Andrea Knohl-Trider vs. Rebecca Foster

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.September 12, 2016

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AnnaR. Salusky (SBN 222484) asalusky@ mahoney-law.net Michael A. Swift (SBN: 296993) msw ift@ mahoney-law.net MAHONEY LAW GROUP, APC 249 E. Ocean Blvd. Ste. 814 Long Beach, CA 90802 Telephone: (562) 590-5550 Facsimile: (562) 590-8400 Attorneys for Plaintiffs ANDREA KNOHL-TRIDER and GRANT-TRIDER by and through his guardian ad litem, ANDREA KNOHL-TRIDER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL DISTRICT ANDREA KNOHL-TRIDER, an individual; Case No.: 30-2016-00874402-CU-PO-CJC GRANT TRIDER, by and through his guardian ad litem, ANDREA KNOHL-TRIDER, PLAINTIFFS NOTICE OF MOTION AND MOTIONTO TAX COSTSFILED BY Plaintiffs, DEFENDANT REBECCA FOSTER; MEMORANDUM OF POINTS AND V. AUTHORITIES IN SUPPORT THEREOF REBECCA FOSTER, an individual; RAMON Assigned for all purposes to: M.G.SORIANO, M.D; an individual, Hon. David R. Chaffee, Dept.: C20 ASUNCION G.RAMOS-SORIANO,M .D.; an individual; SORIANO INVESTMENTS Date: September 28, 2018 LIMITED PARTNERSHIP, a Texas Time: 9:30 a.m. Corporation; IRVINE PROPERTY Dept. C20 MANAGEMENT, INC., a California Reservation: 72882197 Corporation; and DOES 1-100,inclusive, Complaint Filed: September 12, 2016 Defendants. Trial Date: July 9, 2018 1 PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT REBECCA FOSTER;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 28, 2018 at 9:30 a.m. in Department C20 of the above-entitled court, Plaintiffs ANDREA KNOHL-TRIDER and GRANT TRIDER, by and through his guardian ad litem, ANDREA KNOHL-TRIDER (“Plaintiffs”) will and hereby do move for an order taxing unrecoverable costs and/or excessive costs, pursuant to California Rules of Court, rule 3.1700(b) as set forth in the memorandum of costs filed by Defendant REBECCA FOSTER (“Defendant”). This Motion is based upon this Notice of Motion, the attached M emorandum of Points and Authorities, Declaration of Anna R. Salusky, upon the pleadings and documents filed in this action, whether written or oral, as may be presented to the Court at or before the hearing on this motion. Dated: August 31,2018 MAHONEY LAW GROUP, APC /s/Anna R. Salusky AnnaR. Salusky Michael A. Swift Attorney for Plaintiffs, ANDREA KNOHL AND GRANT TRIDER De PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT REBECCA FOSTER;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES l. INTRODUCTION On August 16, 2018, Defendant Rebecca Foster (“Defendant”), mailed her memorandum of costs, which seeks to recover $26,717.19 in costs. (See Exhibit “A”attached to the Declaration of AnnaR. Salusky, (“Salusky Decl.”) § 3; filed concurrently herewith.) Certain costs sought by Defendant are either not recoverable as a matter of law or are in excess of those permitted by law. Specifically, Plaintiff will seek to tax costs in the following amounts: 1. Excessive claimed filing and motion fees in the sum of $540.75; 2. Excessive claimed jury fees in the sum of $150.00; 3. Certain deposition costs in the sum of $6,860.77, and any additional expedited transcript fees; 4. Expert fees in the sum of $11,961.25; and 5. Non-recoverable Court Reporter fees in the sum of $264.25. Il. PROCEDURAL HISTORY This case arises out of Plaintiffs’ claim that the patio of the Adjacent Property was not constructed to code and was incorrectly built above the weep screed, instead of below of the weep screed, which prevented dog urine, and other liquids, such as water from properly draining away from Plaintiffs’ home. Instead the liquids pooled next to the wall and seeped into Plaintiffs” wall creating an odorin Plaintiffs” home that made it uninhabitable. On December 12, 2017, Defendant served a Code of Civil Procedure § 998 offer to Plaintiff Andrea Knohl-Trider for five thousand dollars ($5,000) in exchange for the entry of dismissal with prejudice in favor of Defendant. (Salusky Decl. § 4, Ex. “B.”). Further, on December 12, 2017, Defendant served a 998 offer to Plaintiff Grant Trider as follows: five thousand dollars ($5,000) in exchange for the entry of dismissal with prejudice in favor of Defendant. (Salusky Decl. 5, Ex. “C.”) Trial commenced on July 9, 2018. After hearing the evidence, the arguments of counsel. and instruction of the Court, the jury rendered their verdict in writing on July 20, 2018, in favor of Defendant. 