Judge: Rafael A. Ongkeko, Case: 19STCV22311, Date: 2023-02-17 Tentative Ruling

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Case Number: 19STCV22311    Hearing Date: February 17, 2023    Dept: D

2/17/2023

Dept. D

Rafael Ongkeko, Judge presiding

 

Ware, et al. v. Hairston, et al.  (19STCV22311)

 

DEFENDANTS' MOTION TO TAX COSTS (filed 1/17/23)

 

Motion

1.     Defendants’ Motion to tax costs (filed 1/17/23)

 

Tentative Ruling

Defendants’ motion to tax costs:  GRANTED in part, striking $200 from Item 8b; DENIED as to the remainder.  Defendant’s motion to tax CCP § 998-related costs in Item #8 (post-offer expert witness costs) and Item #16 (prejudgment interest) is DENIED. 

The final costs amounts shall be included in page 4 of the judgment.  Each judgment plaintiff has her own unique prejudgment interest award.  At Plaintiffs’ request, all other costs awarded will be apportioned on an equal basis to each Plaintiff.  Excluding Item 16 (prejudgment interest), the total net cost award is $98,990.32.  Split between the plaintiffs, each Plaintiff will have a cost award of $49,495.16 against Defendant Kaelyn Hairston in addition to each plaintiff’s respective prejudgment interest amount.   Thus, the total cost award for Plaintiff Ware is $84,024.31; for Plaintiff Brewer, $73,496.26.

The court will insert these amounts in the original judgment.  There will not be a cost award against Defendant Hairston.

 

DISCUSSION

MOTION TO TAX COSTS

Prevailing party.  There is no dispute that Plaintiffs are the prevailing parties and each is entitled to seek costs as allowed by law. (CCP § 1032(b))

Plaintiff’s memorandum of costs.  Plaintiffs’ memorandum of costs lists nine categories of costs totaling $155,720.47, the bulk of which consist of expert witness fees (#8) and prejudgment interest (#16) based on Plaintiffs’ obtaining a verdict that exceeded their CCP § 998 offers (998).   These 998s were served on Defendant Kaelyn Hairston on 4/11/22 before the then-impending trial date in June 2022.  The 998 issue is discussed separately below.

Disputed costs

The court discusses the disputed categories in the same numerical order as presented in the memorandum.  The 998 issues are discussed within Items 8 and 16.

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4.     Deposition costs

 

Defendant moves to tax the following:

·       8/17/22 Deposition of Dr. Kvitne: $833.63 (.25 x $3,334.50)

 

Defendants object on the purported ground that because liability was admitted on 8/16/22, anything after that, even one day later, that was unrelated to liability should be taxed.  The court disagrees.  As has been previously discussed in this case, causation was still disputed, and was always disputed, therefore, causation was relevant and inextricably intertwined with the accident facts, such as severity of the collision and nature and extent of the injuries, all of which Defendant continuously disputed.  These costs were reasonable and necessary.  See also opposition on this issue. (4:10-5:9)

The motion to tax Item 4 (Kvitne) is denied.

·       Total to be taxed from Item no. 4:  ZERO.

 

Items #8 and #16, including CCP § 998 issues

8.     Objection to Cost Memo, Exhibit 8b, Expert fees under 998: 

 

Disputed expert fees

Defendants’ motion disputed only $19,561.25, not the entire amount.  After receiving Plaintiffs’ opposition, for reasons unexplained, Defendants’ 552-page reply raised an untimely objection, among other things, to the entirety of the $68,511.71 in post-offer costs of experts as an invalid CCP § 998 cost item based on unreasonableness and a lack of a good faith, the same reasons presumably raised in their Motion, but only as to the prejudgment interest (Item 16).  The additional request to tax Item 8 is untimely and is denied on that basis. 

 

Defendants’ motion objected only to the five invoices in the following table in the amount of $19,561.25 which Defendants argued were unreasonable. 

 

Nevertheless, as explained in its 998 discussion below, even if the court were to consider the untimely objections to all the expert witness fees based on lack of good faith under 998, Plaintiffs are entitled to all their postoffer expert witness costs in accordance with the court’s finding the 998 offer valid (except for $200 to Wexco). 

 

Defendants’ initial (timely) objections to Item 8:

 

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With the exception of $200 for Wexco (Avrit), as conceded in Plaintiffs’ opposition (7:3-21), the motion to tax the above 4 post-offer expert witness fees is denied for the same reasons indicated in the ruling as to Item 4 above (Kvitne deposition).  The validity of the 998 is discussed below.

·       Total to be taxed from Item no. 8b:  $200.00.

 

16. Other.  Prejudgment interest per CCP 998

 

Total sought:  $58,530.15

·       Prejudgment interest (on the original Judgment amount): 

o   As to Plaintiff Ware:  $34,529.15 (10% interest on the judgment from 4/11/22 to 12/9/22)

o   As to Plaintiff Brewer:  $24,001.00 (10% interest on the judgment from 4/11/22 to 12/9/22)

 

Defendants argue Plaintiffs are not entitled to claim CCP 998 prejudgment interest.   Defendants move to tax prejudgment interest based on an invalid 998 offer deemed “unsupported and unreasonable” and otherwise not in good faith. (Motion, 4:2-5.)  Defendants’ Reply says more of the same, that “Defendants could not and did not have a reasonable prospect of accepting the Plaintiffs’ shockingly high 998-offers in the no-injury accident.”  (Reply 6:2-3)  As discussed below, Plaintiffs are entitled to prejudgment interest based on their respectively valid 998 offers. 

