Judge: Richard J. Burdge, Case: 20STCV48511, Date: 2022-10-13 Tentative Ruling

Case Number: 20STCV48511    Hearing Date: October 13, 2022    Dept: 3

HEARING DATE:                 October 13, 2022   

CASE NUMBER:                  20STCV48511

CASE NAME:                        Anita Brkic v. T&L Prefab-Slab Supply, Inc.;Qui @ C. Corp.

MOVING PARTY:                Defendants QUI & C. CORP dba T & L GRANITE COUNTERTOP WAREHOUSE (erroneously sued as T&L PREFAB-SLAB SUPPLY, INC. and QUI & C CORP)

OPPOSING PARTY:             Plaintiff Anita Brkic

JUDGMENT:                         August 25, 2022

PROOF OF SERVICE:          OK

MOTION:                               Defendants’ Motion to Tax Costs

OPPOSITION:                       September 29, 2022

REPLY:                                  October 3, 2022    

TENTATIVE:                          Defendants’ motion to tax costs is granted as to the expert fees for $79,489.09, for $1,200 for nurse observers at the defense medical exam and $5,000 for the focus group and otherwise denied.  Costs are awarded in the amount of $86,592.61.  Defendants to give notice.

Background

Plaintiff filed a summary memorandum of costs on September 13, 2022, following the entry of judgment after a jury trial. Defendants have now moved to tax those costs.  In the opposition and reply memoranda, several initially contested items were modified or withdrawn.  Specifically, Plaintiff withdrew claimed costs of $79,489.09 and for $1,200 for nurse observers at the defense medical exam from her cost bill, so those cost will be taxed from the summary memorandum.  Consequently, the following are the only cost issues in dispute:

1.      $5,000 for focus group costs.

2.      $1,725 for mediation costs.

A.    Focus Group Costs

Plaintiff contends that the Focus Group costs were reasonably necessary to the litigation.  (Opp. 6:1-8.)  Pursuant to Code of Civil Procedure section 1033.5(c):  “(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to the preparation. . . . (4) Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”  Focus group costs are not listed under section 1033.5(a).  As Defendants point out, Plaintiff produces no authority that such costs are reasonably necessary.  While focus group undoubtedly can be valuable to trial counsel, they are not necessary to trying the case.  Accordingly, the court declines to exercise its discretion to allow them.

B.     Voluntary Mediation Costs

Plaintiff also contends that the mediation costs were reasonably necessary.  (Opp.  6:10-23.)  Plaintiff cites . Gibson v. Bobroff (1996) 49 Cal.App.4th 1202 for the proposition that court ordered mediation costs may be awarded in the discretion of the court.  (Id.)  Plaintiff cites no authority as to whether the court has discretion to award voluntary mediation costs.  However, in their reply, Defendants cite to Berkeley Cement, Inc. v. Regents of the University of California (2019) 30 Cal.App.5th 1133, 1143.  (Rep. 3:23-24.)  In that case the court addressed whether the court had discretion to award mediation costs in a voluntary mediation, and the court concluded “mediation fees incurred for mediation that was not ordered by the court are not categorically nonrecoverable as ‘not reasonably necessary to the conduct of litigation.’ ” (Berkeley Cement, Inc. v. Regents of University of California (2019) 30 Cal.App.5th 1133, 1143.)  The decision is left to the sound discretion of the trial court.

While this case did not come to this court until it was ready for trial, the LA Superior Court highly encourages voluntary mediation as a necessary step in preparing the case for trial and perhaps avoiding an unnecessary trial.  Defendants admit they proposed the mediation at a potentially productive stage of the litigation.  (Rep. 3:25-4:3.)  While Defendants state they were “blindsided” by the size of Plaintiff’s demand in mediation, that was a problem for the success of the mediation, not the necessity for it.  (Rep. 4:4-9.)  Consequently, the court concludes the mediation was reasonably necessary and does not tax those costs.

Conclusion

Defendants’ motion to tax costs is granted as to the expert fees for $79,489.09, for $1,200 for nurse observers at the defense medical exam and $5,000 for the focus group and otherwise denied.  Costs are awarded in the amount of $86,592.61.  Defendants to give notice.