2015-00180204-CU-PO

Estella Birt vs. 99 Cents Only Stores, LLC

Nature of Proceeding: Motion to Recover Costs of Proof and/or Expert Fees

Filed By: Pagliero, James R.

** If any party requests oral argument, then at the time the request is made, the requesting party shall inform the court and opposing counsel of the specific issue(s) on which oral argument is sought. **

Defendant 99 Cents Only Stores’ (99 Cents) motion to recover costs of proof and/or expert fees pursuant to CCP §§ 998, 1032, 1033.5 and 2033.420 is GRANTED in part and DENIED in part.

On its own motion, the court takes judicial notice of 99 Cents’ 11/28/18 Moving Memorandum of Points and Authorities in support of its motion for summary judgment.

The Clerk of the Court is directed to change the security clearance on the Declaration of James Pagliero filed on 11/28/18 so that it is not available for public viewing. The declaration contains unredacted social security numbers. (See

Exh. Q.)

99 Cents shall promptly re-file the 11/28/18 Pagliero Declaration with appropriate redactions where social security numbers currently appear. No motion to seal is required.

Overview

This is a post-judgment personal injury case for premises liability and negligence. Plaintiff Estella Birt (Birt) alleged that she tripped on a bump/lift/wrinkle in a mat located at a 99 Cents store’s front entrance. The court disposed of the entire complaint on 4/30/18, when it granted 99 Cents’ motion for summary judgment. (Judgment was entered on 6/04/18.) The motion was granted because it was undisputed that 99 Cents neither knew nor should have known about the mat’s dangerous condition before Birt tripped. (See Order of 4/13/18.) When it moved for summary judgment, 99 Cents tendered evidence, including video surveillance footage, showing that third parties created the bump in the mat a few minutes before Birt tripped.

99 Cents now moves for two types of costs. First, it seeks attorney’s fees and other costs incurred to prove facts that Birt failed to admit in her responses to requests for admissions. (See CCP § 2033.420.) Second, 99 Cents moves for its expert witness fees incurred after its first § 998 offer expired. (See CCP § 998(c)(1).) Birt opposes.

Discussion

Jurisdiction

In her opposition, Birt argues that the court lacks jurisdiction to award fees or costs given the appeal she has taken from the judgment. The argument lacks merit. This court may fix fees and costs notwithstanding a pending appeal. (See Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 360.) Whether Birt must post a bond to stay enforcement of an award under CCP § 998(c) is a different matter. (See Gallardo v. Specialty Restaurants Corp. (2000) 84 Cal.App.4th 463, 467-468.)

Costs Incurred to Prove Matters that Birt Failed to Admit DENIED

CCP § 2033.420 provides:

(a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. (Emphasis added.)

(b) The court shall make this order unless it finds any of the following:

(1) An objection to the request was sustained or a response to it was waived under Section 2033.290.

(2) The admission sought was of no substantial importance.

(3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter.

(4) There was other good reason for the failure to admit.

99 Cents is not entitled to fees incurred proving its requests for admissions because it did not “thereafter” prove such matters. Under section 2033.420, awardable fees and expenses are limited to those incurred after a responding party fails to admit requests for admissions. (See Garcia v. Hyster Co. (1994) 28 Cal.4th 724, 736.) In the instant case, 99 Cents filed its summary judgment moving papers as well as its reply before Birt’s responses to the requests for admissions were due. (See Opp. at 4:25-5:9.) Given this timeline, 99 Cents is not entitled to an award under CCP § 2033.420.

Expert Witness Fees under CCP § 998(c)(1) GRANTED in part / DENIED in

part

99 Cents served Birt with a § 998 offer on or about 12/29/17. (See Pagliero Decl., Exh. G.) 99 Cents served a second § 998 offer on or about 3/29/18, but that offer was withdrawn before the time of acceptance and does not support 99 Cents’ current motion. (See Pagliero Reply Decl., ¶ 3; One Star, Inc. v. STAAR Surgical Co. (2009) 179 Cal.App.4th 1082, 1093-1094 [where second offer is withdrawn, cost-shifting provisions in § 998 are based on first offer that was not accepted.) Birt did not accept the 12/29/17 offer, which was for the amount of $2,500 in exchange for a dismissal and waiver of costs. After the offer lapsed, a retained engineer and two retained medical experts invoiced 99 Cents for services totaling $27,416.50. (See Pagliero Decl., ¶ 22.)

An award of expert fees incurred after a § 998 offer expires is discretionary, not automatic. (CCP § 998(c)(1).) In addition, only a “good faith” offer triggers the cost-shifting provisions in § 998(c). A good faith offer “’must be realistically reasonable under the circumstances of the particular case.’” (Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, 1112.)

