Judge: Peter A. Hernandez, Case: BC646629, Date: 2022-09-12 Tentative Ruling

Case Number: BC646629    Hearing Date: September 12, 2022    Dept: O

Plaintiffs Estate of Raul Casillas, Francisco Casillas, Juan Casillas, Luis Perez, Esperanza

Perez and Fillimon Perez’s Motion to Strike/Tax Costs is DENIED.

Background   

On January 26, 2017, Plaintiffs Estate of Raul Casillas (“Estate”), Francisco Casillas (“Francisco”), Juan Casillas (“Juan”), Luis Perez (“Luis”), Esperanza Perez (“Esperanza”) and Fillimon Perez (“Fillimon”) (collectively, “Plaintiffs”) allege as follows: On December 11, 2015, Decedent Raul Casillas (“decedent”) was allowed to walk out of Claremont Sheltered Care Center (“CSCC”) alone and was struck by a vehicle. Decedent died from his injuries.

On January 26, 2017, Plaintiffs filed a First Amended Complaint, asserting causes of action against Defendants Jose Beteta Bergman (“Bergman”), Sheila Green (“Green”), County of Los Angeles, County of Riverside, City of Claremont (“City”), CSCC and Does 1-30 for:

1.                  Motor Vehicle

2.                  General Negligence

3.                  Premises Liability

On April 24, 2017, Plaintiffs dismissed City, with prejudice. On June 26, 2017, Plaintiffs dismissed County of Riverside with prejudice. On June 29, 2017, a “Stipulation to Dismiss County of Los Angeles, without Prejudice; and Order” was filed.

On June 12, 2018, this case was transferred from Department 7 of the Personal Injury Court to this instant department.

On October 12, 2018, the court granted Green’s Motion for Summary Judgment. On September 16, 2020, Estate dismissed CSCC, without prejudice. 

On November 5, 2021, the court granted Bergman’s “Ex Parte Application for Order Allowing Defendant Bergman’s Motion to Bifurcate Trial of Settlement Defense to be Heard on the First Day of Trial.”

On April 21, 2022, a “Memorandum & Order Re: Verdict for Defendant Jose Beteta Bergman on Affirmative Defenses Nos. 9 & 10” was filed. On May 3, 2022, an “Order Re: Approval of Defendant Bergman’s Good Faith Settlement” was filed.

On May 12, 2022, a “Stipulation to Set Trial Beyond Five-Year Date Under Code of Civil Procedure Section 583.310; Order Thereon” was filed.

On July 8, 2022, judgment was filed re: Bergman. On July 15, 2022, Bergman filed (and served via mail and email) a “Notice of Entry of Judgment.”

The Final Status Conference is set for October 18, 2022. Trial is set for November 1, 2022.

Legal Standard

In general, the “prevailing party” is “entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) The phrase “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.” (Code Civ. Proc., § 1032, subd. (a)(4).)

Code of Civil Procedure § 1034, subdivision (a) states that “[p]rejudgment costs . . . shall be claimed and contested in accordance with rules adopted by the Judicial Council.” A prevailing party claiming costs must serve and file a memorandum of costs. (California Rules of Court (“CRC”) rule 3.1700, subd. (a)(1).) “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.” (Id.) The contesting party may dispute any or all of the items in the prevailing party’s memorandum of costs by a motion to strike or tax costs. (CRC rule 3.1700, subd. (b).)

“If items on their face appear 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 they were not reasonable or necessary. On the other hand, if items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. However, whether a cost item was reasonably necessary is still a question of fact to be decided by the trial court. (Jones v. Dumrichob (1998) 63 Cal.App.4^th 1258, 1266 [internal quotation marks and citations omitted].) “Initial verification will suffice to establish the reasonable necessity of the costs claimed. There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted.” (Id. at 1267.)

Discussion

Plaintiffs move to strike Bergman’s various Memorandums of Costs.[1]

Procedural Defects

At the outset, the court notes that the motion reflects non-compliance with CRC rule 3.1700, subdivision (b)(2) (i.e., “[u]nless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable”). It appears, on the one hand, that Plaintiffs seek to strike out the entirety of each of the six separate Memorandum of Costs Bergman filed (see Motion, 3:17-19); however, it subsequently appears that Plaintiffs seek to tax only portions of same (Id., 4:2-19). The court, then, will only address specific cost items raised by Plaintiffs in their motion.

Merits

On July 8, 2022, judgment was filed as to Bergman; said judgment expressly provided as follows:

             A settlement agreement having been made between the plaintiffs and

defendant Jose Beteta Bergman, and said agreement having been ruled valid

and enforceable by the Court, and the payment required as part of the

settlement agreement having now been made, plaintiffs' case against

defendant Jose Beteta Bergman is dismissed and judgment is to be entered in

favor of defendant Jose Beteta Bergman. Accordingly,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that defendant

Jose Beteta Bergman shall and does hereby have judgment against plaintiffs

Estate of Raul Casillas, Francisco Casillas, Juan Casillas, Luis Perez, Esperanza

Perez and Fillimon Perez, and each of them, plus costs of $ PER COST BILL.

Again, a defendant in whose favor a dismissal is entered is a prevailing party. (Code Civ. Proc., § 1032, subd. (a)(4).) A prevailing party “is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).)

Plaintiffs generically claim that Bergman is not entitled to recover deposition costs, witness fees, and/or model/exhibit costs because they were not reasonably related, let alone necessary, to the adjudication of whether there was an enforceable settlement agreement. Plaintiffs, however, have not provided the court with any authority limiting costs under such circumstances. Code of Civil Procedure § 1033.5, subdivision (c)(2), in fact, dictates that “[a]llowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Emphasis added).

Plaintiffs specifically assert that Bergman is not entitled to recover expert witness fees unless “ordered by the Court,” as per Code of Civil Procedure § 1033.5, subdivision (a)(8). Bergman, in turn, represents that he is seeking expert witness fees required to be paid to Hugh Black (i.e., Plaintiffs’ expert) pursuant to Code of Civil Procedure § 998, subdivision (c)(1) (i.e., “[i]f an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award . . . 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 . . .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”). Indeed, Bergman referenced § 998 in Paragraph 8 on Page 3 of each of his respective Memorandum of Costs (i.e., stating “998 Offer to Compromise for $100,000”). (Forstrom Decl., ¶ 2, Exhs. A-F.) Plaintiffs’ argument in this regard is thus rejected.

Plaintiffs’ motion is denied.