Judge: Matthew C. Braner, Case: 37-2021-00032328-CU-PA-CTL, Date: 2023-08-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 10, 2023

08/11/2023  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  PI/PD/WD - Auto Motion Hearing (Civil) 37-2021-00032328-CU-PA-CTL FIGUEROA VS. KELLOGG [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Isabella Kellogg and Desiree Kellogg's motion to strike or tax costs is GRANTED in part, and DENIED in part.

Defendants concede Plaintiff Rosalba Figueroa is the prevailing party, but move to strike or tax all expert fees claimed by Plaintiff (Item #8 in Plaintiff's memorandum of costs), and several miscellaneous costs (Item #16), including for paralegal services, travel, motion in limine research, nurse observers, photocopy expenses, and postage. The court agrees most of these cost items are not recoverable.

First, the expert fees are plainly not recoverable. Code of Civil Procedure section 1033.5 specifies that '[f]ees of experts not ordered by the court' are 'not allowable as costs, except when expressly authorized by law.' (Code Civ. Proc., § 1033.5, subd. (b)(1).) Here, the expert fees incurred by Plaintiff were not the result of a court order; in fact, Plaintiff left empty the space memorandum of costs worksheet designated for court-ordered expert fees. (ROA #164, p. 3.) Moreover, an award of expert fees pursuant to Code of Civil Procedure section 998 does not apply in this case. Although 998 offers were exchanged, no party failed to obtain a more favorable judgment than the offers made by the opposing party. Plaintiff served a 998 offer of $1,000,000, which was rejected by Defendants, and Plaintiff obtained a judgment of $63,200, which is far more favorable to Defendants than the 998 offer.

(See Code Civ. Proc., § 998, subd. (d) ['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 . . ., the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses . . . .'].) The highest 998 offer by either Defendant was $25,000, which Plaintiff rejected, and Plaintiff obtained a more favorable judgment than Defendants' 998 offer.

(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.']) Accordingly, the motion is granted as to Item #8; the entire request for expert fees totaling $16,500.00 is stricken.

Second, some of the miscellaneous costs identified by Defendants are expressly disallowable as costs.

(Code Civ. Proc., § 1033.5, subd. (b).) These include the 'photocopy' and 'postage' costs in the amounts of $357.19 and $244.22, respectively. (Code Civ. Proc., § 1033.5, subd. (b)(3).) These also include the 'paralegal services' and 'motion in limine research' investigation costs in the amounts of $896 and $298, respectively. (Code Civ. Proc., § 1033.5, subd. (b)(2).) Accordingly, the motion is granted as to these miscellaneous costs in Item #16; the requests for photocopy, postage, paralegal Calendar No.: Event ID:  TENTATIVE RULINGS

2976827  20 CASE NUMBER: CASE TITLE:  FIGUEROA VS. KELLOGG [IMAGED]  37-2021-00032328-CU-PA-CTL services, and motion in limine research costs totaling $1,795.41 is stricken.

Finally, the two remaining miscellaneous items identified by Defendants do not fall within the categories of expressly allowable costs. (Code Civ. Proc., § 1033.5, subd. (a).) As such, the 'travel costs' and two 'nurse observer' expenses are allowable as costs only in the court's discretion, and only if they were reasonable in amount and reasonably necessary to the conduct of the litigation. (Code Civ. Proc., § 1033.5, subd. (c).) As to the travel costs ($6313.44), which appear to have been for Plaintiff's out-of-state counsel to attend trial, Plaintiff has not met her burden to show they were reasonably necessary. Such costs would have been reasonably necessary only if it was reasonably necessary for Plaintiff to change counsel midway through the case, from a southern California based attorney to out-of-state attorneys, but Plaintiff has failed to demonstrate this change was reasonably necessary.

However, as to the nurse observer costs ($1,200), the court concludes they were reasonably necessary.

The presence of a nurse at a defense medical exam in a case like this, where liability was never hotly contested and the central dispute was damages, was reasonably necessary and not merely convenient.

Accordingly, the motion is granted as to the miscellaneous travel costs and denied as to the nurse observer costs; the request for travel costs totaling $6,313.44 is stricken.

In sum, the court approves Plaintiff's memorandum of costs, except for the following costs totaling $24,608.85, which are ordered stricken: (1) expert fees totaling $16,500; (2) photocopy, postage, paralegal services, and motion in limine research costs totaling $1,795.41; and (3) travel costs totaling $6,313.44. Consequently, Plaintiff is awarded costs of $13,217.75.

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