Opinion
B325854
01-16-2024
JACKIE KREITZMAN et al., Plaintiffs and Appellants, v. MERCURY CASUALTY COMPANY, Defendant and Respondent.
Newmeyer & Dillion, Joseph A. Ferrentino and Rondi J. Walsh for Plaintiffs and Appellants. Wesierski & Zurek, Christopher P. Wesierski and Mary H. Kim for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC654909 Jon R. Takasugi, Judge. Affirmed with directions.
Newmeyer & Dillion, Joseph A. Ferrentino and Rondi J. Walsh for Plaintiffs and Appellants.
Wesierski & Zurek, Christopher P. Wesierski and Mary H. Kim for Defendant and Respondent.
SEGAL, ACTING P. J.
INTRODUCTION
After water leaked into the home of Jackie Kreitzman and Brian Senit and caused damage, Kreitzman and Senit submitted a claim to Mercury Casualty Company under their homeowners' insurance policy. Mercury paid them over $120,000 for repairs, but refused to pay the $1.5 million they claimed they needed to return their home to its pre-loss condition. In March 2017 they sued Mercury.
In July 2021, after years of litigating with Kreitzman and Senit, Mercury offered them $801,000 under Code of Civil Procedure section 998 to settle this action. Kreitzman and Senit declined the offer. Following a trial in July 2022, the jury found Kreitzman and Senit did not suffer a loss, "all or part of which was covered under the insurance policy," and awarded them nothing. After entering judgment for Mercury, the trial court awarded Mercury $265,039.77 in costs.
Kreitzman and Senit appeal from the judgment, arguing substantial evidence did not support the jury's verdict because Mercury conceded there was coverage under the policy for at least some of Kreitzman and Senit's losses. They also challenge the trial court's cost award for certain expert witness fees. We affirm the judgment because the evidence did not compel the conclusion that the policy covered the damage. On the cost award, we conclude the trial court erred in awarding costs for one expert, an attorney who did not testify at trial but consulted with counsel for Mercury on legal issues, and otherwise affirm the award.
FACTUAL AND PROCEDURAL BACKGROUND
A. Kreitzman and Senit Submit an Insurance Claim for Water Damage
Kreitzman and Senit had a homeowners' insurance policy issued by Mercury in effect from December 2014 through December 2015. In November 2014 Kreitzman and Senit hired a roofer to repair their roof after rain water leaked into the house from skylights.
Senit testified he and Kreitzman had a homeowners' insurance policy from Mercury during 2014, and at oral argument counsel for the parties agreed Kreitzman and Senit had an insurance policy predating the policy covering December 2014 to December 2015. The operative complaint, however, alleged causes of action based only on the December 2014 policy.
Following a storm in January 2015, Kreitzman and Senit returned home from out of town and allegedly discovered a musty smell and water coming into their house from skylights in the roof. In mid-February 2015 Kreitzman reported the leak to Mercury. Kreitzman said she and Senit initially intended to repair the roof without insurance, but after a contractor recommended replacing walls and flooring, she decided to submit a claim. Mercury's claims adjuster Jackie Walk suggested Kreitzman contact an emergency service for potential mold issues. Kreitzman did not follow that advice.
During the ensuing investigation, Mercury identified a number of problems with the house unrelated to the reported leak. In April 2015 Mercury approved a payment of $9,521.72 for repairs Mercury believed were related to the January 2015 leak. After many months of arguments, inspections, and disputes, Mercury ended up paying Kreitzman and Senit approximately $120,000. An inspector hired by Kreitzman and Senit, however, recommended removing all the drywall in the home, which they did. A contractor Kreitzman and Senit retained estimated it would cost almost $1.5 million "to put [their] home back together." Kreitzman and Senit asked Mercury to cover the full cost of what they claimed was required to restore their home to its pre-loss condition, but Mercury refused to pay for any additional repairs.
B. Kreitzman and Senit File This Action
Kreitzman and Senit filed this action in 2017. The operative complaint alleged causes of action against Mercury for breach of contract, breach of the covenant of good faith and fair dealing, and negligent misrepresentation. On July 9, 2021 Mercury made an offer under Code of Civil Procedure section 998 to settle Kreitzman and Senit's action for $801,000. Kreitzman and Senit rejected Mercury's offer.
