Case Number: MC026045 Hearing Date: October 30, 2018 Dept: A15

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTH DISTRICT

MICHAEL D. BRYMAN, et al., )

) Case Number MC026045

Plaintiffs, )

) ORDER AFTER HEARING

v. )

) Date of Hearing:

EL POLLO LOCO, INC., ) October 30, 2018

) Dept. A-15

Defendant. ) Judge Randolph A. Rogers

____________________________________)

Defendant El Pollo Loco, Inc.’s motion to strike or tax costs and Plaintiffs Michael D. Bryman and Janice P. Handlers-Bryman’ motion for an award of attorney’s fees came on for hearing on October 30, 2018. Plaintiffs Michael D. Bryman and Janice P. Handlers-Bryman appeared through their counsel of record, ___________________. Defendant El Pollo Loco, Inc. appeared through its counsel of record, ___________________.

The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, hereby ORDERS:

Defendant’s motion to strike or tax costs is GRANTED in part and DENIED in part with:

$505 for courier service fees stricken from the Memorandum of Costs submitted by Michael Ghilezan as unopposed;

Plaintiffs’ expert fee costs reduced to $140,389.93;

Plaintiffs’ costs for models, enlargements, and photocopies reduced to $12,901.76;

Plaintiffs’ requested $21,802.20 in fees for electronic document hosting are stricken in their entirety;

Plaintiffs’ other costs related to travel, lodging, meals, et cetera are reduced to $4,140.58;

Plaintiffs’ motion for an award of attorney’s fees is GRANTED in part, and the amount awarded shall be $1,391,702.50.

SO ORDERED this the 30th day of October, 2018.

______________________

RANDOLPH ROGERS,

JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTH DISTRICT

MICHAEL D. BRYMAN, et al., )

) Case Number MC026045

Plaintiffs, )

) STATEMENT OF DECISION

v. )

) Date of Hearing:

EL POLLO LOCO, INC., ) October 30, 2018

) Dept. A-15

Defendant. ) Judge Randolph A. Rogers

____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

The present case arises out of a disagreement between franchisees and a franchisor. Plaintiffs Michael D. Bryman and Janice P. Handlers-Bryman (“Plaintiffs”) entered into a franchise agreement with Defendant El Pollo Loco (“Defendant”) to run a restaurant under the franchise name. The liability portion of the trial commenced on November 13, 2017, in which the jury ultimately returned a verdict in favor of Plaintiffs on December 11, 2017. Thereafter the damages portion of the trial commenced on April 23, 2018, with the jury returning its verdict on May 01, 2018. Following the completion of the jury trial, the court took the matter of Plaintiffs’ Bus. and Prof. §17200 claim under submission, and ultimately filed a proposed judgment pursuant to California Rule of Court, Rule 3.1590 on June 29, 2018. After considering the parties’ objections to the proposed judgment, the Court entered Judgment on August 02, 2018.

On August 09, 2018, the Court heard and partially granted Defendant’s ex parte motion for leave to file a longer memorandum in a motion for a new trial, but otherwise denied Defendant’s request to stay judgment. The Court received Defendant’s Notice of Appeal on August 27, 2018. On September 13, 2018, the Court again heard Defendant’s ex parte application to stay judgment, and denied the request. Defendant promptly filed its Petition for Writ of Supersedeas with the Second Appellate District as Court of Appeal Case No. B292585.[1] Notwithstanding the pending appeal and petition for writ, Defendant’s motions for judgment notwithstanding the verdict and new trial were heard and denied on September 20, 2018.

The instant motions were filed by Defendant on September 05, 2018, seeking to strike or tax costs, and by Plaintiffs on September 28, 2018, seeking an award of attorney’s fees.

