Judge Peter A. Hernandez, Case KC069276 2022-08-16 Tentative Ruling

Plaintiff John L. Pichota, Individually and as Personal Representative for Louis B. Piechota, Decedent’s Motion to Strike Costs is DENIED.

Plaintiff John L. Pichota, Individually and as Personal Representative for Louis B. Piechota, Decedent (“Plaintiff”) alleges as follows: Kacie Danielle Martin (“Martin”) was a caregiver for Plaintiff’s 92-year-old father, Louis B. Piechota (“L. Piechota”). Loius died on April 16, 2017. Martin had L. Piechota change the names on his annuity accounts to name her as beneficiary of same. Martin also took property, gold coins and cash.

On August 20, 2018, Plaintiff filed four “Amendment[s] to Complaint,” wherein American Funds by Capital Group was named in lieu of Doe 1, American Funds Service Company (“AFSC”) was named in lieu of Doe 2, The Capital Group Companies, Inc. was named in lieu of Doe 3 and American Funds Distributors, Inc. was named in lieu of Doe 4.

On October 24, 2018, Plaintiff filed a Second Amended Complaint, asserting causes of action against Martin and Does 1-125 for:

On April 10, 2019, the court granted Martin’s motion for summary adjudication of the second through sixth causes of action. On September 21, 2021, the court granted Martin’s motion for summary adjudication of the ninth cause of action.

On January 20, 2022, the court granted AFSC’s Motion for Judgment on the Pleadings. On February 7, 2022, “Judgment and Order on Plaintiff’s Second Amended Complaint Against Defendant American Funds Service Company” was filed.

On March 10, 2022, “Judgment in Favor of Defendant Kacie Martin and as Against Plaintiff John Piechota” was filed. On March 18, 2022, Defendant filed (and mail-served) “Notice of Entry of Judgment.”

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 losing 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.)

Plaintiff moves for an order striking the memorandum taxing Item No. 8 (i.e., witness fees in the amount of $26,950.80) in its entirety.

Plaintiff seeks to strike out Defendant’s request for expert witness fees on the argument that Defendant’s Code of Civil Procedure § 998[1] offer made on or about July 2, 2019 was invalid; more specifically, Plaintiff argues that the offer was invalid because it was directed only to Plaintiff in his individual capacity and not also as to Plaintiff in his capacity as personal representative for Louis B. Piechota.

The SAC was filed on October 24, 2018. The SAC identifies Plaintiff only as “Plaintiff, JOHN L. PIECHOTA, . . . an adult.” (SAC, ¶ 1.) The SAC is devoid of any allegations identifying Plaintiff as the personal representative of the “estate of Louis B. Piechota.” Plaintiff has not offered any evidence that any court approved him as the personal representative of his father’s estate. There is no personal representative of an estate without a court order. (Prob. Code § 8400, subd. (a) [“A person has no power to administer the estate until the person is appointed personal representative and the appointment becomes effective. Appointment of a personal representative becomes effective when the person appointed is issued letters.”].)

On May 13, 2021, a “Declaration of John L. Piechota as Successor in Interest to Louis Piechota Filed as Supplement to Second Amended Complaint” was filed, wherein Plaintiff advised that he was his father’s “successor in interest.” With that said, for purposes of Section 998, Plaintiffs who are suing in their individual capacity and as successor-in-interest to another party are treated as a single party. (See Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498 [“We disagree with Peterson’s contention that Gloria Peterson, the individual, Gloria Peterson, as the successor-in-interest to her husband’s claims, and Gloria Peterson, as her husband’s legal heir, constituted three separate parties and three offerees for purposes of section 998 . . . Peterson’s multiple capacities merely reflected why she, as a singular party, had standing to assert different types of claims . . . Thus, when Peterson assumed the roles of successor-in-interest and legal heir, she did not become a different person, a different plaintiff, or a different party, but merely acquired the legal capacity to pursue particular legal theories (as the same individual party). There was only one offeree plaintiff for purposes of section 998”].)

[1] Code of Civil Procedure § 998 provides, in pertinent part, as follows: “(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. . . (e) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff. If the costs awarded under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly.”