Undesignated statutory references are to the Code of Civil Procedure.
C. The Trial Court Enters Judgment for Mercury and Denies a Motion by Kreitzman and Senit To Vacate the Judgment
Following a nine-day trial the jury found Kreitzman and Senit did not suffer a covered loss. The jury answered "No" to Question No. 1 of the special verdict, which asked, "Did Jackie Kreitzman and Brian Senit suffer a loss, all or part of which was covered under the insurance policy?" The trial court entered judgment for Mercury on October 10, 2022. The judgment stated that Mercury was "entitled to costs pursuant to a Memorandum of Costs" and that "[c]osts are awarded to [Mercury] in an amount to be determined." Kreitzman and Senit timely appealed from the judgment.
Kreitzman and Senit moved to vacate the judgment under section 663, arguing the undisputed evidence showed, contrary to the jury's verdict, at least some of their losses were covered. Kreitzman and Senit argued section 663 empowered the trial court "to vacate a judgment when there are inconsistencies between the judgment and the facts." They argued that Walk (the adjuster) had testified "the water damage that was the subject of [Kreitzman and Senit's] claim was a covered loss" and that the jury ignored this testimony and rendered a verdict inconsistent with it.
In opposing the motion, Mercury argued the jury's verdict was consistent with evidence presented at trial. In particular, Mercury argued its willingness to give Kreitzman and Senit the "benefit of the doubt" by reimbursing them for certain losses that may not have been covered did not prove they had a covered loss. Mercury also argued the evidence showed that Kreitzman and Senit's claim was barred by the policy's one-year limitation period for submitting their claim and that Kreitzman filed a "false claim" by exaggerating the circumstances "to get what she wanted." On the latter point, Mercury cited Kreitzman's testimony that she had previously called a home warranty company and said a toilet leak was "flooding her home" and Senit's testimony that Kreitzman was exaggerating on that occasion "to get the bathroom fixed as soon as possible." When Kreitzman first called Mercury to report the January 2015 incident, she said "water was pouring in from the sky lights and coming up through the floor." Senit testified this, too, was an exaggeration, and counsel for Mercury suggested Kreitzman lied and badgered Walk to get Mercury to cover the alleged damages.
The trial court denied Kreitzman and Senit's motion. The court found Mercury presented evidence "the jury could have believed showed that [Kreitzman and Senit] never had a covered claim in the first place or had a time-barred claim. As such, the jury's conclusion is not inconsistent with the evidence presented at the time of trial."
D. The Trial Court Awards Costs to Mercury
Mercury filed a verified memorandum of costs for $410,970.72, which included $225,873.50 in fees for six expert witnesses. Only two of those experts testified: Mark Viau, a construction expert, and Paul Hamilton, an insurance claims expert. The non-testifying experts were Rick Harris, a roofing expert; Jay Rosenthal, a meteorologist; Brian Stratouly, an industrial hygienist; and Janice Ramsay, an insurance coverage attorney. Mercury supported its memorandum of costs with 400 pages of invoices and receipts.
Kreitzman and Senit filed a motion to tax costs, objecting to almost $350,000 in costs, including the amounts claimed for expert witness fees. Kreitzman and Senit argued Mercury was not entitled to expert witness fees incurred before Mercury served its section 998 offer. They also challenged fees they claimed Mercury had double-counted, were excessive, and were not reasonably necessary because four of the six experts did not testify at trial. In its opposition to the motion to tax costs, Mercury conceded it was not entitled to expert witness fees incurred before Mercury served its 998 offer or to fees based on duplicative invoices. Mercury argued its remaining, non-duplicative, post-offer expert fees were reasonable and necessary, in light of the quantity of documents produced in the case, the four years of pretrial litigation, and the extensive trial preparation required to rebut Kreitzman and Senit's experts. Counsel for Mercury, Mary Kim, submitted with her declaration, among other things, relevant portions of deposition transcripts of the non-testifying experts.
