Memorandum_memorandum_of_points__authorities_in_reply_to_obrien_defendants_opposition_to_plaintiffs_motion_to_taxstrike_costsReplyCal. Super. - 2nd Dist.July 12, 2013Electronically FILED by Super gr Court of California, County of Los Angeles on 06/04/2020 11:47 PM Sherri R. Carter, Executive Officer/Clerk of Court, by J . Ballesteros,Deputy Clerk Robert F. Vaage, Esq. (SBN 106437) Elizabeth H. Teixeira, Esq. (SBN 259788) LAW OFFICES OF ROBERT F. VAAGE 110 West “A” Street, Suite 1075 San Diego, California 92101-3910 Telephone: (619) 338-0505 Facsimile: (619) 338-0588 E-mail: rfvaage@vaagelaw.com E-mail: eteixeira@vaagelaw.com Kathryn B. Meadows, Esq. (SBN 131786) LAW OFFICE OF KATHRYN B. MEADOWS 550 West “C” Street, Suite 1155 San Diego, California 92101-3569 Telephone: (619) 231-9460 Facsimile: (619) 231-9095 Attorneys for Plaintiffs SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, SOUTH DISTRICT WALTER H. O'ROURKE and ) Case Number: BC514989 WENDY L. O'ROURKE, ) ) PLAINTIFFS’ MEMORANDUM OF Plaintiffs, ) POINTS AND AUTHORITIES ) SUBMITTED IN REPLY TO V. ) DEFENDANTS CHARLES B. O'BRIEN, ) M.D.’S, CBO, A MEDICAL NAYYER Z. ALI, M.D.; ) CORPORATION’S AND EMERGENCY NAYYER ALI, M.D., INC; ) PHYSICIANS MEDICAL ASSOCIATES CHARLES B. O'BRIEN, M.D.; ) OF LONG BEACH’S OPPOSITION TO CBO, A MEDICAL CORPORATION; ) MOTION TO TAX AND STRIKE SAID and EMERGENCY PHYSICIANS ) DEFENDANTS’ COSTS MEDICAL ASSOCIATES OF ) LONG BEACH, ) Date: November 3, 2020 ) Time: 8:30 a.m. Defendants. ) Dept.: S-27 ) Judge: Honorable Mark C. Kim ) ) Complaint Filed: July 12,2013 ) ) Reservation ID: 142683410747 ) ) Plaintiffs’ Memorandum of Points and Authorities Submitted in Reply to Defendants Charles B. O’Brien, M.D.’s, CBO, A Medical Corporation’s and Emergency Physicians Medical Associates of Long Beach’s Opposition to Motion to Tax and Strike said Defendants’ Costs 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I INTRODUCTION AND BURDEN OF PROOF ......cccoceiiiiniiiiiiiiciciniiiie serene 1 II ARGUMENT Loot estes besser as ebb n sears sens 2 A. Defendants’ Filing of Motion Fees Sought by Way of Item Number 1 Must Be Reduced to $2,300.75 ..cvviveieicciieeireeieeeieee essence 2 B. Only $19,085.28 of the Deposition Costs Set Forth in Item 4 Arte Properly Revoverable cunmwrasmssmssmsimmssemsmsmmmsamonssmsanysmnevamsvpo ens 2 1. Undisputed Deposition COSYS... omens asses mmm sass ceomaves sass 3 2. Deposition Costs Which Were Unnecessary and/or Unreasonable Must Be Stricken.........coecvevvvevinicniniiniiiiiiiieccnneeens 3 3. Duplicative Deposition Costs and Costs Which Are Unsupported By Any Documentation Must Be StrCKEN ...c.viiveeicieieet eee eeaena 4 C. The Entirety of the Witness Fees Sought By Way of Item Number 8 Totalling $107,506.14 Must Be Stricken ........cccccocovviiniiiiinan. + 1. Defendants’ C.C.P. § 998 Offers Were Defective in Their Misstatement of the Law and Uncertain and Thus Do Not Invoke the Costs Provision for CCP, TIBI) ....s nisms newsman as. sas aims sss sis av Rms Eames at Sr oNSass 4 2. The O’BRIEN Defendants’ Token Offers Were NOt IN GOO FAITH overt eeeeeeeeteeeeeeeeeeeeevveeease sere ase reese s e e ase asaneas 5 3. Defendants Have Not Established Post-Offer Expert Fees in the Amount SOURIL «cu womswsvenssummansmssssne ommes 9 D. Defendants’ Exhibit Costs Under Item 11 in the Amount of $1,739.00 Should Be Reduced to $250.00 ....c.coceveviveniniiiiiiiiiiniicicicnes 10 E, The Entirety of the Miscellaneous Costs Sought By Way of Item Number 16 Must Be TaXed ........uuuevvereieiiiiriiiiiiirrerereerreeeeeennenieeersreseesenes 10 III CON CLUSION coos e eee eesertee ese sessasseaeesssesssrrsntetsssssassrsssasseesasssrsaaseessasssssrnnenesens 10 i Plaintiffs’ Memorandum of Points and Authorities Submitted in Reply to Defendants Charles B. O’Brien, M.D.’s, CBO, A Medical Corporation’s and Emergency Physicians Medical Associates of Long Beach’s Opposition to Motion to Tax and Strike said Defendants’ Costs S O c o Na 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs WALTER H. O'ROURKE