As a general rule, the reasonableness of a defendant’s offer is measured, first, by determining whether the offer represents a reasonable prediction of the amount of money, if any, defendant would have to pay plaintiff following a trial, discounted by an appropriate factor for receipt of money by plaintiff before trial, all premised upon information that was known or reasonably should have been known to the defendant. It goes without saying that a defendant is not expected to predict the exact amount of his exposure. If an experienced attorney or judge, standing in defendant’s shoes, would place the prediction within a range of reasonably possible results, the prediction is reasonable. [Citation.]

If the offer is found reasonable by the first test, it must then satisfy a second test: whether defendant’s information was known or reasonably should have been known to plaintiff. This second test is necessary because the section 998 mechanism works only where the offeree has reason to know the offer is a reasonable one. If the offeree

has no reason to know the offer is reasonable, then the offeree cannot be expected to accept the offer. (Boldface added.)

(Elrod v. Oregon Cummins Diesel, Inc. (App. 3 Dist. 1987) 195 Cal.App.3d 692, 699.)

The parties dispute whether 99 Cents’ $2,500 offer was reasonable and in good faith. In Birt’s view, the offer was a “token” or “nominal” offer, a type that usually does not satisfy the good faith requirement “unless it is absolutely clear that no reasonable possibility exists that the defendant will be held liable.” (Wear v. Calderon (1981) 121 Cal.App.3d 818, 821; see id., p. 819 [$1 offer was not made in good faith].) 99 Cents counters that, despite the low amount, the offer was reasonable given video surveillance footage precluding liability. As one court recently noted:

Notwithstanding plaintiffs’ perception of their likelihood to prevail, “[w]hen a defendant perceives himself to be fault free and has concluded that he has a very significant likelihood of prevailing at trial, it is consistent with the legislative purpose of section 998 for the defendant to make a modest settlement offer. If the offer is refused, it is also consistent with the legislative intent for the defendant to engage the services of experts to assist him in establishing that he is not liable to the plaintiff. It is also consistent with the legislative purpose under such circumstances to require the plaintiff to reimburse the defendant for the costs thus incurred.” [Citation.]

(Melendrez v. Ameron Internat. Corp. (2015) 240 Cal.App.4th 632, 650.)

The court agrees with 99 Cents. Birt filed this action in June 2015. In October of that year, 99 Cents provided Birt’s counsel with several minutes of video surveillance footage that included Birt’s fall. (See Pagliero Decl., Exh. D.) The video shows that, approximately six minutes before Birt fell, another 99 Cents customer moved a shopping cart across the mat and caused the mat to buckle. (See id., Exh. L at 2:8-20.) After the customer caused the initial bump in the mat, but before Birt fell, a security guard compounded the buckling by tripping over the bump and lifting it several inches. (See id.) By April 2016, when 99 Cents served its mediation brief, it notified Birt of its position that it was not liable because no 99 Cents employee was actually aware of the mat’s buckled condition before Birt fell, and because the buckling had not existed long enough to establish constructive notice. (See Reply at 3:4-9.) Thus, regardless of any harm Birt might have sustained, 99 Cents reasonably determined that the evidence would absolve it of liability. (See MSJ Moving Memo., Part V-A [citing authorities for the proposition that dangerous conditions on premises for fewer than seven minutes do not support landowner liability on a theory of constructive notice].)

It appears Birt never investigated whether the security guard shown on the video was a 99 Cents employee. (See Moving Memo. at 7:18.) Nonetheless, by the time 99 Cents served the § 998 offer in December 2017, Birt should have understood that, absent evidence that the security guard was a 99 Cents employee or agent, 99 Cents was unlikely to be found liable. (See Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102,120 [“’[I]f a defendant makes a low offer shortly before trial based upon potent evidence likely to insulate defendant from liability, and if the evidence was reasonably available to plaintiff, defendant’s offer may qualify as a valid section 998 offer even though plaintiff did not in fact know of the information because

he failed to investigate or pursue discovery’”], italics omitted.)

Birt does not explain why she failed to investigate whether the security guard in the video footage was 99 Cents’ agent. Instead, she focuses on the disparity between the $2,500 offered and her then-existing medical lien of approximately $31,000. (See Opp. at 7:9-14.) But given the unlikelihood that 99 Cents would be found liable, the modest offer of $2,500 to settle was not in bad faith. Notably, it was Birt’s burden to establish bad faith. (See Santantonio, p. 117.)

Having concluded that 99 Cents’ $2,500 offer was in good faith, the court turns to the reasonable necessity of the expert fees incurred. (See CCP § 998(c)(1).) Because Birt has objected to an award of fees or expenses, the burden was on 99 Cents to prove reasonable necessity. (See Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265.)