The trial court granted in part and denied in part the motion to tax costs. The court taxed $145,930.95 in costs, including expert witness fees incurred before Mercury's section 998 offer, an amount for double-counted invoices for Hamilton and Rosenthal, and $38,685.00 in expert fees for Viau, ruling "some of Mr. Viau's expert fees [were] either excessive, redundant, or otherwise unnecessary." The court rejected Kreitzman and Senit's argument all of the fees incurred for the non-testifying experts were not reasonably necessary. Kreitzman and Senit did not appeal from this order.
DISCUSSION
A. The Evidence Did Not Compel a Finding in Favor of Kreitzman and Senit as a Matter of Law
1. The Standard of Review Is Not Substantial Evidence
Kreitzman and Senit contend they are entitled to a new trial because the verdict "has no evidentiary support." They make this argument in connection with their argument the trial court erred in denying their motion to vacate under section 663. But a new trial is not a remedy under section 663. Instead, section 663 allows a trial court to vacate a judgment and enter "another and different judgment" when "the trial judge draws an incorrect legal conclusion or renders an erroneous judgment upon the facts found by it [or the jury] to exist." (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 738; see Garibotti v. Hinkle (2015) 243 Cal.App.4th 470, 476; § 663, subd. (1).) Thus, a "'motion to vacate lies only where a "different judgment" is compelled by the facts found'" (Garibotti, at p. 477), not where, as here, a party contends the evidence does not support the facts found (see 8 Witkin, Cal. Procedure (6th ed. 2023) Attack on Judgment in Trial Court, § 143 [distinguishing between a motion to vacate and a motion for a new trial]). Moreover, Kreitzman and Senit did not appeal from the order denying their motion to vacate, which they acknowledge in their opening brief is a separately appealable order. (See Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 135.)
Section 663, subdivision (1), provides: "A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [¶] 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected."
Kreitzman and Senit also did not appeal from the trial court's order on the motion to tax costs. But because the judgment awarded costs to Mercury and left the amount for later determination, "the notice of appeal [from the judgment] subsumes any later order setting the amounts of the award." (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998; see Kim v. TWA Construction, Inc. (2022) 78 Cal.App.5th 808, 839.)
Nevertheless, Kreitzman and Senit can challenge the sufficiency of the evidence supporting the jury's verdict, which is what they appear to be trying to do, in an appeal (as this is) from the judgment. But they must do more than demonstrate substantial evidence did not support the verdict. Because Kreitzman and Senit had the burden of proof at trial and failed to meet that burden, they face a much more difficult, indeed nearly impossible, standard of review. "'[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding."'" (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466; see Lafayette Bollinger Development LLC v. Town of Moraga (2023) 93 Cal.App.5th 752, 780; Victaulic Company v. American Home Assurance Company (2022) 80 Cal.App.5th 485, 505.) This is "a heavy, perhaps insurmountable, burden on appeal." (Lincoln v. Lopez (2022) 77 Cal.App.5th 922, 929; see Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1067 [where "the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor"].)
2. The Evidence Did Not Compel a Finding Kreitzman and Senit Suffered a Covered Loss
Mercury argued at trial, among other things, Kreitzman and Senit submitted a fraudulent claim "by exaggerating a claim that wasn't there." This was a question of fact for the jury. (See Cummings v. Fire Ins. Exchange (1988) 202 Cal.App.3d 1407, 1417 [whether the insured knowingly and intentionally made a false statement to the insurer is a question of fact]; see also Guastello v. AIG Specialty Ins. Co. (2021) 61 Cal.App.5th 97, 100 [whether there was a covered occurrence is a question of fact].) The jury reasonably could have inferred from the evidence that Kreitzman lied about the January 2015 incident to obtain coverage from Mercury for losses she and Senit incurred at a different time or not at all.
Kreitzman testified there was no significant water intrusion in her home before the January 2015 leak. But there was evidence of at least two earlier leaks. First, Senit testified that in November 2014 there was enough "water coming through [the] roof" that he hired a roofer to patch the roof. Mercury's expert Viau testified that five to six inches of rain fell in Van Nuys (about 12 miles from Senit and Kreitzman's home) in November and December 2014, while only one inch fell there between January 9 and 12, 2015. He also opined the water damage to Senit and Kreitzman's home was not caused by a "sudden occurrence," such as a single rain event in January 2015.
