Judge: Theodore R. Howard, Case: 19-1061217, Date: 2023-05-18 Tentative Ruling

The Motion to Strike or Tax Costs, filed on 1/20/23 by Plaintiff Grant Stephen Martin, Jr. (“Plaintiff”), as to the Memorandum of Costs (the “MOC”) filed on 1/6/23 by Defendant Marisa Roso (“Roso”), is GRANTED IN PART.

The evidence presented by Roso with the MOC (in ROAs 360 and 371) and in the Opposition to this Motion (in ROA 373) demonstrate that Roso made two C.C.P. § 998 offers, as follows: (a) for $4,000 on 2/1/20 (with each side to bear its own costs of suit), inclusive of all liens in the case; and (b) for $15,000 on 6/5/20 (same). (ROA 360 Ex. A; ROA 373, Exs. 1 & 2.)  The jury verdict for Plaintiff was for $3,000.  (ROA 360 Ex. B; ROA 352.)  This Motion does not dispute Roso’s claim that Plaintiff thus failed to obtain a “more favorable” judgment than either offer, so that C.C.P. § 998’s cost-shifting provisions apply and does not assert that any pre-offer costs should be offset.

The Motion instead argues that some of the costs claimed in the MOC should not be recoverable because it was Mercury that incurred them.  But most of the supporting invoices show Roso’s counsel as the requesting party. (See e.g., ROA 360, Ex. C.)  Although a few shows Mercury’s counsel as the requesting party (see ROA 360 at Exs. E , H and K), the MOC filed by Roso, based on the supporting decl. of her counsel of record, claims that Roso incurred these costs. (See ROA 360.) The Opposition makes the same assertion. As Plaintiff failed to file any reply, Plaintiff seems to now concede that this is so. 

The Motion also complains that the MOC presents invoices which Roso has not shown were paid. But under C.C.P. § 1033.5(c)(1), costs are allowable if incurred, whether paid.

The Motion otherwise fails to show that any of the costs claimed, but for those in Item 16, should not be recovered.  Although the sums claimed for expert witness fees are substantial, the Motion fails to identify what in the invoices presented was excessive and why. For Item 9, the Opposition demonstrates that although the claim was erroneously listed under Item 9 in the MOC itself, the claim is permitted, as shown in the attached worksheet at Item 12, for reporter fees for trial transcripts. No valid basis for taxing any of the other claimed costs, aside from some of those in Item 16, has been shown.

However, on Item 16, the Motion asserts and the Opposition concedes that some of the identified subpoenas were for a different case. Roso thus amended her claim for Item 16 from $5,568.09 to $5,185.01.  In addition, the subpoena-related costs at issue appear to be essentially for photocopying, which is a nonrecoverable cost. (See C.C.P. § 1033.5(b)(3). The Motion is therefore GRANTED for Item 16, except as to the $282 claim for court call costs.

The total sum which Roso may recover based on her MOC is therefore reduced to $59,170.25.

Counsel for Plaintiff is to give notice of this ruling.