1 PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT REBECCA FOSTER;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Il. ARGUMENT A. Plaintiffs Motion to Tax Costs Is Timely California Rules of Court, rule 3.1700(b) provides “Any notice of motion to strike or to tax costs must be served and filed 15 days after the service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided by Code of Civil Procedure Section 1013.” Here, Defendant served its memorandum on A ugust 16, 2018, by regular mail. As such, the deadline to file Plaintiffs motion is September 5, 2018. B. Defendant Has the Burden Of Establishing Its Claimed Costs Because the right to costs is governed strictly by statute, the Court has no discretion to award costs notstatutorily authorized. (Hogan v. Ingold (1952) 38 Cal.2d 802.) To be allowable and recoverable, claimed costs must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, reasonable in amount, and incurred by the claiming party. (Code Civ. Proc. § 1033.5 (c)(1)(2)(3); Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548). W here the items are properly objected to, they are put in issue, and the burden of proof is upon the party claiming them as costs. (Rappenecker v. Sea-Land Services (1979) 93 Cal.App.3d 256; Oak Grove School District v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698-699.) As stated in Ladas v. California State Auto Assn (1993) 19 Cal.App.4th 761 “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” (/d. at p. 774.) W hether 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. (Lubetzky v. Friedman (1991) 228 Cal.A pp.3d 35, 39.) In this case, a majority of the costs requested are not recoverable by Defendant because they are not provided for in the applicable statutes, are expressly made unrecoverable by the applicable statutes, were not reasonably necessary to the conduct of the litigation, in excess of those permitted by the law, were merely for convenience and/or are based on cost-shifting pursuant to an invalid § 998 offer. IV. A SUBSTANTIAL PORTION OF THE COSTS SOUGHT MUST BE STRICKEN Code of Civil Procedure Section 1033.5(b) expressly prohibits the recovery of certain costs. And, although certain costs may be permissibly recovered under Section 1033.5,(a), those De PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT REBECCA FOSTER;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 costs must be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5(c)(2) and (3).) Here, as discussed below, Defendant seeks to recover costs which she is not entitled to as a matter of law. A. Item No. 1 - Filing and Motion F ees Under Item No. 1, Defendant seeks recovery of $975.75 for “Filing and Motion Fees.” Defendant provides no supporting documentation or other evidence substantiating these costs. While Defendant is entitled to recover the $435.00 “First Appearance Fee” for filing an answer to Plaintiffs’ complaint, Defendant’s requested costs of $420.75 for “E-Filing” and $120.00 for “Motions in Limines” certainly cannot be argued to have been necessary for the litigation and lack any supporting documentation. For the foregoing reasons, Plaintiff respectfully requests the Court to strike a total of $540.75 from the cost bill relating to Filing and M otion F ees. B. Item No.2 - J ury Fees Under Item No. 2 for “Jury Fees,” Defendant claims $532.80. This cost must be taxed as no supporting documentation or other evidence has been presented substantiating such costs. California Code of Civil Procedure Section 631 (b) states that At least one party demanding a jury on each side of a civil case shall pay a nonrefundable fee of one hundred fifty dollars ($150), unless the fee has been paid by another party on the same side of the case. The fee shall offset the costs to the state of providing juries in civil cases. If there are more than two parties to the case, for purposes of this section only, all plaintiffs shall be considered one side of the case, and all other parties shall be considered the other side of the case. Payment of the fee by a party on one side of the case shall not relieve parties on the otherside of the case from waiver pursuant to subdivision (f). (Civ. Proc., § 631 (b)) The Court’s docket indicates the Soriano Defendants paid Defendants’ jury fees on February 10, 2017. Defendant Foster’s payment of this fee is therefore not necessary to conduct litigation and must be taxed. Additionally, Defendant Irvine Property M anagement and Defendant Rebecca Foster are represented by the same counsel. However, both parties request the same $150.00 jury fee. If the Court is notinclined to tax this cost due to the payment of the $150.00 fee 23 PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT REBECCA FOSTER;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 by the Soriano Defendants, Defendants Rebecca Foster, and Irvine Property M anagement should not both be granted the same $150.00 fee incurred by their shared counsel. For the foregoing reasons, Plaintiff respectfully requests that the Courtstrike a total of $150.00 from the cost bill as it relates to jury fees. C. Item No. 4 - Deposition Costs Under Item No. 4, Defendant attempts to