Second, call logs from a home warranty company showed that in 2013 Kreitzman reported a leak from her toilet was "flooding her home." At trial Kreitzman tried to downplay the significance of that leak, saying that the "toilet was leaking a little bit" and that she was concerned it would flood her home if left unrepaired. The call logs also showed that Kreitzman called representatives of the home warranty company "stupid" and "incompetent" and that she "cursed" at them and threatened to sue them. Questioned about Kreitzman's conduct, Senit testified his wife "exaggerate[d]" because "she was very concerned [the water from the toilet] would leak into the home."
Senit admitted Kreitzman exaggerated again when she called Mercury in February 2015 and said water was "pouring in from the skylights and coming through the floor." Counsel for Mercury asked Senit about Kreitzman's exaggerations:
Q: "So how do we know that what she says now is true or is she exaggerating?"
A: "My wife doesn't lie. She does exaggerate."
Q: "Well, isn't an exaggeration where you say it's flooding the home, but you now say it only flooded the bathroom, isn't that a lie?"
A: "She wanted to get somebody out as soon as possible because she was afraid it might flood more into the home."
Q: "Oh." A: "She couldn't wait 24 hours for a company to come out as we had water leaking from a toilet."
Q: "And so wasn't that a lie?"
A: "I would call it an exaggeration to get action."
See Star Trek II: The Wrath of Khan (Paramount Pictures, 1982) (Saavik: "You lied!" Spock: "I exaggerated.").
In closing argument counsel for Mercury argued "all those damages [Kreitzman and Senit] were claiming were not due to [the January 2015] roof leak because there probably wasn't one, because [Kreitzman] exaggerated it." He argued the jury should answer Question No. 1 on the verdict form-whether Kreitzman and Senit suffered a covered loss-"no" because "Mr. Senit gave that away yesterday, when he said his wife exaggerated it. That's gone." Counsel for Mercury suggested Kreitzman exaggerated or lied about the January 2015 rain event to get Mercury to pay for repairs that were unrelated to a water leak, such as a damaged tile floor and other "preexisting maintenance problems." And Mercury introduced evidence showing Kreitzman and Senit's house suffered from a number of maintenance issues.
Kreitzman and Senit argue "there was no evidence to rebut Mercury's own investigation that found that there was at least some covered damages." They cite evidence from March through November 2015 reflecting that Mercury agreed to pay Kreitzman and Senit for losses caused by the January 2015 roof leak. This evidence included (1) Walk's notes from March 2015 stating Mercury was "extending coverage for damages related to [the] roof leak as it was a sudden and accidental loss and [insured] mitigated damages by repairing roof after it happened"; (2) Walk's testimony the damages reflected in a February 2015 cost estimate from Mercury's investigator were "covered due to the roof leak"; (3) a March 2015 note to the file from Walk's supervisor stating Mercury would cover "short term water damage from a leaking roof" caused by "storm damage"; (4) Walk's testimony Mercury covered the claim based on her "understanding it was a one-time, two-time event"; (5) Walk's testimony Mercury agreed in November 2015 to cover losses for asbestos abatement; and (6) testimony by Mercury's claims expert Hamilton that he would not have done anything different from what Walk did.
Whether Mercury initially determined the damage caused by the roof leak was covered, however, did not preclude Mercury from arguing or the jury from finding that, in light of subsequent facts and events, the policy did not cover Kreitzman and Senit's losses. Indeed, in closing argument counsel for Mercury told the jury that Mercury "didn't know what we know now, that [Kreitzman] exaggerated the claim and she made the exact same claim to the warranty company and exaggerated it there." Counsel argued: "We now have more knowledge than what Mercury had. So the answer to [Question No. 1] is, 'No.'" The jury agreed with Mercury and found Kreitzman and Senit did not suffer a covered loss. The evidence cited by Kreitzman and Senit does not compel a contrary finding.