Neuman

99 Cents seeks fees charged by three experts. The first expert is William R. Neuman (Neuman), an engineer and accident reconstruction expert. Neuman submitted a declaration in support of 99 Cents’ summary judgment motion. (See Pagliero Decl., Exh. J.) Neuman sent 99 Cents three separate invoices for the collective amount of $5,216.50. (See id., Exh. Q.)

Neuman’s fees for services were reasonably incurred. The court awards 99 Cents Neuman’s fees in the amount of $1,500 for professional services rendered in 2018. Neuman’s $300 hourly rate is reasonable.

The court denies the additional fees that Neuman charged for work performed in May and September 2017–before the § 998 offer was made. As of January 2016, § 998 only authorizes awards of expert fees incurred post-offer. (See CCP § 998(c).)

The court also denies Neuman’s minor charges for mileage and photos.

Dr. Hoddick

Next, 99 Cents seeks fees that its radiologist and medical billing expert William K. Hoddick, M.D. (Dr. Hoddick) charged. Dr. Hoddick billed $1,800 on 4/05/18 for 4.8 hours reviewing medical records, medical imaging and litigation records. (See Pagliero Decl., Exh. Q.) Dr. Hoddick’s hourly rate of $375 is reasonable. The court awards 99 Cents the amount of $1,800.

Dr. Yablon

Finally, 99 Cents requests fees that another medical expert, Jeffrey Yablon, M.D. (Dr. Yablon) charged in April 2018. The court denies these fees because 99 Cents has failed to substantiate their reasonable necessity. The materials before the court do not justify Dr. Yablon’s $800 hourly rate or the time he spent reviewing medical records. Perhaps 99 Cents had reason to retain a second medical expert for a records review, but its papers do not disclose that reason. As to the $800 hourly rate, the only supporting evidence offered is the Pagliero Declaration, in which counsel asserts that each expert’s rate is based on the expert’s education and experience “as set forth in the attached expert disclosures.” (See Pagliero Decl., ¶ 21.) The expert disclosures

are not attached. This record does not substantiate the reasonableness of Dr.

Yablon’s hourly rate or the reasonable necessity of the time he spent on the case.

The court makes no award.

Fees and Costs Incurred to Bring or Oppose This Motion

Given the mixed results of the motion, the court does not award fees or costs incurred to bring or oppose this motion.

The court notes Birt’s position that 99 Cents’ counsel intentionally misrepresented the fact that 99 Cents’ second § 998 offer supports an award of expert fees. As noted above, the second offer was withdrawn before it could be accepted. The court finds that the misrepresentation was inadvertent, and no sanctions are imposed. Counsel for 99 Cents is advised to use greater care in the future.

The court also notes Birt’s argument that 99 Cents was not required to move for its fees and costs, and that a memorandum of costs alone would have sufficed. Birt suggests that she should be awarded fees and costs incurred to oppose the motion because the motion was unnecessary. Because a party seeking fees and costs under CCP § 998(c) may bring a motion, the court rejects the argument. (See Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 799, superseded by statute on another point as stated in Gallardo, supra, p. 470.)

Disposition

99 Cents’ request for discretionary expert witness fees is granted in the amount of $3,300.

The balance of the motion is denied.

Pursuant to CRC 3.1312, 99 Cents shall lodge for the court’s signature a formal order tracking the language above. The court will not sign the order until a redacted Pagliero Declaration has been filed.

Item 3 2015-00180204-CU-PO

Estella Birt vs. 99 Cents Only Stores, LLC

Nature of Proceeding: Motion to Tax Costs

Filed By: Chatoian, Edward B.

Plaintiff Estella Birt’s motion to tax costs is ruled upon as follows.

This is a personal injury action. On 4/13/2018, the Court granted Defendant’s motion for summary judgment.

Legal Standard

In ruling on a motion to tax costs, the Court’s first determination is whether the statute

(CCP § 1033.5) expressly allows the particular item and whether it appears proper on

its face. (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29-30.) “If so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.” (Id. [quoting Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131] [brackets in original].) Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary. (Nelson, 72 Cal.App.4th at 132.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court. (Ladas v. California (1993) 19 Cal.App.4th 761, 774; see also Gorman v. Tassajara Devel. Corp. (2009) 178 Cal.App.4th 44, 71.)

