Judge: Richard J. Burdge, Case: BC635250, Date: 2022-08-16 Tentative Ruling

Case Number: BC635250 Hearing Date: August 16, 2022 Dept: 3

HEARING DATE: August 16, 2022

CASE NUMBER: BC635250

CASE NAME: Michael Thabet et al v. Yamaha Motor Corporation, et al.

MOVING PARTY: Defendant, John Envieh

OPPOSING PARTY: All Plaintiffs

TRIAL DATE: Completed

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion to Tax the costs of Plaintiffs

OPPOSITION: August 3, 2022

REPLY: August 9, 2022

TENTATIVE: Envieh’s motion to tax costs is granted in part. The cost bill of $116,024.25 is taxed in the amount of $81,327.48, so that costs will be allowed in the amount of $34,696.77.

Background

On or about June 14, 2022, Plaintiffs filed a summary Memorandum of Costs, seeking total costs from Defendant Envieh in the amount of $116,024.25. On or about June 28, 2022, Envieh filed a motion to tax costs challenge several items on the cost bill. Plaintiffs have opposed the motion and submitted numerous receipts in support of the claimed costs.

After having reviewed the papers submitted by the parties, the court rules as follows:

The motion is unopposed.

Discussion

I. Legal Authority

C.C.P. § 1032(b) states that, "[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." Costs that a prevailing party may recover include, among other things:

(1) Filing, motion and jury fees;

(3) Transcripts and videotape of "necessary" depositions, plus travel expenses to attend depositions;

(9) Transcripts of court proceedings ordered by the court;

(14) Fees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.

(16) Any other item required to be awarded by statute as an incident to prevailing in the action at trial or on appeal. (CCP § 1033.5(a).)

Per C.C.P. § 1033 .5 (c)(2) & (3), of the allowable costs, only those that are both: “reasonable in amount,” and “reasonably necessary to the conduct of the litigation” are recoverable. (C.C.P. § 1033 .5 (c)(2) & (3).) Costs "merely convenient or beneficial to its preparation" are not allowed. (Id.; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.) The Court has power to disallow even costs "allowable as a matter of right" if they were not "reasonably necessary." (Perko 's Enterprises, Inc. v. RRNS Ente1prises (1992) 4 Cal.App.4th 238, 245.)

Unless expressly authorized by law, a prevailing party may not recover the cost of “transcripts of court proceedings not ordered by the court.” (CCP § 1033.5(b)(5).)

II. Analysis

The court will discuss the Items raised by Envieh in the order they appear in his memorandum in support of the motion.s

ITEM NUMBER 1: FILING AND MOTION FEES

Envieh claims his is unable to evaluate the filing and motion fees, because Plaintiffs attach no invoices and list no detail as to the nature and extent of the fee. (Mot. Item IV.) Plaintiffs are not obligated to attach receipts or other detail in their summary cost bill; however, in response to a motion to tax costs, it is their burden to provide detail; and the moving party then must show the costs are unreasonable in not allowed. (Adams v. Ford Motor Co. (2011) 199 Cal.App.4^th 1475,1487.)

Plaintiffs’ Opposition contains cost details. Plaintiff’s counsel submitted a declaration stating all were reasonable and necessary. Envieh continues to claim the detailed explanations are too vague, but they reasonable describe cost charges and Envieh does not identify individual charges that are not reasonable and necessary, with the exception of charges incurred after the date of the Settlement Agreement, i.e., January 26, 2022. (Partos Decl., ¶ 5, Ex. A.) According to the agreement, Envieh’s participation at trial was at Plaintiffs’ request and was unnecessary to obtain a judgment against Envieh as the amount was agree. Accordingly, Envieh should not be required to reimburse Plaintiffs for costs after that date, which reduces the requested amount by $488.10, to a final amount of $2,713.02

ITEM NUMBER 2: JURY FEES

Envieh argues that the parties split the fees for trial and that Envieh should not be responsible for Plaintiffs’ portion of those fees, as he was at trial pursuant to the settlement agreement to aid Plaintiffs. For the reasons stated in the last section, the court will not award those fees to Plaintiffs, Envieh should pay Plaintiffs’ initial filing fees made prior to the settlement agreement. According to the Opposition, there were four fees paid for $600. Envieh did not challenge that showing, so the cost bill will be taxed in the amount of $1,735.50 for allowable costs of $600.