B. With One Exception, the Trial Court Did Not Err in Ruling on the Motion To Tax Costs
1. Applicable Law and Standard of Review
"Generally, a prevailing party in a civil case 'is entitled as a matter of right to recover costs.' (§ 1032, subd. (b).) Recoverable costs do not typically include the fees of expert witnesses not ordered by the court. (§§ 1032, 1033.5, subd. (b)(1).) But expert witness fees are recoverable in some circumstances, as when a more favorable judgment for the [defendant] follows a [plaintiff's] rejection of a valid pretrial section 998 settlement offer. [Citations.] Section 998 establishes a procedure for shifting costs upon a party's refusal to settle by 'expand[ing] the number and type of recoverable costs and fees over and above those permitted by'" section 1032, subdivision (b). (Gonzalez v. Lew (2018) 20 Cal.App.5th 155, 160; see Kahn v. The Dewey Group (2015) 240 Cal.App.4th 227, 237.) Under section 998, a prevailing defendant may recover "a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant." (§ 998, subd. (c)(1).)
A prevailing party must serve and file a memorandum of costs "verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case." (Cal. Rules of Court, rule 3.1700(a)(1).) "'If items on a memorandum of costs appear to be proper charges on their face, those items are prima facie evidence that the costs, expenses, and services are proper and necessarily incurred. [Citations.] The burden then shifts to the objecting party to show them to be unnecessary or unreasonable.'" (Rojas v. HSBC Card Services Inc. (2023) 93 Cal.App.5th 860, 896; see Litt v. Eisenhower Medical Center (2015) 237 Cal.App.4th 1217, 1224; Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, 1115; see, e.g., Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 695 [trial court did not abuse its discretion in awarding expert witness fees where the appellant presented no evidence the expertise was not reasonably necessary to prepare for trial].)
Section 1033.5 defines what costs are proper charges under section 998. (Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, 532.) "'Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.'" (Rozanova v. Uribe (2021) 68 Cal.App.5th 392, 399; accord, Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1484; see LAOSD Asbestos Cases (2018) 25 Cal.App.5th 1116, 1123 [appellate court reviews a trial court's order taxing costs for an abuse of discretion].)
2. The Trial Court Did Not Abuse Its Discretion in Awarding Witness Fees for Non-Testifying Experts Harris, Rosenthal, and Stratouly
Kreitzman and Senit argue the fees for Mercury's non-testifying experts were not necessary because, well, they did not testify. Expert witness fees are recoverable, however, even if the expert does not testify, so long as the expert "aided in the preparation of the case for trial" and was "a potential witness." (Evers v. Cornelson (1984) 163 Cal.App.3d 310, 317; see Michelson v. Camp (1999) 72 Cal.App.4th 955, 975 [expert witness fees under section 998 are not limited to "actual time consumed in examination"]; Stiles v. Estate of Ryan (1985) 173 Cal.App.3d 1057, 1066 [deposition costs for non-testifying experts were "reasonably necessary" in preparing the case for trial].)
Kreitzman and Senit also contend the declaration of Mary Kim, Mercury's attorney, was inadequate because it "merely authenticate[d] invoices and a few pages of expert deposition transcripts" and failed to explain why certain experts were necessary for the case. According to Kreitzman and Senit, Kim's declaration lacked "any discussion of the actual reasonableness of the fees charged or the need for hiring the non-designated experts." Mercury, however, filed a memorandum of costs on Judicial Council Form MC-010, which included a verification stating that, to the best of the declarant's knowledge and belief, the memorandum of costs was correct and the costs listed were necessarily incurred in the case. (See Cal. Rules of Court, rule 3.1700(a)(1).) That was sufficient to shift the burden to Kreitzman and Senit to challenge the propriety of Mercury's claimed costs. (See 612 South LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th 1270, 1285 [a "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"]; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131 ["'[i]f the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party]'"].)