In Defendant’s motion to strike or tax costs, Defendant seeks to strike or tax $505 in courier service fees by Michael Ghilezan,[2] $322,893.00 in expert fees, $15,784.50 in models, enlargements, and photocopies of exhibits, $21,802.20 in electronic document hosting, and $143,850.99 in other expenses. Defendant argues that the costs should be stricken or taxed due to (1) the failure of Plaintiffs to transmit a §998 offer in the first instance; (2) the tardiness of serving the instant memorandum of costs to Defendant; and (3) the costs requested are not reasonably necessary to conduct the litigation such that Plaintiffs should recover them. Plaintiffs opposed the motion on October 10, 2018, (1) providing the Court with a copy of Plaintiffs’ §998 offer with the proof of service indicating Plaintiffs’ former attorney, Mr. Gurnick, personally delivered the offer to Mr. Mulcahy on April 12, 2017; (2) asserting that they complied with the 15-day service and filing requirement by serving and filing the memorandum of costs on August 16, 2018, 15-days after the Court’s August 01, 2018, notice of entry of judgment; and (3) the costs incurred were reasonably necessary to the conduct of the litigation and should be recovered. Defendant submitted its reply brief on October 23, 2018, apparently conceding the validity of the §998 offer,[3] while maintaining their arguments that Plaintiffs filed their memorandum late, and that the costs are not reasonably necessary.

In Plaintiffs’ motion for an award of attorney’s fees, Plaintiffs seek $1,636,696.01 in attorney’s fees under the franchise agreement for the work performed by Plaintiffs’ attorneys throughout the case, and in the post-trial motions, reflecting approximately 2,937 hours of work. Defendant opposed the motion on October 17, 2018, arguing that the amount of attorney’s fees awarded should be reduced due to (1) the excessive hourly rates for the attorneys who worked on the case; (2) the “extensive and unnecessary” discovery conducted in the case; and (3) the extensive use of block billing in the Zarco Firm’s schedule of their work. On the whole, Defendant argues that the attorney’s fees award should be reduced to $865,852.50.

Discussion – Tax Costs – The costs incurred by the parties to a civil action consist of the expenses of litigation, usually excluding attorney fees. Patricia Bakey – Hoey v. Lockheed (2003) 111 Cal.App.4th 592, 597. Under the common law rule, parties to litigation must bear their own costs. Id.; see also Davis v. KGO-TV, Inc. (1998) 17 Cal.4th 436, 446 (Although the purpose of much civil litigation is to make the injured party “whole,” the traditional common law rule is that the parties must bear their own costs.). The right to recover any costs is, thus, determined entirely by statute. Patricia Bakey – Hoey, supra, 111 Cal.App.4th at 597. In the absence of an authorizing statute, no costs can be recovered by either party. Id. The general rule is subject to numerous exceptions, including that found in Code of Civ. Proc. §998, which provides that upon the rejection of a settlement offer made pursuant to Code of Civ. Proc. §998, “the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses … actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff’s costs.”

“[T]he verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” 612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285. Evidence is generally required in order to support an objection, and the mere submission of conclusions or bare allegations typically does not justify taxing costs. See County of Kern v. Ginn (1983) 146 Cal.App.3d 1107 (113-14) (bare allegation that depositions were neither necessary nor reasonable insufficient to overcome right to costs). Allegations are sufficient, however, if they depend upon undisputed facts where nothing more needed to be, or could have been, added by additional declarations or affidavits. Fennessy v. Deleuw-Cather Corp. (1990) 218 Cal.App.3d 1192, 1196.

As an initial matter, Defendant argues that the costs should be struck in their entirety due to the failure of Plaintiffs to make a §998 offer and due their failure to timely serve the memorandum of costs following the Court’s notice of entry of judgment. On review, these arguments lack merit, as a valid §998 offer was made on April 12, 2017, and service of Plaintiffs’ memorandum of costs was filed and served within 15 days of the notice of entry of judgment by the Court.

Taxation of Costs – The remainder of Plaintiff’s motion seeks to tax the memorandum of costs based on the inclusion of (1) $322,893.00 in expert fees, (2) $15,784.50 in models, enlargements, and photocopies of exhibits, (3) $21,802.20 in electronic document hosting, and (4) $143,850.99 in other expenses

Expert Fees – As noted in Defendant’s Reply brief and discussed supra, Plaintiffs are not entitled to pre-offer expert witness fees under the code, and, as such, all expert witness fees incurred prior to April 12, 2017, cannot be recovered. Therefore, pursuant to the code, the following expert witness fees are stricken:

10/01/2016 Scott Roehr for $1,313.00;

12/01/2016 Scott Roehr for $2,663.00;

01/01/2017 Scott Roehr for $3,888.00;

01/11/2017 Darren Filson for $3,200.00;

02/02/2017 Darren Filson for $800.00;

03/01/2017 Scott Roehr for $31,950.00;

03/03/2017 Darren Filson for $23,600.00;

03/09/2017 Robert Purvin for $8,295.00;

04/01/2017 Scott Roehr for $45,750.00; and

04/04/2017 Robert Purvin for $6,644.09.