ITEM NUMBER 4: DEPOSITION FEES

Envieh argues that Plaintiffs seek deposition fees for every deposition they took. (Mot. Part VI.) In his reply, he argues that he should only be responsible for 2 depositions, because that is all YMUS sought from him. (Reply, 5:11-17.) However, Envieh construes the facts too narrowly. A major issue in the case, even after the settlement agreement was the allocation of responsibility between the potentially responsible parties. Thus, all the depositions relate to both defendants. As the costs for individual depositions are not challenged, the total requested by Plaintiffs will not be reduced.

ITEM NUMBER 8: WITNESS FEES

In his reply, Envieh points out that Plaintiffs provided no information about the witness fees paid or whether any of those fees were paid prior to trial. Accordingly, there is not basis for the court not to conclude that Envieh should be responsible for those costs incurred at trial for the reasons stated with respect to Item 1. The costs are taxed in the amount of $4,846.75.

ITEM NUMBER 11: COURT REPORTER FEES AS ESTABLISHED BY STATUTE

As mandated by CCP 1033.5(b)(5) “transcripts of court proceedings not ordered by the court… are not allowable as costs As the Court did not order transcription of the court proceedings, Plaintiffs’ claimed costs incurred in obtaining such transcripts are not allowable.

Plaintiffs did not submit any authority for the recovery of court reporter fees as costs; therefore, they will be taxed in the full amount requested of $6,161.36.

ITEM NUMBER 12: MODELS, ENLARGEMENTS AND PHOTOCOPIES OF EXHIBITS

Envieh argue that he should not be responsible for the costs associated with trial models and exhibits, as the trial was not necessary to determine Envieh’s liability. For the reasons stated with respect to Item 1, these costs will be taxed in the full amount or $2,961.80.

ITEM NUMBER 16: OTHER

Envieh argued that these charges were not fully described or established. (Mot. Part. X.) Plaintiffs submitted an itemization of these charges. (Opp. Cost Bill, p. 4 of 10.) Envieh argues that this amount is less than the claimed costs. (Reply, 6:10-16.)

The major amount of the “other” costs is for trial tech. The court recognizes that the trial tech helps to make the trial move expeditiously, but it is concerned that an individual party who did not participate or use the tech could be charged for the costs that are totally for the benefit of and in control of the Plaintiffs. If the parties jointly agreed to use trial tech and agreed that it would be a recoverable cost, it might be a different situation. In this case, it will not be recoverable.

Similarly, mediation costs will not be allowed.

Consequently, the entire amount of this category, or $65,133.97 will be taxed

Conclusion

Envieh’s motion to tax costs is granted in part. The cost bill of $116,024.25 is taxed in the amount of $81,327.48, so that costs will be allowed in the amount of $34,696.77.

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HEARING DATE: August 16, 2022

CASE NUMBER: BC635250

CASE NAME: Michael Thabet et al v. Yamaha Motor Corporation, et al.

MOVING PARTY: Defendant, John Envieh

OPPOSING PARTY: Yamaha Motor Corporation, U.S. (YMUS)

TRIAL DATE: Completed

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion to Tax the costs of YMUS

OPPOSITION: August 3, 2022

REPLY: August 9, 2022

TENTATIVE: Envieh’s motion to tax costs is granted in part. The cost bill of $25,436.58 is taxed in the amount of $3,596.02, so that costs will be allowed in the amount of $21,840.56.

Background

This case arises out of a watercraft versus watercraft collision which occurred on May 25, 2015 near Big Bend State Park in Laughlin, Arizona. This wrongful death case was tried to a jury on theories of product liability against defendant Yamaha Motor Corporation, U.S. (YMUS) and negligence against Defendant and Cross-Complainant Envieh and non-party Watercraft Adventures Rentals (WAR), a jury verdict was reached on May 27, 2022. The jury found, among other things, in favor of Plaintiffs Michael Thabet; Kathy Thabet; George Thabet; Nicholas Thabet; Kristina Thabet; and Ilham Chaouir and against Defendant John Envieh and awarded damages to Plaintiffs. Envieh claimed he was entitled to indemnity, contribution, and declaratory relief from YMUS on a theory that it was responsible for the accident and Plaintiffs’ injuries. The jury disagreed and found YMUS to be 0% at fault. Given the verdict, the Court dismissed Envieh’s cross-complaint against YMUS. Notice of Judgment was promptly given and then amended.

On or about June 17, 2022, YMUS filed a summary Memorandum of Costs, seeking total costs from Defendant Envieh in the amount of $25,436.58. On or about June 28, 2022, Envieh filed a motion to tax costs challenge several items on the cost bill. Plaintiffs have opposed the motion and submitted numerous receipts in support of the claimed costs.

