 after considering whether Plaintiff, who has been deemed a vexatious litigant, was required to obtain leave of court before commencing these four actions.

On September 16, 2022, Goldman filed a memorandum of costs seeking $4,818.45, consisting of $435.00 in filing fees, $150 in jury fees, $933.05 in deposition costs, $28.40 in fees for electronic filing or service, and $3,272 in expert fees for accident reconstruction.

On September 22, 2022, Dixon filed a memorandum of costs seeking $4,785.87 in costs, consisting of $435 in filing and motion fees, $150 in jury fees, $1,7999 in deposition costs, $36.37 for electronic filing fees, and $2,365.50 for expert fees for accident reconstruction.

On September 29, 2022, Garcia filed a memorandum of costs seeking $1,988.86 in costs, consisting of $435 in filing and motion fees, $150 in jury fees, $1,026.36 in deposition costs, and $377.50 for copy services.

On October 11, 2022, Plaintiff filed this motion to tax the costs sought by Goldman, Dixon, and Garcia.

On September 26, 2022, Plaintiff filed a motion for reconsideration of the September 13, 2022 Order to Dismiss the Complaint. At the previously scheduled hearings for this instant motion, the Court continued this motion until after the ruling on the motion for reconsideration because that motion concerned the underlying order determining whether Defendants are the prevailing parties.

On January 18, 2023, the Court denied Plaintiff’s motion for reconsideration of the September 13, 2022 Order dismissing Plaintiff’s complaint. Thus, the Defendants remain the prevailing parties in this case and the Motion to Tax Costs can be heard.

Generally, a prevailing party will be entitled to recover its costs. (Code Civ. Proc., § 1032, subd. (b).) Most costs are obtained by filing a memorandum of costs or incorporated into the judgment. (Lucky United Props. Inc. v. Lee (2010) 185 Cal.App.4th 125, 137.) A party challenging the amounts claimed may file a motion to tax costs, which must be served and filed 15 days after service of the cost memorandum. (Cal. Rules of Court., rule 3.1700(b)(1), 8.278(c)(2).) “Unless objection is made to the entire cost memorandum, the motion . . . 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.” (Cal. Rules of Court, rule 3.1700(b)(2).) 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 v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486; 612 South LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th 1270, 1285.)

Plaintiff argues the court lacks subject matter jurisdiction to award costs, expert witness fees are not allowed unless the expert is court-appointed, and that the parties did not “notice” Plaintiff’s deposition and Plaintiff’s deposition was unnecessary.

Plaintiff moves to tax all costs claimed by Defendants because he argues that, because his claim was dismissed, the Complaint should be deemed not filed, and the Court lacks jurisdiction to award any costs because there was no final judgment.

The prevailing party is entitled as a matter of right to recover costs of suit in any action or proceeding. (Code of Civ. Proc. § 1032(b).) A prevailing party is defined by statute to include a defendant who is dismissed from the action. (Code of Civ. Proc. § 1032(a); see City of Long Beach v, Stevedoring Services of America (2007) 157 Cal.App.4th 672, 678 [cross-defendant is prevailing party entitled to costs under § 1032 when cross-complaint is dismissed as moot].) Here, the Complaint was dismissed because Plaintiff failed to comply with the prefiling requirements. Thus, Defendants are the prevailing parties who are entitled to recover costs. The Court has subject matter jurisdiction to award costs.

Plaintiff also argues that Defendant Garcia’s motion is untimely. The costs memorandum must be served and filed within 15 days after the clerk’s service of notice of entry of judgment or dismissal. (Cal. Rules of Court rule 3.1700.) However, if a party served a written notice of judgment or dismissal by mail, the deadline for filing the costs memorandum is extended by five days. (Code Civ. Proc. § 1013(a).)

Here, the complaint was dismissed on September 13, 2022. The clerk served notice of dismissal by mail that day, extending the deadline to respond by five days. Thus, Defendant Garcia’s memorandum of costs was timely filed on September 29, 2022.

Plaintiff moves to tax Defendant Goldman’s expert witness fees of $3,272.00 and Defendant Dixon’s expert witness fees of $2,365.50. Plaintiff argues that there is no basis for expert witness fees because the expert witnesses were not court-ordered. Additionally, Plaintiff argues that there is no showing that that a § 998 actual offer was made to Plaintiff.

Expert witness fees not ordered by the court are not allowable as costs. (Code of Civ. Proc. § 1033.5(b)(1).) However, they are allowable if they are expressly provided for by law. Code of Civil Procedure section 998(c)(1) states that “[i]f an offer by defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her post offer costs and shall pay the defendant’s costs from the time of the offer. In addition, … the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover 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.”