With these expert fees stricken, the remaining fees in dispute are the $140,389.93 of the expert fees that were incurred after the April 12, 2017, §998 offer.

As to the remaining expert fees, Defendant argues that they should be taxed by a “reasonable” amount due to “many of the opinions provided by experts Scott Roehr and Darren Filson [being] inadmissible and/or irrelevant to the proceedings.” Mot. Stk. Costs Reply Brief, 4:11-12. In support of this argument, Defendant cites to Defendant’s Exhibits E and F, which are the expert reports of Scott Roehr and Darren Filson, dated April 7, 2017, and March 31, 2017, respectively. In light of the fact that both of these reports pre-date the §998 offer, the Court does not consider the information presented in them to militate against the reasonability of the expert witness fees incurred due to Scott Roehr and Darren Filson following the April 12, 2017, §998 offer. Moreover, expert fees are not automatically unreasonable even under circumstances where an expert witness never testifies. See, e.g., Stiles v. Estate of Ryan (1985) 173 Cal. App. 3d 1057. As such, Defendant has failed to provide sufficient evidence to contest the prima facie validity of the expert fees, and the Court will not tax the costs of these fees any further.

Accordingly, the Court will tax the award of Expert Witness Fees from Plaintiffs’ request of $322,893.00 to $140,389.93.

Models, Enlargements, and Photocopies of Exhibits[4] – The parties agree that Code of Civ. Proc. §1033.5(a)(13) permits the recovery of costs for “[m]odels, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.” Defendant, however, argues that some of the costs placed under this category by Plaintiffs are prohibited under Code of Civ. Proc. §1033.5(b)(3), which prohibits costs for “[p]ostage, telephone, and photocopying charges, except for exhibits.” In an initial review of the relevant attachment to the memorandum of costs it appears to the Court that some of the costs are prohibited on their face, specifically:

12/01/2017 Trial Support: Litigation Support Professionals for $896.30;

04/02/2018 Docu3 Solutions Printing and Index tabs for Trial Documents for $593.94; and

04/13/2018 Preparation of Trial Binders for Trial on Damages for $1,392.50.

As these costs merely appear to be the bureaucratic efforts of sorting and categorizing the exhibits, which do not appear to reasonably fall under the categories permissible under Code of Civ. Proc. §1033.5(a)(13). With these costs stricken, the remaining costs are $12,901.76.

The remaining costs listed under this category all appear to specify that they were incurred to produce the actual photocopies of the exhibits that were used at trial by the attorneys in the prosecution of their case. Moreover, as each of the categories listed specifies that the work was conducted for exhibits, it is excluded from the prohibition in Code of Civ. Proc. §1033.5(b)(3), and therefore recoverable under Code of Civ. Proc. §1033.5(a)(13). As Defendant presents no additional argument or evidence that disputes the prima facie validity of the costs, the Court will not reduce the amount further.

Accordingly, the Court will tax the award of Models, Enlargements, and Photocopies of Exhibits from Plaintiffs’ request of $15,784.50 to $12,901.76.

Electronic Document Hosting – On review of the moving papers, it appears that the authorizing statute for these fees specifically mandates that the Court “requires or orders a party to have documents hosted by an electronic filing service provider” prior to being awardable by and through a memorandum of costs. Code of Civ. Proc. §1033.5(a)(15).

Accordingly, Plaintiffs’ $21,802.20 in electronic document hosting fees are stricken in their entirety.