After having reviewed the papers submitted by the parties, the court rules as follows:

Discussion

I. Legal Authority

(1) Filing, motion and jury fees;

(3) Transcripts and videotape of "necessary" depositions, plus travel expenses to attend depositions;

(9) Transcripts of court proceedings ordered by the court;

(14) Fees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.

(16) Any other item required to be awarded by statute as an incident to prevailing in the action at trial or on appeal. (CCP § 1033.5(a).)

Unless expressly authorized by law, a prevailing party may not recover the cost of “transcripts of court proceedings not ordered by the court.” (CCP § 1033.5(b)(5).)

Because YMUS is the prevailing party, it is “entitled as a matter of right to recover costs in any action or proceeding.” (CCP §1032(b); see Acosta v. SI Corp., 129 Cal.App.4th 1370, 1375 (2005) (“If a party fits one of the definitions of ‘prevailing’ listed in C.C.P. 1032(a)(4) . . . that party is entitled as a matter of law to recover costs.”). This means that the prevailing party is entitled to all of his costs unless another statute provides otherwise [and absent] such statutory authority, the court has no discretion to deny costs to the prevailing party.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.)

YMUS’ verified memorandum is prima facie evidence of its propriety. (Id. at 131.) Mere statements in the points and authorities and declaration of counsel are insufficient to rebut the prima facie showing. (Santantonio v. Westinghouse Broadcast Co., Inc. (1994) 25 Cal.App.4th 102, 114.) Where the reasonableness of an item is challenged, conclusory allegations that the item was “neither necessary nor reasonable” do not satisfy the objecting party’s burden. (County of Kern v. Ginn (1983) 146 Cal.App.4th 1107, 1113-1114.)

II. Analysis

The court will discuss the Items raised by Envieh in the order they appear in his memorandum in support of the motion.

ITEM NUMBER 4: DEPOSITION FEES

Envieh claims his is unable to evaluate the deposition costs, because YMUS attaches no invoices and lists no detail as to the nature and extent of the charges for “taking, transcribing and travel.” (Mot. Item IV.A) There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the Memorandum. Supporting documentation must be submitted only if costs have been put in issue by a motion to tax costs. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267; Adams v. Ford Motor Co. (2011) 199 Cal.App.4^th 1475, 1487.)

1. Deposition of Envieh’s expert Dr. Solomon

Envieh first complains that the $3,500 cost for “taking” Dr. Solomon’s deposition is unclear, and questions if this amount includes attorney fees incurred to take the deposition. The $3,500 “taking” cost was the fee YMUS was charged by Dr. Solomon to take his deposition. (See Rodman Decl., ¶5, attaching checks to the witness.) YMUS paid Dr. Solomon his expert rate of $700/hour for five hours of deposition time, totaling $3,500. (Id.) As Envieh points out in his reply, “California Code of Civil Procedure § 1033.5(b) states, ‘[t]he following items are not allowable as costs, except when expressly authorized by law: (1) Fees of experts not ordered by the court.’ Specifically, McGarity v. Department of Transportation (1992) 8 Cal.App.4th 677, 686, concluded that expert deposition fees are not recoverable under the costs statute.” (Reply, 3:21-24.) Accordingly, those costs will not be allowed.

Second, Envieh questions the $2,864.59 in costs sought by YMUS to transcribe the Solomon deposition. Code of Civil Procedure section 1033.5(a)(3)(A) allows for the recovery of costs for “[t]aking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant . . . .” As the court reporter’s invoice shows, the cost to YMUS for the original and one certified copy of the transcript of Dr. Solomon’s deposition was $2,864.59, the amount sought by YMUS. (Id., ¶6; Ex 2-011 [Court Reporter’s Invoice].) Envieh’s Reply does not continue to challenge those costs, so they will be allowed.

