Opinion
F077027
02-28-2020
TARA LEE CHILDRESS et al., Plaintiffs and Respondents, v. RAY LEE AARON, Defendant and Appellant.
Woolls Peer Dollinger & Scher, H. Douglas Galt and Jeffrey A. Dollinger for Defendant and Appellant. The Law Offices of John C. Hall and John C. Hall for Plaintiffs and Respondents
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BCV-16-101095)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Stephen D. Schuett, Judge. Woolls Peer Dollinger & Scher, H. Douglas Galt and Jeffrey A. Dollinger for Defendant and Appellant. The Law Offices of John C. Hall and John C. Hall for Plaintiffs and Respondents
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INTRODUCTION
Defendant Ray Lee Aaron appeals the trial court's denial of his motion to tax plaintiffs' postjudgment cost memorandum.
The parties' dispute stems from an automobile accident after which plaintiffs filed suit against defendant seeking damages for bodily injury. During the course of discovery, plaintiffs made settlement offers pursuant to Code of Civil Procedure section 998 that defendant did not accept. The case was tried before a jury, and a judgment was awarded in favor of each plaintiff that exceeded their respective section 998 settlement offers. Plaintiffs then filed a cost memorandum and a motion to augment the judgment seeking $100,109.91 in expert witness fees, prejudgment interest, and various other costs. Defendant filed a motion to tax plaintiffs' costs, which the court denied in all respects except two, reducing plaintiffs' requested costs by $276.38. Defendant appeals the trial court's award of costs. We modify the postjudgment award of costs by striking $2,850 awarded for court reporter fees and $4,608.53 awarded for models, blowups, and photocopies of exhibits. Otherwise the postjudgment award of costs is affirmed.
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
On April 10, 2016, plaintiffs (sisters Traci and Tara Childress) were involved in a car accident with defendant. According to the police report, Traci was driving a vehicle in a lane of traffic that had the right-of-way. Defendant, who was driving while intoxicated, turned left in front of Traci's oncoming vehicle, Traci was unable to stop in time, and her vehicle collided with defendant. Defendant was arrested at the scene, and Traci and Tara's mother drove them to the hospital. At the hospital, Tara complained of headaches and neck pain. On examination, Tara had limitation to forward degrees of flexion, but a CT scan of her head was negative as were X-rays of her cervical spine. She was prescribed Tylenol with codeine and Flexeril for pain and muscle aches. She was advised to return to the hospital if her headache did not go away despite the pain medication.
Traci reported pain in her lower back, neck, left shoulder, and chest. On examination, it was noted she had full range of motion in her neck and lower back; she had no numbness or tingling in her upper or lower extremities; and her reflexes were intact. A chest X-ray did not show any fractures, blunting, pneumothorax, or infiltrations. A shoulder X-ray revealed no discolorations, soft tissue swelling, or fractures. A lumbar spine X-ray showed no soft tissue swelling, no disk bulging, or acute fracture. Cervical spine X-rays were similarly negative. Traci was discharged home with a prescription for Flexeril for muscle spasms and Motrin.
Tara and Traci returned to the hospital on April 19, 2016. Tara reported headaches, dizziness, and back and shoulder pain. On examination, she had full range of motion of her head without limitation; her neck was tender with palpation, but with no numbness or tingling and no bruising was observed; she had full range of motion of her shoulder with no numbness; and she was ambulating well without any limitation. Tara was prescribed medication for a sinus infection, advised to continue her medication, and to rest; she was also advised to follow up with her primary care physician in two or three days for possible referral to physical therapy.
Traci reported continued neck pain, headaches, nausea, and lower pelvic pain. On examination, she had full range of motion with no limitations; she had a small hematoma on her left breast, which was healing; a bruise on her lower pelvic area was tender, but healing; and she had no numbness or tingling. She was advised to continue taking medication as directed, rest, and to follow up with her primary care physician for possible referral to physical therapy.
Tara followed up with her treating medical provider on April 28, 2016. Janine Bourelle, FNP-C (NP Bourelle), assessed Tara with postconcussive syndrome; neck pain, headache, and lower back pain with radiculopathy. NP Bourelle recommended MRI's of the c-spine and l-spine, referral to a neurologist, and prescribed pain medication. On May 22, 2016, Tara underwent a brain MRI scan, which indicated mild prominence of the pituitary gland, nonspecific areas of increased signal intensity in the right, front periventricular white matter with no evidence of an acute infarct; no evidence of intracranial hemorrhage; and mild inflammatory changes to the left sphenoid sinus.
Plaintiffs filed suit against defendant on May 16, 2016. In July 2016, plaintiffs responded to defendant's interrogatories and requests for production of documents, providing defendant with their relevant medical records, bills and invoices, and the names of treating medical providers. On July 18, 2016, plaintiffs each served $50,000 policy-limit settlement demands on defendant's insurer, and offered to make themselves available for deposition and/or independent medical examinations to allow for meaningful evaluation of the claimed injuries prior to expiration of the settlement demand. On August 30, 2016, plaintiffs each served defendant with $50,000 settlement offers pursuant to section 998. In September 2016, the parties agreed to extend the expiration deadline of the section 998 offers (until 10 days after plaintiffs' depositions, which were set for October 13, 2016.
Tara and Traci were deposed on October 13, 2016. They each reported continuing symptoms of pain associated with injuries sustained during the car accident. Tara stated she followed up with her primary care provider for head, neck, and lower back pain, blurry vision, dizziness, and concentration and memory issues. She had not seen her medical provider in the prior two months, but expected to return for treatment in the future if her current symptoms worsened. She continued to have headaches every day that were constant throughout the day. Traci testified she had missed some work due to pain in her lower back. She continued to experience back pain and she had followed up with NP Bourelle, her primary provider, who had prescribed Tramadol for pain, which Traci continued to take three to four times a week. Traci was waiting for insurance approval for an MRI, which she planned to undergo upon authorization.
Plaintiffs' counsel sent a letter to defendant's counsel on November 3, 2016, indicating defendant had objected to the section 998 settlement offers, and the offers lapsed without acceptance. Trial commenced on October 10, 2017, before the Honorable Sidney P. Chapin. The jury rendered a verdict in favor of plaintiffs and awarded damages as follows: Tara was awarded $94,000 in damages—$9,000 for past economic damages; $20,000 for future economic healthcare expenses; $25,000 in past noneconomic damages; and $40,000 in future noneconomic damages. Traci was awarded a total of $177,000 in damages: $12,000 for past economic damages; $100,000 in future medical and other economic healthcare expenses; $25,000 in noneconomic damages; and $40,000 in future noneconomic damages. The jury also determined Traci was negligent and assigned her 35 percent of the comparative fault for the accident. After reducing the damage awards by the percentage of Traci's comparative fault, Tara's aggregate damage award was $71,250, and Traci's aggregate damage award was $115,050.
The judgment was amended to reflect Tara's damage award was $71,250 rather than $61,100, as only her noneconomic damages were subject to reduction for Traci's comparative fault.
On November 6, 2017, plaintiffs filed a memorandum of costs, seeking a total of $100,109.91 under section 998, subdivision (d), and under section 1033.5 as a prevailing party. The costs sought included filing and motion fees; jury fees; deposition costs; service of process fees; witness costs; costs for models, blowups and photocopies of exhibits; court reporter fees; and prejudgment interest. The costs also included expert witness fees in the amount of $49,320. The prejudgment interest was calculated to be $22,049.68.
On November 7, 2017, plaintiffs also filed a motion to augment the judgment to include prejudgment interest and costs. Plaintiffs' counsel filed a declaration in support of the motion and filed as exhibits the section 998 offers plaintiffs had made in August 2016. Plaintiffs' counsel's declaration was limited to attesting to the correctness of the attached section 998 offer exhibits, the jury verdict, and counsel's calculations of the damage award. Defendant opposed the motion on grounds the section 998 offers were not made in good faith because, at the time, Tara's economic damages were limited to less than $2,000, and Traci's economic damages were less than $3,000; these limited economic damages indicated the offers for $50,000 were patently unreasonable.
On November 22, 2017, defendant filed a motion to strike or tax plaintiffs' costs. The case was reassigned to the Honorable Steven D. Schuett on December 1, 2017, and a hearing on the motions was held on January 5, 2018. The trial court denied defendant's motion to tax in all respects but two: the court disallowed $241.38 in Federal Express charges and $35 for the cost of serving the first amended complaint. Defendant appealed.
DISCUSSION
I. Reasonableness of Plaintiffs' Section 998 Offers
A. Background
The parties dispute whether plaintiffs' section 998 offers to compromise in the amount of $50,000 each were reasonable in light of what defendant knew about plaintiffs' injuries and damages at the time of the offer. Defendant argues the medical records at that time showed no objective findings, medical expenses were limited to approximately $1,500 for Tara and $3,000 for Traci, neither had missed much work as a result of their purported injuries, and nothing in their depositions indicated further damages. Moreover, defendant maintains he was entitled to discount any potential damages by a reasonable estimate of Traci's comparative fault for the accident and for an appropriate factor for receipt of money by plaintiffs before trial. According to defendant, there was simply nothing to place defendant's probable liability significantly above $50,000 that would have made the $50,000 offers reasonable.
Plaintiffs respond their section 998 offers were realistically reasonable under the circumstances of the case. First, the jury's verdict exceeded the section 998 offers and, therefore, constituted prima facie evidence the offers were reasonable. Second, defendant had ample evidence and opportunity to assess plaintiffs' injuries and potential damages. Plaintiffs extended their section 998 offer deadlines until after their depositions had been taken, and defendant took no steps to explore plaintiffs' ongoing complaints of pain and injury through further discovery and medical examinations. Further, at the time of the offers, it was known defendant had been driving under the influence of alcohol when the accident occurred, yet at that time there was no evidence of any comparative negligence on Traci's part that would have allowed for a prediction plaintiffs' damages would be reduced.
B. Standard of Review
"With respect to the validity, or reasonableness, of a section 998 offer, we review the trial court's determination for an abuse of discretion." (Mesa Forest Products, Inc. v. St. Paul Mercury Ins. Co. (1999) 73 Cal.App.4th 324, 329.) An abuse of discretion is found only when the trial court exercised its broad discretion in a manner that is arbitrary, capricious or patently absurd and which resulted in a manifest miscarriage of justice. (Culbertson v. R.D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710.) "We will reverse the trial court's determination only if we find that 'in light of all the evidence viewed most favorably in support of the trial court, no judge could have reasonably reached a similar result.'" (Bates v. Presbyterian Intercommunity Hospital, Inc. (2012) 204 Cal.App.4th 210, 221, quoting Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1484.) As the appellant, it is defendant's burden to establish the trial court abused its discretion. (Najera v. Huerta (2011) 191 Cal.App.4th 872, 877.)
C. Analysis
1. Applicable Law
When a plaintiff makes an offer to settle a lawsuit pursuant to section 998 (998 offer or offers), which the defendant does not accept, and if the plaintiff ultimately obtains a "more favorable judgment," he or she is entitled to have the defendant pay (1) the costs of her expert witnesses incurred after the 998 offer was made (§ 998, subds. (b) & (d)) and (2) prejudgment interest at the rate of 10 percent starting from the date of the 998 offer until satisfaction of the judgment (Civ. Code, § 3291). Costs awardable under section 998 include costs of the expert witness services actually incurred and reasonably necessary for preparation and during trial of the case. (Melendrez v. Ameron Internat. Corp. (2015) 240 Cal.App.4th 632, 645.)
A plaintiff is entitled to this additional recovery only if the 998 offer is "valid." (Barella v. Exchange Bank (2000) 84 Cal.App.4th 793, 799.) A 998 offer is valid only if it is made in "good faith." (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 698 (Elrod).) A 998 offer is made in good faith only if the offer is "'realistically reasonable under the circumstances of the particular case'" (Elrod, supra, at p. 698), which means the offer "'carr[ies] with it some reasonable prospect of acceptance'" (Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, 531). Two factors are assessed in determining whether a 998 offer has a reasonable prospect of acceptance that must be evaluated in light of the circumstances "'at the time of the offer'" and "'not by virtue of hindsight.'" (Burch v. Children's Hospital of Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537, 548.) First, the 998 offer must be within the "range of reasonably possible results" at trial, considering all the information the offeror knew or reasonably should have known. (Elrod, supra, at p. 699.) If the offeror obtains a judgment more favorable than her offer, "'the judgment constitutes prima facie evidence showing the offer was reasonable ....'" (Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 117 (Santantonio), and it is the offeree's burden to show otherwise (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 134 (Nelson)).
The second consideration is whether the offeror knew the offeree had sufficient information, based on what the offeree knew or reasonably should have known, to assess whether the "offer [was] a reasonable one" (Elrod, supra, 195 Cal.App.3d at p. 699), such that the offeree had a "fair opportunity to intelligently evaluate the offer" (Najera v. Huerta, supra, 191 Cal.App.4th at p. 878). Among the totality of facts, three factors are especially pertinent in making this determination: (1) how far into the litigation the 998 offer was made; (2) the information available to the offeree prior to the 998 offer's expiration; and (3) whether the offeree let the offeror know it lacked sufficient information to evaluate the offer, and how the offeror responded. (Licudine v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, 921, 926 (Licudine II).)
2. No Abuse of Discretion
There is no dispute here plaintiffs each obtained a judgment exceeding the 998 offers they made to defendant. Therefore, the judgment itself is prima facie evidence of the reasonableness of plaintiffs' offers, and it is defendant's burden to prove they were not. (Santantonio, supra, 25 Cal.App.4th at p. 117.) Defendant argues plaintiffs' $50,000 offers to compromise were unreasonable in light of the evidence which, at the time of the offer, indicated economic damages only amounted to approximately $1,500 and $3,000 for Tara and Traci, respectively.
Where, as here, personal injury is suffered, plaintiffs are entitled to recover an amount of money that will reasonably compensate them for all physical, mental, and emotional detriment attributable to the injury. (Civ. Code, §§ 3281-3283 & 3333.) Damages encompass losses or harms that occurred prior to trial as well as losses or harms "certain to result in the future." (Id., § 3283.) Compensatory damages include both general and special damages. (Licudine v. Cedars-Sinai Medical Center (2016) 3 Cal.App.5th 881, 892 (Licudine I).) Special (economic) damages consist of all economic out-of-pocket losses stemming from the injury and include items such as medical expenses, loss of earnings, loss of employment or employment opportunities (loss of future earnings). (Id. at p. 892; Civ. Code, § 1431.2, subd. (b)(1).) General (noneconomic) damages consistent of intangible losses flowing from the injury that are not quantifiable such as pain and suffering. (Licudine I, supra, at pp. 891-892; Civ. Code, § 1431.2, subd. (b)(2).) General damages are typically presumed to have been incurred when the claimant has established the existence of special damages, but they are not a prerequisite to the recovery of general damages. (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078.) In light of the types of damages available, we consider the evidence before the trial court as to what was known to defendant about the degree of his liability and the extent of plaintiffs' injuries at the time of the 998 offers. (Licudine II, supra, 30 Cal.App.5th at p. 926.)
Plaintiffs' 998 offers were made on August 30, 2016, about three and one-half months after the complaint was filed on May 16, 2016. At that point in the litigation, discovery had been exchanged that included plaintiffs' then-current medical records and bills. The 998 offer deadlines were extended at defendant's request until after plaintiffs' depositions were taken on October 13, 2016. During this time frame, there was strong evidence of defendant's liability. The police report from the accident indicated defendant was under the influence of alcohol at the time and had turned left in front of Traci's oncoming vehicle, which had the right-of-way. Though defendant argues he was entitled to discount any potential damages by Traci's comparative fault, defendant points to no evidence of her comparative fault that was known at the time of the offer. In response to plaintiffs' argument in this regard, defendant states in his reply brief only that Traci bore some comparative fault as the driver of the other vehicle, but defendant never specified the nature of that fault or when he became aware of it.
Evidence of what defendant knew or should have known about plaintiffs' injuries at the time of the offer was also fairly comprehensive. While defendant correctly notes plaintiffs had incurred somewhat limited medical expenses at the time of the offer, and the initial objective medical findings from their April 10 and 19, 2016, hospital visits did not establish any particularly severe injuries, Traci and Tara's depositions indicated greater exposure for further medical expenses and general damages. They both testified their injuries and related symptoms had not resolved. Tara's head injury continued to cause her headaches, memory and concentration issues, lower back and neck pain, and blurry vision, despite that a CT scan and X-rays in April 2016 had not revealed any notable objective findings. In fact, Tara reported she had recurring headaches every couple of days that were so severe they caused her to cry; she was taking medication for the pain, and she was having difficulty sleeping due to the pain. She anticipated following up for more care if the symptoms worsened.
Similarly, Traci's continuing lower back pain caused her to seek treatment with Janine Bourelle, a certified nurse practitioner who had been previously disclosed to defendant; NP Bourelle recommended Traci undergo an MRI. Traci also continued to take Tramadol three to four times a week for pain, which was being prescribed and monitored by NP Bourelle.
Tramadol is an oral medication prescribed to treat pain.
Thus, it was known to defendant Tara and Traci continued to suffer from pain and unresolved injuries as a result of the accident, and both anticipated future medical care. Defendant was also aware Traci's anticipated MRI might reveal more extensive injuries than the X-rays performed at the hospital in April—particularly in light of her continued pain, and the test itself would add to the existing medical expenses. Traci's and Tara's deposition testimony indicated potentially significant future economic damages in the form of medical expenses, as well as additional noneconomic damages for pain and suffering. Had defendant felt the evidence was undeveloped, particularly in light of the anticipated MRI for Traci and both plaintiffs' testimony of continued pain and symptomatology, defendant could have sought an additional extension of the offers or sought development of more evidence, but instead he let the offers lapse. (See Lewis v. Ukran (2019) 36 Cal.App.5th 886, 897-898 [where interrogatories lacked detail about the extent of lost earning capacity, offeree should have sought further responses, requested more information, or sought additional time to assess the 998 offer].)
Defendant argues he had no reason to expect additional medical evidence would reveal anything different from plaintiffs' examination records in April and May, or that any of plaintiffs' treating physicians would have anything to add to their existing findings. Yet, plaintiffs' deposition testimony of continuing pain and unresolved symptoms and Traci's anticipated MRI belie defendant's assertion. And, while he argues plaintiffs failed to provide any evidence of what any additional medical information would have shown, it is not plaintiffs' burden to do so. The fact that plaintiffs' conditions had not resolved and further medical treatment was being pursued was evidence economic damages and noneconomic damages were continuing to mount. While substantial, $50,000 is not a particularly large sum in the face of contemporary medical costs for ongoing investigation and treatment of head, neck and back pain that had not resolved despite months of recovery time with conservative pain medication treatment. At a minimum, the deposition testimony strongly indicated medical expenses would necessarily continue to accrue as different and more aggressive medical treatment was pursued, as would general damages for pain and suffering.
In light of what defendant knew about plaintiffs' continuing and unresolved pain and the additional medical care that was clearly anticipated by the time of plaintiffs' depositions, and viewing this evidence and all reasonable inferences therefrom in favor of the trial court's determination, there is evidence from which a judge could have reasonably concluded the $50,000 offers were reasonable at the time they were made. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262.) The trial court did not abuse its discretion in concluding plaintiffs' 998 offers were reasonable.
II. Reasonableness and Necessity of Costs Awarded
Defendant argues the trial court abused its discretion in finding reasonable and awarding plaintiffs' expert witness fees, court reporter fees, the costs of models, blowups, and photocopies of exhibits, and travel costs associated with depositions. Defendant maintains plaintiffs provided the court with no evidence of expert witness fees: no bills, invoices, time sheets, or reports were offered, and plaintiffs' counsel offered no declaration of the amount of expert witness fees incurred. Similarly, there was no supporting evidence of the claimed costs for models, blowups, and photocopies or for travels costs and court reporter fees. Defendant argues this lack of evidence was especially problematic here because the judge who decided the motion to tax costs had not presided over the trial—as such, he had no personal knowledge from which to evaluate the reasonableness of the fees requested.
Plaintiffs respond these costs were all reasonably necessary to the trial and reasonable in amount. Plaintiffs maintain their verified memorandum of costs was prima facie evidence that the costs, expenses, and services listed were reasonable and reasonably incurred, and it was defendant's burden to prove otherwise. According to plaintiffs, they had no obligation to proffer evidence to support their cost memorandum, even in light of defendant's motion to tax.
A. Legal Framework
Pursuant to section 1032, subdivision (b), "a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." Section 1033.5 sets out the allowable items of costs. Section 1033.5 also provides that "[a]llowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation ... [¶] ... [and] shall be reasonable in amount." (§ 1033.5, subd. (c)(2) & (3).) To claim costs, the prevailing party must file a memorandum of costs, verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case. (Cal. Rules of Court, rule 3.1700(a)(1).) Copies of bills, invoices, statements, or other documentation need not be attached to the memorandum (Jones v. Dumrichob, supra, 63 Cal.App.4th at p. 1267), but the memorandum must provide enough detail to determine the cost sought is statutorily awardable (Nelson, supra, 72 Cal.App.4th at p. 132 [cost memorandum did not state how subpoenas were served, thus it could not be determined from the face of the cost bill whether those items were statutorily allowable]).
Once a verified cost memorandum is submitted and the costs sought appear facially proper, the memorandum is prima facie evidence the costs were reasonable and necessary, and the party objecting to those costs bears the burden of proving they are not. (Nelson, supra, 72 Cal.App.4th at p. 131.) Upon a proper objection in a motion to tax, the burden of proof will shift back to the party seeking costs to provide evidence and documentary support that the costs were reasonable and necessarily incurred. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 ["[I]f the [cost] items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs."].) However, mere conclusory statements and arguments contained in the motion to tax costs are generally not proper objections sufficient to shift the burden. (Nelson, supra, at p. 131, citing and quoting Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698-699.) To be proper, an objection to a facially reasonable and awardable cost item must be accompanied by evidence or supporting documentation. (Nelson, supra, at p. 131.) Conversely, facially improper costs, despite verification, may be challenged without submitting additional evidence to prove they are unreasonable or not awardable and will be sufficient to shift the burden to the party seeking costs. (Ibid.)
