Judge: Theodore R. Howard, Case: 18-981410, Date: 2023-08-10 Tentative Ruling

The motion to strike/tax costs filed by Plaintiff, Brookhurst Village Condominium Association (“Plaintiff”) is GRANTED in part and DENIED in part.

Plaintiff moves to strike/tax $4,829.34 in costs claimed by Defendant in its Memorandum of Costs filed on January 31, 2023, and to limit certain expert witness fees to $937.50.  On June 11, 2020, Defendant’s counsel delivered a Code of Civil Procedure (CCP) Section 998 Offer to Compromise for $3,500 to Plaintiff.  (Request for Judicial Notice [RJN], Ex. A.)  Plaintiff did not accept Defendant’s 998 Offer to Compromise and did not obtain a more favorable judgment at trial when it received its Judgment for $650.  (See ROA 177.)  Thus, pursuant to Section 998, Defendant is the prevailing party for purposes of postoffer costs.  (CCP § 998(c)(1); see Scott Co. of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1110; SCI Calif. Funeral Services, Inc. v. Five Bridges Found. (2012) 203 Cal.App.4th 549, 576-578.)

Plaintiff is correct that the cost-shifting provision of Section 998 only applies to those costs incurred after a party conveys a Section 998 offer.  Thus, Defendant is not entitled to recover costs incurred prior to the June 11, 2020, Offer to Compromise.  As Defendant improperly seeks to recover $4,829.34 in preoffer costs (see RJN, Ex. A and Motion at 4:15-5:14), the motion is GRANTED to strike said costs from Defendant’s Memorandum of Costs.

In addition to the above preoffer costs, Defendant seeks to recover postoffer expert witness fees in the amount of $3,750 for expert trial testimony flat fee.  Plaintiff incorrectly argues that costs allowed under section 998 for expert witness fees must be limited to the actual time consumed in examination in court per Government Code § 68092.5.  However, “[t]he reference to Government Code section 68092.5 in section 998, subdivision (h) is interpreted to mean that any fees charged for trial time must not exceed the expert’s normal rate. Costs recoverable under section 998, subdivision (c) expressly include ‘a reasonable sum to cover costs of the services of expert witnesses, ... reasonably necessary in either, or both, the preparation or trial of the case by the defendant.’”  (Santantonio v. Westinghouse Broadcasting Co., Inc. (1994) 25 Cal.App.4th 102, 123-124.)  Here, the claimed costs are authorized by statute and appear proper.  Thus, the burden is on Plaintiff as the party contesting them to show that they were not reasonable or necessary.  (Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-74.)  Plaintiff failed to meet this burden.  Plaintiff states summarily that the fees are “unreasonable”, but failed to offer any evidence or authority supporting its contention.

Accordingly, the Court will exercise its discretion to require Plaintiff to pay the claimed postoffer expert witness fees.  (CCP § 998(c).)  The motion is thus DENIED to the extent it seeks to tax Defendant’s claim of $3,750 in postoffer expert witness fees.

Plaintiff’s request for judicial notice is GRANTED.  (Evid. Code § 452(d).)

Counsel for Plaintiff is to give notice.