Turning to the fees the trial court awarded for the nontestifying experts, Kreitzman and Senit argue the fees for Harris and Rosenthal were unnecessary because Viau gave opinions on the same topics. The trial court found Harris "prepared opinions regarding the condition of the roof both at the time of the incident and before the incident, and regarding the leaks and sources of the roof leaks." The trial court found Rosenthal "provided important review and analysis of weather data and performed complicated calculations after specific rainwater contribution on pertinent dates." Kreitzman and Senit argue that Viau testified "about all of the topics" Harris addressed and that Viau "independently reviewed rain data and provided the jury" information about how much rain fell near Kreitzman and Senit's home.
The trial court acknowledged some of Viau's expert fees were "redundant" and reduced his recoverable fees by $38,685. Kreitzman and Senit appear to argue the trial court should have subtracted the total amount of fees for Harris and Rosenthal ($66,052.75) from the cost award, but they do not cite any evidence supporting their assertion none of the work Harris and Rosenthal performed in preparation for trial was necessary or reasonable. That Viau testified about things Harris and Rosenthal could have testified about does not necessarily show Harris's or Rosenthal's pretrial work was unreasonable or unnecessary.
Kreitzman and Senit also argue the trial court could not have known Rosenthal's work was "important" because Rosenthal never testified. But we defer to the trial court's evaluation about what was important (and reasonable and necessary) because the trial court "heard the entire case" and was best able to assess what fees were "reasonably necessary." (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989; see Adams v. Ford Motor Co., supra, 199 Cal.App.4th at p. 1484.) Though Rosenthal did not testify, the trial court was in a position to evaluate whether his opinions reasonably assisted Mercury in preparation for (a successful) trial. Kreitzman and Senit have not shown the trial court abused its discretion in awarding fees for Rosenthal.
As for Stratouly, the trial court found he "provided opinions regarding [Kreitzman and Senit's] allegation that their home needed to be torn down to the studs due to contamination by asbestos and/or mold.... His opinions were also necessary for the defense to prepare in cross-examining [Patrick] Moffett," Kreitzman and Senit's expert industrial hygienist. Kreitzman and Senit argue Mercury did not provide evidence that Stratouly "offered any opinions regarding asbestos," that Mercury relied on Stratouly to prepare to cross-examine Moffett, or that explained why Stratouly billed $14,000 for his services. As discussed, however, Kreitzman and Senit had the burden to show Stratouly's fees were unnecessary or unreasonable, and they have not shown the trial court abused its discretion in finding those fees were reasonably necessary. And in fact, Mercury submitted deposition transcripts showing Stratouly provided opinions about asbestos and Moffett's recommendations.
The trial court's incorrect statement that Stratouly testified at trial does not undermine the trial court's finding Stratouly's fees were reasonably necessary.
3. The Trial Court Did Not Abuse Its Discretion in Awarding Witness Fees for Viau
Kreitzman and Senit acknowledge that Viau, Mercury's construction expert, was "an important witness for the defense." The trial court found Viau "probably carried the heaviest burden in terms of the sheer number of hours needed to prepare for his expert opinions and testify." Mercury retained Viau in early 2018, and he worked on the case over four years, including testifying at trial in 2022. Mercury initially asked for $129,600 in fees for Viau's services. The trial court reduced Mercury's request for expert fees overall by $77,031.26 to eliminate any fees incurred prior to the section 998 offer. Kreitzman and Senit's motion to tax costs suggested $74,334 of that amount was attributable to Viau's fees. Kreitzman and Senit argued the remaining $55,266 ($129,600 - $74,334) in fees for Viau was "unreasonable," and the trial court taxed $38,685 of his fees as "excessive, redundant, or otherwise unnecessary." According to Kreitzman and Senit, the trial court awarded Mercury $37,244 for Viau's post-section 998 expert fees.
The trial court's ruling on the motion to tax costs identified the amount the court was reducing for Viau's fees, but not the amount the court was awarding. The record makes it difficult to verify the amount Kreitzman and Senit say the court awarded for Viau and the amount they are challenging, but the math is pretty close.
