Defendants Karmina Dumaua’s and Reymundo Dumaua’s motion to tax costs is GRANTED IN PART. The Court taxes the costs asserted in item 8 of plaintiff’s memorandum of costs by $1,000.00.

Plaintiff Ana Vega’s motion for attorney’s fees is DENIED.

BACKGROUND:

Plaintiff commenced this action on 3/1/12 against defendants for motor vehicle negligence. Defendants filed a cross-complaint for indemnity and contribution.

A jury trial commenced on 10/29/13. The jury reached a verdict on 11/1/13. The jury found that defendant Karmina Dumaua was negligent and that this caused plaintiff’s harm. The total damages were $35,570.00. The jury found that plaintiff was also negligent, and that her percentage of responsibility for the harm was 10%.

A judgment was filed on 1/23/14.

ANALYSIS:

Motion to Tax Costs

The memorandum of costs and instant motion were both timely filed. (See Cal. Rules of Court, rule 3.1700(a), (b).)

Under California Code of Civil Procedure, section 1032, subd. (b), “Except as otherwise provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” A prevailing party is entitled to recover costs as a matter of right under statute. (Davis v. KGO T.V., Inc. (1998) 17 Cal.4th 436, 439.) If the “prevailing party” requirements of California Code of Civil Procedure section 1032, subd. (b) are met, the trial court has no discretion to order each party to bear its own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198.) Plaintiff is the prevailing party pursuant to the jury’s verdict.

During the hearing, “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.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) “This procedure provides an orderly and efficient way of placing disputed costs at issue on a line item basis.” (612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285.)

[T]he mere filing of a motion to tax costs may be a “proper objection” to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. [Citation.] However, “[i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” [Citations.]

The court’s first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. [Citation.] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. [Citation.]

(Nelson, 72 Cal.App.4th at p. 131.)

Therefore, if the Court determines the costs are allowable and proper on their face, the burden is on defendants to show they are unreasonable or not necessary. Where the award of costs is discretionary, the burden is on plaintiff to establish that the costs were reasonable and necessary.

Defendants move to tax the following costs from plaintiff’s memorandum of costs:
· item 5 (service of process) and
· item 8 (expert witness fees).

Service of Process

Costs for service of process are recoverable under Code of Civil Procedure section 1033.5(a)(4). Defendants argue that the Court should tax the service of process costs for service on witness Siefu Million. Other than defense counsel’s conclusory statement that Mr. Million had “no meaningful testimony” and that his testimony was not reasonably necessary, defendants make no showing that these costs are improper. (See McFadden Decl., ¶ 8.) According to the court’s own notes of Mr. Million’s testimony, he testified that he was a parking attendant at the LAUSD structure, Defendant always parked in the structure; he saw the accident, and he reported that other people had complained that there was no side mirror near the exit to the parking structure. The court can not conclude that this witness presented “no meaningful testimony.” Plaintiff’s counsel provides a sufficient explanation for the costs of service by declaring that it was difficult to serve this witness. (See Sullivan Decl., ¶ 5.)

The Court denies defendant’s request to tax service of process costs.

Expert Witness Fees

Section 1033.5(a)(8) allows the recovery of expert fees when “ordered by the court.” Fees for experts not ordered by the court are expressly excluded as recoverable costs. (Code Civ. Proc., § 1033.5(b)(1).) Expert witness fees may be recovered pursuant to CCP section 998. “If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff’s costs.” (CCP § 998(d).)

Defendants first argue that plaintiff cannot recover expert witness costs because plaintiff’s section 998 offer was untimely. Code of Civil Procedure section 998 provides: “Not
less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time.” (Code Civ. Proc., § 998(b).) “For purposes of this subdivision, a trial or arbitration shall be deemed to be actually commenced at the beginning of the opening statement of the plaintiff or counsel, and if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.” (Code Civ. Proc., § 998(b)(3).)

By its terms, section 1013(a) extends “any period of notice” where the paper in question is served by mail. We construe the 10-day notice requirement set forth in section 998(b) to be a “period of notice” within the meaning of section 1013(a) and hold that because the provisions of section 1013(a) apply when a statutory settlement offer under section 998 is served by mail [citation], the provisions of section 1013(a) extend that 10-day notice requirement when the section 998 offer is served by mail. Thus, when (as here) a section 998 offer is mailed from an address in California to an address in California in an action set for trial, the section 998(b) 10-day notice period is extended by five days under section 1013(a), and the offeror is required to mail the offer not less than 15 days prior to commencement of trial. [Citations.]

(Lecuyer v. Sunset Trails Apartments (2004) 120 Cal.App.4th 920, 927.)

Plaintiff’s section 998 offer was served by mail on 10/14/13. The trial commenced fifteen days later, on 10/29/13. Therefore, the offer was timely served. The Court rejects defendants’ argument that the notice period should be further extended because plaintiff used certified mail. Defendants provide no authority for this argument. Certified mail is not differentiated from regular mail in section 1013(a). Should the legislature believe that this should be a different time period for service by certified mail, they can so legislate.

Defendants next argue that plaintiff may not claim costs for expert witness fees for William Martinez and Woo S. Kim. Plaintiff is seeking $1,500.00 for Martinez and $1,000.00 for Kim. The expert fees awardable under section 998 include “reasonable and customary hourly or daily fee for the actual time consumed in the examination of that witness by any party.” (Code Civ. Proc., § 998(h); Gov. Code, § 68092.5(a).)

