Case Number: BC661638 Hearing Date: December 19, 2019 Dept: A

# 18. Chika Lim v. Chin Wang, et al.

Case No.: BC661638

Matter on calendar for: Motion to Tax Costs

Tentative ruling:

Background

This action arose from a serious vehicle crash on I-10 on May 27, 2016. After trial, Plaintiff Chika Lim was awarded a total of $96,250.00 against Defendants Chin Wang and the Estate of Gregory Smith, allocating 50% liability to both.

Plaintiff’s memorandum of costs claims $71,592.00 in costs. Defendant Wang now moves to tax costs. An opposition and reply have been filed and considered.

For the reasons set forth below, the Court grants the motion in part.

Standard

Code of Civil Procedure § 1032(a)(b) states that a prevailing party is entitled as a matter of right to recover costs in any action or proceeding, unless a statute expressly states otherwise. Code of Civil Procedure § 1033.5(a) lists the costs that are recoverable and includes attorney’s fees when they are authorized by either contract, statute, or law. (C.C.P., § 1033.5(a)(10).)

The memorandum of cost is a verified statement by the party, attorney, or agent that the costs are correct and were necessarily incurred in the case. (Cal. Rules of Court, Rule 3.1700(a)(1).) “If 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, and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) “[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.” (Id. at 699.)

Per Code of Civil Procedure § 1033.5(c) provides: “(1) Costs are allowable if incurred, whether or not paid. (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount. (4) Items not mention in this section . . . may be allowed . . . in the Court’s discretion.” (C.C.P., § 1033.5(c)(4).)

Analysis

Deposition Costs

Defendant’s challenge to the deposition costs rests on the argument that several deponents did not appear at trial. However, “[t]he recovery of deposition costs does not depend on whether the deponent ultimately testifies at trial. [Citation.]” (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 57; C.C.P., § 1033.5(c)(4).) Defendant’s conclusory argument that the depositions were unnecessary because the deponents did not testify at trial is accordingly unpersuasive and fails to adequately challenge the memorandum of costs as unreasonable on their face.

Service of Process Fees

Defendant’s challenge to the service of process fees is derivative of their deposition arguments and likewise fails to challenge the cost of the service fees as unreasonable.

Models, Enlargements, and Photocopies of Exhibits

Plaintiff requests $2,276.25 associated with photocopies and exhibits. This item similarly appears reasonable, and the invoice is included in the opposition. (Decl. Antunovich, Exh. E.)

Court Reporter Fees

The court reporter was not ordered by the Court, thus they are not recoverable. The $5,764.00 must be taxed.

C.C.P § 998 Offer

“The policy behind section 998 is ‘to encourage the settlement of lawsuits prior to trial.’ [Citation.]” (Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1019.) A Code of Civil Procedure § 998 offer made by either the defendant or the plaintiff and refused by the other party creates a fee shift if that party subsequently fails to obtain better results than the offer. (C.C.P., § 998(c)(1).) The statutes states “the plaintiff [or defendant] shall not recover his or her postoffer costs and shall pay the defendant’s [plaintiff’s] costs from the time of the offer.” (Ibid.) Generally, “these costs do not include the fees of experts not ordered by the court.” (Mon Chong Loong Trading Corp. v. Superior Court (2013) 218 Cal.App.4th 87, 93.) Code of Civil Procedure § 998 specifically allows for the addition of expert witness costs in the Court’s discretion: “In addition . . . the court or arbitrator, in its discretion, may require the plaintiff [or defendant] to pay a reasonable sum to cover postoffer costs of the services of expert witnesses . . . actually incurred and reasonably necessary in either, or both, preparation for trial . . . or during trial . . . of the case by the defendant [plaintiff].”

Plaintiff made a $60,000 Section 998 offer on January 11, 2019 to Defendant Wang. After the allocation of fault, Plaintiff was awarded $55,632.50 against Defendant Wang. However, when a Defendant rejects a section 998 offer, both pre-offer and post-offer costs are considered. (Stallman v. Bell (1991) 235 Cal.App.3d 740, 748.) Including costs, it is clear that Plaintiff has exceeded the offer and is therefore entitled to her expert witness services. Although Plaintiff provides invoices for her expert witness fees in opposition, Defendant’s sole attack on the fees is to argue that Plaintiff did not exceed the 998 offer. This is unpersuasive.

Ruling

The motion to tax is granted in part. Plaintiff’s claimed costs are taxed in the amount of $5,764.00

Next dates:

Notice: