Yau vs. Santa Margarita Ford, Inc.

Opposition

Cal. Super. - 4th Dist.February 10, 2011

AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 ROGER M. MANSUKHANTI (SBN: 164463) CHRISTOPHER B. CATO (SBN: 155324) CRAIG D. NICKERSON (SBN: 215067) KARA A. RITTER (SBN: 306515) GORDON & REES LLP 633 West Fifth Street, 52nd Floor Los Angeles, CA 90071 Telephone: (213) 576-5000 Facsimile: (213) 680-4470 Attorneys for Defendant SANTA MARGARITA FORD, INC. ELECTRONICALLY FILED Superior Court of California, County of Orange 06/02/2017 at 02:37:00 Al Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF CALIFORNIA - COUNTY OF ORANGE CENTRAL JUSTICE CENTER EDDIE YAU, Plaintiff, VS. SANTA MARGARITA FORD, INC.; and DOES 1 THROUGH 25, inclusive, Defendants. N r N r N e N e N e N e N e N e N e N e N e N e -1- CASE NO. 30-2011-00448900-CU-WT-CJC DEFENDANT SANTA MARGARITA FORD’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX COSTS Date: Time: Department: Judge: June 29, 2017 1:30 p.m. C18 Theodore R. Howard Third Am. Complaint Filed: May 29, 2012 DEFENDANT SANTA MARGARITA FORD’S OPPOSITION TO PLAINTIFF'S MOTION TO TAX COSTS AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 L INTRODUCTION IL. BACKGROUND a. b. III. ARGUMENT a. IV. CONCLUSION TABLE OF CONTENTS SMF Is Entitled to Costs As the Prevailing Party. .........ccocccooiiviinninnicncnnen. Plaintiff Rejected a Pre-Trial C.C.P. § 998 Offer, Which Entitles SMF to A QQIONAL COSTES. noite eee eee ee eee ee eee ee eee ee eee e ee ee aaa esas aaa ee ee een aeeeneaaeaens Costs Incurred for Filing and Motion Fees as well as Rush and Delivery Fees Were Reasonable and Warranted Based on the Court’s Need for Motion and Trial Briefing During the Trial. .......ccccooeeiiiniinniiiiiie Costs Incurred for Models, Blowups and Photocopies Were Reasonable and Necessary to Facilitate the Jury’s Understanding of Complicated Factual Issues INVOIved at Trial. c..coouneeeieee eee eee eee eee eee e eee Costs Incurred for Court Reporting Fees Were Reasonable and Warranted, and the Transcripts Were Relied Upon by the Court and Counsel For Purposes of Trial-Related Briefings..........ccccevveeniinieiiiiniiiniecccecneene Expert Fees Are Recoverable Pursuant to the 998 Offer for All Expert Fees Reasonably Incurred in Preparing for Trial. .......cccccooveeniiiiciiiinninnnen. 1. SMF’s 998 Offer Was Reasonable and in Good Faith, Warranting the Benefit of the Statutory Cost-Shifting Provision. ...........ccccc.uee.... il. SMF is Entitled to Recovery of Fees Actually Incurred in Preparation For and at Trial. ........ccccoviiiiiiiiniiicceeccee Costs Incurred for Service of Process on VA Physicians Were Reasonable and Warranted in Order to Address Plaintiff’s Emotional Distress Damages at Trial. ......coooviiiiiiiiiiieiie eee ceceeeereceeeeeee 2. . 8 rem 11 cee 11 cee 12 DEFENDANT SANTA MARGARITA FORD’S OPPOSITION TO PLAINTIFF'S MOTION TO TAX COSTS AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 TABLE OF AUTHORITIES Page(s) Cases Adams v. Ford Motor Co. (2011) 199 Cal APP.Ah LATS cee sees ee sateen sees see saae ee 11 Essex Ins. Co. v. Heck (2010) 186 Cal. APP.Ath 1513 eee eee eee eases sabes ees 10, 11 Evers v. Cornelson (1984) 163 CaLAPP.3A 310 eines e cts eben 12,13 Jones v. Dumrichob (1998) 63 Cal APPA. 1 TER x co umsmss sumansn. sons ons s usmsmss vss 50555558 $555555.55 045555 55555045 FHSAETS SA 6,11 Ladas v. Ca. State Auto. Ass'n (1993) 19 Cal. APPA TOL eons eee esate eerste sae sabes 5,6 Nelson v. Anderson (1999) 72 Cal. APPA 111 cei eee eee sbae sabe e eee eaas 6 Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal. APPA 102 wooo eee e tee sbae sabe e sees sae saae ees 12 Science Applications Int’l. Corp. v. Sup. Ct. (1995) 39 Cal APPA, TOTS u.c0mmmmes sumnnsn.o sons onsen s ummsmms mms 5655555 555557555 055555 55555045 SH53578S055555 50555 9 Statutes Code of Civil Procedure SECTION 1031.5 oases eee eerste teeter esse ee ee setae sees se seasaaaa sees eesessannnennes 4 Code of Civil Procedure SECON 1033.5 oii 4,6,8,9, 13 Code of Civil Procedure Section 998... 