Defendants argue that the costs for Martinez are not proper because he was not an expert and did not testify at trial. Defendants fail to sufficiently support their assertion that Martinez was not an expert. Defense counsel’s conclusory assertion that Martinez was not an expert because he was a physician’s assistant is not sufficient. (See McFadden Decl., ¶ 6.) An expert need not testify at trial in order to recover his fees. “Reasonable fees may be awarded for experts who aid in preparation for trial even if they do not actually testify. In addition, the court may award itemized charges for the experts’ employees and staff who assist them in preparing for trial.” (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2013) ¶ 12:699 [italics in original].) Plaintiff sufficiently supports the fees charged for Martinez by explaining that she paid the fee in anticipation of calling Martinez to testify, even though she ultimately did not call him. (Sullivan Decl., ¶ 6.)

Defendants ague that the costs for Kim are not proper because he was not an expert and was not called to testify. Once again, defendants fail to establish that Kim was not an expert. However, unlike with Martinez, plaintiff offers no evidence as to the costs incurred regarding Kim. (Plaintiff does refer to Kim in her opposition,but not evidence is presented on this point. See Opposition, p. 6, ¶3; Sullivan Declaration, pp. 6-7.) Because plaintiff fails to establish that the fees for Kim were reasonably incurred, the Court taxes these costs.

Accordingly, defendants’ motion is GRANTED IN PART. The Court taxes the costs asserted in item 8 of plaintiff’s memorandum of costs by $1,000.00.

Motion for attorney’s fees

Pursuant to Code of Civil Procedure section 2033.420,

If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.

(CCP § 2033.420(a).) “Costs may be awarded when the requesting party proves the matter at trial or on a motion for summary judgment.” (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2013) ¶ 8:1404.)

The Court “shall” make this order unless it finds one of the following exceptions:

(1) An objection to the request was sustained or a response to it was waived under Section 2033.290. [¶] (2) The admission sought was of no substantial importance. [¶] (3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter. [¶] (4) There was other good reason for the failure to admit.

(CCP § 2033.420(b).)

Where a party asserts a reasonable ground to believe the denials, the party “must show that at the time of denial, it held a reasonably entertained (i.e., based on admissible evidence) good faith belief that it would prevail on the issue at trial.” (Weil & Brown, ¶ 8:1408.)

Plaintiff is seeking attorney’s fees as a sanction for defendants’ denial of the following RFAs:

· RFA number 3 – admit that plaintiff’s medical bills were reasonable and necessary
· RFA number 5 – admit that you were negligent in the accident.
· RFA number 13 – admit that plaintiff was injured in the accident; and
· RFA number 23 admit that you were 50% responsible for the accident.

As an initial matter, defendants did not actually deny RFA numbers 3 and 13. For these requests, defendant responded with objections and with the substantive response that she was unable to admit or deny the RFAs at the time. (See Pl. Exh. 1.) “Cost-of-proof sanctions are authorized only where the responding party ‘refused to admit’ (i.e., denied) an RFA (CCP § 2033.420). If the responding party simply objected or gave an incomplete answer, the proponent must first move to compel further answers . . . .” (Weil & Brown, ¶ 8:1404.5 [italics in original].) There is no showing that plaintiff ever moved to compel defendant’s further answers to these RFAs. “Failure to do so waives the right to further responses and bars the award of costs-of-proof sanctions (since there is no ‘refusal to admit’).” (Ibid. [italics in original].)

The situation with RFAs 5 and 23 is different. Defendant did deny that she was negligent and that she was 50% responsible for the accident. The jury found that defendant was negligent and was 90% responsible for plaintiff’s injuries.

Defendants argue that plaintiff is not entitled to attorney’s fees because defendant had a reasonable ground to believe she would prevail and because there was other good reason for failing to admit. (See Code Civ. Proc., § 2033.420(b)(3), (4).) “In evaluating whether a ‘good reason’ exists for denying a request to admit, ‘a court may properly consider whether at the time the denial was made the party making the denial held a reasonably entertained good faith belief that the party would prevail on the issue at trial.’ [Citation.]” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1276.) “The fact that matters denied were subsequently proved by uncontradicted evidence, if true, does not make the denial unreasonable per se, in retrospect.” (Haseltine v. Haseltine (1962) 203 Cal.App.2d 48, 61.)

Defendants provide sufficient evidence to support their argument that they had a reasonable belief that they would prevail and a good reason for denying the requests. Defense counsel declares that he determined that liability was questionable because plaintiff was riding her bicycle opposite the flow of traffic and on a city sidewalk when hit, and because there were no mirrors to help drivers exiting the parking structure from which defendant drove. (McFadden Decl., ¶ 2.) Defense counsel consulted with medical and accident reconstruction experts, which solidified his belief that liability and damages were in doubt. (Id., ¶ 5.) At trial, plaintiff testified to facts suggesting that she may have been inattentive at the time of the accident. (Id., ¶ 6.) Experts testified that riding the wrong way against traffic was a dangerous practice, and plaintiff admitted at deposition that she should have been riding with the traffic. (Ibid.) Expert testimony suggested that plaintiff could have been able to avoid the accident had she been paying attention. (Id., ¶ 7.) There was testimony that plaintiff’s medical expenses were not reasonable or necessary. (Id., ¶ 8.)

It appears that plaintiff herself understands that defendant had good reason for denying the RFAs. Plaintiff’s counsel admits that the issue of plaintiff’s injuries was “hotly contested” and that it was “possible . . . that the jury could have found for Defendant Dumaua in this matter.” (Sullivan Decl., ¶ 11.)

Plaintiff’s motion for attorney’s fees is DENIED.