In awarding costs under section 1033.5, the trial court has broad discretion to determine what costs were reasonably necessary to the conduct of the litigation and whether they were reasonable in amount. (Howard v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 541; § 1033.5, subd. (c)(2).) Whether an item listed on the cost bill is reasonable in amount and reasonably necessary to the litigation are questions of fact to be decided by the trial court, and its decision is reviewed for an abuse of discretion. (Berkeley Cement, Inc. v. Regents of University of California (2019) 30 Cal.App.5th 1133, 1139, 1140.) The abuse of discretion standard calls for varying degrees of deference, depending on the trial court's ruling under review. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711.) Under the abuse of discretion standard, "[t]he trial court's findings of fact are reviewed for substantial evidence ...." (Ibid.) "'A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence.'" (In re Khalid B. (2015) 233 Cal.App.4th 1285, 1288.)
B. Expert Witness Fees
1. Background
"If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment ..., the court ... may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses ...." (§ 998, subd. (d), italics added.) Unlike other costs that are awarded as a matter of right, an award of expert witness fees under section 998, subdivision (d), is always discretionary. (§ 998, subd. (d); Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 54-55.) Yet, these fees are evaluated like other costs to determine whether they are reasonable and reasonably necessary to the litigation. (See Adams v. Ford Motor Co., supra, 199 Cal.App.4th at pp. 1486-1488 [reviewing trial court's award of expert witness fees under § 998, subd. (c)].)
In section 8b(5) of plaintiffs' memorandum of costs, they sought expert witness fees in the amount of $49,320 related to Drs. Moelleken ($11,250), Epperson ($16,700), Sarkisian ($18,570), and Bourelle ($2,800). In section 4e of their memorandum of costs, plaintiffs also sought expert deposition fees in the amount of $8,780 for various experts, including, among others, Drs. Moelleken ($4,375), Epperson ($750), and Sarkisian ($500).
Defendant's motion to strike or tax plaintiffs' costs argued Dr. Sarkisian's $18,570 fee, listed in section 8b(5) of the memorandum of costs, was not reasonably necessary to the litigation because he testified about plaintiffs' loss of future earnings, damages that the jury did not award. Defendant also argued the deposition fees of Drs. Epperson, Sarkisian, and Moelleken were not supported by sufficient documentation or explanation. By way of example, defendant noted Dr. Moelleken's deposition fee of $4,375 was not substantiated by his trial testimony about his fees, and the expert fees listed in section 8b(5) of the memorandum of costs failed to provide any detail to determine if the fees for Drs. Epperson, Sarkisian, and Moelleken were duplicative of their expert deposition fees listed in section 4e of the memorandum of costs. The motion to tax did not contain an express request to tax all of the expert witness fees, aside from the argument those fees were not awardable under section 998. In his reply brief, defendant asked the court to tax in full Dr. Moelleken's deposition fee of $4,375 and Dr. Sarkisian's $18,570 fee, but made no other express request to tax other expert fees.
Plaintiffs' opposition argued Dr. Moelleken's fees were for review of the case and the examinations of plaintiffs, which were not duplicative of the time Dr. Moelleken spent during his deposition. Plaintiffs' counsel noted in his opposition brief that "the Defense specifically requested that this office not provide documentation to them regarding any of the costs incurred in this matter. Plaintiffs will have documentation of all costs incurred in this case at the time of the hearing, which have also been certified as accurate, under oath."
At the hearing, the court stated its tentative ruling with respect to defendant's motion to tax costs: plaintiffs' 998 offers "were made in good faith[,] and therefore, the Court will allow the expert fees ...." Plaintiffs' counsel submitted the issue without further argument and without submitting any further documentation. Defendant's counsel argued the section 998 offers were unreasonable based on the information available at the time the offers were made, but offered no other argument about the expert witness fees. The court's subsequent written order denied the motion to tax with respect to expert witness fees and awarded all expert fees sought by plaintiffs.
On appeal, defendant challenges the award of all plaintiffs' expert witness fees as unsupported by any evidence they were incurred postoffer or that they were reasonable in amount or reasonably incurred for the litigation. He argues plaintiffs provided no details in either the memorandum of costs or in opposition to the motion to tax showing the expert witness fees sought were limited to those incurred after the plaintiffs' section 998 offers—i.e., after August 30, 2016. Moreover, because only the aggregate total of each expert's fee was before the court, without any other details, and because Judge Schuett had not presided over the parties' trial, the court had no basis to find the expert witness fees were reasonable in amount or reasonably necessary to the litigation. Defendant reiterates the argument he made below with respect to Dr. Sarkisian's $18,570 fee, and that it was not reasonably necessary to the verdict because the jury awarded no damages on the loss of future earnings to which he testified.
