Judge: Rafael A. Ongkeko, Case: 19STCV16312, Date: 2023-02-03 Tentative Ruling
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Case Number: 19STCV16312 Hearing Date: February 3, 2023 Dept: D
Hearing date: 2/3/23
Dept. D
Rafael Ongkeko, Judge presiding
PACHECO v. CHEN (19STCV16312)
Counsel for plaintiff Marcelina Pacheco:
Heidari Law Group, PC, by Sam Ryan Heidari; Giorgio Cassandra.
Counsel for defendant William Chen:
Calendo Puckett Sheedy, by C.M. Sheedy.
Motions:
1.
Defendant’s Motion to Tax (filed 12/30/22)
2.
Plaintiff’s Motion to Tax (filed 1/4/23)
Tentative Rulings:
Deferred. The court will hear
argument and take the matter under submission.
At the time of this posting
(Monday, 1/30/2023 at approximately 8:00 a.m.), the court has not received any
reply papers. The deadline to file and serve reply papers was no later than
Friday, 1/27/23, five court days before the hearing date. It is possible that the papers were timely e-filed
but access may have been delayed over the weekend by the court’s electronic
filing system. Pending timely reply
papers, the court issues a few initial “tentative tentatives” before the
hearing. Complete rulings on the motions are deferred at this time.
As discussed below, the court finds that Defendant’s CCP § 998
offer was a valid offer at the time it was made on 12/2/2021. Defendant’s postoffer costs and expert
witness fees, i.e., those incurred after 12/2/2021, are most likely going to be
allowed. Defendant’s expert witness
fees, if any, which predate 12/2/2021 are stricken. Plaintiff’s preoffer costs will also be
allowed as an offset to Defendant’s allowed costs.
As a preliminary matter, the court agrees with Plaintiff that preoffer
costs Plaintiff incurred should be included with the amount of the judgment
to determine the value of the 998 offer regarding the issue of prevailing party
status for 998 purposes. The problem is
such preoffer costs are not clearly identified in Plaintiff’s cost
memorandum. It may be an academic
exercise, however. Even if Plaintiff
incurred those costs before 12/2/21, unless the preoffer costs total more than
$52,000, which is unlikely, Plaintiff cannot be the prevailing party under 998
because those preoffer costs, when added to the judgment, likely would still not
beat Defendant’s offer. Moreover,
Plaintiff’s item 8a (ordinary witness fees of $19,000) should most likely be
stricken, as well as the $19,315.43 in expert fees in Item 8b. It appears that such fees- $38,315.43- at a
minimum, should be taxed from Plaintiff’s cost bill, as urged by
Defendant. Even without taking further
postoffer reductions, Plaintiff’s cost bill still would total only $40,392.12,
which, when added to the $48,000 judgment, does not beat Defendant’s 998 offer
of $100,000.
The parties should be able to decide the net effect of the court’s
“tentative” tentative as expressed herein with regard to each party’s
motion. The parties, particularly
Plaintiff, are ordered to submit a supplemental declaration setting forth the
dates each claimed cost item was incurred at least 10 days before the next
hearing date. There will be no
extensions.
After hearing argument on 2/3/23, the court intends to set a
non-appearance hearing on ____________at 8:30 a.m. at which time the matters will stand submitted
without further argument.
DISCUSSION
After
approximately four trial days, on 9/12/22, the jury rendered its special
verdict in favor of Plaintiff. However,
each party claims to have prevailed and, in doing so, each claims entitlement
to statutory costs as allowed by law. Plaintiff’s
cost memorandum does not clearly differentiate between pre and post offer
costs. Defendant’s cost memorandum
purports to include only post-offer costs.
Before
the court are the parties’ respective motions to tax the other’s cost
memorandum.
Timeliness of motions
There is no issue regarding the timeliness of
Defendant’s motion to tax Plaintiff’s costs.
However, Defendant contends Plaintiff’s motion to tax was filed untimely
on 1/4/23 based on Defendant’s cost memo having been filed and served by
electronic mail on 12/14/22. CRC Rule 3.1700
requires Plaintiff to file her motion to tax no later than 15 calendar days
after 12/14/22, or by 12/29/22.
Extending that deadline for electronic service by 2 court days (CCP §
1010.6(a)(3)(B)), Plaintiff should have filed her motion by 1/3/23, which was the
second court day (1/2/23 being a court holiday). Plaintiff’s motion was filed on 1/4/23, one
day late.
The failure to timely file a motion to tax or strike costs
constitutes a waiver of the right to object to costs, unless the court in its
discretion grants relief under CCP § 473, such as based upon a finding of
excusable neglect. (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289; see also Cal.
Rules of Court, rule 3.1700(b)(3) [“The party claiming costs and the party
contesting costs may agree to extend the time for serving and filing the cost
memorandum and a motion to strike or tax costs.
This agreement must be confirmed in writing, specify the extended date
for service, and be filed with the clerk.
In the absence of an agreement, the court may extend the times for
serving and filing the cost memorandum or the notice of motion to strike or tax
costs for a period not to exceed 30 days.”].)
Here, Plaintiff’s motion to tax was filed one day late and there
is no evidence that the parties agreed to
extend the filing date for Plaintiff’s motion.