Finally, Envieh disputes the $1,592.033 in costs incurred for YMUS’ counsel Richard Mueller to travel to and attend the deposition in Woodland Hills, California, arguing that the deposition either should have been taken by YMUS’ co-counsel Mr. Rodman, or Mr. Mueller should have taken the deposition remotely. YMUS argues that Mr. Rodman was unavailable at the time of the deposition, and more importantly for a number of reasons, Mr. Mueller took all the expert depositions. It also argues that an out of jurisdiction lawyer’s travel expenses to the jurisdiction are recoverable. “Travel expenses to attend depositions are recoverable under Code of Civil Procedure §1033.5(a)(3). This specifically includes the costs incurred by out-of-town counsel in attending local depositions. See Thon v. Thompson, 29 Cal.App.4th 1546, 1549 (1994). In Thon, the appellate court found it was improper for the trial court to have allowed a party to recover the $13,888.31 cost of hiring a private charter plane so that two lawyers (co-counsel) from Bakersfield could attend depositions in San Diego County, but it allowed the cost of commercial air transportation ($5,100). Id.” (Opp. 5:6-12.)

In Reply, Envieh counters that YMUS had local counsel and that remote depositions are allowed and frequently taken. YMUS’s explanation of its decision to have Mr. Mueller take the deposition is persuasive. The reasonableness standard in the statute does not require a party to always conduct its discovery using the least expensive method. Many lawyers believe in person depositions are more effective in revealing the truth. While there may be debate on this issue, it is insufficient to create a rule requiring a remote deposition to save on travel expenses. As Thon held, the statute does not put that restriction on reimbursement of travel expenses.

Envieh further challenges the amount of travel expenses as unreasonable due to the cost of the Omni Hotel in Los Angeles and the fact that loyalty points were awarded for the ticket purchased. (Reply 5:15-6:2.) While there are cheaper motels, the Omni is a typical business-class accommodation, and the airline ticket would have cost the same without the loyalty miles. Those costs are not unreasonable and probably are less that the fees required to make this motion. The travel costs will be allowed as requested.

2. Envieh’s deposition.

Envieh argues that it was unreasonable and unnecessary for Mr. Mueller and Mr. Rodman to attend his deposition, making Mr. Mueller’s travel expenses to attend unreasonable, since Mr. Rodman was the primary interrogator. Envieh does not challenge the reasonableness of the charges, except as to the argument they were unnecessary because he did not need to attend, or he could have attended remotely.

As the operator of the PWC that collided with the PWC Mr. Thabet was on and as the cross-complainant, Envieh was an extremely critical witness, particularly because much of the entire case relied on oral testimony rather than forensic accident reconstruction from the scene. YMUS was entitled to conclude his presence was necessary, so the costs are not unreasonable after the adjustment YMUS concedes of a reduction of $96.02 to $1,502.99.

ITEM NUMBER 11: COURT REPORTER FEES AS ESTABLISHED BY STATUTE

Envieh’s motion argues that as mandated by CCP 1033.5(b)(5) “transcripts of court proceedings not ordered by the court… are not allowable as costs.” As the Court did not order transcription of the court proceedings, YMUS’s claimed costs incurred in obtaining such transcripts are not allowable. But that argument misses the point of the costs claimed. YMUS is not asking for transcript costs, it is asking for the costs of providing the reporter during the trial.

The court takes judicial notice of the fact that the Los Angeles Superior Court does not provide court reporters for civil cases, except where required to do so for indigent parties. As YMUS pointed out,

“According to the Los Angeles County Superior Court website (https://www.lacourt.org/generalinfo/courtreporter/pdf/CourtReporterPolicy.pdf), when a court reporter is not provided by the court, the parties in unlimited civil proceedings may arrange for a certified shorthand reporter to serve as an official pro tempore reporter. Under the California Rules of Court, fees for the reporters’ attendance at trial are recoverable. Specifically, California Rule of Court 2.956(c) provides:

If the services of an official court reporter are not available for a hearing or trial in a civil case, a party may:

(1) Arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter, whom the court must appoint unless there is good cause shown to refuse to do so. It is that party’s responsibility to pay the reporter’s fee for attendance at the proceedings, but the expense may be recoverable as part of the costs, as provided by law. (emphasis added)”

(Opp. 6:23-7:3; See also Gov’t Code §68086(d)(2) “[t]hat if an official court reporter is not available, a party may arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter. . . . the court shall appoint the certified shorthand reporter to be present in the courtroom and serve as the official reporter pro tempore unless there is good cause shown for the court to refuse that appointment. The fees and charges of the certified shorthand reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law.” (emphasis added)).”.)

The court’s minutes reflect the court’s appointment of certified court reporters as official reporters pro tempore provided at the expense of the parties.

As the Rodman Declaration shows the other parties did not agree to split the per diem charges for the pro tempore reporter, so the costs for the fees charged were divided equally between Plaintiffs and Envieh.

