Judge: Melvin D. Sandvig, Case: BC668642, Date: 2023-06-22 Tentative Ruling
Case Number: BC668642 Hearing Date: June 22, 2023 Dept: F47
Dept. F47
Date: 6/22/23
Case #BC668642
MOTION TO TAX
COSTS
Motion filed on 3/17/23.
MOVING PARTY: Plaintiffs Jose De
Jesus Diaz Mata and Maria Del Rosario Arroyo
RESPONDING PARTY: Defendant Newhall Unified School
District
NOTICE: ok
RELIEF REQUESTED: An order taxing
and/or striking the Memorandum of Costs filed by Defendant Newhall Unified
School District.
RULING: The motion is granted as set forth below.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arose from an incident that occurred on July
13, 2016, at the Old Orchard Elementary School in Valencia, California within
the Defendant Newhall Unified School District (“the District”). Plaintiffs Jose
De Jesus Diaz Mata and Maria Del Rosario Arroyo, (collectively, “Plaintiffs”)
alleged that Jose De Jesus Diaz Mata was in the process of dismantling,
removing, and/or transporting a modular classroom at Old Orchard Elementary
School when the walls and/or roof collapsed onto him. Plaintiffs alleged that
the defendants negligently and carelessly controlled, inspected, and operated
the project and/or created a dangerous condition— specifically, the modular
classroom and surrounding areas; failed to protect/guard against or warn of the
dangerous condition; failed to ensure the safety of Jose De Jesus Diaz Mata;
and/or failed to act with reasonable care—all of which Plaintiffs alleged
caused the modular classroom to collapse onto Jose De Jesus Diaz Mata.
On July 14, 2017, Plaintiffs filed this action alleging that
Defendant Impact Construction Services, Inc. (“Impact Construction” or
“Impact”) agreed to purchase four modular classroom units and one modular
restroom unit from the District. Impact Construction then subcontracted with
Defendant Hector Lopez dba HN Construction Services (“HN Construction”), a
licensed contractor, to remove the modular classrooms. HN Construction employed
Jose De Jesus Diaz Mata when he was injured by the modular classroom, and Maria
Del Rosario Arroyo claimed loss of consortium as Jose De Jesus Diaz Mata’s
spouse.
On July 11, 2022, the Court granted HN Construction’s
motion for summary judgment based on the “Exclusive Remedy of Worker’s
Compensation Doctrine.” Impact Construction settled with Plaintiffs before
trial. The action went to trial against the District and Lundgren Management
Corporation (“Lundgren”). After trial, the jury found no fault on the part of
the District and Lundgren and judgment was entered in their favor on January
24, 2023.
On February 8, 2023, the District filed and served, by
electronic service and mail, its Memorandum of Costs in the amount of
$202,882.51. On March 17, 2023, pursuant
to stipulation and order to extend time, Plaintiffs filed and served the
instant motion seeking an order taxing and/or striking the Memorandum of Costs
filed by Defendant Newhall Unified School District. The District has opposed the motion and
Plaintiffs have filed a reply to the opposition.
ANAYLSIS
As the prevailing party in this action, the District is
entitled to recover allowable costs which were reasonably necessary to the
conduct of the litigation and which are reasonable in amount. CCP 1032(b), CCP 1033.5(a), (c).
If the items appearing in a memorandum of costs appear to
be proper charges, the burden is on the party seeking to tax costs to show that
were not reasonable or necessary. See
Ladas (1993) 19 CA4th 761, 774.
However, 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. Id. citing Melynyk (1976) 64
CA3d 618, 624 and Oak Grove School District (1963) 217 CA2d 678,
698-699.
In the motion, Plaintiffs challenge Item 4 – Deposition
Costs, Item 5 – Service of Process, Item 8a – Ordinary Witness Fees, Item 8b –
Expert Witness Fees, Item 11 – Court Reporter Fees and Item 12 - Models, Enlargements,
and Photocopies of Exhibits.
Item 4 – Deposition Costs ($22,066.65)
As the prevailing party, the District may recover costs
for “[t]aking, video recording, and transcribing necessary depositions,
including an original and one copy of those taken by the claimant and one copy
of depositions taken by the party against whom costs are allowed.” CCP 1033.5(a)(3)(A).
Based on the information and evidence provided in the
Memorandum of Costs and the opposition along with the District’s agreement to
reduce this item in a good faith effort to resolve the dispute, the Court finds
that the District has met its burden of proof on this item. (See Memorandum of Costs; Evenstad
Decl. ¶7, Ex.C).