The court will hear argument regarding the
timeliness issue.
Issues common to both motions
Was Defendant’s 998 offer timely?
On 12/2/21 Defendant served a CCP 998 offer to compromise in the
amount of $100,000. The offer stated it
would remain open until trial or for 30 days, “whichever occurs first.”
According to Defendant, Plaintiff rejected the offer “on or about”
12/20/21. As far as the commencement of
trial, the parties have different views:
Plaintiff contends Defendant’s 998 “offer is defective, insofar as it is
untimely.” (Oppn., 4:15) Plaintiff
relies on a previous trial date of 11/10/21 when the case was first assigned
for trial, to Dept. 70 in Judge Hiroshige’s court. Some pre-trial work was done, but trial was
thereafter continued. Plaintiff does not
offer evidence that trial actually commenced before Judge Hiroshige. Nor does Plaintiff provide authority that
precludes an otherwise timely 998 served after a trial continuance. Under 998, opening statement is deemed the
actual commencement of trial. (CCP § 998(b)(3))
For his part, Defendant argues that after the continued trial date of
11/10/21, the next trial date was not until 1/10/22, permitting his 12/2/21
statutory offer, and, further, that thereafter trial did not actually commence
until 9/1/22 when the parties gave their opening statements in this case before
this court. Under these circumstances,
the court finds there is no issue regarding the timeliness of Defendant’s 998.
Was Defendant’s December 2, 2021 § 998 offer valid?
Defendant’s lack of good faith - Plaintiff’s only argument on this
issue is that Defendant’s $100,000 offer in December 2021 was exactly like
Plaintiff’s own 998 of $100,000 made in September 2019. Although Plaintiff’s bad faith argument is
not clearly discernible, Plaintiff appears to be arguing that the 998 should
have been more than $100,000 in order for it to have been made in good faith
because no reasonable plaintiff would have accepted such a low amount having
already incurred high litigation costs in an admitted liability case. Specifically, Plaintiff argues she was
required to spend additional amounts in the interim, as reflected in her cost
bill of over $78,000. The court does not
find this persuasive. Given the circumstances
of the low-speed, minimal property damage accident and the incomplete nature
and extent of Plaintiff’s damages, a $100,000 demand made early in the case could
easily be evaluated as inflated and premature.
It was not unreasonable for Defendant to have declined to accept
Plaintiff’s 998 after only about four months into the litigation. And Plaintiff’s inflated offer early in the
case should have no bearing on what is a reasonable offer later in the
case. The court finds that there is
insufficient evidence that Defendant’s 998 of $100,000 was unreasonable and
made in bad faith. In fact, after four
trial days, the jury awarded less than half that offer and decided, rightly or
wrongly, that Plaintiff was not likely to suffer any future noneconomic
damages, awarding zero dollars. Beyond
wanting to “avoid incurring trial costs” (Oppn. 10:22), Defendant also offers
additional argument (Oppn. 12:3-13:13) in favor of its good faith offer of
$100,000, essentially arguing it did not have as much information in September
2019 as it did in Dec. 2021 even though it eventually offered
exactly what Plaintiff had demanded months before. It is the Plaintiff’s burden to prove bad
faith and she fails to do so. Of course,
the evaluative process during litigation is an ongoing, fluid process that
involves many variables, which, by definition, often undergo different competing
considerations as investigation and discovery continue. Only when much of the medical information and
expert involvement became available did Defendant formulate his reasonable,
good faith evaluation of settlement as ultimately reflected in his 998. While Plaintiff has not proven bad faith, there
is ample evidence before the court to conclude that Defendant’s offer made in
December 2021 was reasonable and made in
good faith.
Which party is the prevailing party. Because Plaintiff obtained a judgment in her
favor, there would normally be no dispute that Plaintiff would be entitled to
recover costs as allowed by law, “except as otherwise provided by statute.” (CCP § 1032(b) Such is potentially the case here. Defendant relies on his 998 offer of $100,00
that Plaintiff’s judgment of $48,500 did not beat, thus potentially triggering
the following CCP § 998 provision:
“(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 …, the court…, 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.
(2) (A) In determining whether the
plaintiff obtains a more favorable judgment, the court…shall exclude the
postoffer costs.”
Despite the verdict’s falling short of Defendant’s 998, Plaintiff
argues her costs of $78,707.55 should be added to the verdict, making her the
prevailing party. The court agrees preoffer costs should be
added to determine whether Plaintiff beat the 998, but disagrees that the
entire amount is what should be added to the judgment. As discussed earlier, unless Plaintiff’s preoffer
costs exceed $52,000, she fails to have obtained a more favorable
judgment.
Based on the above, the court intends to apply the recognized punitive
aspects of CCP § 998(c)(1) by disallowing Plaintiff’s postoffer costs and
granting Defendant’s postoffer costs, including all expert witness fees
($39,658.57). All such costs claimed
were reasonable and necessary to the defense of the action.
The parties are ordered to meet and confer on preoffer costs
awardable to Plaintiff as an offset against the 998 costs awardable to
Defendant.
[Final rulings deferred.
Hearing to be continued per above.]