Kreitzman and Senit make numerous arguments why the trial court's reductions did not go far enough. They argue that the trial court "did not provide any detail regarding how the reduction [in Viau's fees] was calculated," that Mercury did not give the trial court enough information to allow the court to make that calculation, that Mercury did not provide evidence for the statements in its opposition to the motion to tax costs the trial court relied on, that Viau's testimony about his trial preparation was vague, and that they should not have to pay for Viau to prepare multiple times for trial when it was Mercury that asked for the trial continuances that required Viau to repeatedly prepare. None of Kreitzman and Senit's arguments, however, justifies any further reduction in the cost award.
The trial court granted Kreitzman and Senit approximately 70 percent of their request to tax $55,266 of Viau's fees for postsection 998 offer services. Although the trial court did not explain how it calculated that amount, the trial court heard the case, observed Viau's testimony at trial, and saw the testimony of numerous other witnesses whose work and deposition testimony Viau reviewed to prepare for trial. (See Bender v. County of Los Angeles, supra, 217 Cal.App.4th at p. 989 [the trial court is in the best position to evaluate the reasonableness of expert fees]; Adams v. Ford Motor Co., supra, 199 Cal.App.4th at p. 1487 [same].) The trial court's order described in detail the volume of work Viau completed to prepare for and testify at trial. Although Kreitzman and Senit assert the number of hours Viau billed for this work was "exorbitant," they do not explain why the reduced amount awarded by the trial court is unreasonable.
Nor did the trial court abuse its discretion in rejecting Kreitzman and Senit's contention Mercury should not recover fees for Viau's trial preparation because the court continued the trial several times at Mercury's request. The trial court ruled that Viau, "like the other percipient and expert witnesses and even the attorneys involved," was entitled and needed to "refresh [his] recollection and review file materials," as well as consider "new material," each time the trial was continued. That was not an abuse of discretion.
4. The Trial Court Abused Its Discretion in Awarding Expert Fees for Janice Ramsay
Mercury's expert witness designation identified Ramsay as "a licensed attorney and expert at insurance coverage, claims handling and policy interpretation." Mercury stated it expected her to "state opinions on interpretation of the policy, and whether there was coverage under the policy" for Kreitzman and Senit's claim. Ramsay was deposed, but she did not testify at trial. Mercury requested $19,673.50 in fees for her services as an expert witness. The trial court found Ramsay's post-section 998 offer fees were necessary and reasonable because Ramsay "provided opinions which were used by defense counsel to argue that [Kreitzman and Senit] failed to timely report their claim, which not only prejudiced [Mercury] but also meant that [Kreitzman and Senit] did not bring their suit within the one-year suit limitations deadline pursuant to the insurance policy."
The trial court's order did not identify the amount of Ramsay's post-section 998 offer fees.
The trial court abused its discretion in awarding fees for Ramsay's services. "[A]n expert is not permitted to give an opinion on questions of law or legal conclusions." (City of Rocklin v. Legacy Family Adventures-Rocklin, LLC (2022) 86 Cal.App.5th 713, 728; see Janney v. CSAA Ins. Exchange (2021) 70 Cal.App.5th 374, 391; Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178.) The meaning of an insurance policy and the application of law to particular facts are legal questions that are not subject to expert opinion. (Janney, at p. 391; Summers, at pp. 1179-1180; see Cooper Companies v. Transcontinental Ins. Co. (1995) 31 Cal.App.4th 1094, 1100 ["the meaning of [an insurance] policy is a question of law about which expert opinion testimony is inappropriate"].) And "[e]ven if an expert's opinion does not go to a question of law, it is not admissible if it invades the province of the jury to decide a case." (Summers, at p. 1182; see Vergara v. State of California (2016) 246 Cal.App.4th 619, 650.)
In its opposition to the motion to tax costs, Mercury argued Ramsay "provided opinions regarding the application of the policy language to the issue of whether [Kreitzman and Senit] timely brought their claim . . . and related statute of limitations issues." Mercury also stated its attorneys used Ramsay's legal opinions "to argue that [Kreitzman and Senit] failed to timely report their claim, which . . . meant that [Kreitzman and Senit] did not bring their suit within the one year suit limitations deadline pursuant to the insurance policy." Mercury submitted excerpts from Ramsay's deposition where she stated her opinions on whether Mercury gave Kreitzman and Senit "reasonable notice of the statute of limitations deadline" and whether the date of loss was November 2014 or earlier. None of these was an appropriate subject for expert opinion.