and WENDY L. O’ROURKE hereby submit this Memorandum of Points and Authorities in Reply to the Opposition submitted by Defendants CHARLES B. O’BRIEN, M.D.; CBO, A MEDICAL CORPORATION; and EMERGENCY PHYSICIANS MEDICAL ASSOCIATES OF LONG BEACH (hereinafter the “O’BRIEN Defendants”) to Plaintiffs’ Motion to Tax and Strike Costs sought by said defendants. I INTRODUCTION AND BURDEN OF PROOF The right to recover costs in a civil action is strictly limited by statute. In the absence of statutory authority, each party is required to pay his or her own costs. See Davis v. KGO-TV, Inc., 17 Cal. 4" 436, 439 (1998). When submitting the subject Memorandum of Costs, counsel for the O’BRIEN Defendants verified to this Court that the costs sought therein were properly recoverable under law. (See Exhibit “3”). However, the O’BRIEN Defendants now concede that such was false and patently incorrect and, thus a violation of the Rules of Professional Conduct, Rule 3.3(a), which provides that “a lawyer shall not: 1) knowingly make a false statement of fact or law to a tribunal”. It should not escape this Court’s attention that this statement was intended to subject plaintiffs to in excess of $156,000.00 in costs - - $70,000.00 of which counsel now admit had no basis in law and fact. Only where the items set forth in a verified costs bill appear proper on their face does a costs memorandum constitute prima facie evidence that the costs were necessarily incurred. See Levy v. Toyota Motor Sales, Inc., 4 Cal. App. 4" 807, 816 (1992). Once the items of costs are properly objected to, they are put into issue and the burden of proof is on the party claiming them as costs. The party seeking the costs has the burden to establish that they were reasonable, necessary, and actually incurred, providing appropriate declarations and copies of appropriate receipts. Where no substantiation exists - - only mere argument, the costs must be disallowed. /d.; See also Oak Grove School Dist. v. City Title Ins. Co., 217 Cal. App. 2d 678, 698 (1963); Jones v. Dumrichob, 63 Cal. App. 4" 1258, 1266 (1998) The Court has the obligation to ensure that only costs necessary and reasonable in amount are allowed. See Serrano v. Stefan Muli Plastering Co. Inc., 160 Cal. 4" 214, 1039 (2008). Even as to costs which are claimed as a “matter of right”, pursuant to C.C.P. § 1033(c)(2) and (3), the party claiming the costs must establish that they are not only necessary to the conduct of the litigation, but reasonable. 1 Memorandum of Points and Authorities in Reply to Defendants Charles B. O’Brien, M.D.’s, CBO, A Medical Corporation’s and Emergency Physicians Medical Associates of Long Beach’s Opposition to Motion to Tax and Strike Costs 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The costs sought by way of the O’BRIEN Defendants’ verified Costs Bill are particularly suspect. Although the O’BRIEN Defendants now concede that their costs bill was defective, erroneous, and patently false, of the in excess of $156,332.45 in costs originally sought, defendants yet maintain that $86,135.94 are allegedly proper, reducing their costs bill by $70,000.00. As will be set forth herein, the O’BRIEN Defendants have still not met their burden of proof to establish that they are entitled to even a fraction of these costs. II ARGUMENT A. Defendants’ Filing and Motion Fees Sought by Way of Item Number 1 Must Be Reduced to $2,300.75. By way of Item Number 1, defendants initially sought filing motion fees totalling $3,571.39. Many of these fees appeared to be duplicative, not related to the subject action and/or were not in reality filing fees, such as $251.14 for lodging a deposition in Northern California which defendants have now conceded should be taxed. After stipulating to tax this amount, defendants claim they are entitled to $3,320.25 and have furnished invoices by way of Exhibit “C”; yet these invoices total only $375.75 and do not correspond to the costs set forth in Item 1 and the attached Worksheet. The issue of defendants’ filing