Tentative Ruling

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

CIVIL LAW & MOTION
Michele Siegan v. Taylor Rae Person, et al.
Case No: 19CV01710
Hearing Date: Tue Mar 03, 2020 9:30

Nature of Proceedings: Motion Strike Defendant’s Memorandum of Costs; Motion Tax Costs

(1) Motion of Plaintiff Michele Siegan to Strike or Tax Costs of Defendant Taylor Rae Person

(2) Motion of Defendant Taylor Rae Person to Strike or Tax Costs of Plaintiff Michele Siegan

ATTORNEYS:

For Plaintiff Michele Siegan: Michael Miller, Christopher Light, Light & Miller, LLP

For Defendant Taylor Rae Person: Nykeemah McClendon, Law Office of Marvin P. Velastegui

RULING:

(1) For the reasons set forth herein, the motion of plaintiff Michele Siegan to strike the memorandum of costs of defendant Taylor Rae Person is granted and the memorandum of costs of defendant Person is ordered stricken.

(2) For the reasons set forth herein, the motion of defendant Taylor Rae Person to strike or to tax costs of plaintiff Michele Siegan is granted in part. The motion is granted to disallow certain costs stated herein. The motion is otherwise denied. The Court confirms and awards costs in favor of plaintiff and against defendant in the total amount of $8,019.55.

Background

On April 2, 2019, plaintiff Michele Siegan filed her original complaint in this action against defendant Taylor Rae Person asserting claims arising out of an automobile accident occurring on April 24, 2018.

On May 15, 2019, Person filed her answer to the complaint, generally denying the allegations thereof and asserting 10 affirmative defenses.

On August 6, 2019, Siegan filed amendments to the complaint identifying Angel Lani Person as “Doe 4” and as “Doe 7.”

On October 11, 2019, Siegan requested, and the Court entered, dismissals without prejudice as to Angel Lani Person as Doe 4 and Doe 7.

On October 21, 2019, Person served a Code of Civil Procedure section 998 offer on Siegan. (Miller decl., ¶ 2; McClendon decl., ¶ 2 & exhibit A.)

On October 29, 2019, Person served a subsequent Code of Civil Procedure section 998 offer on Siegan. (Miller decl. re Siegan motion, ¶ 2 & exhibit A; McClendon decl. re Person motion, ¶ 3 & exhibit B.) The terms of the offer are discussed below. The October 29 offer was rejected later on October 29. (McClendon decl. re Person motion, ¶ 4 & exhibit C.)

On November 21, 2019, the jury reached a verdict finding in favor of plaintiff Siegan and against defendant Person and awarding damages in the total amount of $33,000.

Judgment was entered on January 3, 2020, consistent with the jury verdict. The judgment states that each party’s entitlement to costs, if any, shall be determined by the Court in subsequent proceedings.

On January 21, 2020, Person filed a memorandum of costs claiming costs in the total amount of $80,751.13.

On January 28, 2020, Siegan filed a memorandum of costs claiming costs in the total amount of $12,788.57.

On February 4, 2020, Siegan filed a motion to strike Person’s memorandum of costs.

On February 13, 2020, Person filed a motion to strike or to tax Siegan’s memorandum of costs.

Both motions are now before the Court and are opposed.

Analysis

Each party argues that the other party is not entitled to costs as a consequence of the judgment and the effectiveness, or not, of the section 998 offer. As a result, both of the motions now before the Court depend initially upon the effectiveness of the section 998 offer. Both the October 21 offer and the October 29 offer are identical except for the amount offered. Because neither offer was accepted and Siegan did not exceed the amount offered in either offer, only the second offer’s terms are to be considered here. (See Wilson v. Wal-Mart Stores, Inc. (1999) 72 Cal.App.4th 382, 389–390 [new section 998 offer extinguished and replaced prior offer where new offer communicated prior to acceptance of previous offer].)

The October 29 offer provides for payment to Siegan of $65,000 in exchange for:

(1) “Plaintiff agrees to provide Angel Lani Person and defendant, Taylor Rae Person, with a fully executed Request for Dismissal with Prejudice in favor of Angel Lani Person and defendant, Taylor Rae Person, pertaining to all causes of action for which Angel Lani Person and defendant, Taylor Rae Person are sued herein in, on or before delivery of the settlement check to Plaintiff’s attorney;”

(2) “The execution and transmittal of a General Release by plaintiff in favor of Angel Lani Person and defendant, Taylor Rae Person, for all claims raising out of the incident which is the subject of the above-entitled action;”

(3) “Plaintiff agrees to satisfy all liens arising from Plaintiff’s claims at issue in this lawsuit. Plaintiff further agrees that the settlement check may list as payees all known lienholders, other than those who have executed a written lien waiver that has been delivered to Defendant’s attorney;” and,

(4) “Each party is to bear their own respective costs and attorneys’ fees.” (Capitalization altered.)

Siegan argues that October 29 offer is invalid because the offer improperly includes a dismissal and release as to Angel Lani Person, who was not then a party to the action. Person argues that counsel for Siegan represented to counsel for Person that a settlement would include Angel Lani Person at different points in the ligation and that even if the offer is invalid as to Angel Lani Person, the offer is valid as to defendant Person. In support of Person’s opposition to Siegan’s motion, counsel for Person declares: “On October 18, 2019, October 25, 2019, November 1, 2019, Plaintiff Counsel intimated to Defendant that a claim against Angel Lani Person would be pursued if a settlement was reached.” (McClendon decl. re Siegan motion opposition, ¶ 4.)

