Judge: Mel Red Recana, Case: BC703376, Date: 2024-05-23 Tentative Ruling

Case Number: BC703376    Hearing Date: May 23, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing date:  May 23, 2024

Moving Party:  Plaintiff Genoveva Cordes

Responding Party:  Defendant Smart & Final Stores, LLC

Motion to Strike or Tax Costs        

The Court considered the moving papers, opposition, and reply.

            The motion is GRANTED in part as to the expert witness fees, trial exhibit fees, and discovery sanctions costs in the amount of $137,032.25 and DENIED in part as to all other requested fees and costs in the amount of $84,983.64. The expert witness fees, trial exhibit fees, and discovery sanctions costs are so stricken.

Background

On April 19, 2018, Plaintiff Genoveva Cordes (“Plaintiff”) filed a Complaint against Defendant Smart & Final Stores, LLC (“Defendant”) for Premises Liability.

            On January 26, 2024, this Court entered Judgment in favor of Defendant against Plaintiff and ordered Defendant to recover fees and costs from Plaintiff. On the same day, Defendant filed its Memorandum of Costs.

            On February 9, 2024, Plaintiff filed the instant Motion to Strike or Tax Costs. On May 10, 2024, Defendant filed an opposition. On May 16, 2024, Plaintiff filed a reply.

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).) “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).)  “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.” (Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 774.) “On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” (Ibid.) 

 “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (Cal. Rules Ct., rule 3.1700(b)(1).) 

Discussion

            Plaintiff moves to strike and/or the costs claimed by Defendant in its Memorandum of Costs served and filed on January 26, 2024, in the amount of $210,475.93. The present motion is made on the following grounds: (1) Defendant erroneously contends it is entitled to a multitude of costs precluded under Code of Civil Procedure section 1033.5 by virtue of having served an Offer to Compromise under Code of Civil Procedure section 998; (2) the only operative cost-shifting statute are Code of Civil Procedure sections 1032 and 1033.5 not Code of Civil Procedure section 998; (3) majority of the costs claimed are not within the period designated by Code of Civil Procedure section 998; (4) the award of costs should be stayed pursuant to Code of Civil Procedure section 917.1, pending the outcome of Plaintiff’s Motion for New Trial and Judgment Notwithstanding the Verdict, and any appeal that may follow thereafter; and (5) any costs allowed must be justified and proven to satisfy the requirements of having been reasonable, necessary, and helpful to the trier of fact.

            Pursuant to Code of Civil Procedure section 917.1, subdivision (a), “Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for any of the following: (1) Money or the payment of money, whether consisting of a special fund or not, and whether payable by the appellant or another party to the action…(2) Costs awarded pursuant to Section 998 which otherwise would not have been awarded as costs pursuant to Section 1033.5…[or] (3) Costs awarded pursuant to Section 1141.21 which otherwise would not have been awarded as costs pursuant to Section 1033.5.”

            As a preliminary matter, the Court notes that Plaintiff’s Motion for New Trial and Motion for Judgment Notwithstanding the Verdict were both denied on March 16, 2024. (3/18/24 – Order Re: Ruling on Motion for New Trial and Motion for Judgment Notwithstanding the Verdict.) The Court further notes that Plaintiff has filed an Appeal of the March 18, 2024 Order. However, there is no indication from the court’s record nor moving papers that an undertaken has been given. Thus, a stay of enforcement of this matter, i.e., whether this Court awards costs to Defendant per Code of Civil Procedure section 998 cannot be stayed pending Plaintiff’s appeal.

The Applicable Fee-Shifting Provision is Code of Civil Procedure section 1033.5

            Code of Civil Procedure section 998, subdivision (c)(1), states in pertinent part, “[i]f 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); see also Code Civ. Proc., § 1033.5, subd. (b)(1).)