recover deposition costs in the amount of $11,062.39. However,a substantial portion of these costs should be taxed. Defendant providers’ invoices representing deposition costs for transcripts in the amount of $8,052.86 with no explanation for the discrepancy between the amount sought of $11,062.39. To the extent that Defendant is entitled to deposition costs at all, it must produce invoices showing the costs accrued alleged in its memorandum regarding these depositions. (Code Civ. Proc. § 1033.5(c)(1).) There are no such costs or invoices listed to justify Defendants claim for $11,062.39, an unjustified difference of $3,009.53 between the amount requested and the amount actually justified, Therefore $3,009.53 should be taxed. Additionally, there is no showing by Defendant that the depositions of Paul Douglas Harrison and Steven McCormick were necessary. (Code Civ. Proc. § 1033.5(c)(2) and (3). Steven McCormick was an expert general contractor designated by Defendant. Paul Douglas Harrison and Steven McCormick were never called to testify at trial and their deposition testimony was not read in Court. Paul Douglas Harrison and Steven McCormick’s deposition testimony were therefore not helpful to the trier of fact. Defendant is not entitled to seek $884.03 for the cost of Steven M cCormick’s transcript and $739.58 for Paul Douglas Harrison’s transcript. At best these depositions were “merely convenient or beneficial” for defendants, but not “necessary” to the litigation, and thus, should not be allowed. (Code Civ. Proc. § 1033.5(c)(2).) Second, Defendant, in attachment 4E seeks $454.22 for the deposition of Bridget Salampessy. This appears to be costs for copies of deposition transcripts. Such costs were not reasonably necessary because it was stipulated at the referenced depositions that counsel for Irvine Property Management would maintain (and counsel has presumably maintained at all times) the original of that deposition transcript. (Salusky Decl. 6, Ex. “D.”) Further, itis evident 4 PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT REBECCA FOSTER;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that D efendant presented a shared defense along with the co-D efendants represented by Rey Y ang of Yang Professional Law Corporation. All of the collective Defendants shared not only in strategy, but in resources as well. Mr. Yang and Ms. Ebert split the costs of jury fees, court reporter fees, expert fees etc. N either had an independent expert. As all D efendants presented this joint defense Defendant should not be permitted to recover unreasonable and unnecessary transcript costs when Defendant maintained the original, as is the case for Brian Daly ($570.45), Steven McCormick ($884.03), Asuncion Soriano ($908.58), and Ramon Soriano ($262.29). (See Salusky Decl. § 7, Ex. “D.”) As these costs are not reasonably necessary and merely convenient they should be taxed. Third, while it is unclear from Defendant’s Memorandum of Costs, the standard transcription costs for necessary depositions are recoverable. However, Plaintiffs object to any extra cost paid to expedite the deposition transcripts of Ramon M.G. Soriano, M .D., Asuncion G. Ramos-Soriano, M.D, Michelle Atiyeh, and Bridget Salampessy. Ordering a deposition transcript on an expedited basis may be convenient or beneficial, but it is not “necessary.” (Civ. Proc. § 1033.5(c); Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330, 1342 (trial court erred in awarding expedited transcript fees.) Also,itis questionable whether expedited transcript costs, which are substantial and can exceed the basic transcript cost, are reasonable. (Civ. Proc. § § 1033.5(c).) The burden is on the defendantto establish the appropriateness of the transcription costs. To the extent that defendant cannot establish that the transcripts were ordered in a reasonable manner, as opposed to on an expedited basis, such costs must be taxed. (Hsu at 1342 (“Standard transcription fees for ‘necessary’ depositions are recoverable, but the extra cost for expediting transcripts may be allowed only in the exercise ofthe trial court’s discretion.”) Further, Defendant seeks to charge Plaintiff for “interest” assessed for the deposition of Patrick M offett. The actual invoiced amount at $692.10 was assessed an interest charge of $32.09, apparently from Defendants failure to pay the invoice in a timely manner. Such a fee is not necessary or appropriate to relay to Plaintiff and thus should be taxed. For the foregoing reasons, Plaintiff respectfully requests that the court strike $3,009.53 for unjustified costs of depositions, $884.03 for the cost of Steven McCormick’s transcript; 5. PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT REBECCA FOSTER;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 $739.58 