“ ‘As a general rule, the prevailing party in a civil lawsuit is entitled to recover its costs. [Citation.] However, section 998 establishes a procedure for shifting the costs upon a party’s refusal to settle. If the party who prevailed at trial obtained a judgment less favorable than a pretrial settlement offer submitted by the other party, then the prevailing party may not recover its own postoffer costs and, moreover, must pay its opponent’s postoffer costs, including, potentially, expert witness costs. [Citation.]’ [Citation.]” (Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81, 86.)

“It is well-established that a purported section 998 offer ‘requiring the release of claims and parties not involved in the litigation is invalid….’ [Citation.] ‘That limitation exists because of the difficulty in calculating whether a jury award is more or less favorable than a settlement offer when the jury’s award encompasses claims that are not one and the same with those the offer covers. [Citations.]’ [Citation.] If the settlement offer includes ‘terms or conditions, apart from the termination of the pending action in exchange for monetary consideration, that make it exceedingly difficult or impossible to determine the value of the offer to the plaintiff,’ the offer is invalid under section 998. [Citation.] Requiring resolution of potential unfiled claims not encompassed by the pending action renders the offer incapable of valuation.” (Ignacio v. Caracciolo, supra, 2 Cal.App.5th at pp. 86–87.)

“Indeed, because the proponent of the offer has the burden of establishing its validity, ambiguity as to whether the offer encompasses claims beyond the current litigation is sufficient to render the offer invalid under section 998.” (Ignacio v. Caracciolo, supra, 2 Cal.App.5th at pp. 87–88.)

At the time the October 29 offer was made (and also when the October 21 offer was made), Angel Lani Person was not a defendant in this action. The only defendant in the action was defendant Person. The jury verdict reflects a disposition only of the action as between plaintiff Siegan and defendant Person. The evidence presented in this motion, including Person’s counsel’s evidence, is that plaintiff Siegan asserted claims separately against Angel Lani Person. So, while it is wholly understandable why counsel for Person would want to resolve simultaneously all claims both against defendant Person and against Angel Lani Person, the October 29 offer is invalid because it includes as part of the exchange of consideration the release of claims that were not then before the Court. The application of this well-established rule renders the October 29 offer invalid for purposes of section 998 as to all parties.

In the absence of a valid section 998 offer, the Court is left to determine the prevailing party based solely upon a judgment rendered in favor of Siegan and against Person. “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) “ ‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Code Civ. Proc., § 1032, subd. (a)(4).)

Defendant Person is not a prevailing party under the definition of section 1032, subdivision (a)(4). Therefore defendant Person is not entitled to recover costs. Plaintiff Siegan’s motion to strike defendant Person’s memorandum of costs will be granted. Plaintiff Siegan is the prevailing party under the definition of section 1032, subdivision (a)(4). Defendant Person’s motion will be denied on the same basis to the extent that the motion seeks to strike the entirety of the memorandum of costs on the basis of the section 998 offer.

Defendant Person alternatively seeks to tax costs. The first cost challenged is service of process costs on Angel Person for $425. Costs for service of process are generally allowed. (Code Civ. Proc., § 1033.5, subd. (a)(4).) However, “[a]n award of costs shall be subject to the following: [¶] … [¶] Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).) The court does not find that service costs on Angel Person were reasonably necessary to the litigation against defendant Person. Angel Person was never served and was voluntarily dismissed without an appearance by her. (Miller decl. re Siegan motion, ¶ 3.) This cost will be disallowed.

Person next challenges costs identified in item 16 (“other”). As Siegan acknowledges, these costs are not awardable as of right. “Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” (Code Civ. Proc., § 1033.5, subd. (c)(4).) These items fall into four categories: travel expenses for trial and court proceedings, attorney travel expenses to the IME, CourtCall fees, and medical records fees. No evidence is provided as to these items except the memorandum of costs itself.

The burden for costs not awarded as a matter of right but in the court’s discretion is on the party claiming the costs. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775–776.) The Court does not find that travel expenses for trial and court proceedings are reasonably necessary. These expenses exist as a result of plaintiff’s choice of counsel being physically distant from Santa Barbara. This may have been convenient and beneficial to plaintiff, but these expenses are not shown to be of the sort for which it is appropriate to charge the defendant under the standards of section 1033.5. The Court also finds that plaintiff has not shown that the costs claimed for attorney travel to the IME are properly awarded. There is no evidence presented regarding the IME and hence no basis for the Court to find that such expenses are reasonably necessary.

With respect to CourtCall and medical records, the Court can reasonably infer that such expenses are reasonably necessary. CourtCall provides a significant efficiency for all counsel to avoid time and travel expenses (which travel expenses, absent CourtCall, might otherwise be shown to be reasonably necessary). The Court will award the CourtCall expenses. Medical records fees may also be reasonably inferred as necessary in a personal injury action and will be allowed.

In summary, Siegan claims, and such claims are unchallenged and allowed, for cost items 1 ($495.00), 2 ($750.06), 4 ($1,202.44), 8 ($4,220.00), 12 ($561.89), and 14 ($318.16). The Court allows in part cost items 5 ($145.00 allowed) and 16 ($327.00 allowed). Total costs allowable are therefore $8,019.55.