Under Berg v. Darden (2004) 120 Cal.App.4th 721,, the court held that “[o]nce a section 998 offer of compromise has been made, it remains open until it is unequivocally rejected, formally revoked, or lapses due to the passage of time.” (Berg v. Darden (2004) 120 Cal.App.4th 721, 731 (Berg).) Likewise, “if a section 998 offer is withdrawn by a party prior to its statutory expiration (i.e., by start of trial or 30 days after the offer is made), then the withdrawing party’s right to cost-shifting under section 998 is determined by the last rejected section 998 offer.” (One Star, Inc. v. STAAR Surgical Co. (2009) 179 Cal.App.4th 1082, 1094.) Nevertheless, California courts have held that “a section 998 offer is not revoked by a counteroffer and may be accepted by the offeree during the statutory period unless the offer has been revoked by the offeror.” (Berg, supra, 120 Cal.App.4th at 731.) As such, a prior settlement offer made pursuant Code of Civil Procedure section 998, “is extinguished by a subsequent settlement offer to the same party.” (Palmer v. Schindler Elevator Corp. (2003) 108 Cal.App.4th 154, 157-58.)

            Here, Plaintiff did not unequivocally reject Defendant’s first section 998 offer dated September 13, 2023. The emails sent by Plaintiff’s counsel to Defendant’s counsel on September 13, 2023 and October 2, 2023, merely constitute negotiations for better terms and counteroffers during the 30-day period, which is normal. (Guzman v. Visalia Community Bank (1999)71 Cal.App.4th 1370, 1377 [“Such negotiation routinely involves requests for better offers, comments upon the terms, inquiries regarding the possibility of different terms, and counteroffers.”].) Thus, Defendant’s subsequent settlement offer to Plaintiff on October 6, 2023, extinguished the first section 998 offer. Likewise, once Defendant withdrew the subsequent section 998 offer, there was no section 998 offer to revive for cost-shifting purposes under Code of Civil Procedure section 998.

Therefore, the applicable cost-shifting statute in this case is Code of Civil Procedure section 1033.5, subdivision (b)(1), so Defendant’s expert witness fees in the amount of $94,565.25 are not recoverable.

Defendant Is Entitled to the Majority of Fees and Costs Sought

            Here, Defendant properly seeks fees and costs allowable pursuant to Code of Civil Procedure sections 1033.5, subdivision (a)(1), (a)(2), (a)(3), (a)(4), (a)(14), and (a)(16). First, Defendant utilized service providers approved by the Court and in compliance with Local Rule 3.4. Moreover, filing and motion fees; jury fees; electronic filing fees, juror food and lodging during the trial including water delivery; deposition costs; service of process costs are expressly allowed under Code of Civil Procedure section 1033.5. Additionally, Defendant has demonstrated that the recovery of court reporter fees; mediation fees; mileage and hotel costs for trial; and telephonic court appearances were reasonable and necessary to conduct litigation in this case. Although Plaintiff contends that the Court ordered the court reporter fees be split between the parties, the Judgment entered against Plaintiff in this case entitled Defendant to recover fees and costs from Plaintiff. Similarly, Plaintiff provides no case or statutory authority to support her contention that jury fees cannot be paid for by an attorney service provider. However, Defendant has not demonstrated that the use of an in-trial technology consultant was reasonably necessary to conduct litigation and not simply beneficial or more convenient beyond merely stating as much. Likewise, Defendant provides no support for discovery sanctions requested. Therefore, Defendant is only entitled to the following fees and costs: filing and motion fees; jury fees; electronic filing fees, juror food and lodging during the trial including water delivery; deposition costs; service of process costs; court reporter fees; mediation fees; mileage and hotel costs for trial; and telephonic court appearances.

            Accordingly, Plaintiff Genoveva Cordes’ Motion to Strike or Tax Costs is GRANTED in part as to the expert witness fees, trial exhibit fees, and discovery sanctions costs in the amount of $137,032.25 and DENIED in part as to all other requested fees and costs in the amount of $84,983.64. The expert witness fees, trial exhibit fees, and discovery sanctions costs are so stricken.

            It is so ordered.

Dated: May 23, 2024

_______________________

MEL RED RECANA

Judge of the Superior Court