Defendants Goldman states that on February 23, 2022, Defendant served Plaintiff a valid § 998 offer in the sum of $2,500.00, which was rejected by Plaintiff on February 23, 2022. (Miyamoto Decl. Ex. A.) Thereafter, Defendant hired an accident reconstruction expert. Defendant Goldman submits an invoice reflecting payment of $3,272.00 to the expert on February 28, 2022. (Miyamoto Decl. Ex. C.)

Plaintiff argues that the settlement offer was not made in good faith. The party seeking to avoid § 998 penalties bears the burden of proving the rejected offer was made in bad faith. (Santantonio v. Westinghouse Broadcasting Co., Inc. (1994) 25 Cal.App.4th 102, 116-117.) However, Plaintiff puts forward no facts to show that the settlement offer was made in bad faith. Thus, the Court finds that the section 998 offer was valid and in good faith.

Because the Court has found that Plaintiff rejected Defendant Goldman’s section 998 offer, Plaintiffs are entitled to recover post-offer expert witness fees. Verification of the memorandum of costs by the prevailing party’s attorney establishes a prima facie showing that the claimed costs are proper. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) To overcome this prima facie showing, the objecting party must introduce evidence to support its claim that the costs are not reasonably necessary.¿(Id. at pp. 1267-1268.) Because the Defendant Goldman’s memorandum has been verified by an attorney, the claimed costs are proper. Additionally, Defendant Goldman has submitted an invoice of the expert witness fee. (Miyamoto Decl. Ex. C.) Plaintiff offers no evidence showing that this fee is not reasonable and necessary.

The Court finds that Defendant Goldman’s cost of the expert is reasonable and can accurately be determined. Additionally, because Defendant Goldman incurred this cost after making a valid § 998 offer to Plaintiff, this cost is recoverable under § 998(c).

Accordingly, the Court denies Plaintiff’s motion to tax Defendant Goldman’s expert witness fees.

Plaintiff states that Defendant Dixon did not make a section 998 offer, and Dixon does not dispute this statement. In opposition, Defendant Dixon states that Defendant retained an accident reconstruction expert and incurred fees in the amount of $2,365.50. However, Dixon does not properly cite to any authority that allows Dixon to recover the costs of this expert witness.

As stated above, expert witness fees not ordered by the court are not allowable as costs. (Code of Civ. Proc. § 1033.5(b)(1).) Defendant Dixon does not argue that this expert witness was incurred after Dixon made a settlement offer under section 998, nor does Dixon argue that the expert was ordered by the court. Dixon attempts to argue that this cost may fall under “mediation costs,” which may be awarded in the trial court’s discretion. (See Berkeley Cement, Inc. v. Regents of University of California (2019) 30 Cal.App.5th 1133, 1140.) However, the Court does not find sufficient evidence or authority to support Dixon’s argument.

Thus, the Court grants Plaintiff’s motion to tax Defendant Dixon’s expert witness fees.

Plaintiff moves to tax Defendant Goldman and Defendant Garcia’s deposition costs of $933.05 and $1026.36 respectively, stating that Defendants did not notice the deposition or incur these costs. Plaintiff also argues that the depositions were not necessary.

Transcripts and video recordings of “necessary” depositions, fees for interpreters, and travel expenses to attend depositions are allowable costs under Code of Civil Procedure section 1033.5(a)(3). If the items on their face appear to be proper charges, a verified costs memorandum is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. (Ladas v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774-776.)

Plaintiff’s claims that Goldman and Garcia did not incur any expense for the deposition is unfounded and insufficient to rebut Goldman and Garcia’s verified memorandum of costs. The Court finds that the deposition of Plaintiff was necessary and the deposition costs are proper.

Thus, Plaintiff’s motion to tax deposition costs of Defendant Goldman and Defendant Garcia is denied.

Plaintiff moves to tax Defendant Garcia’s cost of $377.50 for “Array Copy Service Records.”

Photocopying charges are nonrecoverable costs under section 1033.5(b)(3), and Garcia does not offer any argument showing an alternative basis for recovering this cost.

Plaintiff’s motion to strike Defendant Garcia’s “Array Copy Service Records” in the amount of $377.50 is granted.

Accordingly, Plaintiff’s motion to tax costs is GRANTED in part. Defendant Dixon’s expert witness costs are STRICKEN. Defendant Garcia’s Array Copy Service Records are STRICKEN. The remaining requests to tax costs are DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court