Envieh’s reply suggests there was not proof that the court did not provide a reporter, but the practice in this court is clear and beyond dispute. In addition, he argues that the fees charged by the appointed reporter exceed the court Fee Schedule for court reporter per diem fees. That argument is misplaced, as it relates to fees charged by the court when it provides reporters.

Accordingly, the costs charged for this item will not be taxed.

Conclusion

Envieh’s motion to tax costs is granted in part. The cost bill of $25,436.58 is taxed in the amount of $3,596.02, so that costs will be allowed in the amount of $21,840.56.

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HEARING DATE: August 16, 2022

CASE NUMBER: BC635250

CASE NAME: Michael Thabet et al v. Yamaha Motor Corporation, et al.

MOVING PARTY: All Plaintiffs

OPPOSING PARTY: Yamaha Motor Corporation, U.S. (YMUS)

TRIAL DATE: Completed

PROOF OF SERVICE: OK

MOTION: Plaintiffs’ Motion to Tax the costs of YMUS

OPPOSITION: August 3, 2022

REPLY: August 9, 2022

TENTATIVE: Plaintiffs’ motion to tax costs is granted in part. The cost bill of $844,038.18 is taxed in the amount of $717,645.31, so that costs will be allowed in the amount of $126,392.57.

Background

This case arises out of a watercraft versus watercraft collision which occurred on May 25, 2015 near Big Bend State Park in Laughlin, Arizona. The complaint alleges causes of action for wrongful death, negligence, breach of warranty, failure to warn and a survival claim as successors in interest to Magdy Thabet. This case was tried to a jury on theories of product liability against defendant Yamaha Motor Corporation, U.S. (YMUS) and negligence against Defendant and Cross-Complainant Envieh and non-party Watercraft Adventures Rentals (WAR), a jury verdict was reached on May 27, 2022. The jury found, among other things, in favor of Plaintiffs Michael Thabet; Kathy Thabet; George Thabet; Nicholas Thabet; Kristina Thabet; and Ilham Chaouir and against Defendant John Envieh and awarded damages to Plaintiffs. Envieh claimed he was entitled to indemnity, contribution, and declaratory relief from YMUS on a theory that it was responsible for the accident and Plaintiffs’ injuries. The jury disagreed and found YMUS to be 0% at fault. Given the verdict, the Court dismissed Envieh’s cross-complaint against YMUS. Judgment was entered pursuant to the jury verdict and later revised nunc pro tunc to correct an error. The facts regarding entry of the judgment and notice are discussed in detail below.

On or about June 17, 2022, YMUS filed a summary Memorandum of Costs, seeking total costs from Plaintiffs in the amount of $844,038.18. On or about July 1, 2022, Plaintiffs filed a motion to tax costs challenging the timeliness of the cost bill, the validity of the 998 Offer and several items on the cost bill. YMUS opposed the motion and submitted numerous receipts in support of the claimed costs.

After having reviewed the papers submitted by the parties, the court rules as follows:

The motion is unopposed.

Discussion

I. Legal Authority

(1) Filing, motion and jury fees;

(3) Transcripts and videotape of "necessary" depositions, plus travel expenses to attend depositions;

(9) Transcripts of court proceedings ordered by the court;

(14) Fees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.

(16) Any other item required to be awarded by statute as an incident to prevailing in the action at trial or on appeal. (CCP § 1033.5(a).)

Unless expressly authorized by law, a prevailing party may not recover the cost of “transcripts of court proceedings not ordered by the court.” (CCP § 1033.5(b)(5).)

When defendant makes a valid offer under CCP section 998 that is not accepted by the plaintiff, section 998 provides that a defendant is entitled to recover enhanced costs, including expert witness fees, where a plaintiff fails to obtain a judgment or award that was more favorable than the defendant’s 998 offer. “Section 998 should be interpreted so as to effectuate its purpose of encouraging the settlement of lawsuits before trial.” (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 698.) To recover enhanced costs, a defendant’s offer to compromise must have been reasonable and made in good faith. (Jones v. Dumrichob (1988) 63 Cal.App.4th 1258, 1264.) The decision whether a 998 offer was reasonable and made in good faith lies within the trial court’s sound discretion. (Elrod v. Oregon Cummins Diesel, Inc., supra at 698-699.) Good faith is a contextually subjective test calculated by whether the offer was “realistically reasonable under the circumstances of the particular case.” (Wear v. Calderon (1981) 121 Cal.App.3d 818, 821.)