2. Analysis
While plaintiffs' memorandum of costs is not detailed, the expert witness fees appeared facially proper and reasonable. (Nelson, supra, 72 Cal.App.4th at p. 131 [court's first determination is whether the charges appear proper on its face].) In Nelson, the party seeking costs had failed to provide details in the cost memorandum about the service of process costs sought, which are compensable at different rates under section 1033.5, subdivision (a)(4)(A)-(D), depending on the service method employed (Nelson, supra, at p. 132). The court concluded the costs were not facially proper with the details about the service methods, the cost memorandum was thus not prima facie evidence of their reasonableness, and it was the burden of the party seeking costs to establish through evidence the costs were statutorily awardable and reasonable. (Ibid.) Since no evidence was provided, the trial court had not erred in refusing to award those costs. (Ibid.) Here, however, there is only one type of compensable expert witness fee under section 998, subdivision (d)—that which is incurred postoffer. (§ 998, subd. (d).) By including these expert fees in the cost memorandum and verifying the correctness of the costs stated therein, these fees were facially purported to have been incurred postoffer and statutorily awardable in the court's discretion. (Nelson, supra, at p. 132.)
Moreover, because the memorandum of costs separately listed each expert's deposition fee and then separately listed the expert's other total fees, the various amounts billed were available for the court's consideration whether they were reasonable in amount. Beyond the cost memorandum itself as prima facie evidence of the reasonableness of the fees, the court had additional evidence available to it. While the court did not preside over the trial, the minutes of the trial were available in the court records, which reflect the approximate amount of time various experts testified at trial, and the court's docket also reflects expert witness lists were filed along with various motions in limine regarding the experts that would have indicated the subject of the expert testimony.
The burden was thus on defendant to show the expert witness costs were not proper or reasonable with supporting evidence or affidavits. (Nelson, supra, 72 Cal.App.4th at p. 131.) Defendant offered nothing more than argument on this issue, despite that he was aware of the dates on which plaintiffs' experts were deposed, when any expert witness designations were provided and the details they contained, the dates when expert reports were signed, and any testimony at trial about the expert's fees. Without any evidence from defendant to rebut this verified memorandum of costs and what was known to the court from its own records, defendant's mere arguments in his motion to tax did not constitute a proper objection to shift the burden of proof to plaintiffs. (Ibid.)
As to the trial testimony of plaintiffs' expert, Dr. Sarkisian, defendant argues Dr. Sarkisian's trial testimony was not reasonably necessary because it related to lost future earnings; but the jury declined to award any lost future earnings damages. Defendant offers no authority for the proposition that expert testimony on a measure of damages not ultimately awarded by the jury is not reasonably necessary to the conduct of the litigation. Rather, the reasonableness and necessity of the costs are judged at the time they are incurred, not based on a hindsight evaluation of the jury's verdict. For example, the costs associated with nontestifying witnesses may be deemed reasonably necessary. (See Evers v. Cornelson (1984) 163 Cal.App.3d 310, 317 [fees of doctor who did not testify were recoverable because he was a potential expert witness whose services were obtained in preparation for trial].) While proving future lost earnings does not always require the testimony of an expert (Licudine I, supra, 3 Cal.App.5th at pp. 897-898), it may still be reasonably necessary and warranted. Defendant has offered no argument why the testimony was not reasonably necessary other than it did not result in an award of damages on this issue.
In sum, there was substantial evidence to support the trial court's implied findings of reasonableness of the expert witness fees; no abuse of discretion was established. (In re Khalid B., supra, 233 Cal.App.4th at p. 1288.)
C. Models, Blowups, and Photocopies
In his motion to tax, defendant argued plaintiffs' memorandum of costs seeking $4,608.53 in cost for "Models, Blow-ups, and Exhibits" was entirely undetailed and lacked substantiation. At the hearing on defendant's motion, the trial court concluded defendant had failed to satisfy his burden to identify what was shown to the jury at trial so the court could then determine whether the costs were reasonable, and the court noted defendant had offered no specific amount of these costs to tax. On appeal, defendant asserts the trial court had no basis to conclude these costs were reasonable in any amount or reasonably necessary to the litigation.
Section 1033.5 expressly allows for the recovery of the costs of "[m]odels, the enlargements of exhibits and photocopies of exhibits ... reasonably helpful to aid the trier of fact." (§ 1033.5, subd. (a)(13).) This category of costs is broad and may include items such as photocopying of exhibits, the rental of equipment such as projectors and technicians (Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1623 [projector]); Green v. County of Riverside (2015) 238 Cal.App.4th 1363, 1373-1374 [technician to "monitor ... equipment and quickly resolve any glitches"]), and the creation of videos or PowerPoint presentations and the personnel to support them (Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1104 [creation of videos]; Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 990-991 [PowerPoint presentations and personnel to support them]).