Travel Expenses – Travel expenses are recoverable pursuant to Code of Civ. Proc. §1033.5(a)(3)(C), provided that they are “[t]ravel expenses to attend depositions.” On review of the Memorandum of Costs, the only travel expenses identified as being made for the purpose of attending depositions are the following:

01/24/2017 Gurnick Mileage to San Pedro for C. Ortiz deposition for $42.80;

02/28/2017 Gurnick Witness Fees and Mileage to Jeff Little for $65.00; and

10/30/2017 Travel Expense: airfare to attend deposition and hearing for $4,032.78.

The remaining $139,710.41 of the total $143,850.99 requested under ‘other’ expenses covers the gamut of airfare, car rentals, lodging, meals, attending hearings, and parking fees. Plaintiffs argue that these costs should be recoverable under Code of Civ. Proc. §1033.5(c)(2), which provides that “[a]llowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” Plaintiffs additionally cite to Genesis Merch. Partners, LP v. Nery’s USA, Inc. (S.D. Cal. Dec. 6, 2013) 2013 U.S. Dist. LEXIS 190983, and Gorman v. Tassajara Development Corp. (2004) 178 Cal. App. 4th 44 to argue for the proposition that all reasonably necessary expenses should be recouped.

It appears that the cases cited in support of this position do not hold that the statute authorizes the Court to act in the manner suggested by Plaintiffs. Rather, the cases cited, together with the cases relied upon in both Genesis and Gorman instead support the more strict interpretation of Code of Civ. Proc. §1033.5, which limits the award of travel expenses only to those made for the purpose of taking depositions. See Gorman v. Tassajara Development Corp. (2004) 178 Cal. App. 4th 44, 72 (“Section 1033.5, subdivision (a)(3) clearly contemplates recovery of travel costs incurred by counsel to attend depositions. [Citation.] By negative implication, this statute does not provide for recovery of local travel expenses by attorneys and other firm employees unrelated to attending depositions [Citation.] nor does it allow recovery for ‘meals eaten while attending local depositions.’”). The Plaintiffs’ other argument that the costs are permissible under subsection c of Code of Civ. Proc. §1033.5 is an incorrect interpretation of the code, as Code of Civ. Proc. §1033.5(c) is a provision that generally serves to limit the costs otherwise allowable under subsection a to those “allowable costs” that are reasonably necessary to the litigation and reasonable in amount. To the extent that it expands the expenses permissibly awarded in Code of Civ. Proc. §1033.5(c)(4) & (5), it does not appear to the Court to expand the universe of allowable costs to include those travel, meal, and lodging costs requested by Plaintiffs.

Accordingly, the Court will reduce Plaintiffs’ costs related to their travel, lodging, parking, and meals from $143,850.99 to $4,140.58.

Attorney’s Fees – Civ. Code, § 1717 governs entitlement to attorney fees for “action[s] on a contract.” The statute provides in relevant part: “(a) In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs . . . [¶] (b)(1) The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.” Code Civ. Proc., § 1717,(a), (b)(1).

“[W]hen the results of the litigation on the contract claims are not mixed – that is, when the decision on the litigated contract claims is purely good news for one party and bad news for the other – the Courts of Appeal have recognized that a trial court has no discretion to deny attorney fees to the successful litigant. Thus, when a defendant defeats recovery by the plaintiff on the only contract claim in the action, the defendant is the party prevailing on the contract under section 1717 as a matter of law. [Citations.] Similarly, a plaintiff who obtains all relief requested on the only contract claim in the action must be regarded as the party prevailing on the contract for purposes of attorney fees under section 1717.” Hsu v. Abbara (1995) 9 Cal.4th 863, 875–76; see also F.D.I.C. v. Dintino (2008) 167 Cal.App.4th 333, 357. Code Civ. Proc., § 1717 applies only to contract claims. Code Civ. Proc., § 1717,(a); Santisas v. Goodin (1998) 17 Cal.4th 599, 615. “If an action asserts both contract and tort or other noncontract claims, section 1717 applies only to attorney fees incurred to litigate the contract claims.” Santisas, supra, 17 Cal.4th at p. 615, 619; Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 708. In determining which party, if any, prevailed on a contract claim for purposes of section 1717, the court does not consider the parties’ success or failure on non-contract claims. F.D.I.C., supra, 167 Cal.App.4th at p. 358.