Item 5 – Service of Process ($2,139.57)
As the prevailing party, the District may recover costs
for “[s]ervice of process by a public officer, registered process server, or
other means, as follows:
(A) When service is by a public
officer, the recoverable cost is the fee authorized by law at the time of
service.
(B) If service is by a process
server registered pursuant to Chapter 16 (commencing with Section
22350) of Division 8 of the Business and Professions Code, the recoverable
cost is the amount actually incurred in effecting service, including, but not
limited to, a stakeout or other means employed in locating the person to be
served, unless those charges are successfully challenged by a party to the
action.
(C) When service is by publication,
the recoverable cost is the sum actually incurred in effecting service.
(D) When service is by a means
other than that set forth in subparagraph (A), (B), or (C), the recoverable cost
is the lesser of the sum actually incurred, or the amount allowed to a public
officer in this state for that service, except that the court may allow the sum
actually incurred in effecting service upon application pursuant to paragraph
(4) of subdivision (c).”
Based on the argument in the opposition, it appears that
the District has improperly included fees for providing “courtesy/chambers
copies of trial document binders to the Court” in the amount of $189.71 as
“service of process” charges. Such costs
are not service of process charges. If
the District was seeking to recover such costs based on the discretion provided
to the Court in CCP 1033.5(c)(4), it should have made that clear by including
them under Item 16 – Other. As such,
this amount along with the $1,052.87 the District has agreed to deduct is taxed
from Item 5.
The Court finds that the District has otherwise met its
burden of supporting the remainder of the costs claimed in this item. (See Memorandum of Costs; Evenstad
Decl. ¶8, Ex.D).
Therefore, Item 5 for is taxed in the amount of $1,242.58
allowing the District to recover $896.99 for Service of
Process costs.
Item 8a. – Ordinary Witness Fees ($6,889.42)
As the prevailing party, the District may recover
ordinary witness fees pursuant to Government Code 68093 which provides “[e]xcept
as otherwise provided by law, witness' fees for each day's actual attendance,
when legally required to attend a civil action or proceeding in the
superior courts, are thirty-five dollars ($35) a day and mileage actually
traveled, both ways, twenty cents ($0.20) a mile.” See CCP 1033.5(a)(7).
Evidence Code 1563 provides for witness fees when a
custodian of records provides records pursuant to a subpoena.
Plaintiff contends that there should be no recovery under
this item because the District has failed to adequately support the costs
claimed and documents provided show duplicative, excessive and unreasonable
charges.
The District has agreed to reduce this item by
$2,834.59. The Court finds that the
District has otherwise sufficiently supported the costs claimed under this
item.
Item 8b. - Expert Witness Fees ($130,495.25)
Generally, recoverable costs do not include expert
witness fees unless ordered by the court.
CCP 1032, 1033.5(b)(1); See also Kahn (2015) 240 CA4th
227, 237. However, such expert witness
fees are recoverable in some circumstances when a more favorable judgment for
the defendant follows a plaintiff's rejection of a pretrial CCP 998 settlement offer. Id.; Martinez (2013) 56 C4th
1014, 1019 fn.3.
CCP 998(c)(1) provides, in relevant part:
“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 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.” (emphasis added)
The District served Plaintiff with two CCP 998 offers,
one on August 13, 2019 (2019 Offer) and another on August 19, 2022 (2022 Offer),
neither of which was accepted by Plaintiff.
(See Evenstad Decl., Ex.A, B).
However, the Memorandum of Costs filed and served by the District
included only the 2019 Offer. (See
Memorandum of Costs “998 Offer” attachment at p.166 of the pdf document). Therefore, the Court finds that it was reasonable
for Plaintiff to concluded that that the District based its claim for expert
witness fees solely on the 2019 offer and, therefore, to only address the
validity of that offer in the motion.
The Court exercises its discretion not to consider the District’s belated
attempt in the opposition to this motion to also rely on the 2022 Offer.
As such, the Court only considers the validity of the
2019 Offer.
For a CCP 998 Offer to be valid and enforceable, the
terms and conditions must be unambiguous and sufficiently certain to be capable
of valuation. Chen (2008) 164
CA4th 117, 121; Sanford (2016) 246 CA4th 1121, 1131-1132; Ignacio
(2016) 2 CA5th 81, 84, 87; Valentino (1988) 201 CA3d 692, 699-700.