II. Analysis

Before getting to an analysis of specific items of claimed costs, there are two legal issues that bear on which costs must be evaluated: Plaintiffs’ claim that the cost bill is untimely, and Plaintiffs’ claim that the 998 offer is invalid. The court will discuss those issues first.

A. Timeliness of the cost bill

Plaintiffs argue that YMUS’s cost bill, which was filed on June 17, 2022 was untimely. Plaintiffs cite California Rule of Court 3.1700, which reads: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk….” (CRC 3.1700(a)(1).) Plaintiffs contend the costs should be denied under that rule. (Mot. 4:3-10.)

In opposition, YMUS contends that the cost bill was timely because it was filed within 15 days of notice of entry plus five days because notice of entry was served by mail. “On May 31, 2022, the clerk served by mail a minute order setting forth the content of the judgment, indicating that judgment in favor of YMUS was signed and filed on May 27, 2022, and ordering the clerk to give notice of entry of judgment.” (Opp. 5:20-21.) It contends that Plaintiffs “fail to recognize that the 5-day extension for documents served by mail in Code of Civil Procedure section 1013(a) applies to Memoranda of Costs.” (Mot. 5:24-26.) YMUS cites to Nevis Homes LLC v. CW Roofing, Inc. (2013) 216 Cal.App.4th 353, 354-358, as supporting that position.

In reply, Plaintiffs also rely on Nevis, arguing “in the very case Yamaha cites, the Court states in no uncertain terms that ‘under the terms of rule 3.1700(a), the five-day extension does not apply when the notice is sent by the clerk pursuant to section 664.5.’ Nevis Homes LLC v. CW Roofing, Inc. (2013) 216 Cal. App. 4th 353, 357.” (Rep. 2:5-9.)

Given the disagreement over the meaning of Nevis, the court has reviewed it closely. In that case, the court addressed a situation in which a party mailed a notice of entry of dismissal and whether CCP section 1013(a) applied. (216 Cal.App.4^th at 354.) The court held as to that issue “No statute or rule of court ‘specifically’ exempts cost memoranda from the five-day mailing extension in section 1013, subdivision (a). Moreover, section 1013, subdivision (a), specifies the items to which the extension does not apply. A memorandum of costs is not among those exceptions.” (Id. at 357.) The court did go on to state “a five-day extension does not apply if the notice is mailed by the clerk of the court,” but that was a recitation of the moving party’s claim citing in a footnote to CCP § 664.5(b), which only applies when the party seeking costs is self-represented (not this case.) (Id. n.4.) In fact, the court stated: “we need not address the theoretical problem raised by Nevis as to what would be the result if the notice were mailed by the clerk.” (Id. at 358.)

When notice of entry of judgment is served by the clerk mailing notice under 664.5 has been the subject of much litigation over the years, in part prompted by amendments to the terms of the statute, which was reviewed by the California Supreme Court extensively in 1997. (See Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 58 –"Some review of the legislative history of Code of Civil Procedure section 664.5 is in order.”) Given the importance of notice of entry of judgment on the issue of post-trial motions and appeals, considerable attention was given to the issue. The court ultimately held:

“To avoid uncertainty, we clarify that—subject to the specified exceptions under Code of Civil Procedure section 664.5, subdivisions (a) and (b), which make notice by the clerk mandatory—when the clerk of the court mails a file-stamped copy of the judgment, it will shorten the time for ruling on the motion for a new trial only when the order itself indicates that the court directed the clerk to mail ‘notice of entry’ of judgment. . . . to qualify as a notice of entry of judgment under Code of Civil Procedure section 664.5, the clerk's mailed notice must affirmatively state that it was given ‘upon order by the court’ or ‘under section 664.5’ and a certificate of mailing the notice must be executed and placed in the file.” (15 Cal.4^th at 64.)

With that guidance in mind, the following happened in this case: On May 27, 2022, a Judgment was signed and filed. A minute order was also filed, which stated

“Judgment is now ordered entered in favor of the Plaintiffs Michael Thabet, Kathy Thabet, George Thabet and Ilham Chaoir and against Defendant John Envieh, in the amount of$1,250,000.

The cross-complaint of John Envieh, not being prosecuted at the time of trial, is now ordered dismissed.

Judgment is signed and filed this date.

Clerk is to give notice of entry of judgment.

Certificate of Mailing is attached.” (Minute order 5/27/22 pages 5-6.)

