Judge Thomas D. Long, Case BC665118 2022-10-27 Tentative Ruling

On May 11, 2022, a jury returned a verdict in favor of Defendants Compton Unified School District and Marco Godinez (collectively, “Defendants”) and against Plaintiff I.C. The same day, the Court entered judgment in favor of Defendants and against Plaintiff.

On May 27, 2022, Defendants filed a verified memorandum of costs and a motion for recovery of post-offer expert costs. On June 10, 2022, Plaintiff filed a motion to strike or tax costs.

On June 17, 2022, Defendants filed a notice of errata re: cost memorandum, and on June 20, 2022, Defendants filed an amended notice of errata re: cost memorandum.

Defendants’ corrected memorandum of costs seeks $173,248.45 in costs. (Amended Errata, Ex. A.)

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.)

Defendants made a settlement offer of $250,001.99 under Code of Civil Procedure section 998 on January 27, 2021. (Lee Decl., Ex. A.) Plaintiff did not accept the offer within 30 days and he recovered nothing at trial, entitling Defendants to their 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).)

Accordingly, the motion is GRANTED IN PART, consistent with the Court’s concurrent ruling on Plaintiff’s motion to tax costs.

“A ‘verified memorandum of costs is prima facie evidence of the propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.” (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486 (Adams).) “[I]f the correctness of the memorandum is challenged either in whole or in part by the affidavit or other evidence of the contesting party, the burden is then on the party claiming the costs and disbursements to show that the items charged were for matters necessarily relevant and material to the issues involved in the action.” (Oak Grove School Dist. of Santa Clara County v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 699.)

Plaintiff moves to strike Defendant’s $2,087.19 in filing and motion fees because Defendants are exempt from filing fees under Government Code section 6103. (Motion at p. 2.) In opposition, Defendants concede this point and withdraw the request. (Opposition at p. 6.)

Plaintiff moves to strike $9,080.65 from Defendants’ $32,594.85 in deposition costs. (Motion at pp. 5-6.)

Plaintiff contends the $610.00 for two certificates of non-appearances of Gisselle Perez should not be recoverable because “the non-appearances of student witness Gisselle Perez was caused by Defendants and not necessary.” (Motion at p. 5.) This is apparently because “[a]t the time of Defendants[’] notice of deposition, Perez was a minor and attended school in their District,” and the depositions were “on weekdays when Perez’[s] mother could not take off work to transport her. Defendants knew that Perez attended Dominguez High School and the deposition could have taken place on campus.” (Id. at pp. 2-3.) But there is no evidence that Defendants actually prevented her from attending the deposition or had the power to produce her for the deposition. Plaintiff provides no authority for striking the costs in this situation.

Plaintiff argues the $621.00 transcript for Dr. William G. Perkins should be stricken because the doctor treated Plaintiff on one occasion after his first surgery, “had nothing to do with Plaintiff’s injuries, and did not testify.” (Motion at p. 5.) The fact that he treated Plaintiff after surgery suggests that his testimony could be relevant. Furthermore, a deponent need not testify at trial for his deposition to have been reasonable and necessary.

Plaintiff moves to strike the $510.50 transcript for Dr. Abimbola Williams-Ajal and $401.50 transcript for Gerald Butcher because they are District employees, did not testify at trial, and “had nothing to do with Plaintiff’s claims or Defendants[’] defense.” (Motion at p. 5.) But Plaintiff put both of these individuals on his June 24, 2021 witness list as Plaintiff witnesses, with Abimbola Williams-Ajal testifying liability and Gerald Butcher testifying about damages. This contradicts Plaintiff’s contention that they are not relevant.

Plaintiff argues that $958.50 for a virtual room and videotaping of the deposition of Arnold Flores was unnecessary because his deposition could have been taken at Dominguez High School and did not need to be videotaped. (Motion at p. 5.) Plaintiff provides no authority for disallowing these costs, especially when remote depositions are expressly allowed by Code of Civil Procedure section 2025.310.

Plaintiff moves to strike “mobile video conference reservations” and “remote video conferencing services” for Gisselle Perez ($275.00), Doug Dickerson ($200), Edmond Provder ($237.50), Dr. Jacob Tauber ($275.00), Dr. Ann Simun ($300.00), Dr. Linden ($500.00), and Kedron Jones ($535.00) “because there should no such fee involved with a virtual deposition.” (Motion at pp. 5-6.) However, these are fees incurred for taking depositions. (Code Civ. Proc., § 1033.5, subd. (a)(3)(A).)