The 2019 Offer indicates that the District offered to “compromise
and pay, in exchange for dismissal of the claims in the Complaint filed by
Plaintiff JOSE DE JESUS DIAZ MATA (“PLAINTIFF”) against the District, the sum
of FIVE THOUSAND AND ONE DOLLARS AND NO CENTS (“$5,001.00”) in satisfaction of
all claims for damages, costs, expenses, attorney fees,
and interest in this action as alleged against the District.” (See
Memorandum of Costs “998 Offer” attachment, p.1:25-p.2:2 (pdf pp.167-168)). The offer goes on to set forth the following
3 terms and conditions:
“1) The offer must be accepted in
writing within 30 days from the date made or before the beginning of trial,
whichever comes first;
2) If accepted, the compromise and
settlement will proceed by way of written release and dismissal as opposed to
entry of judgment; and
3) Plaintiff will dismiss and
release the District and all officers, employees, representatives, and other
District-affiliated defendants, unnamed and named, unserved and served.”
(See Memorandum of Costs
“998 Offer” attachment, p.2:8-13 (pdf p.168).
The Court finds the second and third conditions to be
ambiguous so as to render the offer invalid.
The offer fails to define what would be included in the “written
release.” The term would be meaningless
if it only included a dismissal of Plaintiff’s claims for damages, costs,
expenses, attorney fees, and interest in this action as alleged against the
District in this action as that is seemingly covered by the dismissal. Similarly, it is not clear who would be
covered by the settlement as condition three includes undefined “other
District-affiliated defendants” in addition to all officers, employees and
representatives of the District. It is
not clear if that term could have covered other named defendants in this action
(i.e., Could Impact Construction who agreed to purchase the Modular classrooms
from the District and/or Lundgren who was hired by the District to manage the
construction project be deemed “other District-affiliated defendants?”).
Based upon the foregoing, the Court finds that the
District is not entitled to recover expert witness fees under CCP 998(c) and
taxes Item 8.b in its entirety allowing the District to recover $0 for Expert
Witness Fees.
Item 11 – Court Reporter Fees ($18,642.76)
As the prevailing party, the District may recover
“[c]ourt reporter fees as established by statute.” CCP 1033.5(a)(11).
Plaintiff argues that only $9,420.00 of the claimed costs
are recoverable. In the opposition, the
District agrees to reduce the costs claimed in this Item to $9,420.00.
As such, Item 8.b. is taxed in the amount of $9,222.76
allowing the District to recover $9,420.00 for Court Reporter Fees.
Item 12 – Models, Enlargements, and Photocopies of Exhibits ($11,272.16)
As the prevailing party, the District may recover costs
for “[m]odels, the enlargements of
exhibits and photocopies of exhibits, and the
electronic presentation of exhibits, including costs of rental equipment and
electronic formatting, may be allowed if they were reasonably
helpful to aid the trier of fact.” CCP
1033.5(a)(13).
Plaintiff argues that costs claimed are for repetitive
and rushed work and are unreasonable and excessive. Plaintiff suggests that a 50% or more
reduction in the costs claimed for this item is warranted.
The District agrees to reduce the costs in this item by
$879.22. The Court finds that the
District has otherwise sufficiently shown that the remaining costs in this item
were for copies of exhibits and enlargements which were reasonably necessary to
the conduct of the litigation as they assisted the trier of fact. (Evenstad Decl. ¶12, Ex.H).
As such, Item 12 is taxed in the amount of $879.22 allowing
the District to recover $10,392.94 for enlargements and photocopies of exhibits.
Costs as Against Plaintiff Maria Del Rosario Arroyo
Plaintiffs argues that a cost award against Arroyo is
improper. The opposition notes that the
operative complaint did not assert any claims against the District by Arroyo,
no CCP 998 offer was made to Arroyo and no claims by Arroyo against the
District were litigated at trial.
Therefore, the District does not seek to recover any costs against Arroyo.
CONCLUSION
Based on the foregoing, the challenged items are taxed as
follows:
Item 4 – Deposition Costs of $22,066.65 - $604.05 =
$21,462.60
Item 5 – Service of Process Costs of $2,139.57 -
$1,242.58 = $869.99
Item 8.a. – Ordinary Witness Fees of $6,899.42 -
$2,834.59 = $4,054.83
Item 8.b. – Expert Witness Fees of $130,495.25 -
$130,495.25 = $0
Item 11 – Court Reporter Fees of $18,642.76 - $9,222.76 =
$9,420.00
Item 12 – Models, Enlargements, and Photocopies of
Exhibits: $11,272.16 - $879.22 = $10,392.94
In conclusion, the Court finds that the District is
entitled to recover a total of $57,577.06 in costs against Plaintiff Jose De
Jesus Diaz Mata which includes the taxed amounts for the items above and the amounts
for the unchallenged items in the District’s memorandum of costs.