for Paul Douglas Harrison’s; $454.22 for Bridget Salampessy’s; $570.45 for Brian Daly’s; $908.58 for Asuncion Soriano’s; and $262.29 for Ramon Soriano’s, and $32.09 of improperinterest costs; a total of $6,860.77 and any additional expedited transcript fees from the cost bill as it relates to deposition costs. D. Item No. 8(b) - E xpert Fees Under Item No. 8(b), Defendant is attempting to recover expert fees in the amount of $11,961.25. However, such costs should not be awarded because Defendant’s 998 offers are invalid for the reasons discussed below. Additionally, the expert fees requested are egregious and unreasonable given the matter at hand and work performed. As Defendants presented a joint defense these expert fees represent only half of the total $23,922.50 sought by Defendant’s experts. 1. The 998 Offers Are Invalid Because They Seek a Release of Unknown/Unrelated Claims and a § 1542 Waiver A statutory offer to compromise pursuant to Code of Civil Procedure Section 998 may not seek a release of claims beyond the scope of those in dispute in the current lawsuit. (Chen v. International E xchange of Auto. Club (2008) 164 Cal.A pp.4th 117, 121 (holding a request for a general release of claims beyond the scope of just those claims being litigated render the offerto compromise invalid and reversing award of costs); Valentino v. Elliot Sav-On Gas, Inc. (1988) 201 Cal.App.3d 692, 696 (reversing award of costs where offer to compromise was conditioned on the release of known and unknown claims beyond the specific claims atissue in the litigation); Ignacio v. Caracciolo (2016) 2 Cal.A pp.5th 81 (holding that the release included claims unrelated to the incident and a § 1542 waiver, making the offer invalid); Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1130 (noting a 998 offer, including a waiver of all known and unknown claims has been held invalid).) The Court in Ignacio rejected the defendant’s assertion that its 998 offer was valid. The offer included a release with the following language: [The releasers] hereby fully and forever release and discharge [defendant], each of her partners, employees, agents, personal representatives, insurers, attorneys, successors or [defendant]'s vehicle within the scope of consent of [defendant] on or --6-- PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT REBECCA FOSTER;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 about April 10, 2013 and any other person or organization who is or might be liable for [defendant]'s alleged negligent use of a vehicle on or about April 10, 2013 (hereinafter collectively referred to as ‘Releasees’). The defendant sought release from: ..any and all claims, demands, liens, agreements, contracts, covenants, actions, suits causes of action, obligations, controversies, debts, costs, expenses, damages, judgments orders and liabilities of whatever kind and nature in law, equity, or otherwise, whether now known or unknown, suspected or unsuspected, that have existed or may have existed or which do exist, or which hereafter can, shall or may exist... Further, there was a Civil Code § 1542 waiver that referred to a “full release” implying the release was general in nature. (/d.) The court found that the release was incredibly broad and covered claims well beyond those at issue in the lawsuit. (/d. at 82.) It noted in footnote 6 that a Section 1542 waiver applies to general releases, and “if defendant’s release were not general, there would be no need for it to include an express waiver of protections under Civil Code § 1542 waiver.” (Id. at 81-82.) The release included all claims plaintiff had beyond those arising out of the incident making itinvalid. (Id.) Here, Defendant has attempted to obtain the same type of broad release as in Ignacio. Specifically, the releases discharge “REBECCA FOSTER, her principal(s), agents, representatives, and assigns” and releases them from: “any and all rights, claims, demands, and damages of any kind, known or unknown, existing or arising in the future, resulting from or in any way related to any and all damages from residing at 74 Greenhouse, Irvine, California. (“Subject Matter)” (See Salsuksy Decl., Ex. B, C.) The releases further provide “I also expressly, voluntarily, knowingly and advisedly WAIVE any and all rights granted to me under California Civil Code Section 1542 with respect to any claims arising from or in any way related to the Subject Matter.” The instant release is far too broad. Similar to Ignacio, the agreementreleases people for claims that were not subject to the instant litigation. Specifically, including “REBECCA FOSTER, her principal(s), agents, representatives, and assigns” clearly contemplates individuals beyond the instant action. Moreover,it releases those people for known or unknown claims in the present and future and forces Plaintiffs to abandon “any claims arising from or in any way related 7 PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT REBECCA FOSTER;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to the Subject M atter.” Based on the release language, Plaintiffs would be barred from bringing any personal injury claims related to future care and treatment from injuries arising from the “Subject Matter”. Finally, the 998 offer includes a § 1542 waiver, which in and ofitself should invalidate the offer. For these reasons alone, the § 998 offer should be deemed invalid and D efendant should be denied her expert costs. 