Judge Thomas D. Long, Case BC641142 2022-08-18 Tentative Ruling

On March 22, 2022, a jury returned a verdict in favor of Defendant Alan Traynor and against Plaintiff Marcello Palmieri. On March 23, 2022, the Court entered judgment in favor of Defendant, awarding him his costs “at a later date, pursuant to the filing of a memorandum of costs.”

On April 4, 2022, Defendant filed a verified memorandum of costs, seeking $117,754.84 in costs. Plaintiff was electronically served with the memorandum of costs on the same date. Plaintiff did not file a motion to tax costs within 15 days after service, and the parties did not file an agreement to extend the time for filing a motion to tax costs. (See California Rules of Court, rule 3.1700(a)-(b).)

On June 10, 2022, the Court issued a minute order about some of Defendant’s requested costs that are not listed in Code of Civil Procedure section 1033.5, subdivision (a). Specifically, the Court identified expert fees, “Suite Trial Services,” mediation fees, transcripts of court proceedings not ordered by the court, investigation costs, and miscellaneous “other” costs. The Court therefore set an Order to Show Cause Re: Why the Court Should Allow All of the Items on the Memorandum of Costs. On July 22, 2022, Defendant filed a brief.

Defendant explains that he seeks expert fees pursuant to Code of Civil Procedure section 998. (Brief at pp. 4-5.) If a plaintiff rejects a defendant’s settlement offer under Code of Civil Procedure section 998 and the plaintiff fails to obtain a more favorable judgment, the plaintiff may not recover his post-offer costs and must pay the defendant’s costs from the time of the offer. (Code Civ. Proc., § 998, subd. (c)(1).) These costs may include the defendant’s reasonable costs for expert witnesses. (Ibid.) This includes expert witnesses who are not court-ordered. (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 55.)

Defendant made settlement offers under Code of Civil Procedure section 998 to Plaintiff on May 11, 2018 and January 8, 2019. (Liebhaber Decl., Exs. 1-2.) Plaintiff did not accept the offers within 30 days, entitling Defendant to his actually incurred and reasonably necessary costs for the services of expert witnesses in preparation for trial. (See Code Civ. Proc., § 998, subds. (b)(1), (c)(1).) These fees are therefore allowable.

Defendant explains that Suite Trial Services “provided Defendant’s attorney a conference room during the trial in a location near the courthouse for five (5) days which included lunch services for five (5) days. During the Trial Suite Trial Services also acted as a copy and delivery service for Defendant’s attorney.” (Brief at p. 5.)

The attached invoice for $1,886.80 includes $1,000.00 for five days of a conference room and $208.30 for five days of lunch service. (Liebhaber Decl., Ex. 8.) These are not statutorily allowed costs, and they appear to be for convenience, not for necessity. (See Code Civ. Proc., § 1033.5, subds. (c)(2), (c)(4).) The Court deducts $1,208.30.

The invoice also includes $678.50 for copy and delivery service, which Defendant’s counsel declares is related to allowable models, enlargements, and photocopies of exhibits. (Liebhaber Decl. ¶ 9(d); see Code Civ. Proc., § 1033.5, subd. (a)(13).)

Defendant agrees to withdraw his request for $4,750.00 in mediation fees, dated February 13, 2020. (Brief at p. 6; Liebhaber Decl. ¶ 9.) However, the memorandum of costs reflects more mediation costs.

Defendant seeks $1,725.00 for Judicate West on June 15, 2018, $1,180.00 for Judicate West on July 27, 2018, and $9,500.00 for ADR Services on February 13, 2020. (Memo. of Costs, Attachment 12c.) Mediation costs are not expressly permitted by statute. (See Code Civ. Proc., § 1033.5, subd. (a).) The Court deducts $12,405.00 in mediation costs.

The memorandum of costs seeks $39,255.57 in court reporter fees. In his brief, Defendant now requests a total of $34,505.57 in court reporter fees. This appears to be the amount sought in Attachment 12c, minus the $4,750.00 in mediation fees that Defendant was willing to concede.

Defendant’s brief does not address the fact that transcripts were not court-ordered. However, the provided invoices show that the January 11, 2019, March 4, 2020, and March 9, 2022 (invoice dated March 25, 2022) transcripts were for depositions, which is allowable. (Code Civ. Proc., § 1033.5, subd. (a)(3)(A).)

The Court deducts $272.00 and $112.20 for the trial transcripts on March 21, 2022.

Defendant requests $390.00 for “BadCat Investigations,” incurred on March 21, 2022. (Memo. of Costs, Attachment 16.) Defendant’s brief does not further address this. Investigation expenses are expressly not allowable as costs. (Code Civ. Proc., § 1033.5, subd. (b)(2).)

Defendant provides invoices showing that the “other” costs, except for the investigation costs, are allowable as filing fees, service fees, and fees for electronic presentation of exhibits at trial. (See Code Civ. Proc., § 1033.5, subd. (a).)

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court