Case Number: BC599928 Hearing Date: September 09, 2019 Dept: 48

MOTION TO TAX COSTS

MOVING PARTY: Plaintiff Fabian Ronisky

RESPONDING PARTY(S): Defendant Sanjeev K. Seth, M.D.

PROOF OF SERVICE:

Correct Address: Yes.
16/21 (CCP § 1005(b)): OK. Served by mail on July 17, 2019.

GRANT motion to tax Item No. 1 in the amount of $1,266.05;
GRANT motion to tax Item No. 4 in the amount of $3,303.35;
DENY motion to tax Item No. 8 in its entirety.

ANALYSIS

On May 30, 2019, the Court entered judgment in favor of Defendant Sanjeev K. Seth, M.D. and against Plaintiff.

Motion to Tax Costs

¿ Item No. 1 (Filing and motion fees).

A prevailing party is entitled to recover filing fees. CCP § 1033.5(a)(1). Costs are recoverable even thought some costs pertain to aspects as to which the party seeking costs did not prevail. Mitchell v. Olick (1996) 49 Cal.App.4th 1194, 1199-1201. Thus, filing fees for unsuccessful motions/applications will not be taxed.

However, the Court does not charge a filing fee for motions in limine. To the extent Defendants are seeking to recover for filing services, these costs should have been claimed as “other.” The motion to strike costs for motions in limine filing fees is GRANTED in the amount of $1.179.10, as requested by Plaintiff.

Further, there is no filing fee for a trial brief. The motion to strike costs for filing the trial brief is GRANTED in the amount of $86.95.

The total amount to be taxed as to Item No. 1 is $1,266.05.

¿ Item No. 4 (Deposition costs).

As discussed below re: Item No. 8, Defendant may recover costs of expert witnesses pursuant to CCP § 998(c)(1). The fact that Defendant retained experts who were not called to testify at trial does not render the costs of their depositions unrecoverable.

The recovery of deposition costs does not depend on whether the deponent ultimately testifies at trial. (See Culbertson v. R. D. Werner Co., Inc., supra, 190 Cal.App.3d at pp. 711–712 [nature of plaintiff’s case determines necessity of discovery].) The standard is whether the cost is “reasonably necessary to the conduct of the litigation.” (§ 1033.5, subd. (c)(2).)

Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 57.

The Court finds that the depositions of retained experts were reasonably necessary to the defense, especially given Defendant’s potential liability.

However, the Court finds to be persuasive Plaintiff’s argument that the costs relating to depositions of non-expert witnesses Stephanie Bergo ($1,685.85, John Gallardo ($720.95), Chalon Ledbetter & Teresita Villarey ($896.55) was not reasonably necessary to the conduct of Defendant Seth’s defense, as their deposition testimony did not related to Seth.

Accordingly, the motion to tax Item No. 4 is GRANTED in the amount of $3,303.35.

¿ Item No. 8 (Witness fees).

Plaintiff argues that Defendant’s CCP § 998 offer of $29,999.99 was a token offer, not made in good faith. Motion, Exh. 1.

Here, Defendant Seth obtained a verdict of no liability, not simply less damages than Plaintiff demanded. This judgment is prima facie evidence that the offer was reasonable, and raises a rebuttable presumption in that regard. Melendrez v. Ameron Internat. Corp. (2015) 240 Cal.App.4th 632, 647-651.

The Court finds that Defendant’s CCP § 998 offer was reasonable and made in good faith. Plaintiff’s claim that the $29,999.99 was a token offer devised to come just under the California Medical Board $30,000 mandatory reporting threshold for medical malpractice settlements does not overcome the presumption of reasonable arising from the complete defense verdict. Moreover, at the time Defendant’s CCP § 998 offer was transmitted to Plaintiff’s counsel, a cover letter estimated expert witness fees to be at least $90,000 from the date of the offer through trial. Opp. Exh. 1. Plaintiff was given a basis for understanding the total monetary value of the settlement offer. Nor does the fact that Plaintiff asked for $15 – $40 million at trial overcome the presumption of reasonableness.

Accordingly, the Court finds that Defendant is entitled to recover expert costs after October 3, 2018 pursuant to CCP § 998(c)(1).

Plaintiff seeks to tax the following expert witness fees on the grounds that these experts were retained but were not called to testify at trial:

DC Delis, Clinical Psychologist – $1,540 and $4,015

Dolan Xitco Consulting Group – $200 and $168.75

Howard Pitchon, M.D. – $15,375 and $750

Nerses Sanossian, M.D. – $2,700 and $11,700

Quality Life Care Plans (associated with Stacey Helvin) – $9,761.25 and $2,223.75

Roger A. Thrush Inc. – $3,815

VWM and QLPC (Quality Life Care Plans) – $13,626.25

However, the costs of an expert for trial preparation is recoverable, even if the expert does not testify at trial. Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 123-24.

Here, given the potential liability of Defendant Seth to Plaintiff’s claimed damages, it was reasonably necessary to the preparation of Seth’s defense to retain these expert witnesses, even if they did not testify at trial. Accordingly, Plaintiff’s objection in this ground is not well-taken.

The motion to tax Item No. 8 is DENIED in its entirety.