Case Number: TC027151    Hearing Date: July 08, 2014    Dept: K

PIBOON BORRIBOONRATANA v. OTILIA VILLASENOR, No. TC 027151

(1) Motion for Reasonable Attorney’s Fees and Expenses Pursuant to Civil Procedure Code § 2033.420, filed by Plaintiff Piboon Booriboonratana

(2) Motion to Strike Plaintiff’s Memorandum of Costs and/or Tax Costs, filed by Defendant Otilia Villasenor

(3) Motion to Tax Costs, filed by Plaintiff Piboon Booriboonratana

TENTATIVE RULINGS:

(1) DENY

(2) GRANT in part, DENY in part

(3) GRANT in part, DENY in part

ANALYSIS:

Defendant Otilia Villasenor (“Defendant”) rear-ended Plaintiff Piboon Booriboonrata (“Plaintiff”). Plaintiff sued for negligence. Following a four-day jury trial, the jury found Plaintiff to be 40% negligent and Defendant to be 60% negligent, and awarded Plaintiff a total of $5,600 in economic and non-economic damages—for a net award of $3,360.

In his papers, Plaintiff asks this Court to sextuple the jury’s verdict—from $3,360 to $20,693.63. Defendant, for her part, asks this Court to award her $11,366.91 in costs, so that Plaintiff would owe her nearly three times what the jury said she owed him.

The Court considers each of the parties’ motions separately.

(1) Plaintiff’s discovery motion

Plaintiff seeks $4,450 in attorney’s fees and $8,407.50 in expert witness fees (for expert Christopher Gayner). Plaintiff asserts that these fees are warranted because Defendant, in her responses to requests for admissions, (1) denied she was traveling at an unsafe speed; (2) denied she was keeping a proper lookout for traffic; (3) denied she was inattentive; (4) denied she was negligent; and (5) denied she was violating the basic speed law (Vehicle Code section 22350). These denials go to the heart of the case—namely, whether Defendant was negligent.

Civil Procedure Code section 2033.420 empowers a court to award “reasonable expenses incurred”, “including reasonable attorney’s fees,” in proving that a party’s earlier denial of “the truth of any matter.” (Civ. Proc. Code, § 2033.420(a).) However, a court may not award such expenses if “[t]he party failing to make the admission had reasonable ground to believe that the party would prevail on the matter,” (id., § 2033.420(b)(3)), or if “[t]here was other good reason for the failure to admit,” (id. § 2033.420(b)(4)). “In evaluating whether a ‘good reason’ exists for denying a request to admit, a court may properly consider whether at the time the denial was made the party making the denial held a reasonably entertained good faith belief that the party would prevail on the issue at trial.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1276, citation and internal quotations omitted.)

In this case, the Court finds that Defendant had a “reasonable ground to believe [she] would prevail on the matter” and had “other good reason for [her] failure to admit.” Although the jury ultimately found that Defendant was slightly more negligent than Plaintiff, Defendant had a “reasonably entertained good faith” she would prevail based on the evidence that Plaintiff stopped suddenly and for no reason, leaving Defendant insufficient time to stop her vehicle. The Court has no basis upon which to dispute Defendant’s “good faith,” and the jury’s verdict confirms the reasonableness of Defendant’s belief that she might prevail. To the extent Plaintiff argues that a jury verdict inconsistent with an earlier denial of negligence is sufficient, by itself, to justify sanctions under section 2033.240(a), this argument would render Civil Procedure Code section 998 superfluous.

(2) Defendant’s Motion to Tax Plaintiff’s Costs

Plaintiff filed a cost memorandum seeking $20,693.63 in costs. That amount includes the $12,857.50 Plaintiff sought as discovery sanctions. Because, as noted above, the Court is not awarding those sanctions, the remaining costs Plaintiff seeks come to $7,836.13.