4,5,12,13 Rules Rules of Court RULE 2.956... e eee eae ae ae ae ae ae ae sea e ae ae sea e ae ae se ae ease ae aeaene re reaenenene 9 3 DEFENDANT SANTA MARGARITA FORD’S OPPOSITION TO PLAINTIFF'S MOTION TO TAX COSTS AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 TO THE HONORABLE COURT, PLAINTIFF AND HIS ATTORNEYS OF RECORD: Defendant SANTA MARGARITA FORD hereby submits the following Opposition to Plaintiff’s Notice of Motion and Motion to Tax Costs as Against Defendant’s Memorandum of Costs. I. INTRODUCTION Following a jury verdict in its favor at trial, Defendant SANTA MARGARITA FORD (“SMF”) seeks to recover certain authorized costs it necessarily incurred in the above-captioned case filed by Plaintiff EDDIE YAU (“Plaintiff”). The costs SMF seeks are recoverable under section 1033.5 of the Code of Civil Procedure. Accordingly, SMF is entitled to recover, and asks that the Court award it, $42,298.44 in recoverable costs under section 1031.5. II. BACKGROUND a. SMF Is Entitled to Costs As the Prevailing Party. As the Court is aware, this matter came before the Court and duly impaneled members of the jury on or about February 8, 2017. During the trial, the Court requested and was provided briefings and/or motions on enumerated issues in order to resolve outstanding legal issues presented in this wrongful termination matter. On March 8, 2017, the jury rendered its special verdict in favor of SMF. SMF then filed its Memorandum of Costs on April 4, 2017, seeking certain costs that it is entitled to recover under sections 998 and 1033.5 of the Code of Civil Procedure. Judgment was entered on April 17, 2017, and Notice of Entry of Judgment was filed and served on April 24, 2017. b. Plaintiff Rejected a Pre-Trial C.C.P. § 998 Offer, Which Entitles SMF to Additional Costs. On August 22, 2012, Plaintiff was deposed and cross-examined regarding his anticipated wage loss and emotional distress claims. (Declaration of Kara A. Ritter, { 5.) With respect to his anticipated wage loss, Plaintiff admitted at deposition that within days of his termination from SMF, he applied for and obtained reemployed at North County Ford. 4- DEFENDANT SANTA MARGARITA FORD’S OPPOSITION TO PLAINTIFF'S MOTION TO TAX COSTS AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Ibid.) Plaintiff continued in the position of service advisor at North County Ford for about one year (though March 2011), when he resigned in order to start his own business. (/bid.) As to emotional distress, Plaintiff claimed to suffer from various symptoms, including weight loss and difficulty sleeping. (Id. 6.) While Plaintiff contended he sought treatment with his primary care doctor as well as VA therapists for alleged emotional distress, Plaintiff refused to provide substantive information or documentary evidence substantiating any such treatment at that time. (Ibid.) Indeed, it was not until the Court ordered Plaintiff execute a written authorization and release of such records that SMF was able to obtain and evaluate them on the eve of trial. (Ibid.) Throughout this litigation, SMF explained and reiterated its belief in the strength of its affirmative defenses and the legitimate bases for Plaintiff’s termination. (Id. 7.) SMF asserted repeatedly that the action was without merit because Plaintiff was terminated because of his believed participation in fraudulent activity during his employment with SMF and not for any unlawful reason. (/bid.) Despite SMF’s good faith efforts to educate Plaintiff in this regard and negotiate a reasonable settlement in advance of trial, Plaintiff refused to meaningfully engage in settlement discussions. Rather, it appears Plaintiff was inclined to try this matter on principle alone. On December 21, 2015, after conducting further analysis of Plaintiff’s claims and defenses, and only after the case was remanded for continued proceedings following SMF’s summary judgment motion, SMF issued a section 998 Offer to Compromise (“998 Offer”) to Plaintiff. (Id. {8; Ex. 2.) In exchange for Plaintiff’s dismissal of the action with prejudice and Plaintiff’s execution of a general release, SMF offered to pay Plaintiff $150,001.00, inclusive of costs. (Id. 8; Ex. 2.) Plaintiff did not accept the 998 Offer, and it lapsed. (Id. | 8.) III. ARGUMENT A memorandum of costs serves as prima facie evidence of the appropriateness of the costs sought, which places the burden on the party seeking to tax costs to show how the costs were neither reasonable nor necessary. (See Ladas v. Ca. State Auto. Ass’n (1993) 19 Cal.App.4th 761, 774-776.) The burden of proof shifts to the party claiming costs only if a -5- DEFENDANT SANTA MARGARITA FORD’S OPPOSITION TO PLAINTIFF'S MOTION TO TAX COSTS AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 proper objection is made to a cost item. (Id.) Thus, if the items at issue appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services listed were necessarily incurred by the defendant, and the burden of showing that an item is not properly chargeable or is unreasonable is upon the objecting party. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) Plaintiff challenges several line items in a conclusory manner without providing any reasonable basis or analysis as to why the costs are not recoverable-simply stating a cost item is unreasonable or unnecessary does not satisfy Plaintiff's burden. (See Jones v. Dumrichob (1998) 63 Cal. App.4th 1258, 1266 [mere statements in points and authorities and declaration of counsel insufficient to rebut prima facie showing that costs were necessarily incurred].) Thus, Plaintiff has failed to show that the requested costs were unreasonable or unnecessary. SMF addresses, in order, Plaintiff’s challenges as set forth in his Motion to Tax Costs. a. Costs Incurred for Filing and Motion Fees as well as Rush and Delivery Fees Were Reasonable and Warranted Based on the Court’s Need for Motion and Trial Briefing During the Trial. Plaintiff first admits in his Motion that filing and motion fees are allowable costs. (Cal. Code Civ. Proc., § 1033.5, subd. (a)(1); Pl. Mot. at p. 4.) Item 1a. seeks recovery for the filing of SMF’s Motion to Compel Plaintiff’s IME, which was reasonable and warranted based on Plaintiff’s refusal to submit to a psychological IME in order for SMF to properly evaluate his emotional distress damages in preparation for trial. (See Ritter Decl. at 9; Ex. 3, Invoice 10668286.) Contrary to Plaintiff’s allegation, the subsequent filing fee in Item 1b. relates to the filing of the required Notice of Order regarding the Motion to Compel. (See Ritter Decl. at 9; Ex. 4, Invoice 10739828.) Accordingly, the filing fees were reasonable and necessary, and not duplicative in nature. SMF is entitled to recovery of these recoverable costs, invoiced at $69.95 and $10.94, respectively. Plaintiff next attacks Item 1c. on the basis that the filing fees were not simple court fees. Contrary to this allegation, and as Plaintiff is aware, SMF filed seven (7) Motions in Limine. (See Ritter Decl. at 10.) Each motion had an associated $60.00 filing fee. (/bid.) The total fees for all of SMF’s Motions in Limine totaled $420.00, plus e-filing fees charged standard by -6- DEFENDANT SANTA MARGARITA FORD’S OPPOSITION TO PLAINTIFF'S MOTION TO TAX COSTS AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OneLegal. (See Ritter Decl. 10; Ex. 5, Invoice 10779375 and Notice of Confirmation of Filing.) Accordingly, SMF is entitled to the full amount invoiced, $433.91 As to Item 1d., Plaintiff contends that it offered to stipulate to bifurcation. SMF is not aware that any such concession was made by Plaintiff prior to SMF’s deadline to file such a motion. Accordingly, a motion to bifurcate was, in fact, necessary and warranted at the time it was filed to protect SMF’s financial privacy at trial. (Ritter Decl. 13.) Thus, SMF contends it is entitled to recovery of the filing fees incurred for such motion in the amount of $73.91. (Ibid; see also Ex. 8, Invoice 10779630.) With respect to SMF’s withdrawal of Motions in Limine, such filing fees were incurred only after the parties further met and conferred, and following Judge Banks’s representation to counsel that particular Motions in Limine would not be entertained by the Court. (Ritter Decl. 11.) As aresult, in order to preserve the Court’s (and