Judge: Shirley K. Watkins, Case: 19STCV08851, Date: 2023-01-26 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 19STCV08851    Hearing Date: January 26, 2023    Dept: T

            [TENTATIVE] ORDER:  Defendant Ralph Knapp’s Motions to Tax Plaintiffs Wanda Butler and Patricia Lingle’s Memorandums of Costs are CONTINUED in Part, GRANTED in Part, and DENIED in Part. 

The motion is CONTINUED as to additional briefing on the issue of prejudgment interest.  The parties’ points and authorities are limited to 5 pages.  In that Plaintiffs Wanda Butler and Patricia Lingle are requesting prejudgment interest, they are considered moving parties on the issue and required to file opening and reply briefs.  Defendant Ralph Knapp is ordered to file opposing briefs.  The hearing date is set for _______________, 2023 and the briefing schedule is to follow Code of Civil Procedure section 1005.

The motion is GRANTED only as to Item 16’s costs for “Copy Medical Records” ($944.65 for Lingle; $978.62 for Butler) and “Trial War Room” ($1,974.69 for Lingle; $1,974.70 for Butler.) 

The motion is otherwise DENIED.

Introduction

            Defendant Ralph Knapp (Defendant) moved to tax the separate memorandums of costs (Memos) filed by Plaintiffs Wanda Butler and Patricia Lingle (collectively, Plaintiffs.)

            The Court noted that the legal arguments/issues presented in the body of Defendant’s points and authorities assert the exact same arguments/issues and cite to the exact same legal authorities.  Aside from the dollar amounts at issue and identification of one expert (Butler’s Dr. Hanna and Lingle’s Dr. Kayvanfar,) the two motions are the same.  Because the legal arguments/issues between the two motions are the same, the Court combined the review of the two motions. 

            Procedure

            Defendant objected that both Memos violated California Rules of Court, rule 3.1700(b)(2) by not submitting attachments and/or documents to support how the costs were reached.  However, Plaintiffs’ burden to submit supporting documentation does not arise until Defendant disputed the Memos.  Plaintiffs were not required to submit supporting documentation with the Memos.  (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.)  However, due to the instant motions, Plaintiffs submitted supporting documentation with their oppositions and Plaintiffs met their burden.  Defendant’s objection is not persuasive. 

            Discussion 

            Defendant asserted that the Memos’ request for “Prejudgment interest as applicable” is improper as related to the Offer and also that any such award should be limited in duration due to the COVID-19 Pandemic (Pandemic.)  (See Memos pg. 4 referenced under Item 16.)  Preliminarily, prejudgment interest under Civil Code section 3291 is not included in determining whether the judgment is more favorable than a 998 offer.  (Steinfeld v. Foote-Goldman Proctologic Medical Group, Inc. (1997) 60 Cal.App.4th 13, 18.)  The Court did not take into consideration any prejudgment interest in determining whether Plaintiffs obtained a more favorable judgment, especially since no dollar amount is identified.  Item 16 of the Memos only included costs that identified dollar amounts.  Without a specified amount, supportive facts and legal authority, the request for and/or entitlement to prejudgment interest and/or the duration of time to be applied in calculating prejudgment interest cannot be fully reviewed by the Court.  As such, the Court CONTINUES the issue of prejudgment interest for further briefing, expressly as to entitlement to a specified amount and the calculations in determining the amount, if any is warranted.

            Defendant argued that Plaintiffs did not obtain a more favorable judgment than their pretrial Code of Civil Procedure section 998 offer (Offer.)  Plaintiffs’ Offer was for $299,999.99.  Plaintiffs’ net judgment was for $286,000.00, the difference between the two being $13,999.99.  Defendant argued that costs should not be included into the judgment to determine whether the judgment is more favorable than the 998 offer because the Offer in the instant action is silent as to costs.  Defendant argued that the facts in Stallman v. Bell (1991) 235 Cal.App.3d 740 (Stallman) showed that there was a waiver of costs provision in the 998 offer.  However, Defendant misconstrued the Stallman Court’s opinion.  The Stallman Court distinguished between a plaintiff’s 998 offer that a defendant rejected and a defendant’s 998 offer that a plaintiff rejected.  The Court opined that “both pre- and post-offer costs should be added to the verdict to determine the amount of the judgment” when a plaintiff’s 998 offer is rejected by a defendant.  (Stallman v. Bell, supra, 235 Cal.App.3d at p. 748.)  This is the scenario presented in the instant action.  Plaintiff’s costs are to be included in the judgment to determine the amount of the judgment. 