fees is addressed in the Declaration of Kathryn B. Meadows submitted concurrently herewith, (hereinafter “Meadows Rely Declaration”) at Paragraphs 8 through 12, with the invoices itemized by plaintiffs’ counsel to assist the Court in a document attached thereto and lodged as Exhibit “46”. Plaintiffs did not originally dispute $1,985.00 of the filing fees. Defendants have now furnished invoices totalling $375.75 as Exhibit “C” for electronic filings (of which $60.00 was already uncontested by plaintiffs and included in the $1,985.00), bringing the total filing and motion fee documentation submitted by defendants to $315.75 and recoverable filing and motion fees to $2,300.75. All other filing and motion fees must be taxed. B. Only $19,085.28 of the Deposition Costs Set Forth in Item 4 Are Properly Recoverable. The O’BRIEN Defendants maintain that the fee for travelling to their own client’s deposition in their office was a mere clerical error, admitting that this amount must be taxed from the deposition costs 2 Memorandum of Points and Authorities in Reply to Defendants Charles B. O’Brien, M.D.’s, CBO, A Medical Corporation’s and Emergency Physicians Medical Associates of Long Beach’s Opposition to Motion to Tax and Strike Costs 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 totalling $33,251.57 in Item Number 4. Defendants nonetheless maintain that this is their only error as it relates to the deposition costs, now seeking $33,181.19. Although the O’BRIEN Defendants have submitted as Exhibit “D” a packet of invoices which purportedly support their deposition costs, it is clear that defendants have not bothered to compare their original Costs Memorandum with the actual receipts which establish that many of the costs originally sought were never incurred, are unsupported by any documentation, are duplicative, superfluous, and not reasonable or necessary. 1. Undisputed Deposition Costs The Meadows’ Reply Declaration addresses deposition costs at Paragraphs 13 through 31. Although defendants have not endeavored to correlate the entries in their costs bill with the invoices, plaintiffs’ counsel again has provided the Court with a chart lodged as Exhibit “47” which sets forth those invoices provided in support of defendants’ “deposition costs”. Paragraph 15 of counsel’s Declaration specifically details those deposition costs which were properly sought and are supported by the invoices. As the Court will note, those costs total $19,085.28. 2. Deposition Costs Which Were Unnecessary and/or Unreasonable Must Be Stricken Even costs which defendants are allegedly entitled as a “matter of right “under C.C.P. § 1033.5(a), such as deposition transcripts, are limited by the language of C.C.P. § 1033.5(c)(2), which specifically states, “allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation”, and § /033.5(c)(3) which mandates that “allowable costs” shall be “reasonable in amount”. California courts have unequivocally held that these provisions apply to even those costs which the parties maintain they are entitled to as a “matter of right”. See Perko's Enterprises, Inc. v. RRNS Enterprises, 4 Cal. App. 4th 238 (1992). The O’BRIEN Defendants maintained the original transcripts of a multitude of depositions pursuant to the agreement of counsel, including that of their own client. Defendants assert that the expenses of obtaining certified copies of these transcripts were necessary for the “convenience of counsel and their expert witnesses”, ignoring that the original transcripts could have been photocopied and scanned, and that there was no need for certified copies. California courts have rejected defendants’ arguments that costs associated with "obtaining documents for an expert's review" are recoverable or 3 Memorandum of Points and Authorities in Reply to Defendants Charles B. O’Brien, M.D.’s, CBO, A Medical Corporation’s and Emergency Physicians Medical Associates of Long Beach’s Opposition to Motion to Tax and Strike Costs B N ~N O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reasonably necessary. See Ladas v. California State Auto. Ass'n, 19 Cal. App. 4th 761, 774 (1993). Hence, the costs of those transcripts, as detailed in the Meadows’ Reply Declaration at Paragraph 22 must be taxed. It should not escape the Court’s attention that the O’BRIEN Defendants, together with the ALI Defendants, despite their promise to bear all costs associated with the deposition of re-designated expert, C. Alan Brown, M.D., now seek to impose those costs on plaintiffs by way of their costs bill, jointly seeking almost $7,000.00 in costs associated with Dr. Brown’s deposition alone. 3. Duplicative Deposition Costs and Costs Which Are Unsupported By Any Documentation Must Be Stricken As addressed in Paragraph 18 of the Meadows Reply Declaration and established by Exhibit “48”, there are a number of costs set forth in Item 4 sought by defendants which are duplicative, erroneous and/or unsupported by any documentation which most certainly must be taxed. As only $19,085.28 of the total deposition costs are reasonable, necessary, and supported by the documentation submitted by defendants, the remaining balance sought must be taxed. Ci The Entirety of the Witness Fees Sought By Way of Item Number 8 Totalling $107,506.14 Must Be Stricken. The O’BRIEN Defendants admit that the purported “ordinary witness fees” set forth in Item 8a totalling $175.00 are not properly recoverable. The O'BRIEN Defendants now also concede that they sought to finance the entirety of their litigation through their Memorandum of Costs, improperly seeking all expert witness fees incurred since the litigation began in 2013. Defendants admit that over $67,000.00 of these expert fees are not recoverable, but maintain they are yet entitled to $40,023.92 in expert witness fees purportedly incurred after the service of their C.C.P. § 998 Offers on October 3, 2019 based upon the invoices they have submitted as Exhibit “E”. However, there is no question that defendants’ service of their token defective C.C.P. § 998 Offers on the eve of trial was not in good faith nor was there any realistic expectation that plaintiffs would accept these offers in a case wherein economic damages alone approximating $20 million dollars were at issue which had endured for over six years. 1. Defendants’ C.C.P. § 998 Offers Were Defective in Their Misstatement of the Law and Uncertain and Thus Do Not Invoke the Costs Provisions of C.C.P. § 998(c). 4 Memorandum of Points and Authorities in Reply to Defendants Charles B. O’Brien, M.D.’s, CBO, A Medical Corporations and Emergency Physicians Medical Associates of Long Beach’s Opposition to Motion to Tax and Strike Costs 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 The O’BRIEN Defendants have failed to address the fact that their C.C.P. § 998 Offers were defective and blatantly misstated the law. California courts place the burden squarely on the offering party to demonstrate that an Offer is valid. See Taing v. Johnson Scaffolding Co., 9 Cal. App. 4" 579, 585 (1992). Courts recognize that C.C.P. § 998 Offers must be strictly construed in favor of the party who is subject to its operation, in this case, the plaintiffs. See Garcia v. Hyster Co., 28 Cal. App. 4", 724, 732-33 (1994). Although it is axiomatic that C.C.P. § 998 Offers which misstate the law must not be enforceable, an analysis of the underlying purpose of the statute is important. It is well-settled that the purpose of the statute is to encourage the settlement of litigation without trial. See Brown v. Nolan, 98 Cal. App. 3d 445, 449 (1979). In order to effectuate that purpose, C.C.P. § 998 Offers must clearly convey to the offeree the terms of the Offer and the potential liability for failing to accept so that the responding party may assess the value of the Offer. In this case, the O’BRIEN Defendants served C.C.P. § 998 Offers for waivers of their costs on the eve of trial, when expert witness discovery had been completed in a case which had been pending since July, 2013. The Offers asserted that, if plaintiffs did not accept the Offers, they could be responsible for the entirety of defendants’ expert costs, including those incurred over the past six and one-half years prior to the service of the Offers. In accordance with the statute in effect in 2019, to be valid, the Offers should have appropriately advised plaintiffs that they could be held responsible for defendants’ post-Offer expert costs only. The monetary difference in prospective costs incurred solely for trial and costs incurred for the duration of a case which had endured for six and one-half years is not insignificant, rendering the Offers clearly uncertain, invalid, incapable of valuation and insufficient to invoke the provisions of C.C.P. § 995(c). 2. The O’BRIEN Defendants’ Token Offers Were Not in Good Faith. It has been long held that a C.C.P. § 998 Offer must be made in “good faith” to be valid. See Wear v. Calderon, 121 Cal. App. 3d 818, 821 (1981). Good faith requires that the offer be “realistically reasonable under the circumstances of the particular case. Normally, therefore, a token or nominal offer will not satisfy the good faith requirement, . . . .” Id Contrary to defendants’ assertion, the mere fact that a defendant obtained a judgment in his favor at trial does not establish that its pretrial offer was reasonable, 5 Memorandum of Points and Authorities in Reply to Defendants Charles B. O’Brien, M.D.’s, CBO, A Medical Corporation’s and Emergency Physicians Medical Associates of Long Beach’s Opposition to Motion to Tax and Strike Costs Oo RX 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 as C.C.P. § 998 Offers must be evaluated “in light of the circumstances at the time of the offer” and “not by virtue of hindsight”. See Elrod v. Oregon Cummins Diesel, Inc., 195 Cal. App. 3d 692, 699 (1987); Burch v. Children’s Hospital of Orange County Thrift Stores, Inc., 109 Cal. App. 4" 537, 548 (2003); Fortman y. Hemco, 211 Cal. App. 3d 241, 264 (1989). In evaluating whether an offer was in good faith, the Court may take into account the amounts paid by other similarly-situated defendants by way of settlement. See Adams v. Ford Motor Co., 199 Cal. App. 4" 1475, 1486 (2011). Defendants have set forth in their moving papers the test to be utilized to ascertain whether their Offer was in good faith, citing Nelson v. Anderson, 32 Cal. App. 4" 111 (1999). In accordance with Nelson, the first prong of the test requires the court to evaluate the reasonableness of the offer as measured against the amount of money, if any, a defendant would have to pay following a trial. Only if the Offer is found reasonable under the first prong of the test is the second prong to be evaluated. The O'BRIEN Defendants’ Offer was for a waiver of costs. Although under certain extreme circumstances, a costs waiver may be reasonable, such is only where it is “absolutely clear that no reasonable possibility exists that the defendant will be held liable”. See Wear, 121 Cal. App. 3d at 821. It is clear that the Defendants’ Offers herein did not represent a reasonable prediction of the amount of money the O’BRIEN Defendants would have to pay plaintiffs following a trial. The Meadows Reply Declaration at Paragraphs 35 through 38 and exhibits referenced therein detail those matters known to the O’BRIEN Defendants and to the Court related to the magnitude of the damages claimed. It was clearly known that plaintiffs were seeking economic damages alone in “nine figures”, in excess of $20,000,000.00”. (See Exhibits “43”, “45”, and “49”). Even defendants’ own expert economist had valued the losses in this case at a present cash value of $4,000,000.00. (See Exhibit “44”). The Community Hospital Defendants and the Court had noted in 2017, when approving the Community Hospital Defendants’ Motion for Good Faith Settlement in the amount of $1,550,000.00, that plaintiffs’ earnings losses were then estimated at $3,000,000.00. (See Exhibit “31”). Defendants were quite aware of the damages to be sought by plaintiffs, that the economic losses sought by plaintiffs were well-supported by detailed life care plans, economic analyses, and records of prior earnings demonstrating that Mr. O'ROURKE was earning well in excess of $360,000.00 a year before this catastrophic event, and that defendants’ potential exposure was significant. A waiver of costs with a value of approximately 6 Memorandum of Points and Authorities in Reply to Defendants Charles B. O’Brien, M.D.’s, CBO, A Medical Corporation’s and Emergency Physicians Medical Associates of Long Beach’s Opposition to Motion to Tax and Strike Costs 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 $80,000.00 paled in comparison to the potential liability of the defendants for $20,000,000.00 or more in economic damages for which they would be held fully liable under principles of joint and several liability, even if Dr. O’BRIEN was found only 1% at fault. Defendants were also cognizant that there was certainly the reasonable possibility that Dr. O’BRIEN would be held liable by virtue of his own testimony and admissions that he observed abnormalities in Mr. O’ROURKE’s EKGs and that his diagnosis for Mr. O'ROURKE was “atypical chest pain”, meaning “pain of a cardiac nature not in the chest”. Dr. O'BRIEN admittedly never contacted a cardiologist, attempted to administer appropriate therapies and medications which could serve to decrease the progression of a major catastrophic cardiac event promulgated by the American College of Cardiology and American Heart Association, even though a myocardial infarction remained in his differential diagnosis. He did not adequately communicate to the physician whom he ultimately chose to telephone, NAYYER Z. ALI, M.D., as he was going off shift at 7:14 a.m. that Mr. O’ ROURKE was continuing to suffer from pain and had suffered from 10 out of 10 pain for an hour and one-half which was unrelenting - - a fact which Dr. ALI testified would have completely changed his plan of care. The facts and information known at the time that these Offers were made as to defendants’ liability have been set forth in the Meadows Reply Declaration at Paragraphs 35 through 41 and established by the exhibits, including relevant excerpts of deposition testimony, expert Declarations, and pleadings. Although liability was clearly hotly contested, but certain factors did not bode well for Dr. O’BRIEN. Defendants had no cardiology expert who had ever reviewed the angiogram films to testify as to causation and defendants” own pulmonary expert testified that plaintiff was disabled for life and precluded from working because of the subject incident. Unlike the plaintiffs in Jones, plaintiffs have clearly established a record as to why it was clear that a more than reasonable possibility existed that the O’BRIEN Defendants would be held liable for economic damages in excess of $20,000,000.00. Conversely, defendants have offered no explanation as to why a waiver of costs in a case which had been ongoing for over six years and was supported by qualified competent experts would be in good faith. Defendants’ only argument is that they were fortunate to obtain a defense verdict and that it is counsel’s personal opinion that the testimony of plaintiffs’ emergency physician expert was not compelling. 1 7 Memorandum of Points and Authorities in Reply to Defendants Charles B. O’Brien, M.D.’s, CBO, A Medical Corporation’s and Emergency Physicians Medical Associates of Long Beach’s Opposition to Motion to Tax and Strike Costs 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs have submitted objective facts and evidence which establish that there was more than a reasonable possibility that plaintiffs would prevail. Plaintiffs’ case is akin to that in Wear v. Calderon where the plaintiff was offered one dollar by a co-defendant in an automobile accident. Although the plaintiff prevailed against other defendants, the offering defendant was found without fault. Even though the plaintiff's verdict against other co-defendants was in the amount of $18,500.00 (a small amount compared to the amount herein), the Court ruled that the plaintiff “may not reasonably be expected to accept a token or nominal offer from any defendant exposed to this magnitude of liability unless it is absolutely clear that no reasonable possibility exists that the defendant will be held liable”. See Wear, 121 Cal. App. 3d at 821. Also controlling herein is the decision in Pineda v. Los Angeles Turf Club, Inc., 112 Cal. App. 3d 53 (1980), where both the trial and appellate courts determined that an offer of $2,500.00 made by a defendant to the heirs of a horse jockey seeking $10,000,000.00 after an accident at the starting gate was so disproportionate as to be unreasonable. In Pineda, the C.C.P. § 998 Offer to settle for $2,500.00 was made one month before trial, where defendant prevailed. The trial court denied the C.C.P. § 998 costs sought by defendant with the appellate court affirming same, stating “Although [defendant’s] liability was tenuous indeed, having in mind the enormous exposure the trial court could find that [defendant] had no expectation that its offer would be accepted. From this, it follows that the sole purpose of the offer was to make defendant eligible for the recovery of large expert fees at no real risk”. Id at 64. As recognized by the Court in Jones v. Dumrichob, the trial courts in both Wear and Pineda found that both offers did not satisfy the good faith requirement because it appeared that the defendants made the offers for the sole purpose of later recovering large expert witnesses in cases which had merit and where the potential exposure to the defendants were enormous. See 63 Cal. App. 4" at 1262-1264. California courts have uniformly rejected an interpretation of C.C.P. § 998 which would permit the parties to “game the system”, offering token offers such as for waiver of costs on the eve of trial, knowing there is no prospect of acceptance. See West American Bank v. MGB Industries, 158 Cal. App. 4" 109, 129-130 (2007). 1t is clear that the O'BRIEN Defendants’ Offer was just such an offer. The defendants herein place great reliance on the case of Jones v. Dumrichob, 63 Cal. App. 44 1258 (1998). Although Jones does stand for the proposition that a waiver of costs in certain instances may 8 Memorandum of Points and Authorities in Reply to Defendants Charles B. O’Brien, M.D.’s, CBO, A Medical Corporation’s and Emergency Physicians Medical Associates of Long Beach’s Opposition to Motion to Tax and Strike Costs 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 trigger the penalties of C.C.P. § 998, it is not controlling herein. First of all, Jones was decided based upon former C.C.P. § 998, which afforded defendants the ability to recoup pre-Offer costs. Secondly, the plaintiff who challenged the defendant’s expert witness fees in Jones did had not provide an appropriate record by which the Court of Appeal could evaluate the decision of the trial court. Jones acknowledged that the reasonableness of a C.C.P. § 998 Offer is left to the sound discretion of the trial court and that the appellants had failed to provide any record on which the reviewing court could determine whether the trial court abused its discretion. The Court of Appeal thus had no ability to evaluate whether the subject Offer carried with it a reasonable prospect of acceptance. Id. at 1264. Jones merely reiterates that the well-established principles that a C.C.P. § 998 Offer “must carry with it some reasonable prospect of acceptance” and that “one having no expectation that his or her offer will be accepted will not be allowed to benefit from a no-risk offer made for the sole purpose of recovering large expert witness fees established by the Wear, Elrod, and Pineda precedents. Looking to these precedents for guidance, it is clear that the O’BRIEN Defendants’ potential liability in this case was certainly more than tenuous and their potential exposure enormous - - twice that of the defendant in the Pineda case. As such, defendants’ Offers for waiver of costs are just the sort of Offers which attempt to “game the system” that courts have deemed in bad faith. 3. Defendants Have Not Established Post-Offer Expert Fees in the Amount Sought. Defendants maintain that the invoices that they have provided as Exhibit “E” all constitute fees for expert services which were incurred subject to the date of the Offers. A review of the invoices submitted as Exhibit “E” establishes that these invoices do not total the amount sought by defendants, i.e., $40,023.92. Secondly, the receipts also reveal that defendants have included pre-offer expert fees in their calculations - - fees for services provided by Ms. Olzack. Thirdly, expert fees just as any other cost must be reasonable in nature. Defendants seek costs approximating $9,000.00 for travel expenses for their Life Care Planner - - fees which are clearly excessive. The issue of the amount and nature of the reasonableness of expert fees has been addressed in the Meadows Reply Declaration at Paragraphs 44 through 48 and in Ms. Teixeira’s Reply Declaration at Paragraphs 4 through 10. 9 Memorandum of Points and Authorities in Reply to Defendants Charles B. O’Brien, M.D.’s, CBO, A Medical Corporation’s and Emergency Physicians Medical Associates of Long Beach’s Opposition to Motion to Tax and Strike Costs ~N O N oa Bb 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Defendants’ Exhibits Costs Under Item 11 in the Amount of $1,739.00 Should Be Reduced to $250.00. Defendants’ “exhibit costs” are addressed in Ms. Teixeira’s Reply Declaration at Paragraphs 11 through 13 and in the Meadows Reply Declaration at Paragraphs 49 through 52. Not only were the 22 binders of exhibits consisting of 15,000 pages not utilized at trial, given the constraints of People v. Sanchez, 63 Cal. 4th 665, 204 (2016), the requirements of the Evidence Code, and the fact that thousands of pages of these records were prepared by Canadian healthcare providers, defendants were quite aware that these exhibits would not and could not be utilized at trial and were thus neither necessary or reasonable as required by C.C.P. §§ 1033.5(c)(2) and (3). E. The Entirety of the Miscellaneous Costs Sought By Way of Item Number 16 Must Be Taxed. Defendants have provided under Exhibit “G” a hodgepodge of receipts which are not recoverable under any statute. Fees for photocopies are nonrecoverable costs pursuant to C.C.P. § 1033.5(b), nor are fees associated with participating in voluntary private Mediations expressly allowed. To the extent that defendants incurred costs to travel to depositions, they have already been included in Item 4. III CONCLUSION Based upon the foregoing plaintiffs submit that defendants costs must be taxed and limited to filing and motions fees of $2,375.00, jury fees of $2,485.46, deposition costs of $19,085.28 and reasonable fees for exhibits of $250.00, with defendants’ costs being limited as provided by C.C.P. § 1033.5 to $24,121.49, and no expert witness fees being awarded. Respectfully submitted, LAW OFFICE OF KATHRYN B. MEADOWS Dated: June 4, 2020 WALTER H. O°’ ROURKE and WENDY L. O'ROURKE 10 Memorandum of Points and Authorities in Reply to Defendants Charles B. O’Brien, M.D.’s, CBO, A Medical Corporation’s and Emergency Physicians Medical Associates of Long Beach’s Opposition to Motion to Tax and Strike Costs = Journal Technologies Court Portal Court Reservation Receipt Reservation Reservation [D: 142683410747 Reservation Type: Motion to Tax Costs Case Number: BC514989 Filing Party: WALTER H. O'ROURKE (Plaintiff) Date/Time: June 11th 2020, 8:30AM Fees Description Motion to Tax Costs Credit Card Percentage Fee (2.75%) TOTAL Payment Amount: $61.65 Account Number: XXXX5642 I= Print Page | ¢ Back to Main Copyright © Journal Technologies, USA. All rights reserved. Status: RESERVED Number of Motions: 1 Case Title: WALTER H O'ROURKE ETAL VS NAYYER ZALIMDETAL Location: Long Beach (Governor George Deukmejian) Courthouse - Department S27 Confirmation Code: CR-RV7MGA4IVEZZABUUKU Fee Qty Amount 60.00 1 60.00 1.65 1 1.65 $61.65 Type: MasterCard Authorization: 00799P