2. The Release is A ctually a Settlement A greement While a release may be allowed as part of a 998 offer, a release is not a settlement agreement. Settlement agreements are different than releases in that they often include items such as waivers of claim and § 1542 waivers. (Sanford, supra, 246 Cal.A pp.4th at 1130.) The Sanford court confirmed as of its April 2016 opinion, there were no cases holding a valid 998 offer could include a settlement agreement. (/d. at 1130.) In the instant action, Defendant has included items noted in Sanford making the “release” actually a settlement agreement. It includes a waiver of all unknown and known claims, as well as a § 1542 waiver. While the document attached to the § 998 offers is called a “Release,” its content evidences a settlement agreement, as well as, actually referencing the term “compromise settlement” in paragraph 5. (See Salusky Decl., Ex. B and C.) Thus, the § 998 offer should be deemed invalid and D efendant should be denied her expert costs. 3. Defendant’s § 998 Offers of $5.000.00 to Plaintiffs Do Not Meet the Good Faith Requirement and T herefore Expert Fees Should Not Be Awarded Defendant’s 998 offers and their rejection by Plaintiffs does not support an award ofexpert fees. The Courtin Brown v. Nolan has stated that “The purpose ofthis section [C.C.P. § 998] is to encourage the settlementof litigation withouttrial. Its effect is to punish the plaintiff who fails to accept a reasonable offer from a defendant.” (Brown v. Nolan (1979) 98 Cal.A pp.3d 445, 449.) The Court has held that a 998 offer must be made in good faith to be valid. “To effectuate the purpose of the statute, a section 998 offer must be made in good faith in order to be valid. Good faith requires that the pretrial offer of settlement be “realistically reasonable under the --8-- PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT REBECCA FOSTER;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 circumstances of the particular case. Normally, therefore, a token or nominal offer will not satisfy this good faith requirement...” The offer “must carry with it some reasonable prospect of acceptance. One having no expectation that his or her offer will be accepted will not be allowed to benefit form a no risk offer made for the sole purpose of later recovering large expert witness fees.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262-1263.) A plaintiff may not reasonably be expected to accept a token or nominal offer from any defendant exposed to magnitude of liability unless it is absolutely clear that no reasonable possibility exists that the defendant will be held liable. (Wear v. Calderon (1981) 121 Cal.A pp.3d 818, 821.) In this case there was much more than a slight possibility that Defendant would be held liable. The courts have held that modest or token offers may be reasonable “if an action is completely lacking in merit.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 134.) This Court, based on the evidence presented at trial, can make the determination that Plaintiff’s case against Defendant was not “completely lacking in merit.” All of the expert witness fees claimed by Defendant should be denied because they can only be awarded if all of the following facts exist: 1) the offer was made in good faith; 2) there was no reasonable possibility that the Defendant would be held liable; 3) there was some reasonable prospect that the waiver of cost demand would be accepted; and, 4) the case was completely lacking in merit. None of these facts existed when D efendant made his waiver of cost § 998 offer. Therefore the court should deny all or tax a substantial portion of the expert witness fees in item 8(b) in the amount of $11,961.25. 