Judge Ronald F. Frazier, Case Number: 37-2019-00051240-CU-PO-CTL, Date: 2024-04-26 Tentative Ruling

Judge: Ronald F. Frazier, Case: 37-2019-00051240-CU-PO-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

CENTRAL COURTHOUSE TENTATIVE RULINGS - April 25, 2024

04/26/2024 08:30:00 AM 1603 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Ronald F. Frazier

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited PI/PD/WD - Other Motion Hearing (Civil) 37-2019-00051240-CU-PO-CTL NOUJAIM VS HARD ROCK HOTEL SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff Michael Noujaim's motion to tax and/or strike costs (ROA # 414) is GRANTED in part and DENIED in part.

On September 27, 2019, plaintiff Michael Noujaim filed a complaint alleging causes of action for negligence, premises liability, IIED, and false imprisonment against Hard Rock Hotel San Diego and other Defendants.

On September 2, 2021, Plaintiff amended the complaint to substitute Otis Elevator Company ('Defendant') as a defendant. (ROA #64.) On June 9, 2023, Defendant served Plaintiff with an CCP � 998 offer of $75,000 in exchange for dismissal with prejudice of the action, with each party being responsible for their own fees and costs.

(Amajoyi Dec. (ROA # 417), Ex. A.) Plaintiff did not respond to the offer.

On October 2, 2023, trial commenced and on October 24, 2023, defendants Otis and Hard Rock were awarded a unanimous jury verdict in their favor.

On November 14, 2023, the Court entered judgment on the jury verdict and ordered that Defendant shall recover from Plaintiff costs and disbursements in the amount pursuant to memo, with interest at the rate of ten percent per annum from the date of entry of the judgment.

Defendant Otis Elevator Company ('Defendant') filed a memorandum of costs (ROA # 409) and plaintiffs filed a motion to tax or strike costs (ROA #414). Plaintiff argues that: (1) Defendant's CCP � 998 offer was not reasonable and was a token offer; (2) Defendant is not entitled to pre-CCP � 998 filing costs, service of process costs; and (3) Defendant's costs are unreasonable, unnecessary and not supported by documentation.

Defendant opposes the motion, arguing that it is entitled to the fees, its fees were reasonable and necessary to defend against this action, and provides substantial documentation of its claimed expenses. Further, Defendant argues that it made multiple attempts to resolve this case without going to trial prior to making the CCP � 998 offer, and incurred costs conducting fact and expert discovery and investigation of Plaintiff's claims in order to be prepared to settle the case.

Reasonable CCP �998 Offer Calendar No.: Event ID: TENTATIVE RULINGS

3094355 CASE NUMBER: CASE TITLE: NOUJAIM VS HARD ROCK HOTEL SAN DIEGO [IMAGED] 37-2019-00051240-CU-PO-CTL The Court, having considered the moving papers and the circumstances at the time of the offer, is not convinced that Defendant's CCP �998 offer was unreasonable or made in bad faith.

The party seeking to avoid � 998 penalties bears the burden of proving the rejected offer was a 'token' offer made in bad faith. (Santantonio v. Westinghouse Broadcasting Co., Inc. (1994) 25 Cal.App.4th 102, 116-117.) '[T]he reasonableness of a defendant's offer is measured, first, by determining whether the offer represents a reasonable prediction of the amount of money, if any, defendant would have to pay plaintiff following a trial, discounted by an appropriate factor for receipt of money by plaintiff before trial, all premised upon information that was known or reasonably should have been known to the defendant.' (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692,699.) 'If an experienced attorney or judge, standing in defendant's shoes, would place the prediction [i.e., the amount of the offer] within a range of reasonably possible results, the prediction is reasonable.' Id. If the offer is found reasonable, then the court must next determine 'whether defendant's information was known or reasonably should have been known to plaintiff.' Id. at 699.

In this case, Plaintiff argues that the CCP � 998 offer of $75,000, along with an agreement for each party to bear their own costs, was unreasonable when compared to the injuries and economic damages claimed by Plaintiff.

At the time of the offer the parties had already engaged in extensive discovery and had attended mediation. Accordingly, the parties had an opportunity to assess the strengths and weaknesses of their respective positions. As such, the offer of $75,000 by Defendant appears to be based on a reasonable assessment of Defendant's potential liability and the merits of Plaintiff's case. While the amount is less than what Plaintiff hoped to recover at trial, the Court is not convinced it is unreasonable, especially considering the unanimous jury verdict and the significant costs that would have been otherwise waived.

Plaintiff has not met his burden of demonstrating that Defendant's offer was a 'token offer.' As such, the Court finds that Defendant's CCP � 998 offer was reasonable and valid, and Defendant is entitled to recover reasonable cost, including post offer expert costs incurred by Defendant in preparing for and/or during trial. Further as the prevailing party, Defendant is entitled to recover costs pursuant to Code of Civil Procedure section 1033.5.