counsels’) time and resources, SMF properly withdrew the affected Motions in Limine. (/bid.) SMF is entitled to recover the reasonable and necessary costs associated therewith. (Ibid.; Ex. 6, invoice 10824956.) With respect to SMF’s Motion in Limine No. 8 (Item 1g.), no rush fee is sought. (Ex. 7, Invoice 10833043.) Rather, such motion was properly brought in light of Plaintiffs refusal to agree that reference would not be made at trial to Plaintiff’s open heart surgery, on the basis that such evidence would be irrelevant and unduly prejudicial. (Ritter Decl. 12.) As this Court is aware, Plaintiff later even sought to renege on the parties’ subsequent stipulation in this regard. (Ibid.) Plaintiff cannot now assert that such a motion was unnecessary or unreasonable. SMF is entitled to recover the full amount for this filing, $73.91. (Ibid.; see also Ex. 7.) With respect to SMF’s Motion to Quash Plaintiff trial subpoena - such motion was filed at the direction of and with leave of Court. (Ritter Decl. | 14.) Based on the urgent nature of the subpoena, which required personal appearance of SMF and production of records within days of its issuance, SMF was required to make rush filings of the Motion to Quash. (/bid.) In an abundance of caution, and to avoid non-compliance with the subpoena that might subject SMF to undue prejudice or sanctions, SMF filed its Notice of Motion separate and apart from its Points and Authorities to forestall enforcement of a defective subpoena. (Ibid.; Exs. 9, Invoice 7- DEFENDANT SANTA MARGARITA FORD’S OPPOSITION TO PLAINTIFF'S MOTION TO TAX COSTS AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10841077, 10, Invoice 10840154, 11, Invoice 10841086, and 12, Invoice 10841175.) It was only after the Court advised that no such filing or Motion had been received by the Court, that SMF incurred the necessary additional charges to re-file the Motion to Quash to ensure the Court received and could rule upon the same. (Ritter Decl. q 15; Exs. 13, Invoice 10846558 and 14, Invoice 10846561.) Accordingly, SMF is entitled to recover all costs associated with its Motion to Quash Plaintiff’s improper trial subpoena to SMF, invoiced as follows: $77.90, $14.90, $77.90, $77.90, $70.94, and $10.94. (Ritter Decl. {J 14-16; see also Exs. 9-14.) Finally, contrary to Plaintiff’s conclusory assertion that SMF’s Motion to Augment was improper, the Court expressly granted SMF leave to file such a motion during trial to address the propriety of calling expert witness Edward Bennett at trial. (Ritter Decl. 17.) Accordingly, SMF’s filing fee for its Motion to Augment was, in fact, reasonable, necessary and warranted on the facts of this case. SMF is entitled to recover the full amount for this filing, $74.90. (See Ex. 15.)! b. Costs Incurred for Models, Blowups and Photocopies Were Reasonable and Necessary to Facilitate the Jury’s Understanding of Complicated Factual Issues Involved at Trial. Under California Code of Civil Procedure section 1033.5(a)(12), SMF may rightfully be awarded costs for “models and blowups of exhibits and photocopies of exhibits” if “they were reasonably helpful to aid the trier of fact.” (Cal. Code Civ. Proc. 1033.5(a)(12).) With respect to SMF’s electronic projection and timeline graphics, the standard under section 1033.5 is not whether the model or blow-up is essential, but rather if it is helpful to the trier of fact. Here, the models/blow-ups provided the jury a full understanding of the chronology of Plaintiff’s detailed factual allegations, including numerous alleged complaints and purported managerial meetings discussing the warranty fraud. (Ritter Decl. 4.) Accordingly, graphic demonstrations of this key evidence in the case was most certainly helpful to provide the triers of "It is worth noting too, Plaintiff does not dispute SMF’s entitlement to recover the following itemized costs: Trial Brief filing fee ($9.95); Amended Opposition to Plaintiff’s MIL No. 1 filing fee ($13.91); Joint Stipulation regarding Plaintiff’s Heart Surgery filing fee ($32.92); Trial Briefing regarding FEHA Jury Instructions filing fee ($14.90); Proposed Order(s) denying Motions in Limine filing fee ($13.91); Trial Briefing regarding Same Decision Instruction filing fee ($14.90); and Notice of Entry of Judgment filing fee ($14.90). (Ritter Decl., at | 18; see also Ex. 16.) These invoices total $115.39, and should be awarded in full. -8- DEFENDANT SANTA MARGARITA FORD’S OPPOSITION TO PLAINTIFF'S MOTION TO TAX COSTS AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fact a complete context for Plaintiff’s allegations, including both the factual and procedural development of his lawsuit. (/bid.) Furthermore, costs associated with graphic exhibit boards and even videos, with accompanying editing, may be recovered as “models and blowups.” (See Science Applications Int’l. Corp. v. Sup. Ct. (1995) 39 Cal. App.4th 1095, 1103, 1104.) Accordingly, SMF is entitled to recover costs incurred for its trial presentations in the amount of $3,950.00. (Ex. 1, ALJ Media Invoices (2).) With respect to photocopies of exhibits the parties anticipated using at trial, such costs are again warranted under section 1033.5(a)(12). Simply because SMF prepared and provided the Court and witnesses with a separate exhibit binder containing material exhibits or “hot docs,” does not automatically render all other exhibits unreasonably or unhelpful. (See generally, Ritter Decl., at 4.) Such exhibits were strategically included on the parties’ respective witnesses lists to ensure the parties would have a fair trial. SMF should not be penalized for its ability to streamline the presentation of its case at trial by limiting its use of exhibits to one or so binder(s). Accordingly, SMF is entitled to recover costs incurred for copies of all exhibits in the amount of $1,263.60. (Ritter Decl., at {4; see also Ex. 1, DTI Invoice [costs sought for blowback copies, only].) ¢. Costs Incurred for Court Reporting Fees Were Reasonable and Warranted, and the Transcripts Were Relied Upon by the Court and Counsel For Purposes of Trial-Related Briefings. Court reporting fees may be awarded in the Court’s discretion pursuant to section 1033.5(c)(4). (See also Cal. R. Ct. 2.956, subd. (c) [“If the services of an official court reporter are not available for a hearing or trial in a civil case, a party may arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter. ... [t]he expense may be recoverable as part of the costs, as provided by law.”]; Superior Court of Cal., County of Orange Civil Court Reporter Policy (Feb. 2017).) Prior to trial, Plaintiff’s counsel agreed, in writing, for retention of a privately retained court reporter for purposes of the trial. (Ritter Decl. 919.) Plaintiff should not now be permitted to avoid that agreement. 9. DEFENDANT SANTA MARGARITA FORD’S OPPOSITION TO PLAINTIFF'S MOTION TO TAX COSTS AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Certain of the court reporter costs sought in SMF’s memorandum relate to unnecessary fees incurred by SMF as a result of Plaintiff’s unavailability for trial on December 12, 2016 and January 3, 2017. (Ex. 17, Sullivan Invoices 56534,56213.) For the remaining costs incurred, at the trial of this matter, “real time” transcription by a court reported permitted the Court and the parties during trial to have a real-time record of the testimony, which may be used by the court to review objections and assist in understanding the testimony provided by witnesses. Real time transcription provided for a more efficient and accurate trial and was therefore necessary and warranted at trial. For this purpose, Sullivan Group of Court Reporters, Inc. (“Sullivan”) invoiced SMF for “per diem” half and full-day rates. Sullivan is regularly used by attorneys to find reputable and reliable court reporters. SMF wanted to ensure a professional and complete record existed from the litigation, from pre-trial argument of Motions in Limine through closing argument. (See Ritter Decl. 20.) Sullivan ensured a reporter would be present and on time every day for this purpose and that his/her equipment would be properly functioning; all basic, but highly necessary, details. (/bid.) As such, Sullivan must charge a reasonable overhead in this process. (Ex. 18, Sullivan Invoices 57466, 57473, and 57540.) SMF is entitled to recover these court reporting costs, in the full amount of $3,111.50. (Exs. 17-18.) d. Expert Fees Are Recoverable Pursuant to the 998 Offer for All Expert Fees Reasonably Incurred in Preparing for Trial. In preparation for trial, SMF utilized three expert witnesses: James E. Rosenberg, M.D., Edward L. Bennett, and Brian Bergmark. (Ritter Decl. 21.) As discussed above, upon significant consideration of the strengths and weaknesses of SMF’s and Plaintiff’s respective positions, namely with respect to mitigation of wage loss and severe emotional distress claimed by Plaintiff, SMF issued a 998 Offer for $150,001.00. (See Ritter Decl., at 5-8; Ex. 2.) After the jury found in favor of SMF, SMF is entitled to recover $30,120.75 in expert fees that it incurred after it served its 998 Offer. (Ritter Decl., at 21.) “When a party obtains a judgment more favorable than its pretrial offer, [the offer to compromise] is presumed to have been reasonable and the opposing party bears the burden of showing otherwise.” (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1528.) -10- DEFENDANT SANTA MARGARITA FORD’S OPPOSITION TO PLAINTIFF'S MOTION TO TAX COSTS AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i. SMF’s 998 Offer Was Reasonable and in Good Faith, Warranting the Benefit of the Statutory Cost-Shifting Provision. Plaintiff attempts to argue that SMF’s 998 Offer was not reasonable by asserting the offer was unreasonable in the face of a $600,000 wage loss claim prior to trial. Plaintiff's argument, however, is misguided. “Whether an offer to compromise is made in good faith [ | cannot be measured by the amount of claimed damages or a party’s subjective belief in the case’s value . . . and may be “realistically reasonable and justify cost shifting even though the party receiving the offer is unlikely to accept it as a consequence of the party’s skewed valuation of the case.” (/d. at 1530 (emphasis added).) In fact, even a “‘modest settlement offer may be in good faith if it is believed the defendant has a significant likelihood of prevailing at trial.” (Id. at 1529.) At the time of the 998 Offer, SMF strongly believed the jury would find (as it did) that Plaintiff was terminated based on legitimate reasons relating to his involvement in internal warranty fraud occurring at the dealership. (See Ritter Decl., at 5-8.) Simply because Plaintiff and/or his counsel believed otherwise, or did not want to accept the factual realities supporting SMF’s 998 Offer, does not render the offer unreasonable or not in good faith. (Essex Ins. Co. v. Heck, supra, 186 Cal.App.4th at p. 1530.) A wide range of latitude is permitted in formulating settlement offers. (See Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1264.) In fact, courts have found good faith and significant value in settlement offers when, in accepting a 998 Offer, exposure to costs of the accepting party would have been eliminated. (See id.; Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486 [noting settlement offer had important features aside from a low monetary amount such as waiver of costs].) Here, the 998 Offer in the amount of $150,001.00 was more than reasonable on the facts. (See Ritter Decl., at {J 5-8; Ex. 2.) SMF should not be penalized for Plaintiff’s or his counsel’s misreading of this case. ii. SMF is Entitled to Recovery of Fees Actually Incurred in Preparation For and at Trial. Plaintiff next argues that fees incurred by non-testifying persons are not recoverable. Yet, Plaintiff cites no authority in support of such a conclusory assertion. The Code allows for recovery of reasonable expert fees that were “actually incurred and reasonably necessary in -11- DEFENDANT SANTA MARGARITA FORD’S OPPOSITION TO PLAINTIFF'S MOTION TO TAX COSTS AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 either, or both, the preparation or trial of the case by the defendant.” (Cal. Code Civ. Proc. § 998.) California courts also recognize that fees incurred by both the expert witness and their staff may be