2012-00129957-CO-PO
Joseph Ramos vs. Timothy Dickson
Nature of Proceeding: Motion to Strike
Filed By: Cartwright Jr., Robert E.
Plaintiff Joseph Ramos’ Motion to Tax Costs is DENIED.
Timely Service of Cost Bill
Plaintiff Joseph Ramos moves to strike the entire Memorandum of Costs, filed by
Defendant on Feb. 4, 2014, on the grounds that a Cost Memorandum was filed
prematurely, as no Judgment has yet been filed or entered. Rules of Court, Rule
3.1700.
Summary Judgment was granted by this Court on Dec. 30, 2013 in favor of Defendant
and against Plaintiff. Notice of entry of that order was served on Feb. 3, 2014 and filed
on Feb. 4, 2014. On March 12, 2014, Judgment was filed in this Court.
As in Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal. App. 4th 863, 880
this Court finds that the cost bill here was prematurely filed. The appellate court in
Haley, supra, wrote that “time limitations pertaining to a memorandum of costs are not
jurisdictional [citations] and the premature filing of a memorandum of costs is treated
as ‘a mere irregularity at best’ that does not constitute reversible error absent a
showing of prejudice.[Citations] Rather, courts treat prematurely filed cost bills as
being timely filed. Id.; see, also, Laurel Hills Homeowners Assn. v. City Council (1978)
83 Cal App 3d 515; Lange v. Fisher (1983) 146 Cal App 3d 113.
As plaintiff has made no showing of prejudice, the Court denies the motion to strike on
this ground, finding that the premature filing of the cost bill is a mere irregularity.
Section 998 Offer Not in Good Faith
Plaintiff’s second ground for moving to strike costs is the assertion that the
Defendant’s service of a C.C.P., sec. 998 offer was invalid and not made in good faith.
“Good faith requires that the pretrial offer of settlement be ‘realistically reasonable
under the circumstances of the particular case.…’ [Citation.] The offer ‘must carry with
it some reasonable prospect of acceptance.’ [Citation.]” (Jones v. Dumrichob (1998) 63
Cal.App.4th 1258, 126). Whether the offer is reasonable “depends upon the
information available to the parties as of the date the offer was served.” (Westamerica
Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 130).
Of course, even a modest or token offer may be reasonable if an action is completely
lacking in merit. Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458,
471. “There is no per se violation of the good faith requirement just because the offer
does not tender a net monetary sum. [Citation.] In a particular case, a waiver of costs
may be an offer of significant value.” (Hartline, supra, 132 Cal.App.4th at p. 471).
Code of Civil Procedure section 998(c)(1) provides that when a plaintiff does not
accept an offer under Section 988 and the defendant obtains a more favorable result,
the court may require the plaintiff to pay a reasonable sum to cover costs of the
services of expert witnesses who are not regular employees of any party, actually
incurred and reasonably necessary in preparation for trial of the case by defendant
(Code Civ. Proc, § 998(c)(1).)
The question of whether a Section 998 offer was made in good faith is addressed to
the trial court’s discretion. An offer made pursuant to Code of Civil Procedure section
998 is presumed to have been reasonable and the opposing party bears the burden of
showing otherwise.” Thompson v.Miller (2003) 112 Cal.App.4th 327, 338-339.
Defendant Timothy Dickson made an Section 998 offer to plaintiff, by which defendant
offered to pay to plaintiff the sum of $2,500, in exchange for the entry of a request for
dismissal, the execution and transmittal of a release in full of all claims by plaintiff favor
of defendants, including (a) a waiver under Civil Code, sec. 1542, (b) “An agreement to
reimburse and indemnify all released parties for any amount which any insurance
carriers, government entities, hospitals, or other persons or organizations may recover
from them in reimbursement for amounts paid to or on behalf of Plaintiff, Joseph
Ramos, as a result of the acts allegedly committed by Defendant giving rise to this
lawsuit, by way of contribution, subrogation, indemnity, or otherwise, (c) fraudulent
claim prosecution notice under Insurance Code, sec. 1871.2(a), each party to bear
their own costs and fees and Plaintiff, Joseph Ramos shall pay or otherwise dispose of
any and all liens. (Cartwright Dec., Exh. “B”, paras. 2, 3 and 4.)
Citing Valentino v. Elliott Sav-On Gas, Inc. (1988) 201 Cal. App. 3d 692, 698 plaintiff
asserts that the inclusion of these additional terms and conditions in the 998 make it
difficult to accurately and fairly evaluate the monetary term to decide whether the
damage award did or did not exceed the amount offered in settlement of the instant
case.
Moving party plaintiff asserts that because this Section 998 offer imposed
requirements on the offeree that were in addition to dismissal of the present action
including the requirement that plaintiff agree to make uncertain future payments,
defendant here, who recovered zero dollars did not achieve a more favorable result
than if the plaintiff had accepted the Section 998 offer in the amount of $2,500, with the
requirement that he pay more than that amount is not a more favorable offer.
The purpose of section 998 is to encourage the settlement of litigation without trial. To
effectuate the purpose of the statute, a section 998 offer must be made in good faith to
be valid. Good faith requires that the pretrial offer of settlement be “realistically
reasonable under the circumstances of the particular case. Normally, therefore, a
token or nominal offer will not satisfy this good faith requirement.” The offer “must
carry with it some reasonable prospect of acceptance.” One having no expectation that
his or her offer will be accepted will not be allowed to benefit from a no-risk offer made
for the sole purpose of later recovering large expert witness fees. Jones v. Dumrichob
(1998) 63 Cal. App. 4th 1258, 1262-1263.
Plaintiff asserts that accepting the 998 offer, in light of plaintiff’s medical expenses of
over $9,000 and earnings loss of tens of thousands of dollars may actually have
placed plaintiff in a worse position than his current recovery of zero dollars. Therefore
that 998 offer did not have a reasonable prospect of acceptance.
Plaintiff additionally contends that as the amount of the plaintiff’s own liens was
undetermined at the time of the 998 offer, it was not reasonable to expect plaintiff to
accept the offer, and therefore it was invalid and made in bad faith.
In opposition, defendant asserts that the inclusion of the release of defendant’s agents,
representatives and employees as well as possible reimbursement claims which are
within the scope of the current litigation and do not render the 998 invalid.
The nominal amount of the 998 offer in light the plaintiff’s medical specials and lost
income does not make it per se invalid, where defendant reasonably believed he was
not liable at the time that the offer was made. Where the defendant obtains a
judgment more favorable than its offer, the judgment is prima facie evidence that the
offer was reasonable.
Here, defendant had conducted significant discovery, plaintiff’s deposition, defendant’s
deposition and the deposition of plaintiff’s father who had been skiing with him, prior to
the service of the 998 on May 3, 2013. At that time, defendant reasonably believed
that the action was barred by the doctrine of assumption of the risk.
Defendant asserts that Valentino v. Elliott Sav-On Gas, Inc. (1988) 201 Cal. App. 3d
692, 698, relied upon by plaintiff, is distinguishable from the instant case, as in
Valentino, the additional terms and conditions in the 998 required the plaintiff to give
up its right to file a bad faith action against the insurance company and its attorney,
which were not issues included in the pending case. In this case, by contrast, all terms
of the 998 related to the damages incurred due to the alleged causes of action.
Presumably, plaintiff knew or should have known of the extent of all liens, and was in a
better position than defendant to evaluate the non-monetary conditions. Plaintiff
presents no evidence that the 998 presented components that could not be evaluated
appropriately, or that the offer embodied terms that made it difficult for plaintiff to
accurately value the monetary term of the offer.
The Court concludes that the Defendant’s Section 998 offer was not made in bad faith,
nor was the nominal amount offered inappropriate in light of the Court’s subsequent
grant of summary judgment based upon a finding that “primary assumption of the risk”
barred plaintiff from recovery in this action.
Costs Unreasonable
Thirdly, plaintiff seeks to tax defendant’s claimed costs as neither reasonably
necessary to the litigation, nor reasonable in amount.
Plaintiff asserts that one of the elements of his claimed damages was loss of earned
wages and his business’ lost income, as he was a sole proprietor. The action was
never set for trial, nor had an arbitration date yet been set. However, defendant
retained a CPA as an expert witness and took a second day of deposition of plaintiff,
assisted by the defense CPA.
Plaintiff contends that the amount of expert witness fees incurred for time spent by the
defense expert, given the status of the litigation, was neither necessary to the litigation,
nor reasonable, but merely convenient, and should be disallowed in the exercise of
this Court’s discretion.
In opposition, defendant explains that plaintiff’s loss of earning claim was not “simple”,
as plaintiff claimed both personal loss of income $25,752 with lost business revenue of
approximately $273,874, and produced over 1,500 pages of financial information. The
defense expert CPA was retained to review and make sense of the documentation and
to assist with plaintiff’s deposition on this subject.
Although defendant incurred over 71 hours of expert witness time at the rate of
$215.00, given the volume of documents produced and the intricate nature of the
claimed damages, the Court finds that it was appropriate. Section 998 authorizes
compensation for expert fees incurred at any time during the litigation. Regency
Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal. 4th 507, 532.
The motion to tax costs is denied in its entirety.
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.