Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG07356308
Sepulveda, J.
A jury awarded appellant Daisy Roman $19,855 for damages she suffered in an automobile accident involving respondent Troy Cleland, and the trial court awarded her $3,807.93 in costs. On appeal, appellant argues that the trial court (1) violated the collateral source rule by permitting reference at trial to the hospital where she was treated, (2) erred by not granting her a new trial based on allegations of juror misconduct, and (3) was obligated to award her more of the costs that she incurred. Finding no error, we affirm.
I. Factual and Procedural Background
The record in this matter is sparse, making a summary of the issues relevant to this appeal somewhat difficult. Appellant sued respondent in connection with a traffic accident that occurred on November 17, 2005, in north Oakland. Witnesses testified at trial that respondent ran a red light and hit appellant’s car, and appellant suffered a neck injury that required medical treatment and physical therapy. An orthopedic surgeon who specializes in spinal surgery testified as an expert on behalf of appellant. He testified that appellant suffered a pinched nerve in the accident, and he opined that she required future surgery that would cost between $75,000 and $100,000. Appellant’s counsel argued to the jury that it should award appellant $4,800 for the medical expenses she incurred, “several hundred thousand dollars” for pain and suffering, and the money necessary to pay for future surgery.
Indeed, the one-volume Excerpts of Record prepared by appellant omits several key documents, including her complaint and the written instructions given to the jury. “It is the appellant’s affirmative duty to show error by an adequate record. [Citation.]” (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.) A judgment or order of the trial court is presumed correct, and a “ ‘necessary corollary to this rule [is] that a record is inadequate, and appellant defaults, if the appellant predicates error only on the part of the record he provides the trial court, but ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be affirmed.’ [Citation.]” (Ibid., italics added.)
The jury awarded appellant $4,855 for past economic damages and $15,000 for noneconomic damages. Appellant filed a motion for a new trial, which the trial court denied.
Appellant filed a memorandum of costs, requesting $20,117.20. Respondent filed a motion to tax costs. Following a hearing, the trial court awarded appellant $3,807.93 in costs. Appellant timely appealed from both the judgment and the order granting in part respondent’s motion to tax costs.
II. Discussion
A. No Error to Permit Reference to Kaiser.
1. Background
Respondent moved in limine to exclude reference to the fact that he was insured. Appellant’s opposition to the motion stated, “[I]f insurance is kept out, then all references to Ms. Roman having treatment at Kaiser, thereby indicating that she has medical insurance, must be excluded under Evidence Code § 1155 and under the collateral source rule.” At the hearing on in limine motions, appellant argued that the jury would assume that appellant’s medical bills were paid by Kaiser, and that jurors therefore would be inclined to award her less money in damages in violation of the collateral source rule. The trial court ruled: “[Respondent] will not be prevented from mentioning the fact that [appellant] went to Kaiser to receive medical treatment from Kaiser. The jury will be told and will be given an instruction as well that [respondent] is liable and responsible for any medical expenses [appellant] proves. [Respondent’s counsel] will not tell the jury that his client is not responsible because [appellant] was covered by Kaiser and he will not mention a lien, nobody will mention any liens that Kaiser may have against [appellant’s] recovery in this case. We just don’t get into those things.”
Evidence Code section 1155 provides: “Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible to prove negligence or other wrongdoing.” Appellant does not argue on appeal that this statute was applicable here.
When appellant testified at trial, her attorney repeatedly asked her about her treatment at Kaiser, both before and after the accident. He stated during closing argument that the jury should award appellant “4, 800 [dollars] in Kaiser bills in medical expenses that she had.” The jury instructions given to the jury are not included in the record on appeal.
For example, when questioning her about her medical history before the accident, counsel asked, “Now did you end up, you ended up, I guess, getting medical treatment over the years at Kaiser; is that right?” Appellant testified that she was treated there “[m]any times.” Counsel later asked appellant, “Now, you were going into Kaiser during that period from 2001 to 2005 when the accident occurred for other medical treatments; isn’t that right?” Appellant testified, “Several times.”
2. Analysis
Appellant renews her objection on appeal that allowing reference to appellant’s treatment at Kaiser violated the collateral source rule. We review a trial court’s ruling on an in limine motion regarding the admissibility of evidence for an abuse of discretion (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1493) and find no such abuse of discretion.
“The Supreme Court of California has long adhered to the doctrine that if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.” (Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6.) “[I]n a case in which a tort victim has received partial compensation from medical insurance coverage entirely independent of the tortfeasor... the collateral source rule... foreclose[s] defendant from mitigating damages by means of the collateral payments.” (Id. at p. 14.) Appellant’s damages clearly are not mitigated by appellant’s insurance payments, because the jury awarded appellant as damages all of her past medical bills. Indeed, although appellant complains on appeal that the jury was permitted to consider evidence of her “Kaiser medical insurance” (italics added), she points to nothing in the record where jurors were actually presented with evidence of her insurance coverage, as opposed to the hospital where she was treated (which she herself testified about repeatedly on direct examination). Appellant asserts that jurors knew she was covered by insurance by virtue of the fact that she was treated at Kaiser, but she cites no legal or factual support for this assertion.
Even assuming the jury heard evidence that appellant was covered by medical insurance, she does not contend that respondent ever suggested damages should be offset by any amount covered by insurance. Further, the trial court specifically stated that respondent would not be permitted to argue such an offset. The jury instructions are not included in the record on appeal; however, we have no reason to doubt that the trial court correctly instructed the jury not to consider insurance when determining damages, as the court said it would do. (Osgood v. Landon, supra, 127 Cal.App.4th at p. 435 [appellant defaults where he omits portion of proceeding below which may provide grounds upon which judgment could be affirmed].) It is therefore sheer speculation that the references at trial to appellant’s treatment at Kaiser “caused the jury not to award her the full value of her damages, including the $75,000 cost of her future medical treatment.” Indeed, the fact that the jury awarded her all her past medical damages tends to disprove her argument that the trial court violated the collateral source rule.
In short, we find no abuse of discretion in the trial court’s decision not to preclude all references to appellant’s treatment at Kaiser.
B. No Competent Evidence of Juror Misconduct.
1. Background
Appellant made a motion for a new trial based upon an allegation of juror misconduct. She argued that her counsel learned after jurors reached their verdict that one of the jurors was biased against her. In support of this assertion, appellant’s counsel submitted a declaration that stated in part: “After the jury reached its verdict and the jurors were leaving and had left the courtroom, I spoke to several jurors in the hallway by the elevators. Juror No. 2 (the tall gentleman) told me that Juror No. 6 (the nurse who is studying for her Ph.D.) had told the jurors during jury deliberations [(contrary to statements made during voir dire)] that she had a bias against people who sought damages for injuries in auto accidents and that she just could not set her bias aside.” Respondent’s counsel submitted a declaration stating that he was present when counsel spoke to jurors after trial, and that Juror No. 2 “did not mention anything about Juror #6 saying that damages should not be awarded to the plaintiff.” Neither the transcript of any hearing held on appellant’s motion for a new trial nor any written order on the motion is included in the record on appeal; however, it is clear that the motion was denied.
2. Analysis
Appellant argues that the trial court committed reversible error by denying her motion for a new trial, a ruling we review for abuse of discretion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859; Burns v. 20th Century Ins. Co. (1992) 9 Cal.App.4th 1666, 1672 [no abuse of discretion to deny new trial motion based on alleged juror misconduct].) We agree with respondent that appellant provided no competent evidence of the alleged misconduct.
The party moving for a new trial based on alleged juror misconduct bears the burden of establishing misconduct. (Code Civ. Proc., § 657, subd. (2); Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 625.) Evidence Code section 1150, subdivision (a) provides: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly.” (Italics added.) “Except as provided by law, hearsay evidence is inadmissible.” (Evid. Code, § 1200, subd. (b).) It is well settled that “ ‘a jury verdict may not be impeached by hearsay affidavits.’ ” (People v. Williams (1988) 45 Cal.3d 1268, 1318 [declaration of defense investigator inadmissible to show juror misconduct], quoting People v. Villagren (1980) 106 Cal.App.3d 720, 729 [proper to deny motion for new trial where it was based solely on defense counsel’s affidavit alleging juror misconduct]; see also Burns v. 20th Century Ins. Co., supra, 9 Cal.App.4th at pp. 1670-1671 [declarations of attorney’s investigator alleging juror misconduct were inadmissible hearsay].)
Appellant’s motion for a new trial was based solely on hearsay statements by her attorney, which were contradicted by the declaration of respondent’s counsel and which were inadmissible in any event. Under the circumstances, the trial court did not err in denying appellant’s motion for a new trial based on alleged juror misconduct.
C. No Error in Award of Costs.
Appellant also argues that the trial court erred in granting in part respondent’s motion to tax costs. “ ‘The “costs” of a civil action consist of the expenses of litigation, usually excluding attorney fees. Under the common law rule, parties to litigation must bear their own costs. The right to recover any of such costs is determined entirely by statute. “It is axiomatic that the right to recover costs is purely statutory, and, in the absence of an authorizing statute, no costs can be recovered by either party.” [Citations.]’ [Citations.]” (Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 597.) “ ‘This general rule is subject to numerous exceptions, including those found in Code of Civil Procedure section 1032, subdivision (b), which provides that unless otherwise statutorily prohibited, the prevailing party is entitled to recover “costs.” The primary statutory provision with respect to the types of expenses that may or may not be included in a cost award under Code of Civil Procedure section 1032 is found in section 1033.5 of that code.’ [Citation.]” (Ibid.) “ ‘This means that the prevailing party is entitled to all of his costs unless another statute provides otherwise. [Citation.] Absent such statutory authority, the court has no discretion to deny costs to the prevailing party. [Citation.]’ [Citations.]” (Ibid.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
We separately address the costs claimed by appellant.
1. Cost of taking deposition of respondent’s expert
Appellant sought $1,400.56 in costs relating to taking the deposition of respondent’s expert witness ($600 for taking the deposition and $800.56 for transcribing the deposition). Citing Baker-Hoey v. Lockheed Martin Corp., supra, 111 Cal.App.4th at pages 598-602, the trial court declined to award appellant the $600 cost of taking the expert’s deposition.
Section 1033.5, subdivision (b) provides: “The following items are not allowable as costs, except when expressly authorized by law: [¶] (1) Fees of experts not ordered by the court.” Under the plain meaning of the statute, appellant was not entitled to the cost of deposing defendant’s expert, as there is nothing in the record to indicate that he was a court-appointed expert. (Baker-Hoey v. Lockheed Martin Corp., supra, 111 Cal.App.4th at pp. 598, 601.) Appellant cites no authority to the contrary. The trial court properly denied appellant the cost of deposing respondent’s expert witness.
County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, cited by appellant, is distinguishable because it involved the costs associated with the depositions of lay witnesses. (Id. at pp. 1113-1114.)
2. Costs of issuing subpoena to respondent
Appellant sought $936.50 as costs for service of process on three people: respondent, an Oakland police officer who testified at trial about the accident, and another person who did not testify at trial. The trial court declined to award $663.50 in “[c]ertain service of process fees (including ‘rush’ service)” which were not recoverable under section 1033.5, subdivision (a)(4) and which were not otherwise justified by appellant.
Section 1033.5, subdivision (a)(4) provides that the cost of service of process by a public officer, registered process server, or other means is recoverable as costs.
Costs for service of process must be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (§ 1033.5, subd. (c)(2); Republic Indemnity Co. v. Schofield (1996) 47 Cal.App.4th 220, 229.) The trial court’s finding that appellant did not justify the entire expenditure on service of process is reviewed for abuse of discretion. (Republic Indemnity Co., supra, at p. 229.) Appellant argues on appeal that she was required to serve respondent on a “ ‘rush’ ” basis because respondent’s attorneys objected to producing him voluntarily, but appellant provides no factual support for this argument, nor does she explain why the other claimed expenditures for service of process were necessary. We therefore conclude that the trial court did not abuse its discretion in declining to award appellant all the costs of service.
3. Appellant’s expert fees
Appellant also sought the cost of her expert witness fees in the amount of $11,500. Citing sections 998 and 1033.5, subdivision (b)(1), the trial court declined to award appellant her expert fees. As set forth above, appellant was not entitled to expert fees as costs. (§ 1033.5, subd. (b)(1).)
Appellant argues on appeal that she was entitled to her expert fees because respondent “refused to settle for a reasonable amount and demanded an exchange of experts.” Although appellant cites no factual or legal support for this argument, her contention may be an oblique reference to section 998, subdivision (d). That statute provides that if a plaintiff makes a pretrial settlement offer that is not accepted and the defendant fails to obtain a more favorable judgment at trial, the court may in its discretion require the defendant to pay a reasonable sum to cover expert witness costs. (§ 998, subd. (d).) The trial court found that no such offer had been made by appellant, and appellant does not argue to the contrary on appeal. Appellant has not demonstrated that she was entitled to her expert witness costs.
4. Costs of models and copies
Appellant sought the costs of models, blowups, and photocopies of exhibits in the amount of $601.82. (§ 1033.5, subd. (a)(12).) In his motion to tax costs, respondent argued that appellant sought reimbursement for the cost of 2, 500 copies, which was excessive, and that it would be reasonable to limit reimbursement for exhibit copying to $15. Citing section 1033.5, subdivision (b)(3) and Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1556, 1558-1559 [party not entitled to recover costs for copying exhibits not used at trial], the trial court taxed costs in the amount of $267.09, which meant that only $334.73 of the total that appellant requested was awarded by the trial court. The court specified that $35 of that amount was permitted for appellant’s “copying charges for exhibits.”
Section 1033.5, subdivision (a)(12) provides that expenses of trial exhibits “may be allowed if they were reasonably helpful to aid the trier of fact.” Section 1033.5, subdivision (b)(3) provides that photocopying charges, except for the copying of exhibits, are not allowable as costs. Consistent with the statutory scheme, the trial court awarded the costs of copying exhibits but not other copying costs. On appeal, appellant simply argues that she is “entitled to the costs of photocopying exhibits” as well as the costs “for blowups of the X-rays and scans of her neck used as exhibits at trial and for the photocopies of exhibits for the trial, for the Court and for opposing counsel for the exhibit books.” She simply ignores the fact that the trial court in fact awarded those costs and excluded only the costs of photocopying that it determined were not associated with the photocopying of exhibits. Because appellant offers no factual or legal argument why she was entitled to an additional $267.09 in photocopying costs, she fails to demonstrate that the trial court erred.
5. Cost of court call
Appellant sought $115 for a “court call telephonic appearance, ” and respondent objected that the charge was incurred for the convenience of counsel and was not reasonably necessary to the conduct of the litigation. The trial court concluded that it was an unauthorized cost and declined to award it. Appellant argues on appeal that she was entitled to reimbursement for the charge “as a motion fee, ” citing section 1033.5, subdivision (a)(1) [filing, motion, and jury fees allowable as costs]. We disagree that paying for the convenience of a telephonic court appearance (through “CourtCall”) is analogous to paying a mandatory filing, motion, or jury fee. Moreover, appellant made absolutely no showing below, nor does she do so on appeal, that the expense was reasonably necessary to the conduct of the litigation, as opposed to “merely convenient or beneficial to its preparation.” (§ 1033.5, subd. (c)(2).) “Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) We find no such abuse of discretion.
She states that the telephonic appearance was made “on a date when [her counsel] was in Florida on another [unspecified] case.” However, she provides no further explanation, and she provides no citation to the record to support this factual assertion.
6. Prejudgment interest
Appellant sought in her memorandum of costs $959.94 in prejudgment interest, which represented the prejudgment interest on the $4,855 that was awarded to her for her past medical bills. Respondent argued that it was inappropriate to seek prejudgment interest in a cost bill, and that prejudgment interest was not authorized in any event because the amount of damages was not certain before judgment. The trial court concluded that the cost was unauthorized and declined to award prejudgment interest.
Appellant did not specify in her memorandum of costs the legal basis for her request for prejudgment interest. At the hearing on respondent’s motion to tax costs, appellant’s counsel said that she was entitled to prejudgment interest under Civil Code section 3287, and appellant relies on the same statute on appeal. Subdivision (a) of the statute provides: “Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor from paying the debt. This section is applicable to recovery of damages and interest from any such debtor....” (Civ. Code, § 3287, subd. (a).)