Plaintiff argues the expedited transcripts for Doug Dickerson ($605.40), Edmond Provder ($569.00), Dr. Jacob Tauber ($1,116.25), and Dr. Ann Simun ($1,343.70) were not necessary a year before trial. (Motion at p. 6.) When most of these depositions were taken on March 1, 10, and 12, 2021 (see Rodriguez Decl., Exs. 6-8), trial was scheduled for March 29, 2021. On March 16, 2021, the Court granted Plaintiff’s ex parte application to continue the trial date to July 6, 2021. Dr. Ann Simun’s deposition was taken on June 14, 2021 (see Rodriguez Decl., Ex. 9), only two weeks before June 28, 2021 final status conference, where the trial date was again continued. Thus, the expedited transcripts were not unreasonable.

Plaintiff also moves to strike $323.75 for a rough draft of Dr. Ann Simun’s deposition transcript. (Motion at p. 6.) Only one original and one copy are statutorily allowed. (Code Civ. Proc., § 1033.5, subd. (a)(3)(A).) The Court deducts $323.75.

Plaintiff moves to strike most of Defendants’ $11,639.16 for service of process on the grounds that the subpoenas were issued on a “priority” basis. (Motion at pp. 6-7.) Plaintiff contends that non-priority service of process should be $63.25 for each subpoena. (Id. at p. 7.) However, Defendants can recover the amount actually incurred in effecting service. (Code Civ. Proc., § 1033.5, subd. (a)(4).) The motion is denied as to all requests to strike priority service. (See Motion at pp. 6-11.)

Plaintiff moves to strike $626.10 for service of process on Gisselle Perez because “Defendants noticed depositions for dates and times they knew she was in school, and had no means of transportation.” (Motion at p. 7.) Plaintiff also moves to strike $87.61 for service of process on Jovani Suarez because “[t]his deposition never happened and was not reasonably necessary.” (Ibid.) These costs were actually incurred and are reasonable.

Plaintiff argues $246.02 for requesting records from Montebello Orthopedic Medical Group was unnecessary because Defendants were already in receipt of all records after their March 31, 2019 request. (Motion at p. 7.) In opposition, Defendants explain the multiple requests were necessary due to Plaintiff’s continued and repetitive visits, his three surgeries, and belated records processing by the facility. (Opposition at p. 8.)

Plaintiff also argues that $240.68 for serving trial subpoenas on Montebello Orthopedic Medical Group was unreasonable because Plaintiff had proposed stipulating to the authenticity and admission of all medical records at trial. (Motion at p. 7.) According to the invoices attached to the memorandum of costs, $184.58 was incurred on March 10, 2021, prior to the parties’ June 2021 emails about stipulating to authenticity. (Rodriguez Decl., Ex. 12.) The remaining $156.41 was incurred on November 24, 2021, after it appears there was no agreement as to a stipulation. Additionally, the costs for service were actually incurred. (Code Civ. Proc., § 1033.5, subd. (a)(4).)

Plaintiff moves to strike service of process on Monterey Park Hospital, but he provides no basis for doing so. (Motion at p. 7.) He also moves to strike $90.00 for unreasonable duplication of CD/DVDs. (Ibid.) Obtaining business records through a subpoena is a deposition, and the costs associated with obtaining the records are recoverable costs, not unallowable photocopying costs. (Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 576-578.) Accordingly, the duplication costs are reasonable.

Plaintiff argues that serving trial subpoenas on Monterey Park Hospital was unnecessary because he had proposed stipulating to the authenticity and admission of all medical records at trial. (Motion at pp. 7-8.) According to the invoices attached to the memorandum of cost, $184.58 was incurred on March 10, 2021, $147.70 was incurred on November 19, 2021, and $148.45 was incurred on December 16, 2021. As with the trial subpoenas served on Montebello Orthopedic Medical Group, one of these was prior to any proposed stipulation, and the remaining ones were long after. Additionally, the costs for service were actually incurred. (Code Civ. Proc., § 1033.5, subd. (a)(4).)

Plaintiff contends that $239.14 and $166.04 for service of process on St. Francis Medical Center “seem to be the same transaction” on August 24, 2018, so $166.04 should be stricken. (Motion at p. 8.) The invoices reflect different services, and it is not clear that either is an improper charge.

Plaintiff argues $167.16 and $161.04 for serving trial subpoenas on St. Francis Medical Center was unnecessary because he had proposed stipulating to the authenticity and admission of all medical records at trial. (Motion at p. 8.) These charges were incurred on November 19, 2021 and December 16, 2021, many months after Plaintiff’s proposed stipulation that was apparently not accepted by Defendants. Additionally, the costs for service were actually incurred. (Code Civ. Proc., § 1033.5, subd. (a)(4).)

Plaintiff moves to strike $15.00 for service of a subpoena on Kaiser Permanente because Plaintiff never treated there. (Motion at p. 8.) In opposition, Defendants explain this was reasonably incurred because Plaintiff requested production of Marco Godinez’s medical records. (Opposition at p. 8.)

Plaintiff moves to strike costs for “service of process for Compton Family Mental Health on Items 11, 13, and 51.” (Motion at p. 8.) This includes $86.39 for priority service on Compton Family Mental Health and $258.58 for service of a deposition subpoena on Plaintiff’s non-retained expert “because Plaintiff was coordinating in scheduling the deposition, and thus there was no need for personal service.” (Ibid.) The costs for service were actually incurred and are allowable. (Code Civ. Proc., § 1033.5, subd. (a)(4).) Plaintiff does not explain further about Item 13 and why it should be stricken.

Plaintiff argues that $204.20 and $35.00 for service of process for Dr. Michele Linden was improper because Defendants were attempting to engage in expert discovery before the scheduled expert discovery timelines. (Motion at p. 8.) Plaintiff moved to quash the subpoenas on July 22, 2019 on this ground. Although the costs may have been actually incurred, they were not reasonable. The Court therefore deducts $239.20. Plaintiff also argues that service of a trial subpoena was not appropriate because Plaintiff had de-designated Dr. Linden as an expert witness. (Motion at p. 8.) However, Dr. Linden remained on Defendants’ amended witness list through February 2022.

Plaintiff moves to strike service of process for Dr. Vincent Sghiatti on Items 23, 32, and 33. (Motion at p. 8.) For Item 23, Plaintiff asks to strike $82.90 because it was sent via priority. The costs for service were actually incurred and are allowable. (Code Civ. Proc., § 1033.5, subd. (a)(4).) For Item 32, Plaintiff asks to strike $50.06 because there is no supporting invoice. But “[a] ‘verified memorandum of costs is prima facie evidence of the propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.” (Adams, supra, 199 Cal.App.4th at p. 1486.) Plaintiff does not explain further about Item 33 and why it should be stricken.

Plaintiff argues that $168.72 for service on Absolute PT & Rehab Center should be stricken “because Plaintiff had proposed to the admissibility of all medical records, but Defendants refused.” (Motion at pp. 8-9.) Plaintiff also moves to strike costs for priority service. The costs for service were actually incurred and are allowable. (Code Civ. Proc., § 1033.5, subd. (a)(4).)

Plaintiff moves to strike costs for service on LA Arthritis & Joint Replacement and on Beverly Hospital due to no supporting invoices, Plaintiff’s proposal to stipulate to authenticity and admissibility of all medical records at trial, and priority service. (Motion at p. 9.) For the same reasons discussed above with other items, these costs are proper and no supporting invoice is required.

Plaintiff argues that the subpoena served on Beverly Hospital on March 2, 2020 was unnecessary because Defendants were already in receipt of all records after an August 20, 2019 subpoena. (Motion at p. 9.) There is no evidence that these are the same records or that the service of the subpoena was unnecessary, and the verified memorandum of costs is prima facie evidence of the propriety of the service of process. (Adams, supra, 199 Cal.App.4th at p. 1486.)

Plaintiff moves to strike costs for the September 9, 2019 service of process on LAUSD because “there is no reason for a second subpoena.” (Motion at p. 9.) Plaintiff also moves to strike costs for service on LAUSD due to priority service and no invoice. For the same reasons discussed above with other items, these costs are proper, no supporting invoice is required, and Plaintiff has not shown that the second subpoena was not reasonable or necessary.

Plaintiff moves to strike costs for service of a deposition subpoena on Oscar Marin Martinez because the deposition never happened. (Motion at p. 9.) Plaintiff also moves to strike service of trial subpoenas “because Martinez was not relevant witness and never provided trial testimony.” (Id. at p. 10.) The costs for service were actually incurred and are allowable. (Code Civ. Proc., § 1033.5, subd. (a)(4).) Plaintiff also argues that the $144.86 for Item 39 “seems to be a repeat charge of Item 34.” (Motion at p. 10.) It is not clear that this charge is improper and necessarily duplicative, especially in light of the same amount being charged for service on other individuals.

Plaintiff argues that costs for service on Arnold Flores were unreasonable because they were sent via priority and Defendant served new subpoenas for each new trial date. (Motion at p. 10.) The costs for service were actually incurred and are allowable. (Code Civ. Proc., § 1033.5, subd. (a)(4).)

Plaintiff moves to strike $327.16 for service of process for Dr. Kaylin Skiles because “Dr. Skiles was not needed for Defendants[’] affirmative defenses in this case, and Plaintiff called her during his case in chief.” (Motion at p. 10.) Plaintiff similarly moves to strike costs for service of process for Blain Watson because “Watson was not needed for Defendants[’] affirmative defenses,” for Dr. Yung Rak Cho because Plaintiff called this witness, and for Juan Lugo because he did not actually provide trial testimony. (Id. at pp. 10-11.) Defendants are entitled to subpoena their potential witnesses and need not rely on the uncertainty of whether Plaintiff will also call them. The costs for service of new subpoenas for each trial date were actually incurred and are allowable. (Code Civ. Proc., § 1033.5, subd. (a)(4).)

Plaintiff moves to strike costs for Dr. Alexander Ghatan because he appears to be a witness in another case. (Motion at pp. 10-11.) Defendants agree to withdraw this request. (Opposition at p. 7, fn. 6.) The Court deducts $238.86.

Plaintiff argues that he never treated at Cerritos Medical Office and Bellflower Medical Office, so the $342.92 for service of process should be stricken. (Motion at p. 11.) Defendants do not address this in their opposition. Accordingly, the Court deducts $342.92.

Finally, Plaintiff moves to strike $332.08 for service of process for All Care Physical Therapy because “All Plaintiff provided to Defendant Care Medical Center records and were the joint trial binders.” (Motion at p. 11.) Plaintiff also notes that two records subpoenas were sent during the trial, but no records or witnesses were produced at trial. Even if the records were not introduced at trial, that does not make them unreasonable, and the costs were actually incurred.

Plaintiff argues that the Court should not award any expert fees because the 9–3 jury verdict “was not a substantial victory for Defendants,” and Plaintiff “filed a judgment notwithstanding the verdict, in the alternative, a motion for a new trial, which provides substantial support that the evidence admitted at trial was legally insufficient to support the verdict.” (Motion at pp. 11-12.) The Court denied Plaintiff’s motion, and a 9–3 jury verdict in favor of Defendants is still a verdict in their favor.

Plaintiff moves to strike expert costs for Dr. Wilkerson because she was an economist who did not testify at trial. (Motion at p. 12.) Plaintiff also moves to strike expert costs for Dr. Cunningham, who also did not testify at trial because the Court found that he did not qualify as an expert witness in school safety, and/or his testimony would have been duplicative. (Id. at p. 12.) The Court cannot conclude that these experts were unreasonably retained prior to trial.

Plaintiff moves to strike expert costs for Dr. Amos because he was retained for neuropsychological issues related to TBI, but before Defendants’ 998 offer, Plaintiff provided a supplemental discovery response stating that he was not claiming to have suffered from TBI. (Motion at p. 12.) Defendants do not address this in their opposition. The Court therefore deducts $800.00 because this cost was not reasonably necessary.

Plaintiff moves to strike $2,540.01 “for the unreasonably excessive telephone conversations between Dr. Liberman and Defendants’ counsel.” (Motion at p. 12.) The Court cannot conclude that the conversations were unnecessary or unreasonable.

Plaintiff also argues that Dr. Liberman’s costs for court appearances is excessive “because it was unreasonabl[e] for Dr. Liberman to bill for two 8 hour days, when he only testified for less than 4 hours each day.” (Motion at pp. 12-13.) Defendants’ invoices support the requested amount and show the amount actually billed by Dr. Liberman.

Plaintiff moves to strike $19,000.00 for an invoice issued prior to the 998 offer. (Motion at p. 13.) This invoice “was included inadvertently from Defendants’ file of invoices, but was not part of the tabulation.” (Opposition at p. 3.) The request for $28,950.00 in expert fees is supported by Defendants’ other invoices, and it is apparent that the $19,000.00 invoice was not part of the total that is requested.

Plaintiff argues that Dr. Victor billed for “excessive telephone conversations with counsel” and excessive “preparation for trial,” and he argues that “a reasonable time would have been no more than 10 hours as her testimony was limited to Plaintiff’s claims for emotional distress.” (Motion at pp. 13-14.) The Court cannot conclude that the billed time was unnecessary or unreasonable for assessing Plaintiff’s claims of emotional distress.

Plaintiff moves to strike costs for “excessive telephone conversations with counsel,” unreasonable review of depositions, an interview with a withdrawn expert, an interview with an economist, excessive deposition preparation, case and file review, and transportation during trial. (Motion at pp. 14-15.) The Court cannot conclude that the billed time was unnecessary or unreasonable for assessing Plaintiff’s claims regarding earning capacity.

Plaintiff moves to deduct $753.50 of the $1,353.50 interpreter fees because the invoice shows that Defendants paid only $600.00. (Motion at p. 15.) Defendants concede this issue. (Opposition at p. 8.) The Court therefore deducts $753.50.

The motion to tax costs is GRANTED IN PART. The Court strikes $2,087.19 in filing and motion fees, $323.75 in deposition costs, $820.98 for service of process, $800.00 in expert fees, and $753.50 in interpreter fees.

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