Turning to the costs, the Court finds that Defendant is entitled to recover all filing and motion fees ($4,272.65), one half of the jury fees ($694.93), all deposition costs ($16,317), all service of process costs ($2,890.46), all court reporter fees ($7,905), and all costs associated with models/enlargements/photocopies of exhibits ($3,259.39). The Court disallows all costs associated with court ordered transcripts ($7,609) because the Court did not order any transcripts.

The Court is reducing the expert witness fees by $17,704.22 because those fees were incurred pre-offer. Under CCP � 998 a prevailing defendant may recover postoffer costs. This includes, in the court's discretion, costs for expert witnesses, who are not regular employees of any party and that were reasonably necessary either in preparation for, or during, trial or arbitration. (Code Civ. Proc. � 998(c)(1); Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 128.) Defendant tendered its CCP �998 offer on June 9, 2023. As such, the Court has discretion to award any reasonable and necessary expert fees incurred after that date. According to the invoices and documents submitted with the reply, Defendant is improperly seeking the recovery of expert fees incurred prior to the offer. The $44,531.85 in expert witness fees should be reduced in the amount of $17,704.22 [outlined below] leaving allowable costs of $26,827.63.

Calendar No.: Event ID: TENTATIVE RULINGS

3094355 CASE NUMBER: CASE TITLE: NOUJAIM VS HARD ROCK HOTEL SAN DIEGO [IMAGED] 37-2019-00051240-CU-PO-CTL PRE-OFFER COSTS THAT ARE NOT RECOVERABLE Date Provider Service Amount 5/4/22 Andrew Micaraset Elevator Inspect. Mileage $132.80 4/16/23-6/2/23 Talas Engineering, Inc.

Hanhtrinh M. Le, M.S.

Analysis/Meeting $335 2/23/23-4/14/23 Talas Engineering, Inc.

Hanhtrinh M. Le, M.S.

Noah Scheinder Medical Specialist Kathleen Pittman Assistants Review/analysis $5,153.75 3/21/23 ISG Surveillance $1,405 5/8/23 ISG Surveillance $1,961 3/8/22-3/25/22 Mark Hollinger Elevator Consulting $1,935 4/5/34-4/6/23 Mark Hollinger Elevator Consulting Calendar No.: Event ID: TENTATIVE RULINGS

3094355 CASE NUMBER: CASE TITLE: NOUJAIM VS HARD ROCK HOTEL SAN DIEGO [IMAGED] 37-2019-00051240-CU-PO-CTL $540 5/3/22-5/14/22 Mark Hollinger Elevator Consulting $4,873.67 6/3/24-10/24/23 *Deductions have been made to costs appearing to be pre-offer Talas Engineering, Inc.

Hanhtrinh M. Le, M.S.

Medical Analysis $1,368 TOTAL: $17,704.22 Thus, the Court finds that Defendant is entitled to recover $26,827.63 in post-offer expert witness fees.

Finally, turning to 'other' costs, Defendant is seeking to recover $33,493.92 in 'Other Costs.' The Court declines to award Defendant its costs relating to research ($241.41). See Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 [legal research costs and investigation expenses in preparing for trial are explicitly deemed not recoverable items under CCP � 1033.5(b)].

The Court allows Defendant to recover costs ($51.25) relating to a pro hac vice fee (Thomas Baker).

The Court has carefully reviewed the invoices pertaining to meals ($1,867.89), mileage ($1,286.46), airfare ($1,004.79) and auto rental ($241.41) and finds that the amounts sought are reasonable.

The Court has carefully reviewed the invoices pertaining to hotels ($23,814.44 (average of $400-$550 per night) and parking ($1,959) and finds that the amount sought is not reasonable. The Court will reduce the amounts sought to $16,670.11 (hotel) and $1,304.69 (parking).

Thus, the Court finds that Defendant is entitled to recover $22,426.60 in 'other costs.' In conclusion, the Court finds that Defendant is entitled to recover a total of $84,593.66 in costs as listed below. Defendant is also entitled to interest on that amount, at the rate of ten percent (10%) per annum, accruing from November 14, 2023, to the date of this order.

Item 1: $4,272.65 (filing fees) Item 2: $694.93 (jury fees) Item 3: $0 Calendar No.: Event ID: TENTATIVE RULINGS

3094355 CASE NUMBER: CASE TITLE: NOUJAIM VS HARD ROCK HOTEL SAN DIEGO [IMAGED] 37-2019-00051240-CU-PO-CTL Item 4: $16, 317.00 (deposition costs) Item 5: $2,890.46 (service of process) Item 6: $0 Item 7: $0 Item 8: $26,827.63 (expert witness fees) Item 9: $0 Item 10: $0 Item 11: $7,905 (court reporter) Item 12: $3,259.39 (models/enlargements) Item 13: $0 Item 14: $0 Item 15: $0 Item 16: $22,426.60 (other costs) Calendar No.: Event ID: TENTATIVE RULINGS

3094355