The certificate of mailing reads in part,

“I, the below-named Executive Officer/Clerk of the above-entitled court, do hereby certify that I am not a party to the cause herein, and that on this date I served the Minute Order (Jury Trial) of 05/27/2022 upon each party or counsel named below by placing the document for collection and mailing so as to cause it to be deposited in the United States mail at the courthouse in Los Angeles, California, one copy of the original filed/entered herein in a separate sealed envelope to each address as shown below with the postage thereon fully prepaid, in accordance with standard court practices.” (Emphasis supplied.)

Thereafter, a revised judgment was filed on June 2, 2022, nunc pro tunc, to May 27 to correct an error in the original judgment. The minute order reflecting the corrected judgment was filed June 2, 2022, and directed that the clerk was to give notice. The certificate of mailing for that minute order shows the final judgment was served by mail on June 2, 2022.

Therefore, the court concludes that the notice of entry of the final judgment was served by mail by the clerk as ordered by the court on June 2, 2022. As stated in Nevis, “ “No statute or rule of court ‘specifically’ exempts cost memoranda from the five-day mailing extension in section 1013, subdivision (a). Moreover, section 1013, subdivision (a), specifies the items to which the extension does not apply. A memorandum of costs is not among those exceptions.” (216 Cal.App.4th at 357.) As a result, YMUS’s cost bill was due by June 22, 2022, and its filing on June 17 was timely.

B. 998 Offer

Plaintiffs assert two challenges to the validity of YMUS’s 998 offer. First, they argue that it is invalid because it fails to set out an apportionment among several plaintiffs, citing Randles v. Lowry (1970) 4 Cal. App. 3d 68, 74 and Meissner v. Paulson (1989) 212 Cal. App. 3d 785, 790-91. (Mot. 4:14-19.) Second, they argue that the $50,000 settlement offer was and unreasonably small token offer that it was not in good faith.

In opposition, YMUS agrees that joint offers to multiple plaintiffs are “generally invalid,” but asserts that “there is an exception for joint offers made to parties who share a unity of interest. McDaniel v. Asuncion, 214 Cal. App. 4th 1201, 1206 (2013).” (Opp. 6:14-15.) McDaniel acknowledged that wrongful death actions are “atypical” because under California law all heirs should join in a single action an obtain a single lump sum judgment. (214 Cal.App.4^th at 1206.) YMUS argues that in this case all plaintiffs were “acting” as one and a single lump sum would also be awarded on the survivor action, making it come within the exemption. They also note that they made a 998 offer to Michael Thabet on his separate claim for his personal injuries, which they claim shows a separation of the various interest between the individual claim (Michael) and the other joint claims. (Opp. 7:7-26.)

In reply, Plaintiffs argue that YMUS has not successfully distinguished Williams v. The Pep Boys (2018) 27 Cal.App.5th 225, which they contend stands for the simple proposition that “a survival claim must be addressed by a 998, or the 998 is a “nullity.” (Reply 2:14.)

It is true that this case is marginally different from Williams in that the survivor claim was brought as a successor in interest by only one of several claimants on the wrongful death action and that all the wrongful death claimants are claimants as successors in interest in the survivor action in this case. But they are different claims brought by Plaintiffs in different legal capacities under different statutory authority. As the Williams court stated:

“If appellants had asserted only a wrongful death cause of action against Pep Boys, its position would have merit. But they did not. Rather, the pending claims Pep Boys offered to settle in December 2014 also included survival claims for strict products liability and negligence asserted by Glenn Williams on behalf of Decedent's estate. Appellants therefore were not seeking to recover for a single, indivisible injury, as the course of the litigation itself makes clear. . . . Because Pep Boys did not apportion its offer among appellants’ distinct claims, its offer was invalid, and the trial court's award of expert witness fees to Pep Boys must be reversed.” (27 Cal.App.5^th at 244.)

This court has not been presented with any persuasive contrary authority and will follow the rule set out in Williams to find YMUS’s 998 offer invalid. Thus, the following items in the cost bill are taxed: Expert witness fees: Item 8 $600,142.18.

Having reached that conclusion, the court declines to address the arguments of the sum being unreasonably small or not in good faith.

C. Unreasonable costs or costs not allowed under CCP section 1035

Plaintiffs object to costs of $93,837.90 listed under category 16 of “Other” contending they are photocopying costs.

They also object to $75,087.03 for travel, hotel accommodations and expenses for trial.

Next, they challenge “$47,335.61 charge for “models, enlargements, and photocopies of exhibits” under Attachment 12c.” (Mot. 9:8-9.)

Last they challenge “$58,055.15 claimed for “deposition costs” within Attachment 4e.” (Id.)

In Opposition, YMUS points out that its verified cost bill is prima facie proof of its validity and that as the prevailing party it “ ‘“entitled as a matter of right to recover costs in any action or proceeding.’ Code Civ. Proc. §1032(b); see Acosta v. SI Corp., 129 Cal.App.4th 1370, 1375 (2005). This means that the prevailing party is entitled to all of his costs unless another statute provides otherwise, and “[a]bsent such statutory authority, the court has no discretion to deny costs to the prevailing party.” Nelson v. Anderson, 72 Cal.App.4th 111, 129 (1999).” (Opp. 11:14-18.)

YMUS summarizes the burden on the party challenging a cost bill as follows: “The burden is on Plaintiffs to demonstrate that a particular cost item is improper or unreasonable. Id. Mere statements in the points and authorities and declaration of counsel are insufficient to rebut the prima facie showing. Santantonio v. Westinghouse Broad. Co.,Inc., 25 Cal.App.4th 102, 114 (1994). Where the reasonableness of an item is challenged, conclusory allegations that the item was “neither necessary nor reasonable” do not satisfy the objecting party’s burden. County of Kern v. Ginn, 146 Cal.App.4th 1107, 1113-1114 (1983).” (Mot. 11:22-27.)

YMUS contends the claimed deposition costs are reasonable and supported by invoices, and points out that Plaintiffs do not identify specific improper charges. (Mot. 12:9-15.) Plaintiffs’ reply does not address this argument, so deposition costs will be awarded in full.

As to the “Other” charges, YMUS breaks them down into 4 subcategories:

1. CourtCall charges. $546. These items are not specifically mentioned in CCP section 1033.5. YMUS argues that they are reasonably necessary and allowable under 1033.5(c)(4). The court has discretion to allow such costs, but costs associated with court appearances are not generally allowable, so the court taxes those costs.

2. Expenses related to personal attendance at hearings. For the same reason as the CourtCall charges are taxed, these charges of $3,610.52 will be taxed as well.

3. Subpoenaed Records. These are common discovery processes that are not listed specifically in 1033.5 as being allowed. Even though they are a necessary part of discovery, discovery costs are generally not recoverable. To the extent these charges represent photocopying, the are not allowed under 1033.59b)(3). $14,680.35 will be taxed.

4. Hotel Expenses. YMUS seeks to have costs paid for travel expenses for the trial team during trial. It cites to Thon v. Thompson (1994) 29 Cal.App.4th 1549, 1549 in support of that claim, but that case deals with travel expenses for depositions that are provided for by statute. By analogy, it argues that they are “reasonably necessary expenses for trial recoverable in the court’s discretion under CCP section 1033.5(c)(4). The court declines to exercise its discretion and taxes $75,087.03 in costs for those charges.

As to the charges listed in 12c, the court’s requirements for multiple photocopies and video clips of exhibits and trial tech provided by a vendor. The court recognizes that the trial tech helps to make the trial move expeditiously, but it is concerned that an individual party who did not participate or use the tech could be charged for the costs that are totally for the benefit of and in control of the Plaintiffs. If the parties jointly agreed to use trial tech and agreed that it would be a recoverable cost, it might be a different situation. In this case, it will not be recoverable, $23,579.75 will be taxed.

D. Plaintiffs’ Ability to Pay Costs

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Plaintiffs argue that they should not be required to pay costs, or at least a large portion of them, due to their financial condition. “A litigant’s inability to pay an adversary’s expert fees under § 998 should be considered by the court as a factor in exercising its discretion as to whether or not to award them as costs.” (Mot. 7:9-10.) Because the court is not awarding expert costs under 998, this argument is moot. A court has no authority to reduce costs allowable under section 1033.5 based on a party’s ability to pay. (See LAOSD Asbestos Cases (2018) 25 Cal.App.5th 1116, 1124-1125.) In addition, the declaration of counsel as to Plaintiffs’ individual resources available to pay costs is inadmissible hearsay, so Plaintiffs have not created a record containing sufficient evidence to support such a finding. (See Id. at 1128.)

In addition, YMUS has provided substantial evidence of ability to pay.

Therefore, the court will not reduce the costs because of Plaintiffs’ financial condition, having approved only reasonable and necessary costs allowable under 1033.5.

Conclusion

Plaintiffs’ motion to tax costs is granted in part. The cost bill of $844,038.18 is taxed in the amount of $717,645.31, so that costs will be allowed in the amount of $126,392.57.