Judge: Lawrence Cho, Case: 19STCV33178, Date: 2024-05-24 Tentative Ruling

If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling. Please call the court no later than 4:30 p.m. on the court day before the hearing, leave a message with the court clerk at (310) 260-3501, or via e-mail at samdeptk@lasuperiorcourt.org advising that all parties will submit on the tentative ruling and waive hearing, and finally, serve notice of the Court's ruling on all parties entitled to receive service. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing personally or by Court Call.

Case Number: 19STCV33178    Hearing Date: May 24, 2024    Dept: K

CASE NAME:           THOMAS v. GROCERY OUTLET

CASE NUMBER:     19STCV33178                                               

HEARING DATE:    5/24/24

TRIAL DATES:        2/28/24 to 3/6/24                     

TENTATIVE RULING

MOTION:      Defendants’ Motion To Tax Costs

HELD:           GRANTED IN PART, DENIED IN PART

I.                Background

              This is a premises liability personal injury action stemming from an incident in 2018 when P was shopping at D’s supermarket.  Some lightweight snack packages that had been stored in an open display box fell on P, which she claimed caused her multiple physical injuries.  After a 5 day jury trial, the jury found that D was not negligent and this Court accordingly entered a judgment for D on 3/26/24.

              Prior to trial, D made 2 § 998 offers to compromise:  6/12/20 for $15,001 and one on 8/30/22 for $25,000.  Neither was accepted.

              On 4/10/24, D served its Memorandum of Costs (“Cost Memo”) on P seeking $75,315.50 as the prevailing party.  P brings this instant motion to strike the Cost Memo in its entirety or in the alternative to tax various costs being sought thereunder.

II.       ANALYSIS

A.     P’s Motion to Strike D’s Cost Memo

              As a threshold matter, P apparently moves to strike the entirety of the Cost Memo on the grounds that it failed to include a proof of service.  Strangely, P does not contest that she actually was served and had received the Cost Memo (which appears obvious given this detailed motion to tax individual items contained therein).  In any event, P is incorrect – a review of the Cost Memo on file with this Court shows a proof of service on page 2, indicating that it had been mailed to P’s counsel on the same day it was filed: 4/10/24.  P’s motion to strike the Cost Memo for failure to serve it is DENIED.  

III.            SPECIFIC CHALLENGED COSTS

A.     Item 1: Filing and Motion Fees ($1,164.40)   

P asserts that D has included impermissible fees in this Item including service of process

fees, telephonic appearance fees, and credit card fees. 

            D denies that the amounts sought in this Item contain any of the improper fees alleged by P, and are solely comprised of filing fees paid to the court for various pleadings filed to defend itself, with the exception of $150 which was an “Advance Jury fee filing”  that had accidentally been claimed in Item 1 as well as Item 2.  An examination of D’s Memorandum of Costs (Worksheet) bears out D’s claims, including D’s admitted double billing error of $150.  As such, this Court will GRANT P’s motion to tax this Item in the amount of $150.

B.     Item 2: Jury fees ($658.46)

With the correction of Item 1 to remove the $150 improperly included there, and with the

$150 properly included in Item 2, this Item is correct and the motion to tax this Item is DENIED.    

C.    Item 4: Deposition Costs ($16,993.35)

P’s claim that this Item improperly contains attorney’s meals is wholly unsupported.  P’s

claim that videotaping of depositions is not recoverable is flatly contradicted by the explicit authorization in CCP § 1033.5(a)(3)(A).  These objections are frivolous at best and thus P’s motion to tax these costs is DENIED.

D.    Other: Expert Fees ($ 53,774.29) and Mediation Fees ($2,725)

This Court finds that both D’s § 998 offers were valid and that P obviously did not do

better than either.  When there are two § 998 offers of settlement and the offeree does not best either one, the California Supreme Court has held that § 998 costs are awardable from the time of the expiration of the first § 998 offer.  Martinez v. Brownco Construction Co. (2013) 56 Cal.4^th 1014, 1026-27.  Here, P has not met her burden of proving which of these expert fees were not reasonable or necessary and therefore her motion to tax expert fees is DENIED.

            With respect to the mediation fees incurred, such costs are awardable in this Court’s discretion “based on the facts and circumstances of the particular action.”  Berkeley Cement, Inc. v. Regents of University of California (2019) 30 Cal.App.5^th 1133, 1142-43.  In this case, given the weight of the evidence against P’s case and in favor of D’s case (least of which being the video of the incident), and the ultimate defense verdict rendered, it is clear that P should have settled this matter as had been recommended by the private mediator.  This Court will exercise its discretion in awarding mediation costs against P and therefore P’s motion to tax mediation costs is DENIED.

IV.  CONCLUSION

            P’s motion to tax D’s Cost Memorandum is GRANTED in the amount of $150.  As such, costs are awarded to D in the net amount of $75,165.50 [$75,315.50 - $150 = $75,165.50].  The clerk of this Court shall add this award of costs to the Judgment against P.