4. Defendant is Not Entitled to Recover Expert Fees for McCormick Consulting Group Because Steven McCormick Was Never Called as a Witness at Trial Defendant requests reimbursement for expert fees for its own expert, McCormick Consulting Group in the amount of $4,331.25. However, expert witness fees not ordered by the court are not allowable costs “because such fees were not expressly authorized by law.” (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1149-1150.) There is no statutory basis for the recovery of McCormick Consulting Group’s fees. The --0-- PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT REBECCA FOSTER;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Court in exercising its discretion whether to allow expert witness fees pursuant to § 998, it must evaluate whether the fees sought are reasonable and justified in amount. (Culbertson v. R.D. Werner Co., Inc. (1987) 190 Cal.App.3d. 704, 711.) Defendant has not substantiated the importance of Steven McCormick as an expert witness at trial when he was never called as a witness at trial. Further, D efendant has not demonstrated the reasonableness of the 31.5 hours of expert witness fees listed in its memorandum of costs because Steven M cCormick nevertestified and his deposition testimony was not read at trial. As McCormick Consulting Group’s contribution to this matter ceased prior to trial, and Steven McCormick, himself, was nevercalled as a witness, there is no question that the fees associated to M cCormick Consulting Group were not helpful to the trier of fact and were not reasonably necessary to Defendant’s preparation for and during trial. Therefore, the court should strike the expert fees allocated to McCormick Consulting Group in the amount of $4,331.25. 5. It is Solely Within the Court’s Discretion to Grant or Deny Defendant’s Request To Pay A Reasonable Sum to Cover Costs of the Services of Expert Witnesses a. This Court Should Consider Plaintiffs’ Financial Resources in Determining Whether Defendants’ Cost Bill Is Reasonable. In determining whether costs are reasonable, a Court should consider the responsible parties financial circumstances. This issue was raised in Seever v. Copley Press, Inc., 141 Cal.App.4th 1550, where the Court indicated the following: Section 998 requires the amount to be “reasonable.” Given the purpose of the statute, reasonableness must be measured by considerations beyond whether it was reasonable for the offering party to have incurred the expense. In our view, the trial court also must take account of the offeree's economic resources in determining whatis a “reasonable” cost award. If the goal of Section 998 is to encourage fair and reasonable settlements, and not settlements at any cost, trial courts in exercising their discretion must ensure the incentives to settle are balanced between the two parties. Otherwise less affluent parties will be pressured into --10-- PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT REBECCA FOSTER;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 accepting unreasonable offers just to avoid the risk of a financial penalty they can't afford. Thus, when two competing parties possess vastly disparate economic resources, this may require the trial courts to “scale” the financial incentives (in this instance the 998 cost awards) to the parties’ respective resources. (Emphasis added) (Seever, 141 Cal.A pp.4th at 1561-1562.) In the case at hand, the parties had “vastly disparate economic resources.” Plaintiff Andrea Knohl-Trider is a single mother whose income is roughly $30 per hour. Plaintiff and her minor son Grant have also recently experienced a number of unfortunate medical issues. The Court should consider the reasonableness of placing this extra financial burden on her (See Declaration of Andrea K nohl-Trider). Defendants had the benefit of representation from a multi-million-dollar insurance company. Plaintiff was very conservative with spending, while Defendants were able to incur costs at will in defending the case. Plaintiff did not have the resources available to, or benefit of representation by, a multi-million-dollar company. It seems punitive for this Court to grant the costs requested against Plaintiffs whose financial position is modest, at best. Clearly, this financial burden would be a hardship Plaintiffs. Throughout this case, Plaintiffs were merely seeking reasonable compensation for their time, expense, annoyance, and discomfort due to the situation that resulted in this instant case. Plaintiffs did not choose, or desire to be involved in this matter, but felt it wrong that D efendants and their insurance companies would seefit to place the financial burden on Plaintiffs for damage, stress, inconvenience, and discomfort that was no fault of their own. In the subject case, the awarding of the claimed costs would amount to a punitive action by this courtand resultin the financial ruination of the Plaintiff. Such an award would be offensive to the traditional notions of fair play and substantial justice, and as such, be punitive in nature, This would be completely contrary to Seever and act as a chilling effect on the less affluent in society pursuing their due