Plaintiffs' memorandum of costs listed only a cost total for this entire category without providing a single detail (unlike the expert fees, which were broken down per expert). While there was a prompt and space on plaintiffs' cost worksheet to specify what items of cost within this broader category were being requested, there is nothing stated—only a raw total is provided. Without any delineation of what cost items are sought, a mere aggregate dollar amount does not provide any basis to conclude the costs are facially proper and reasonable in amount. When it cannot be determined if a cost item is facially proper, the cost memorandum is insufficient to constitute prima facie evidence of the awardability or reasonableness of the cost sought. (Nelson, supra, 72 Cal.App.4th at p. 132.) An objection to such an item of cost, even without supporting evidence, shifts the burden to the party seeking the cost to provide evidence of the reasonableness of that cost item. (Ibid.)
In opposition to the motion to tax, plaintiffs provided no further evidence or supporting detail to establish the reasonableness of the amount sought; plaintiffs argued only that the costs under this category were incurred "to display medical diagrams of Plaintiffs['] injuries as well as costs incurred for photographs, medical records, and the like, utilized at the time of trial." Plaintiffs' statement offered only examples of various cost items in this category, not a complete list or a cost associated with each item, nor did plaintiffs offer invoices or a declaration of counsel. It was plaintiffs' burden to provide substantiating evidence, not defendant's, and the record contains nothing about this item of cost other than a total amount sought. As the cost memorandum did not constitute prima facie evidence of the reasonableness or proper nature of the costs, the trial court erred in declining to tax this cost upon defendant's objection. (See Nelson, supra, 72 Cal.App.4th at p. 132; Cf. Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 856-857 [court's award of photocopying costs not abuse of discretion because it was supported by cost memorandum and supporting documents].) The cost award of $4,608.53 for models, blowups, and photocopies of exhibits is stricken.
D. Court Reporter Fees
Defendant also argues, as he did before the trial court, that transcripts of court proceedings were not allowable costs under section 1033.5, subdivision (b). In their opposition to the motion to tax, plaintiffs stated their cost memorandum specifically noted the $2,850 was a court reporter fee, which is a proper cost under the statute. The trial court determined section 1033.5, subdivision (a)(11), allowed for court reporter fees, and that it would "allow the trial transcript as what's described in the memorandum of cost[s]." We agree with defendant the memorandum of cost contains so few details the trial court had nothing before it to determine whether this fee was facially proper. The name of the reporter was omitted from the cost memorandum, plaintiffs failed to provide the date the cost was incurred, and the trial court itself referred to the cost as one for a trial transcript, even though transcripts of court proceedings not ordered by the court are not allowable costs. (§ 1033.5, subd. (b)(5).) Plaintiffs' cost memorandum was insufficient to establish this cost was facially proper, and although defendant properly objected, plaintiffs offered no evidence the cost was proper and reasonable. Given the information before the trial court, and its own description of this expense as one for a trial transcript, which is not awardable under the statute if not ordered by the court, we conclude the trial court erred in awarding this cost. The award of $2,850 for court reporter costs is stricken.
E. Travel Expenses
Pursuant to section 1033.5, subdivision (a)(3)(C), travel expenses to attend a deposition are allowable as costs. Plaintiffs seek reimbursement of their counsel's travel to attend six depositions. These expenses set forth in the cost memorandum are facially proper. These are statutorily allowable expenses, and the $250 per deposition expenses do not appear unreasonable in amount. Defendant argues only that plaintiffs failed to substantiate these travel costs with greater specificity. Because these costs are facially proper and appear reasonable, it was defendant's burden to produce some evidence or supporting documentation they were unreasonable. Defendant undoubtedly knew where these depositions took place and how far plaintiffs' counsel had to travel, but he provided none of this information in support of his argument. Without any evidence to support defendant's argument in this regard, and in the face of plaintiffs' verified cost memorandum, there was substantial evidence to support the trial court's implied finding these expenses were reasonable, and we cannot conclude the trial court abused its discretion in awarding the travel expenses.
DISPOSITION
Plaintiffs' postjudgment cost award is modified to strike $2,850 awarded for court reporter fees and $4,608.53 awarded for models, blowups, and photocopies of exhibits. The postjudgment cost award is therefore reduced by $7,458.53. In all other respects, the postjudgment award of costs is affirmed. Each party is to bear its own costs on appeal. (Cal. Rules of Court, rule 8.278, subd. (a)(3).)
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
POOCHIGIAN, J.