Case Number: SC115968    Hearing Date: August 11, 2014    Dept: I

Daniels v. Leeper Bros., Inc, et al.
SC115968

Tentative Ruling

The prevailing party in this matter, the defendant, Leeper Bros., Inc. has filed a cost memorandum seeking $23,634.33 in costs under the provisions of C.C.P. secs. 1032, 1033.5 and 998. Plaintiff seeks either to strike the cost memorandum as untimely, or, in the alternative, to tax those costs in the amount of $16,305, representing the entire amount of expert witness fees the defendant seeks to recover under C.C.P. sec. 998. The Court will deny plaintiff’s motion to strike the costs memorandum on the ground that plaintiff has shown no prejudice and cannot show any prejudice by having been served with the costs memorandum too soon. The Court will tax the costs sought by Leeper Bros, Inc. by exercising its discretion under C.C.P. secs. 1033.5 and 998 to reduce the expert witness fees by 50 % in light of the indigent status of the plaintiff. [Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550 (Second Appellate District).]

The facts surrounding this motion are largely undisputed. Plaintiff sought substantial damages based on claims arising from an automobile accident that caused electric wires to fall on her automobile. Originally, plaintiff’s claims were based on the theory that she suffered an electrical shock that triggered early onset of the Parkinson’s Disease that has since debilitated her. To defend against this claim, the defendant retained an expert, Gerard Moulin, to examine plaintiff’s vehicle to determine if their was evidence of an electrical shock that could have injured plaintiff. Before trial, plaintiff’s own expert was deposed and testified that he did not intend to suggest to the jury that plaintiff was actually shocked electrically during the accident. Instead, he intended to testify that the “shock” of experiencing this type of accident triggered the early onset of plaintiff’s illness. As a result, Moulin never testified although defendant incurred $3240 in expert fees for Moulin’s work.

At trial, defendant presented the testimony of Dr. Barry Ludwig to dispute the causation between the accident and plaintiff’s illness. Defendant incurred $11,315 in expert witness fees for Dr. Ludwig’s services. In addition, defendant incurred expert witness fees deposing plaintiff’s experts, Dr. Bernard Maister, Kenneth Solomon and James Mills totaling $1750.

Prior to trial, defendant served a C.C.P. sec. 998 offer to settle this matter for $35,000 which plaintiff declined. Plaintiff served a similar demand to settle the case for $299,000 which defendant declined. The jury returned a defense verdict. After the verdict, but before service of notice of entry of the judgment, defendant filed and served his cost memorandum.

Plaintiff argues that, because the cost memorandum was served before the notice of entry of judgment, it must be stricken under the provisions of C.C.P. sec. 664.5 which requires the prevailing party to file a costs memorandum “within 15 days of mailing of the notice of entry of judgment.” In effect, plaintiff complains that she was served too soon. The Court disagrees. The plaintiff has shown no prejudice from being served after entry of judgment but before service of the notice of entry of judgment. To strike a costs memorandum under these circumstances would elevate form over substance to a unacceptable degree.

Plaintiff, however, correctly points out that the Court is required, in assessing expert witness fee demands under C.C.P. sec. 998 to insure that they are reasonable and consistent with the purposes of the section. In Seever v. Copley Press, Inc., supra, the Second Appellate District held that a Court is required to consider the economic disparity between the parties in determining the reasonableness of expert fee awards under C.C.P. sec. 998, and, if necessary, to scale the ward appropriately. [Accord, Holman v. Altana Pharma US, Inc., (2010) 186 Cal.App.4th 262.] Neither Court set forth the standards by which such a determination is to be made. Both courts agreed that it would be rare for a trial court to deny section 998 costs altogether in light of the policy behind section 998 to encourage settlements by forcing a non-settling party who does not achieve a result at trial more favorable than the offer to pay an economic penalty. However, in this case, it is undisputed that the plaintiff is indigent and living in a facility as a charity patient as a result of her debilitating illness. The Court has no other information about plaintiff’s financial resources. However, the Court notes that, at trial, plaintiff’s own C.C.P. sec. 998 demand was $299,000. During opening statements, plaintiff’s counsel told the jury they would be asking for more than $2.6 million in damages. Thus, plaintiff knew that the defense would necessarily spend considerable resources to defend this case. Mindful of the countervailing polices behind C.C.P. sec. 998 to both encourage settlements but not force parties with modest or low incomes to accept settlement offers they view as unreasonable, the Court will reduce the claimed expert witness fees.

Thus, the Court will exercise its discretion by reducing the defendant’s claim for expert witness fees by 50% and tax the costs in the amount of $8,152.50. The Clerk will amend the judgment to reflect the allowed costs in the amount of $15,511.83.