As Plaintiffs are unambiguously the prevailing party for the claims in this case and are entitled to attorney’s fees pursuant to the franchise agreement, the sole dispute is amount that should be awarded to Plaintiffs in recovery. Plaintiffs argue that the Court should award $1,636,696.01 in attorney’s fees, and Defendant argues that the award should be $865,852.50. The difference between the two amounts arises from two legal issues: (1) the reasonable hourly rate for each attorney, and (2) the alleged ‘block billing’ of certain attorneys.

A person seeking attorney’s fees bears that “burden of showing that the fees incurred were ‘allowable,’ were ‘reasonably necessary to the conduct of the litigation,’ and were reasonable in amount.’” Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal. App. 4th 807, 816. The Court first notes that an attorney’s hourly rate is determined by the well-established legal standard that attorney’s fees for contested matters are calculated by the use of the Lodestar method. See, e.g., Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1134 (“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. . . . The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. [Citation]. Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary.”).

A ‘reasonable’ attorney’s fee award generally falls “within the sound discretion of the trial judge.” Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 659. However, in making a determination on the reasonableness of attorney’s fees and costs, a trial court should consider (1) the nature of the litigation, (2) its difficulty, (3) the amount involved, (4) the skill required and the skill employed in handling the litigation, (5) the attention given, (6) the success of the attorney’s efforts, (7) his learning and age, (8) his experience in the particular type of work demanded the intricacies and importance of the litigation, and (9) the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed. Church of Scientology, 42 Cal App 4th at 638-639.

The Court notes that neither party’s attorneys substantially briefed the issue of what the reasonable rates are in Los Angeles County, which are the relevant rates for the Lodestar calculation. Plaintiffs’ attorneys failed to provide any caselaw for the Court to consider, and Defendant relied on attorney’s fees awards from San Diego, Fresno, Bakersfield, and Washington D.C., and argues that the award here should be in line with awards from Bakersfield or Fresno. Nevertheless, the Court considers Defendant’s arguments as to the reasonable hourly rates persuasive, and generally reflect the reasonable rates for Los Angeles County as well. The factors listed above, however, militate for a higher award than the hourly rates proposed by Defendant. Specifically, this litigation has required specialized knowledge of franchise law, and the parties have demonstrated significant skill and attention both in their motion practice and during trial. Moreover, the issues presented in this case are more difficult than an average case, and the Plaintiffs’ attorneys throughout the litigation are experts in their fields with decades of experience in franchise law. In particular, Mr. Zarco demonstrated an exceptional ability to deal with the mathematics and formulas used by the experts in their calculations throughout his participation in the litigation. Accordingly, the Court considers the appropriate hourly rates to be those proposed by the Plaintiffs, as described below:

Name

Hourly Rate

Experience

Robert Zarco

$850

Licensed to practice law in 1985, primary practice area is franchise law. Partner at Zarco Einhirn Salkowski & Brito, P.A.

David Gurnick

$500

Licensed to practice law in 1984, primary practice area is franchise law. Partner at Lewitt Hackman Shapiro Marshall & Harlan, a Law Corp.

Robert F. Salkowski

$700

Licensed to practice law in 1991, primary practice area is franchise law. Partner at Zarco Einhirn Salkowski & Brito, P.A.

R. Michael Ghilezan

$300

Licensed to practice law in 2012, practicing franchise law exclusively since 2015. Partner at Global Law Firm.

Margaret T. Lai

$400

Licensed to practice law in 2007, primary practice area is business litigation. Associate with Zarco Einhirn Salkowski & Brito, P.A.

Samuel C. Wolf

$300

Licensed to practice law in 2012, primary practice area is franchise law. Associate at Lewitt Hackman Shapiro Marshall & Harlan, a Law Corp.

