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.
`
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:
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.
//
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