recovered. (See Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 111, 121, 124.) Here, Plaintiff correctly points out that Mr. Bergmark testified that he had rendered about $10,000 in services to SMF. (Ritter Decl. 21.) Plaintiff never once asked Mr. Bergmark regarding the time or services rendered by his staff in preparing or supplementing his own opinion, and for which SMF was also billed. (Ibid.) In fact, Mr. Bergmark utilized the services of two staff members, Amy Clements and Joshua Fillnow to work-up the case in the most efficient and cost-effective manner in advance of trial. (/bid.; see also Ex. 19, Torrey Partners Invoices.) Those services collectively total $19,398 in recoverable expert fees. (Ritter Decl., at 22; Ex. 19.) Moreover, expert fees are recoverable even where the expert does not testify. (See Evers v. Cornelson (1984) 163 Cal.App.3d 310, 317.) So long as the expert is a potential witness, his or her fees may properly be awarded. (/bid.) Here, Mr. Bergmark explicitly testified at trial that his opinions took into consideration Plaintiff’s ability to mitigate his damages based upon the efforts of and discussions with Mr. Bennett, SMF’s vocational rehabilitation consultant. (Ritter Decl. 23.) Although Mr. Bennett ultimately did not testify at trial, he was undoubtedly retained by SMF in preparation for trial as a potential expert witness regarding Plaintiff’s mitigation efforts. (Ibid.) Accordingly, SMF is entitled to recover Mr. Bennett's expert witness fees in the amount of $10,684.75. (See Evers v. Cornelson, supra, 163 Cal.App.3d at p. 317; Ex. 20, Coast Rehabilitation Services, Inc. Invoices.)’ e. Costs Incurred for Service of Process on VA Physicians Were Reasonable and Warranted in Order to Address Plaintiff’s Emotional Distress Damages at Trial.’ With respect to Item 5, Plaintiff contends that personal service of trial subpoenas on VA * Plaintiff does not dispute SMF’s recovery of deposition costs, amounting to $2,461.08 (Item 4 of the Memorandum of Costs), and such costs should be awarded in full. ? Plaintiff does not dispute SMF’s recovery of ordinary witness fees, amounting to $38.00 (Item 8 of the Memorandum of Costs), and such costs should be awarded in full. -12- DEFENDANT SANTA MARGARITA FORD’S OPPOSITION TO PLAINTIFF'S MOTION TO TAX COSTS 1069418/25771204v.1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 personnel in the total amount of $251.26 was unreasonable. Plaintiff cannot reconcile this contention with his own allegations of severe emotional distress as a result of the alleged wrongful termination. Throughout this litigation, Plaintiff hotly contested the disclosure of his purported mental health therapy records from the VA that related to his emotional distress claims. (Ritter Decl. ] 25; see also ibid. at |] 6, 9.) Finally, just months before trial, the Court ordered Plaintiff to authorize the release of these records. (/d., at 6.) Accordingly, SMF exercised its due diligence in seeking to identify appropriate treater witnesses at the VA who might be called as potential witnesses regarding such treatment and the extent of Plaintiff's alleged emotional injuries. (/d.at 25.) SMF is entitled to the costs incurred in its reasonable and necessary efforts to procure the attendance of potential material witnesses for deposition and trial, even those who do not testimony. (See Evers v. Cornelson, supra, 163 Cal.App.3d at p. 317.) Accordingly, SMF is entitled to recover the full amount incurred in those service efforts, which upon further review should be reduced to $195.20. (Ex. 21, Vanguard Legal Solutions Invoices (4).) IV. CONCLUSION SMF seeks to recover the authorized costs it incurred pursuant to sections 998 and 1033.5 of the Code of Civil Procedure. After conceding certain amounts,” SMF is entitled to recover and asks that the Court award $42,298.44 in recoverable costs. Dated: June 2, 2017 GORDON & REES LLP | AdenlZ ire ROGER M. MANSUKHANI CHRISTOPHER B. CATO CRAIG D. NICKERSON KARA A. RITTER Attorneys for Defendant SANTA MARGARITA FORD, INC. * See supra, Ie. -13- DEFENDANT SANTA MARGARITA FORD’S OPPOSITION TO PLAINTIFF'S MOTION TO TAX COSTS