Tentative Ruling

Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
James A. Brinkman, et al. v. Robert E. Brown, et al.
Case No: 18CV04177
Hearing Date: Tue Feb 25, 2020 9:30

Nature of Proceedings: Motion to Determine Prevailing Party and to Award Expert Fees

Motion to Determine Prevailing Party and to Award Expert Fees

Attorneys

David M. Grokenberger for Plaintiffs James and Emma Brinkman [“the Brinkmans”]

Gary Bright for Defendants Robert E. Brown and Patricia Sullivan-Brown Santiago [“the Browns”]

Ruling:

1. The motion to determine that the Brinkmans were the prevailing party and are entitled to an award of expert witness fees is denied under either theory.

2. There has been a Cost Memorandum submitted seeking “expert fees (per 998) of $1,852.50” on 12/27/19; counsel are invited to comment on when “an order” related to an award of costs will be submitted in light of this decision.

Background

Judgment was entered on 12/17/19 after a 3-day bench trial.

On 12/27 Brinkman filed a Memorandum of costs seeking filing and motion fees $288.40; deposition costs $753.45; service of process $125; expert fees (per 998) $1,852.50; fees for electronic filling $36.05; court reporter fees $534 = $3,589.40.

On 12/27 Brinkman filed a motion to determine the prevailing party and to award expert fees; supported by a declaration of David M. Grokenberger and Points and Authorities; it was comprehensive; contends that the Brinkmans recovered the greater relief in this action now pending before the Court and are therefore the prevailing party entitled to costs of suit. They claim relief under both a “prevailing party” analysis and the “CCP section 998” analysis.

One of the documents submitted is a chart comparing the Brinkmans offer and the Judgment in support of the motion; it is comprehensive.

The Browns Opposition

Filed 2/11/20; will summarize only; Plaintiffs were not found to be the prevailing parties in the litigation, and Plaintiffs’ attempt to unilaterally add this determination to the proposed Judgment was stricken by the Court; even had Plaintiffs been designated as prevailing parties pursuant to the final judgment, in the non-monetary context of this litigation, an award of costs is purely discretionary, and is properly denied where there is no clear resolution in favor of either litigant; Plaintiffs’ CCP §998 offer, which was based on a maximum tree height as depicted in a photograph, is not readily comparable with the judgment establishing a minimum height based on a per foot off the ground measurement, and where the value to be assigned to either “yardstick” would be purely subjective.

The Court’s Analysis

The Browns claim that the result of the litigation was a demonstrably more favorable result for Defendants compared to Plaintiffs’ CCP §998 offer is an overstatement; the Court can see the reason why the Brinkmans brought their motion; but on balance the Browns’ arguments preponderate in the Court’s opinion.

The Brinkmans’ request is denied. Plaintiffs claim they are entitled to an award of costs, both as prevailing parties and pursuant to their §998 offer, essentially on the basis they were afforded some relief in the form of a lower tree height than Defendants were otherwise willing to maintain. However, the tree height ultimately found by the Court as a minimum height is also close to Defendants’ position that the tree be cut to a minimal height of 22 feet. Also, Defendants were willing to share in the cost of maintaining the tree in accordance with their proposed heights, whereas, under the Judgment, Plaintiffs are solely responsible for these expenses going forward. There was no clear “winner” or “loser” under the final judgment for purposes of a cost award, and the “value” of the judgment to either party for §998 purposes cannot be quantified.