process. Given the circumstances, the cost bill asserted by Defendants is unreasonable. Considering Plaintiff's economic status, and assuming this Court finds the M emorandum of Costs is not defective in its entirety, costs in excess of $1,000.00 against Plaintiffs would be punitive. As such, Plaintiffs ask that the cost bill be limited to an amount not to exceed $1,000.00. --11-- PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT REBECCA FOSTER;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Should the Court uphold the validity of Defendant’s § 998 offer, a substantial portion of these costs should nevertheless be taxed. Section 998(c)(1) specifically states “if an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award... the Court, or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses...” (emphasis added) “The trial Court was in a far better position, having heard the entire case and observed the demeanor of witnesses, to exercise this discretion and determine what was a reasonable amount and what was reasonably necessary.” (Code Civ. Proc., § 998; Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 315.) Therefore, the court should strike the expert fees allocated to McCormick Consulting Group in the amount of $4,331.25, as well as, strike all or tax a substantial portion of the remaining claimed expert witness fees in item 8(b) in the amount of $7,630.00. E. Item No. 12 - Court Reporter Fees Under Item No. 12, Defendant attempts to recover its portion of court reporter fees in the amount of $1,494.25, Defendant requests compensation for the cost of “Livenote Provided to Judge Throughout Trial” in the amount of $264.25 (50% oftotal cost of $528.50). This expense is not recoverable under Code of Civil Procedure section 1033.5(b), which explicitly states “The following items are not allowable as costs, except when expressly authorized by law: Transcripts of court proceedings not ordered by the court.” Plaintiff is not aware of the Court ordering any transcripts during trial in the above-captioned matter. For the foregoing reasons, Plaintiff respectfully requests that the court strike a total of $264.25 from the cost bill as it relates to court reporter fees. I] I] I] I] 1 Defendant split the total Court Reporter cost of $2,988.50 with Defendants’ Ramon M .G. Soriano, M.D., Asuncion G. Ramos-Soriano, M.D. and Soriano Investments Limited Partnership. -12-- PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT REBECCA FOSTER;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. CONCLUSION For all of the foregoing reasons, Plaintiff respectfully requests that the Court strike the costs sought by Defendant totaling $19,777.02in addition to a reduction for any expedited transcript costs. Dated: August 31, 2018 -13-- MAHONEY LAW GROUP, APC /s/Anna R. Salusky AnnaR. Salusky Michael A. Swift Attorney for Plaintiffs ANDREA KNOHL- TRIDER and GRANT TRIDER PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT REBECCA FOSTER;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Code of Civ. Proc. § 10133, subd. (3) STATE OF CALIFORNIA, COUNTY OF ORANGE | am employed in the County of Los Angeles, State of California. | am over the age of eighteen (18) and not a party to the within entitled action. My place of business is 249 East Ocean Boulevard, Suite 814, Long Beach, CA 90802. On August 31, 2018, | served a true copy of the document described as: NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT REBECCA FOSTER the interested parties in this action, addressed as follows: Rey Y ang, Esq. Dawn M. Ebert, Esq. Y ang Professional L aw Corporation Hartsuyker, Stratman & Williams- 80S. Lake Avenue, Suite 820 Abrego Pasadena, CA 91101 2677 N. Main Street, Suite 200 ryang@ yangpc.com Santa Ana, CA 92705 dawn.ebert@ farmersinsurance.com Attorney for Ramon M.G. Soriano, M.D .; Asuncion G. Ramos-Soriano, M.D; Soriano Attorney for Rebecca F oster and Irvine Investments Limited Partnership Property Management, Inc. IX] By electronic service: Based on a court order, | caused the document(s) to be sent to the persons at the electronic service addresses listed above by transmission through ONE LEGAL. IX] By Mail: | enclosed the document(s) in a sealed envelope or package addressed to the person(s) at the addresses above.| then placed the envelope for collection and mailing, following oun ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. | am employed in the county where the mailing occurred. The envelope or package was placed in the mail at Long Beach, CA. [X] State: | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on August 31, 2018, at Long Beach, California. /s/Nicole Pierson Nicole Pierson --14-- PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT REBECCA FOSTER;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF