Case Number: EC059573    Hearing Date: November 07, 2014    Dept: NCE

Motion for new trial is denied for the reasons stated in the opposition papers. Briefly, as to the tax returns, the court notes that the jury found no negligence and therefore, if there was any irregularity as to the tax returns, it was not prejudicial because they were irrelevant to the issue of liability. Moreover, the court finds no irregularity as to the tax returns, given that the daily Minute Orders during the trial indicate that they were marked for identification but were not received into evidence. In addition, the experts for both sides relied on the returns in preparing their opinions. In fact, if recollection serves, the tax returns were the only documentary evidence concerning income produced to defendant and to prevent its expert to testify as to the basis of his opinion after plaintiff voluntarily produced the documents as the only available evidence of his income would be unjust. Last, the court notes that plaintiff waived the privilege by voluntarily producing the documents during discovery. The ruling on the motion in limine was amended during the course of trial given the developing facts.

As to the nurse practitioner, she was permitted to testify about her personal observations of plaintiff’s condition, and was only prevented from opining as to the cause of the condition; that is, she was prevented from testifying specifically that bed bugs had caused the bites she observed because she could not testify to that to a reasonable medical probability.

Last, the court declines to reverse the judgment of the jury, sitting as a thirteenth juror. Substantial evidence supports the jury’s verdict.

Motion for “cost of proof” sanctions is denied. The court finds, pursuant to CCP section 2033.420(b)(3), that at the time he responded to discovery plaintiff held a reasonable good faith belief he would prevail on each of his causes of action and with respect to each issue set forth in the Requests for Admissions and therefore had a reasonable basis for denying the Requests for Admissions.

Motion of plaintiff Mark Seif to tax costs:
Counsel for defendant is ordered to date the memorandum of cost verification.

The court finds that defendant was the prevailing party in this action, entitled to costs under CCP section 1032(a).

Motion is granted in part and denied in part, as follows:
Item 1 – Filing and Motion Fees – is granted in part. Defendant has failed to meet his burden to establish that Item 1g is a proper cost with respect to the filing of motions in limine. No fee is charged for the lodging of such motions. The cost is taxed in the sum of $129.13. Costs claimed of $984 are reduced to $854.87.

Item 4 – Deposition Costs – motion is denied. The opposition submits invoices for the depositions which indicate they were taken by different services who charge different rates. None are unreasonable. Costs claimed of $6,434 are awarded in full.

Item 8 – Witness Fees – motion is denied. The ordinary witness fees are supported by appropriate documentation and are recoverable pursuant to CCP section 1033.5(a)(7). As to the expert witness fees, the defendant made a CCP section 998 offer, plaintiff failed to accept the offer, plaintiff failed to obtain a more favorable judgment and the court exercises its discretion to award defendant the reasonable costs for the services of expert witnesses under CCP section 998(c)(1). Costs claimed of $26,719 are awarded in full.

Item 11 – Models, blowups and photocopies of exhibits – motion is granted. Defendant has failed to oppose the motion on this ground and has failed to meet its burden of establishing entitlement to these costs. No invoices have been submitted and it has not been established that any costs incurred were in connection with items which were reasonably helpful to the trier of fact. Costs claim of $134 are reduced to $0.

Item 13 – Other – motion is granted in part.
Attorney Mileage for Trial has not been established as a recoverable cost. The court taxes the claim by $171.43.

Defendant has withdrawn the claim for Trial Testimony of plaintiff. The court taxes $1,499.29.

The motion is granted as to the interpreter costs. The court taxes $330, as not recoverable under CCP section 1033.5(a)(12), because defendant is not an indigent person represented by a qualified legal services project or a pro bono attorney.

The motion is granted as to the costs for transcripts of proceedings on September 15 and 16 in the sums of $2,456.46 and $1,008.17, respectively, because the transcripts were not ordered by the court. CCP section 1033.5(b)(5).

The motion is denied as to costs related to the service of process.

“Other” costs claimed of $6,802 are reduced to $1,336.65 ($6,802 less 171.43, 1,499.29, 330, 2,456.46, 1,008.17).