Defendant makes two objections to this cost bill. First, Defendant argues that this Court should award no costs because the ultimate recovery falls well below the jurisdictional threshold for an unlimited jurisdiction case. To be sure, when “a plaintiff brings an action in superior court and recovers a judgment within the $25,000 jurisdictional limit of the municipal court, the trial court has the discretion to deny costs to the plaintiff.” (Steele v. Jensen Instrument Co. (1997) 59 Cal.App.4th 326, 330; Civ. Proc. Code § 1033(a).) But the Court will not deny costs in this case because Plaintiff presented evidence that his shoulder surgery cost more than $25,000; the fact that the jury did not ultimately award him damages for that surgery does not mean the case should have been in a limited jurisdiction court all along.

Second, Defendant argues that Plaintiff is not entitled to any costs he incurred after February 14, 2014—the date that Defendant sent Plaintiff an offer letter under Civil Procedure Code section 998 to settle the case for $7,500. The Court agrees with Defendant. When a plaintiff’s trial recovery is less than a pre-trial settlement offer under section 998, the plaintiff may not recover any post-offer costs. (Civ. Proc. Code § 998(c)(1).) Defendant points to several post-offer costs—namely, $650 in jury fees; $2,343.88 in post-offer depositions; $135 to serve a trial subpoena; $320 for witness fees for trial witnesses; $915 for trial exhibit binders; and $1,687.50 in court reporter’s fees for trial. These amounts come to $6,051.38.

Plaintiff objects to Defendant’s inclusion of $735.70 in deposition fees incurred in February 2012 to have Veronica Cortina deposed. Although Cortina never showed, Plaintiff asserts that the costs are recoverable because they pre-date the February 2014 offer. The Court agrees.

Deducting these amounts entitles Plaintiff to costs in the amount of $2,520.45.

(3) Plaintiff’s Motion to Tax Defendant’s Costs

Defendant has filed a cost memorandum seeking $11,366.91 in costs. Although Defendant is not the prevailing party, Defendant is entitled to any costs she incurred after she offered Plaintiff $7,500 to settle the case on February 14, 2014. (Civ. Proc. Code § 998(c)(1).)

Plaintiff raises two categories of arguments. First, he disputes two of the cost items. He argues that Defendant did not incur $360.65 in deposition costs for Thomas Murtaugh because Plaintiff was the one who incurred those costs. Defendant responds that she incurred the $360.65 because she needed two copies of Murtaugh’s transcript. The law allows for only one copy to be charged against the party who took the deposition, and Plaintiff deposed Murtaugh. (See Civ. Proc. Code § 1033.5(a)(3).) Plaintiff also contends that Defendant is not entitled to $550 in interpreter’s fees under Civil Procedure Code section 1033.5. Defendant responds that the $550 in fees were incurred to aid in Cortina’s deposition because she did not speak English, and argues that the Court has discretion to award those fees, (id. § 1033.5(c)(4)). The Court finds that the interpreter was “reasonably necessary” to conduct the deposition, and will award that cost.

Second, Plaintiff asserts that the Court should disallow any cost award because it would impose “a substantial economic hardship” on him. Some cases indicate that a Court possesses the authority to account for financial hardship. Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, noted that trial courts may need “to ‘scale’ . . . section 998 cost awards[] to the parties’ respective resources.” (Id. at 1562). But Seever made this observation as to FEHA cases seeking the vindication of constitutional rights. (Id.). This is not a FEHA case. It is a negligence case. In cases not involving the counter-balancing policy concern of needing to assure a forum for the assertion of constitutional rights, the post-verdict reduction of cost awards based upon relative indigence would undermine section 998’s goal of encouraging reasonable settlement by attaching consequences to the denial of settlement offers that end up being reasonable vis-à-vis the trier of fact’s verdict. Thus, even if Seever were applicable in the context of this case, the Court would not exercise its discretion to reduce the cost award.

Thus, Defendant is entitled to $11,006.26 in costs.

CONCLUSION

Taking into consideration the verdict and the cost awards set forth in this Order, Plaintiff is entitled to $5,880.45. Defendant is entitled to $11,006.26. As a result, Judgment will be entered in favor of Defendant in the amount of $5,125.81. Defendant is ordered to submit an amended judgment so reflecting within 10 days of this order.