Judge: Lisa R. Jaskol, Case: 21STCV43351, Date: 2023-12-12 Tentative Ruling
Case Number: 21STCV43351 Hearing Date: December 12, 2023 Dept: 28
Having considered the moving and opposing papers, the Court rules as follows.
BACKGROUND
On November 24, 2021, Plaintiff Ja Vian Michelle Jones (“Plaintiff”) filed this action against Defendant Walmart Inc. (“Walmart”) and Does 1-100 for negligence and premises liability.
On January 13, 2022, Plaintiff filed a first amended complaint against Walmart and Does 1-100 for negligence.
On March 9, 2022, Plaintiff amended the complaint to add Defendant Sandstone Properties, L.P. (“Sandstone”) as Doe 1.
On June 27, 2022, Sandstone filed an answer and a cross-complaint against Roes 1-200 for breach of contract–additional insurance, express indemnity, partial indemnity on a comparative fault basis, implied indemnity, comparative contribution, total equitable indemnity, apportionment, and declaratory relief.
On September 12, 2022, Walmart filed an answer to Plaintiff’s first amended complaint.
On October 3, 2022, Sandstone amended its cross-complaint to include Cross-Defendant James Michael Bennett as Roe 1.
On June 5, 2023, Walmart filed an offer to compromise with Plaintiff under Code of Civil Procedure section 998.
On June 23, 2023, Plaintiff amended the complaint to add Defendant Securitas Security Services USA, Inc. (“Securitas”) as Doe 2. On June 30, 2023, Plaintiff amended the complaint to add Defendants Reliable Properties as Doe 3 and Reliable General Partner as Doe 4.
On July 28, 2023, the Court granted Sandstone’s motion for summary judgment. On August 24, 2023, the Court entered judgment for Sandstone. On August 28, 2023, Sandstone served notice of entry of judgment.
On September 12, 2023, Sandstone filed a memorandum of costs.
On September 29, 2023, Plaintiff filed a motion to tax costs to be heard on December 12, 2023. On November 29, 2023, Sandstone filed an opposition.
PARTIES’ REQUESTS
Plaintiff requests that the Court tax or reduce the $3,200 cost item for expert witness fees.
Sandstone requests that the Court deny the motion.
LEGAL STANDARD
“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., § 1032, subd. (b).) “ ‘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. If any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.” (Code Civ. Proc., § 1032, subd. (a)(4).)
“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (Cal. Rules of Court, rule 3.1700.)
Code of Civil Procedure section 1033.5, subdivisions (a) and (b), list recoverable and non-recoverable costs. Subdivision (c)(4) of the statute provides: "Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion."
Code of Civil Procedure section 998, subdivision (c)(1), provides:
“(c) (1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer 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.”
(Code Civ. Proc., § 998, subd. (c)(1).)
“The losing party may dispute any or all of the items in the prevailing party’s costs memorandum by a motion to strike or tax costs.” (R. Fairbanks et al., Cal. Practice Guide: Civil Trials and Evidence (Rutter 2022) ¶ 17:517, p. 17-94 (Cal. Practice Guide: Civil Trials).) “If the items [in the memorandum of costs] appear on their face to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.” (Id., ¶ 17:526, p. 17-96.) “On the other hand, items that are properly objected to are put in issue, and the burden of proof is on the party claiming them as costs.” (Ibid.)
DISCUSSION
Plaintiff challenges Sandstone’s request for $3,200 in expert fees and costs, which is based on Sandstone’s Code of Civil Procedure section 998 offer to Plaintiff on June 7, 2023. According to Plaintiff, Sandstone offered to pay Plaintiff $20,000, with each side to bear their own costs and attorney’s fees. Plaintiff, however, had demanded $200,000.
A. Reasonableness of section 998 offer
Plaintiff argues the offer of $20,000 was not reasonable because it was a token or nominal offer in light of Sandstone’s potential liability to Plaintiff. Plaintiff asserts that “[t]here was no reason to believe that Defendant’s 998 offer would be accepted given that the medical costs and expenses accrued by Plaintiff in preparation for trial were significantly greater than the 998 offered by Defendant” and “Plaintiff believed in good faith that [Sandstone] would be held liable for the injury.” (Motion p. 5.)
“The purpose of [Code of Civil Procedure section 998] is to encourage the settlement of litigation without trial. To effectuate this purpose, a [section 998] offer must be made in good faith.” (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 12:705, 12(ll)-62 (Cal. Practice Guide: Civil Procedure).) “A ‘token’ or ‘nominal’ offer may not satisfy the ‘good faith’ requirement and so may not be the basis for an award of expert witness fees and costs penalties under [section 998, subdivision (c)].” (Ibid.)
“For an award of expert witness fees and costs under [section 998, subdivision (c)], a pretrial offer ‘must be realistically reasonable in the circumstances of the particular case.’ It must carry with it some reasonable prospect of acceptance. ‘Normally, a token or nominal offer will not satisfy this good faith requirement . . . unless it is absolutely clear that no reasonable possibility exists that the defendant will be held liable.’ “ (Cal. Practice Guide: Civil Procedure, supra, ¶ 12:707, p. 12(ll)-63, quoting Wear v. Calderon (1981) 121 Cal.App.3d 818, 821.)
“If defendant prevails at trial, or the verdict is less than defendant’s [section 998] offer, that fact constitutes prima facie evidence that the offer was reasonable. The burden is therefore on the offeree to prove the offer was in ‘bad faith.’” (Cal. Practice Guide: Civil Procedure, supra, ¶ 12:710, p. 12(ll)-64.) “Each case is decided on its own facts as of the time the offer was made.” (Id., ¶ 12:712, p. 12(ll)-65.)
Citing Plaintiff's discovery responses, Sandstone argues the $20,000 section 998 offer was reasonable because, at the time of the offer, Plaintiff had identified $17,586.50 in medical expenses relating to the incident.
The Court finds that Sandstone’s $20,000 offer was reasonable for purposes of Code of Civil Procedure section 998.
B. Identity and status of expert
Plaintiff asserts that Sandstone is not entitled to expert fees because the experts --Hubert Byrne and Kevin Garcia -- were employees of Sandstone and Walmart. (See Code Civ. Proc., § 998, subd. (c)(1) [“If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer 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”].)
Sandstone responds that it did not incur any expert fees related to employees’ declarations. Instead, it is seeking expert fees based the work of Sandstone’s retained neurological expert, Dr. Michael E. Gold. Sandstone retained Dr. Gold to each review Plaintiff’s records and to perform an examination of Plaintiff. Dr. Gold billed $6,400 for his work prior to the hearing on Sandstone’s motion for summary judgment. Sandstone and Walmart split these costs, making Sandstone responsible for $3,200, the amount claimed in Sandstone’s memorandum of costs. Sandstone has attached supporting paperwork to its opposition.
The Court finds that Sandstone is not seeking expert fees based on employee declarations.
C. Explanation of the amount requested
Last, Plaintiff argues that Sandstone has not provided information in Section 8b of the memorandum of costs worksheet supporting the $3,200 amount it claims for expert witness fees.
In its opposition to Plaintiff's motion, Sandstone has provided an amended memorandum of costs and an invoice from Dr. Gold that contain the necessary information.
The Court finds that Sandstone has provided adequate information to support the request for post-offer expert witness costs.
CONCLUSION
The Court DENIES Plaintiff Ja Vian Michelle Jones’s motion to tax or strike Defendant Sandstone Properties, L.P.’s memorandum of costs.
The Court enters $11,966.75 in costs on the judgment for Defendant Sandstone Properties, L.P.
Defendant is ordered to give notice of this ruling and file a proof of service with the Court within five days.