Nicole Nagel, et al. v. Tracy A. Westen, et al.
Case No: 15CV01178
Hearing Date: Mon Sep 23, 2019 9:30

Nature of Proceedings: Motion Strike Tax Memorandum of Costs Filed by Peter K. Westen

Nicole Nagel, et al., v. Tracy A. Westen, et al., #15CV01178, Judge Sterne

Hearing Date: September 23, 2019

Matter:

Motion to Strike/Tax Memorandum of Costs Filed by Peter K. Westen

Attorneys:

For Plaintiffs: Paul J. Laurin, et al. (Barnes & Thornburg – Los Angeles); Jeffrey B. Valle, et al (Valle Makoff, LLP – Los Angeles)

For Defendant Peter Westen: R. Chris Kroes, et al. (McCarthy & Kroes)

Tentative Ruling: The court grants, in part, plaintiffs Nicole Nagel and ESY Investments, LLC’s motion to strike or tax costs in defendant Peter K. Westen’s memorandum of costs. The court orders taxed a total of $10,351.79 in costs, leaving $45,642.95 in allowable costs.

Background: After years of litigation, the court entered an order dismissing the entire action on July 9, 2019. On August 19, 2019, the court heard several motions, including plaintiffs’ motion to strike or tax the memorandum of costs filed by defendant Peter K. Westen. The court adopted its tentative as to the other motions but not the Westen cost motion. The court permitted a supplemental declaration regarding Westen’s expert witness fees and a response. (The minute order says the due date for the declaration was 8/20, which is obviously incorrect since that was the day after the hearing. Westen timely submitted a declaration on August 27.) The court sets forth its tentative ruling on the entire motion below.

Motion to Strike/Tax Costs in Memorandum of Costs Filed by Defendant Peter K. Westen: Defendant Peter K. Westen (“Westen”) filed a memorandum of costs seeking $55,944.74. Plaintiffs move to tax these costs.

A. Standards for Costs and Motions to Strike/Tax Costs: CCP § 1033.5(a) identifies cost items that are allowable under section 1032; CCP § 1033.5(b) identifies items that are not allowable; and CCP § 1033.5(c)(4) provides that “[i]tems not mentioned in this section … may be allowed or denied in the court’s discretion.” “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “shall be reasonable in amount.” CCP § 1033.5(c)(2) & (3).

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. [Citation] Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court….” Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (“Ladas”). “Initial verification will suffice to establish the reasonable necessity of the costs claimed. There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted.” Jones v. Dumrichob, 63 Cal.App.4th 1258, 1267 (1998).

Notwithstanding the above language in Ladas, “the 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].” Nelson v. Anderson, 72 Cal.App.4th 111, 131 (1999). “[I]t is not enough for the losing party to attack submitted costs by arguing that he thinks the costs were not necessary or reasonable. Rather, the losing party has the burden to present evidence and prove that the claimed costs are not recoverable.” Seever v. Copley Press, Inc., 141 Cal.App.4th 1550, 1557 (2006).

B. Deposition Costs: Plaintiffs argue that Westen’s costs related to Nicole Nagel’s deposition duplicate the costs of defendants Derek Westen and Westen Family Group, LLC (“WFG”). For reasons discussed in the court’s August 19 ruling on the motion to tax costs of those defendants, each party is entitled to recover the cost of its own transcripts and videotapes of depositions. The court will not tax these costs.

C. Expert Witness Fees: Plaintiffs object to the $28,681.90 in expert witness fees under CCP § 998. When a plaintiff does not accept a § 998 offer and fails to obtain a more favorable judgment, the plaintiff shall pay the offering defendant’s costs from the time of the offer and the court may require the plaintiff to pay “a reasonable sum to cover postoffer costs of the services of expert witnesses.” CCP § 998(c)(1).

Plaintiffs contend that Dr. Mark Alfano’s testimony was not reasonably necessary as he was designated for the same topics as Dr. James A. Moghtader. Plaintiffs present the descriptions of the two experts’ proposed testimony. Dr. Moghtader was to testify “regarding claims of emotional distress, physical, and psychological injuries.” Dr. Alfano was “to be called as impeachment to counter plaintiff’s claim of certain emotional distress issues, specifically related to an MMPI test which was done by her expert, Dr. Reading; and to provide us with expert information and consultation regarding her psychological claim.” It appears that Dr. Alfano’s consultation, which came well after Dr. Moghtader was retained, was more focused on Dr. Reading’s MMPI testing. These costs appear proper on their face and plaintiffs have not sustained their burden to show they are not properly chargeable or are unreasonable.

Plaintiffs object to certain expert witness fees as having been incurred prior to the CCP § 998 offer. Specifically, plaintiffs point out that David Cook was deposed prior to the offer. Plaintiffs say they do not know the timing of services rendered by the other two experts.

Westen did not address this timing issue in his opposition to the motion. At the hearing on August 19, the court invited a supplemental declaration regarding expert witness fees.

Westen’s counsel submits a declaration attaching his experts’ bills broken down between pre- and post-998 offer fees. (Counsel does not provide electronic bookmarks of the exhibits to his declaration in violation of CRC 3.1110(f)(4). This rule has been in effect since January 1, 2017. Responsible counsel must familiarize themselves with and follow all applicable court rules.) He says the post-offer fees total $32,185.70. (The court has analyzed and added up the purported post-998 offer fees three times and they come to $31,995.70. The difference appears to be $190 for the services of someone named Ryan Dahm, who is not an expert witness.) Of course, the amount of expert witness fees is limited by the $28,681.90 total in the noticed memorandum of costs.

Counsel says the CCP § 998 offer was served on July 19, 2018. It is dated July 19, but the proof of service indicates it was served on July 23. Plaintiffs argue that post-offer costs are costs incurred after July 28, adding five days pursuant to CCP § 1013(a). That subdivision provides: “Service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail….” The court considers “the validity of the offer as of the date it was served.” Burch v. Children’s Hosp. of Orange Cty. Thrift Stores, Inc., 109 Cal.App.4th 537, 549 (2003). Per CCP § 1013(a), service was complete at the time of deposit, which is July 23. That is the date from which post-offer expert witness fees are measured.

The only uncertain evidence is the $6,862.50 billed by Dr. Moghtader on August 31, 2018. Westen presents Moghtader’s August 31 letter, which says this is the amount for work “performed to date.” He does not provide a starting date. He says he is enclosing his invoice, but counsel has not provided that. Counsel says in his declaration that he only included post-998 offer expert costs. But he offers no facts or evidence in support of that conclusion. He did not address the timing of the costs at all in opposing the motion to tax costs and, given another opportunity, he has not presented evidence of when the services reflected in the August 31 letter were performed.

Since allowable expert fees must be incurred after the offer, simply stating a total amount of fees or that fees are for services performed “to date”—August 31—does not make the fees appear proper on their face. Therefore, the filing of the motion to tax costs is a proper objection and Westen has the burden to establish they are post-offer costs. Nelson v. Anderson, supra, 72 Cal.App.4th at 131. As to the $6,862.50, the court has no evidence that any portion was for services performed after July 23. Therefore, the court will tax $6,862.50.

D. Photocopying of Trial Exhibits: Peter seeks $3,206.29 for photocopying exhibits and preparing binders that were not used as there was no trial. The court has discussed this issue at length with respect to Derek Westen and WFG’s costs in the August 19 ruling. The court will tax this amount.

E. Other Costs: Peter seeks costs not expressly provided for in CCP § 1033.5(a).

1. Attorney Service Fees for Personal Service of Documents on Plaintiffs’ Counsel: For reasons discussed in the August 19 ruling, the court will tax this cost of $283.

2. Discovery Referee Fees: Peter seeks $5,720 in discovery referee fees. Plaintiffs challenge the allocation of these fees but not the fact that Peter incurred them. The court has discussed the allocation issue in its August 19 ruling. The court will not tax this cost.

F. Order: The court grants, in part, plaintiffs Nicole Nagel and ESY Investments, LLC’s motion to strike or tax costs in defendant Peter K. Westen’s memorandum of costs. The court orders taxed a total of $10,351.79 in costs, leaving $45,642.95 in allowable costs.