 

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Plaintiffs’ CCP § 998 offers were valid offers at the time they were made

CCP § 998 provides, in relevant part:  

(d)  If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award…, the court…, in its discretion, may require the defendant 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 during trial…, of the case by the plaintiff, in addition to plaintiff’s costs.

Civil Code § 3291 provides, in relevant part:

If the plaintiff makes an offer pursuant to Section 998 of the Code of Civil Procedure which the defendant does not accept prior to trial or within 30 days, whichever occurs first, and the plaintiff obtains a more favorable judgment, the judgment shall bear interest at the legal rate of 10 percent per annum calculated from the date of the plaintiff's first offer pursuant to Section 998 of the Code of Civil Procedure which is exceeded by the judgment, and interest shall accrue until the satisfaction of judgment.

Plaintiffs obtained verdicts which beat their respective 998s served on 4/11/22.  They now claim entitlement to the two categories of costs in items 8  and 16. 

This case requires the court to consider the totality of the circumstances as of the date when Plaintiffs’ 998 demands were made.  Because Plaintiffs obtained a more favorable result than his 998 offer, they have met their initial prima facie burden to show their offers were within the “range of reasonably possible results” at trial, entitling them to claim 998 costs.  (Licudine v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, 926, citing Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 700.) 

As the offeree, Defendant “bears the burden of showing that an otherwise valid 998 offer was not made in good faith.”  (Id.) 

Defendants motion offers no meaningful evidence on this issue.  The only argument goes like this:  The traffic collision report noted no injury.  Therefore, it acted reasonably in rejecting policy limit demands of 25/50. (Defendants’ reply provides new evidence showing they offered Plaintiff Ware $25,000 in May 2019 and Plaintiff Brewer $8316.22 in June 2019.)  Liability for this “no injury” collision was disputed.

Defendants cannot claim they were not reasonably aware of the nature and extent of the injuries to each Plaintiff before the 998s.  They had medical records and bills to support each Plaintiff’s claims.  (Brahman decl. ¶8)  It is true that just days before the 998s were to expire, Plaintiffs served discovery responses and voluminous documents supporting their claims.  But Defendants could have obtained these records during the course of the litigation (and there is no evidence they did not) and, importantly, while the 998s were still open, never asked for more time to evaluate the offers.  After all Kaiser and Dr. Mealer’s treating and physical therapy records were available long before the 998s.  Medical examinations had been performed, according to Brahman declaration (¶8) 

Defendants’ evaluation of the case seems to be one of over-reliance on the “no injury” collision report and subsequently choosing to litigate rather than offering the policy, forcing Plaintiffs to incur additional expenses by not reasonably evaluating their 998s.  In fact, it appears that Plaintiffs vigorously denied liability even until 8/16/22 when it conceded as much via the parties’ Joint Statement of the Case.  Even in doing so, defendants never conceded full causation on the nature and extent of injuries, forcing Plaintiffs to undertake expensive expert preparation, increasing Plaintiffs’ costs in what would eventually be a case of admitted liability. 

Defendants argue that “(t)he issue of liability and causation was still in question and parties were evaluating their discovery responses, expert opinion, and depositions were being taken.  As such, it cannot be said that Plaintiffs’ offer carried with it a reasonable prospect of acceptance.” (Motion 4:18-21)  Defendants do not claim they had no information or insufficient time to determine the validity of the 998s when they were served.  The evidence points in the opposite direction.  The collision was significant, requiring extensive past and future medical treatment.  Even though Defendants’ experts ultimately would dispute the nature and extent of the injuries, the court finds that each 998 had a reasonable prospect of acceptance.  

Unlike the defendant in Licudine, who had “very little information” (Licudine, supra, at 927) when the 998 was served (in Licudine just 19 days after service of the complaint), here, so close to the trial date (as it existed on 4/11/22), Defendants had or should have had a good handle on the potential value of the case.  They have no evidence to the contrary other than saying they were still disputing everything.  But there is no evidence that liability was ever seriously in dispute (only Kaelyn Hairston’s false statements made it so) and the amount of past and future damages for the various injuries and medical expenses should well have shown the 998 offers were reasonable when made.  There is no evidence that Defendants contacted Plaintiffs’ counsel to request more information or time, and until the very end, disputed Plaintiff’s nature and extent of injuries. The absence of this “third” Licudine factor (Licudine, supra, at 926; “Third, did the [offeree] alert the offeror that it lacked sufficient information to evaluate the offer and, if so, how did the offeror respond?”) further supports a finding that there was no bad faith or deception on Plaintiffs’ part.  

To conclude, the court finds that Plaintiffs’ CCP § 998 offers were valid offers at the time they were made on 4/11/2022.  Having considered all the relevant circumstances existing as of 4/11/22, the court finds that Defendants have not met their burden to show that Plaintiffs’ 998 offers were not made in good faith.  Thus, the court denies the motion to tax the 998-related items in items 8 and 16. 

As claimed in Item 16 Plaintiffs are entitled to prejudgment interest on the judgment amounts (not the amounts offered in the 998s as Defendants erroneously argued), calculated at 10% from 4/1/22 until the underlying judgment is satisfied.  As originally claimed, the prejudgment interest calculations are correct, as follows:  Plaintiff Ware:  $34,529.15; Plaintiff Brewer:  $24,001.00.

 

IT IS SO ORDERED.

 

DATED:

                                                                    

 

                                                                     ________________________________

                                                                            RAFAEL A. ONGKEKO

                                                                        JUDGE OF THE SUPERIOR COURT