The Insurance Commissioner has issued regulations that require insurers to notify a claimant of time limits pertaining to a claim. (Cal. Code Regs., tit. 10, §§ 2695.4, subd. (a), 2695.7, subd. (f); see Superior Dispatch, Inc. v. Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 188; Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260, 1264.)
Interpreting and applying the policy's language to determine whether Kreitzman and Senit's claim was timely under the policy called for a legal conclusion. (See WRI Opportunity Loans II, LLC v. Cooper (2007) 154 Cal.App.4th 525, 532, fn. 3 [how the law should apply to particular facts is a legal question and is not subject to expert opinion]; Downer v. Bramet (1984) 152 Cal.App.3d 837, 841 [same]; see also Janney v. CSAA Ins. Exchange, supra, 70 Cal.App.5th at p. 391 [expert opinion that "amount[ed] to legal conclusions with respect to what . . . was required of [insurer] under the policy" was improper]; Devin v. United Services Auto. Assn. (1992) 6 Cal.App.4th 1149, 1157, fn. 5 [expert opinion a complaint alleged facts triggering coverage was improper].) Whether Kreitzman and Senit's claim was timely under the limitations period in the insurance policy also called for a legal conclusion to the extent the facts were undisputed. (See Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) To the extent the date of loss (and thus the date the contractual limitations period began to run) was disputed, allowing an expert to testify on that ultimate issue would usurp the judge's role "to instruct the jury on the law as applicable to the facts" (Downer v. Bramet, supra, 152 Cal.App.3d at p. 842) and invade the jury's role "'"to consider and weigh the evidence and draw the necessary conclusions"'" (Summers v. A. L. Gilbert Co., supra, 69 Cal.App.4th at p. 1183). "The opinion of an expert witness is limited to testimony '[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.'" (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1598; Evid. Code, § 801, subd. (a).) Whether Kreitzman and Senit's loss occurred in November 2014 or January 2015 was not beyond the common experience of the jurors, who heard ample testimony on that issue from numerous other witnesses.
Moreover, using Ramsay's opinions "to argue that [Kreitzman and Senit] failed to timely report their claim" was essentially seeking legal advice, not an expert opinion, and again called for a legal conclusion. (See King v. State of California (2015) 242 Cal.App.4th 265, 292 ["Although otherwise admissible opinion evidence 'is not objectionable because it embraces the ultimate issue to be decided by the trier of fact' [citation], an expert is not allowed 'to testify to legal conclusions in the guise of expert opinion.'"]; Downer v. Bramet, supra, 152 Cal.App.3d at p. 841 [same].) Asking Ramsay to give her opinions on the meaning of the policy and whether there was coverage was no different from consulting with another lawyer in counsel for Mercury's law firm or sitting with co-counsel at a conference table and exchanging ideas and legal strategies about the case. And whether Mercury "gave reasonable notice of the statute of limitations deadline" to Kreitzman and Senit implicated Mercury's obligations under the policy (see Janney v. CSAA Ins. Exchange, supra, 70 Cal.App.5th at p. 391 [an expert may not opine on an insurer's obligations under an insurance policy]) and invaded the province of the jury to determine what is reasonable (see Ghazarian v. Magellan Health, Inc. (2020) 53 Cal.App.5th 171, 186-187 [the reasonableness of an insurer's conduct is typically a question of fact for the jury]).
None of the subjects Ramsay may have testified or advised counsel for Mercury about was appropriate for expert testimony, and whatever help or ideas she may have given counsel for Mercury in defending the case or preparing for trial were essentially legal services. The trial court abused its discretion in awarding Mercury Ramsay's expert fees.
DISPOSITION
The judgment is affirmed. The order granting in part and denying in part the motion to tax costs is vacated, and the trial court is directed to enter a new order awarding costs in an amount that excludes the fees for Janice Ramsay. In all other respects, the order on the motion to tax costs is affirmed. Mercury is to recover its costs on appeal.
We concur: MARTINEZ, J., EVENSON, J. [*]
[*] Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.