Defendant next argues that the hours charged by Mr. Gurnick and Mr. Wolf should be reduced due to the approximately 280 hours spent between the two of them engaged in document review on electronic discovery, much of which was unhelpful for the litigation. Mot. Atty. Fee, Opposition, 5:28-7:1. The Court disagrees with Defendant’s analysis that the hours spent engaged in document review were not reasonably spent, nor that the Plaintiffs’ discovery requests were unreasonable. The issue of the overbreadth and unreasonableness of these discovery requests was before the Court by and through Plaintiffs’ Motion to Compel Further Responses, filed September 01, 2016, opposed by Defendant on September 27, 2016, and ultimately head by the Court on October 11, 2016. At that time the Defendant effectively waived their objections to the breadth, reasonableness, and purported $42,916.00 cost of the discovery by voluntarily agreeing to produce the approximate 54,000 electronic documents. Moreover, as noted in the Court’s October 11, 2016, Statement of Decision “Plaintiffs are requesting all documents related to the term ‘Bryman’ between 1999 and 2009 in order to examine and expound upon the commercial setting by and between the parties,” which ultimately was one of the core issue litigated during the jury trial. Statement of Decision, October 11, 2016, ¶14. Accordingly, the Court will not reduce the hours for the work done on this discovery.

Finally, Defendant argues that the hours reflecting the work of Zarco Einhirn Slakowski & Brito, P.A. should be reduced by 20% due to the hours representing ‘block billing’ that is disfavored in California. See, e.g., Christian Research Institute v. Alnor (2008) 165 Cal. App. 4th 1315, 1325 (“Block billing, while not objectionable per se in our view, exacerbated the vagueness of counsel’s fee request, a risky choice since the burden of proving entitlement to fees rests on the moving party.”). On review of the ‘block billed’ time entries appended to the Declaration of Lai, the Court notes that the majority of ‘block billed’ entries related to trial preparation during the course of the trial, but that the ‘block billed’ entries do not form a majority of the time entries in the submitted documents. Moreover, there are numerous instances in the ‘block billed’ entries where very large blocks of time (e.g. 8 hours) are included in these ‘block billed’ entries for “Trial preparation” or where trial preparation and the actual trial are blocked together in a 12 hour time block. The Court considers that this case undoubtedly required significant preparation time both prior to the commencement of trial and during the course of trial, given the complex issues presented, the volume of exhibits, and the need to prepare for the numerous witnesses called throughout the course of the trial. However, the ‘block billed’ amounts undoubtedly obscure the nature of some of the work claimed by Plaintiffs and likely inflate the hours worked despite breaks, meals, and distractions. Given that this obfuscation or inflation of time is likely only a small percentage of an already relatively small group of entries, the Court does not consider a reduction of 20% proper, and the Court will only reduce the hours by 5% under these circumstances.

Accordingly, the Court will award attorney’s fees in the amount of $1,391,702.50.[5]

SO ORDERED this the 30th day of October, 2018.

_____________________________

RANDOLPH A. ROGERS, JUDGE

[1] The writ was denied on September 20, 2018.

[2] It appears that Michael Ghilezan did not file opposition to striking this charge for courier fees, and will be GRANTED as unopposed on that basis.

[3] “When EPL’s counsel emailed Plaintiffs’ counsel seeking to know what 998 offer was the basis for their request, they did not respond. Luther Decl., ¶ 11, Ex. D. Now, Plaintiffs present an offer they purport to have provided EPL on April 12, 2017. See Declaration of Margaret Lai, ¶ 9, Ex. A. Assuming the offer is effective, the Court, ‘in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses… actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration…’ Civ. Proc. § 998(d) (emphasis added).” Mot. Stk. Costs Reply Brief, 3:20-26.

[4] The Court notes that Plaintiffs’ Memorandum of Costs contains a scrivener’s error where Plaintiffs list the models, enlargements, and photocopies as being attached to the memorandum as Attachment 8, when they are actually attached as attachment 9. The court reporter fees similarly switched, where they are listed as being in attachment 9 to the memorandum, when they are actually in attachment 8.

[5] Robert Zarco ($850 x 0.95 x 431) = $348,032.50; David Gurnick ($500 x 563) = $281,500.00; Robert F. Salkowski ($700 x 0.95 x 414) = $275,310.00; R. Michael Ghilezan ($300 x 36) = $10,800.00; Margaret T. Lai ($400 x 0.95 x 352) = $133,760.00; Samuel C. Wolf ($300 x 1141) = $342,300.00.