The Stallman Court then reviewed the 998 offer’s cost waiver provision and opined that the cost waiver provision did not prohibit the Court from adding all costs to the judgment to determine whether Plaintiff obtained a more favorable judgment.  The Stallman Court noted, “the chief purpose of section 998 is to encourage settlement of litigation without trial by penalizing a party who rejects a reasonable offer and forces the action to proceed to trial.  Where, as here, a plaintiff’s offer includes waiver of costs and the defendant rejects the offer, thereby forcing the matter to a trial, allowing the plaintiff to add costs to the award of damages to determine whether the judgment exceeds the offer is consistent with the statutory purpose.”  (Stallman v. Bell, supra, 235 Cal.App.3d at p. 750.)  In the instant action, the Offer is silent as to costs.  Defendant failed to present any legal authority to show that 998 offers that are silent as to costs require the Court to exclude costs from the judgment when determining which party obtained a more favorable judgment.  Without express legal authority to support Defendant’s contention, the Court relies upon the “chief purpose” of the statute to encourage settlement and to penalize the party rejecting a reasonable offer.  The Court finds that all costs are to be included in determining whether Plaintiff obtained a more favorable judgment.

Defendant then argued specific line-item costs that should be taxed or stricken.  Defendant placed into issue Items 2, 4, 5, 11, 12, and 16 in both Memos. 

As to Item 2 Jury Fees, Defendant’s argument is unpersuasive because Plaintiffs explain their calculations for requesting $969.12 by Lingle and $969.13 by Butler.  Because jury fees were divided between Plaintiffs, there is no overlap or duplication of this cost.  Defendant’s motion to tax Item 2 is DENIED.

As to Item 4 Deposition Costs, Defendant argued that the costs for depositions of Sherilyn Hartley ($435.76 from each Memo), Melody McDonald ($418.66 from each Memo), and Sergeant Juan Zelava ($864.70 from each Memo) are duplicative.  However, Plaintiffs explained that the identified amounts are only half of the total fees incurred.  Plaintiffs sufficiently explained the amounts with the attached invoices.  The costs are not duplicative and the motion to tax is DENIED as to these deposition costs.

Defendant argued that deposing treating physicians are not recoverable costs and requested the deposition fees for Dr. Sisto ($2,977.40 from Lingle’s memo and $4,687.86 from Butler’s memo), Dr. Morin ($330.90 from each memo), and Dr. Cappi ($598.30 from each memo) be stricken.  In Evers v. Cornelson (1984) 163 Cal.App.3d 310, 316, the Court discussed the impropriety of expert witness fees and not deposition costs of experts .  The costs identified in the Memos (except as to Butler’s cost for “Taking” the deposition of Dr. Sisto) were for transcribing and/or videotaping and not fees paid to Dr. Sisto by Lingle, Dr. Morin by Plaintiffs, and Dr. Cappi by Plaintiffs.  However, in Butler’s Memo, it would appear that Dr. Sisto was paid $2,000.00 in fees under the “Taking” column.  It is unclear because Butler’s submitted invoices for Dr. Sisto’s deposition do not include a charge for $2,000.00.  (Oppo. Exh. 10.)  Without an invoice showing charges incurred in the “taking” of deposition of Dr. Sisto for $2,000.00, the cost in the Butler’s “Taking” column for Dr. Sisto is found to be improper.  The motion is DENIED as to the deposition costs for these doctors, and as of yet, except as to Butler’s request for $2,000.00 as to the “Taking” of Dr. Sisto’s deposition.  The $2,000.00 as to Dr. Sisto is further discussed below.

            Defendant argued that deposition costs for Defendant’s experts is unrecoverable because these experts were not ordered by the Court and Plaintiffs did not obtain a more favorable judgment.  (See Dr. Kayvanfar ($5,475.16 + $10,659.89 + $12,121.52 = $28,256.57) and Dr. Hanna ($3,119.59 + $3,119.59 = $6,239.18), Dr. Samudrala ($5,901.54), and Dr. Ludwig ($5,335.87).)  As was reviewed above with the costs associated with the other doctors, these costs include the “taking, transcribing and videotaping” of the deposition.  The amounts identified in the transcription column and videotaping column, although identified by Defendant as being at issue, are not argued against.  Defendant’s only argument against the entirety of these costs is that expert fees are not recoverable.  However, transcription and videotaping costs are not expert fees.  Defendant failed to make a cognizant argument against the amounts identified under the transcription and videotaping columns.  As to the amount identified under the “taking” column, Plaintiff submitted the invoices from the four doctors identified.  Based upon the invoices submitted by Plaintiffs, the costs identified as “taking” the depositions were fees paid directly to the doctors and thus improper expert fees unless 998 applies.  As such, the transcribing and videotaping of Dr. Kayvanfar ($1,559.50 + $715.66 + $3,974.55 + $1,085.34 + $3,644.25 + $1,277.27 = $12, 256.57), Dr. Hanna ($1,599.59), Dr. Samudrala ($2,201.54 + $700.00 = $2,907.54) and Dr. Ludwig ($2,035.87) are proper costs.  Whether Plaintiffs are entitled to the “taking” deposition costs for these four doctors will be discussed below. 