Code of Civil Procedure § 1033.5(a) provides a lengthy list of items allowable as costs. Subdivision (b) of that section provides a list of five items specifically not allowed as costs. Section 1033.5(c)(4) provides “Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”

Service of Process

Plaintiff moves to strike $1,996.80 for service of process costs on Kaiser

· Kaiser North Valley: $125.44 for “Med Recds/X-Rays”

· Kaiser South Sacramento: $1,806.89 for “Med Recds/X-Rays”

· Kaiser-Central Supp: $64.47 for “billing”

According to Plaintiff, Defendant is improperly masking the fact that the Kaiser costs are actually for medical records, and since none of the medical records were admitted into evidence, these costs are not allowable. In opposition, Defendant explains that these costs were erroneously listed under “service of process” costs and should have been listed as “deposition” costs since they were incurred for serving deposition subpoenas on Kaiser, for the production of records, and paying the charges assess by the legal photocopy company to obtain the documents.

The costs of taking, videotaping, and transcribing depositions, including an original and one copy of depositions taken by the claimant and one copy of depositions taken by the party against whom costs are allowed, are allowable. (CCP 1033.5(a)(3).) The costs of photocopying records produced in response to the deposition are also recoverable as costs pursuant to Code Civ. Proc., § 1033.5, subd. (a)(3). (Naser v. Lakeridge Athletic Club (2014) 227 Cal. App. 4th 571, 577-578.)

In reply, Plaintiff maintains that the $1,232.87 billed on 1/20/2017 for 84 x-rays is unreasonable because it “fails to identify the date each x-ray was performed or the body part that was imaged.” (Reply, 2:11-14.) Plaintiff proffers no legal authority that such specification is required. Plaintiff contends that Defendant’s subpoena was overbroad in time and without any limitation to body parts, therefore, it was unreasonable for Defendant to order all x-rays. The Court observes that Plaintiff did not file a motion to quash or modify the subpoena, nor is there any indication that

Plaintiff objected to the subpoenas at the time they were served. Plaintiff cannot now raise the issue after Defendant incurred the costs.

Plaintiff further advances that subpoenas to Kaiser North Valley were unreasonable because “there was no need to seek the records” since Plaintiff had advised Defendant that all treatment was performed at Kaiser South Sacramento. Plaintiff additionally claims that the $574.02 billed on 1/17/2017 was unreasonable since it was overbroad in time and without any limitation to body parts. Again, Plaintiff did not file a motion to quash or modify the subpoena, nor is there any indication that she objected to the subpoenas at the time they were served. Plaintiff cannot now raise the issue after Defendant incurred the costs.

The motion to strike $1,996.80 for the Kaiser costs is DENIED.

Plaintiff also moves to strike $350 for costs for personal service of various documents on Plaintiff’s counsel:· Law Offices of Edward B. Chatoian, $85.00 (Motion for Summary Judgment)

· Law Offices of Edward B. Chatoian, $85.00 (Notice of Depo, Discovery)· Law Offices of Edward B. Chatoian, $95.00 (Objections to Depo, Discovery)

· Law Offices of Edward B. Chatoian, $85.00 (Notice of Depo)

Defendant claims that the fees were “necessarily incurred” and that it “should not be penalized because it used the authorized procedure of personally service plaintiff’s attorney. Also, in that way plaintiff’s attorney promptly received the papers instead of waiting.” (Opposition, 7:3-7.)

The motion to strike the $350 for personal service on Plaintiff’s attorney is GRANTED. The Court is not persuaded that personal service of the above documents was reasonable and necessary.

Expert Witness Fees

Defendant seeks $27,416.50 in expert witness fees.

The Court has addressed Defendant’s request for expert witness fees in its concurrent ruling on Defendant’s motion to recover expert fees. In that ruling, the Court granted only $3,300 in expert witness fees.

Thus, Plaintiff’s motion to strike is GRANTED, in the amount $24,116.50.

The Court’s ruling on the concurrent motion to recover expert fees is fully incorporated hereto.

Models, Enlargements and Photocopies of Exhibits

Plaintiff moves to strike $85.04 incurred for photocopies attached to Defendant’s

motion for summary judgment. Plaintiff contends that “[i]t was unnecessary for Defendant to submit Exhibits A and D to the court. Exhibit A was Plaintiffs Complaint (5 pages). Exhibit D was Defendant’s Answer (7 pages). Defendant could have requested the Court to take judicial notice of these documents. Thus, Exhibits A and D were unnecessary. As for Exhibit C, the video surveillance tape. Defendant produced

that to Plaintiff for the sum of $20.00.” (Motion, 10:14-18.) According to Plaintiff, the total allowable costs for the exhibits should not exceed $39.20.

The motion to strike is DENIED. These costs are expressly permitted pursuant to CCP §1033.5(a)(13) and were “reasonably helpful to aid the trier of fact.” (CCP §1033.5(a) (13).)

Disposition

The motion to strike is GRANTED in the amount of $24,466.50. The remainder of the motion is DENIED.

The clerk is directed to enter costs in the amount of $7,265.23 on the judgment.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.