            Without addressing Items 5, 11, 12, and 16 yet, the Court notes that Plaintiffs’ costs must exceed $13,999.99 (identified above) in order to obtain a more favorable judgment.  Lingle is entitled to, at minimum, $525.25 (Item 1); $969.12 (Item 2); $18,888.31 (which is the sum of $34,888.31 - $3,200.00 - $5,600.00 - $7,200.00) (Item 4).  Lingle’s costs total, at minimum, $20,382.68.  Lingle’s costs exceeded the $13,999.99 difference between the judgment and Plaintiffs’ Offer.  Butler is entitled to, at minimum, $1,018.95 (Item 1); $969.13 (Item 2); and $13,870.27 (which is the sum of $25,210.27 - $1,520.00 - $3,000.00 - $3,300.00 - $1,520.00 -  $2,000.00) (Item 4).  Butler’s costs, as of yet, totals $15,858.35.  Butler’s costs exceeded the $13,999.99 difference between the judgment and Plaintiffs’ Offer.  Plaintiffs’ judgment, including the costs reviewed in Items 1, 2, and 4 (sans the “taking” column of the doctors in the deposition costs) is more favorable than Plaintiffs’ Offer. 

            Because Plaintiffs obtained a more favorable judgment over the Offer, Plaintiffs are entitled to Defendant’s expert fees identified in the “Taking” column for all the doctors identified in Item 4.

            Defendant’s Motion to Tax Item 4 is DENIED in its entirety. 

            As to Item 5 service of process for Juan Zelava ($48.00), Defendant argued that the cost is duplicative in that it is requested in both Memos.  However, Plaintiffs clarified that the cost in each Memo represents only half of the total cost incurred.  Plaintiffs sufficiently showed that the cost is not duplicative.  Defendant’s argument is unpersuasive and the motion to tax Item 5 is DENIED.

            Plaintiffs’ Memos Item 11 each requested $1,426.12 for “models, enlargements, and photocopies of exhibits.”  Defendant argued that the models, enlargements, photocopies are not reasonably helpful to the trier of fact, are “cutting edge technology” and not necessary.  If the items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.  Mere statements in points and authorities and declaration of counsel insufficient to rebut prima facie showing.  (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486–1487.)  Plaintiffs’ costs, on their face, appear to be proper charges. (Oppo. Exh. 21.)  It is Defendant’s burden to show impropriety.   Defendant failed to meet its burden because the argument is conclusory and without supportive evidence.  The Court does not find prints, color copies, tabs, 3 ring binders, CD and flash drive to be cutting edge technology.  Defendant’s motion to tax Item 11 is DENIED. 

            Plaintiffs requested Court Reporter Fees in Item 12 ($13,585.85.)  Defendant argued that the parties agreed to split the court reporter fees and did not agree that the prevailing party could recover the pro rata share.  (Motion, Exh. 3.)  (Anthony v. Li (2020) 47 Cal.App.5th 816, 824.)  The email exchange between counsels showed that the parties agreed to split the court reporter fees and the cost to provide realtime reporting for the court.  The email exchange expressly stated that each firm would be responsible for transcripts they ordered and realtime, if ordered.  Plaintiffs provided that the “Court Reporter Fees” only consisted of costs incurred in ordering transcripts and their own realtime.  (Oppo. Exh. 18.)  Because Item 12 only included transcript and realtime costs, Defendant’s arguments in taxing these costs is unpersuasive.

            Defendant’s motion to tax Item 12 is DENIED. 

            For Item 16, Defendant requested the following costs be taxed: “Copy Medical Records” ($944.65 for Lingle; $978.62 for Butler), “Trial War Room” ($1,974.69 for Lingle; $1,974.70 for Butler), and “Mediation: ½ fee for mediation” ($675.00.)  As explained by Plaintiffs, the costs are not duplicative as asserted by Defendant.  Plaintiffs requested these costs under the Court’s discretionary powers.  Photocopying costs are expressly not allowable costs unless they are exhibits.  (Code Civ. Proc. sec. 1033.5(b)(2).)  Plaintiffs did not assert that the copying of these records were for trial exhibits so Defendant’s argument is persuasive as to “Copy Medical Records.”  Plaintiffs’ “Trial War Room” is invoiced as “Conference Suite & Amenities” and “Lunch Service.”  (Oppo. Exh. 24.)  Plaintiffs failed to present any facts/argument as to how these costs were reasonably necessary to the conduct of the litigation.  At most, the costs for conference rooms are convenient.  Because Plaintiffs’ costs for a “Trial War Room” are not reasonably necessary to the conduct of the litigation, the “Trial War Room” cost is stricken.  Lastly, Plaintiffs requested “mediation” costs, mediation costs can be awarded in the trial court’s discretion.  (Code Civ. Pro. sec. 1033.5(c)(4); Berkeley Cement, Inc. v. Regents of University of California (2019) 30 Cal.App.5th 1133, 1140-1143.)  The Court finds that mediation in this case was reasonably necessary for the conduct of litigation because it encourages the parties to settle.  Defendant did not present any facts/arguments to show why mediation was not reasonably necessary for the conduct of litigation.  The requested mediation costs are not stricken. 

            The motion to tax Item 16 is GRANTED in Part and DENIED in Part.  The motion is granted as to “Copy Medical Records” ($944.65 for Lingle; $978.62 for Butler) and “Trial War Room” ($1,974.69 for Lingle; $1,974.70 for Butler) costs and DENIED as to “Mediation” costs ($675.00 for each Plaintiff.)