Although respondent does not renew his argument raised below that a cost memorandum is not the appropriate way to seek prejudgment interest, this argument has merit. “It is well established that prejudgment interest is not a cost, but an element of damages. [Citations.]... [T]he cost bill is not an appropriate vehicle for requesting interest under [Civil Code] section 3287.... [P]rejudgment interest should be awarded in the judgment on the basis of a specific request therefor made before entry of judgment.” (North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 830, original italics, fn. omitted.) Judgment was entered on January 22, 2009, and appellant filed her memorandum of costs five days later, on January 27. The trial court could have denied the request for prejudgment interest on the basis that it was not appropriate to award the interest as part of a costs award.
Appellant’s counsel stated at the hearing on the motion to tax costs that a request was made to have prejudgment interest “entered into the judgment.” It is unclear from the record when such a request was made. The record contains a letter from appellant’s counsel to the trial court dated January 22, 2009 (the same date that judgment was entered), arguing that appellant was entitled to prejudgment interest under Civil Code section 3287. The letter to the trial court is not file stamped, so it is unclear when (if ever) the trial court received it. There is no reference in the judgment to prejudgment interest.
Even assuming arguendo that appellant’s cost memorandum was a proper vehicle to request prejudgment interest, we agree with respondent that appellant is not entitled to prejudgment interest pursuant to Civil Code section 3287. “Damages are deemed certain or capable of being made certain within [Civil Code] section 3287, subdivision (a), where there is essentially no dispute between the parties concerning the basis of imposition of damages that are recoverable but where the dispute centers on the issue of liability giving rise to the damage. [Citation.] Two tests apply in deciding the certainty required by section 3287, subdivision (a): (1) whether the debtor knows the amount owed or (2) whether the debtor would be able to compute the damages, i.e., whether they are reasonably calculable. [Citation.] Denial of liability on the main theory does not make the damage uncertain within the meaning of section 3287. [Citation.]” (Stein v. Southern Cal. Edison Co. (1992) 7 Cal.App.4th 565, 571-572.) “If the requirements of [Civil Code] section 3287, subdivision (a) are met, an award of prejudgment interest is mandatory. [Citation.] The denial of prejudgment interest under section 3287, subdivision (a) presents a question of law we must review on an independent basis.” (Employers Mutual Casualty Co. v. Philadelphia Indemnity Ins. Co. (2008) 169 Cal.App.4th 340, 347.)
Because appellant does not argue on appeal (and apparently has never agued) that she is entitled to prejudgment interest pursuant to Civil Code section 3291 [award of prejudgment interest in personal injury action], we need not consider respondent’s argument that appellant is not entitled to interest under that statute because she did not propound a statutory offer to compromise pursuant to section 998.
Appellant claims that she “is entitled to $959.94 as of July 20, 2007 in prejudgment interest on her $4,855 economic damages... as the amount (of each discrete bill comprising the total $4,855 bill) was certain or capable of being made certain prior to trial. The amount of these damages was not dependent on the jury making some sort of determination as to the amount; it was there in the bill.” Although the document appellant submitted to the trial court in support of her claim for prejudgment interest is not self-explanatory, she apparently contends that because the amount of her medical bills was certain at some point to her, she is entitled to prejudgment interest as of those dates. That is not the test for determining whether an amount was certain for purposes of Civil Code section 3287, subdivision (a). Instead, courts focus “on the defendant’s knowledge about the amount of the plaintiff’s claim. The fact the plaintiff or some omniscient third party knew or could calculate the amount is not sufficient. The test... is: did the defendant actually know the amount owed or from reasonably available information could the defendant have computed that amount. Only if one of those two conditions is met should the court award prejudgment interest. [Citations.]” (Chesapeake Industries, Inc. v. Togova Enterprises, Inc. (1983) 149 Cal.App.3d 901, 907, original italics; see also Wisper Corp. v. California Commerce Bank (1996) 49 Cal.App.4th 948, 960.)
Here, appellant filed her complaint on November 14, 2007, yet she claims that she is entitled to interest as of July 20, 2006 or 2007, months (or more than a year) before she sued respondent. Moreover, her complaint is not included in the record, so it is unclear whether the amount of her medical bills was certain as of the date that she filed her complaint or whether, more importantly, she put respondent on notice of that amount. (Cf. Wisper Corp. v. California Commerce Bank, supra, 49 Cal.App.4th at p. 961 [“where there is no significant disparity between the amount claimed in the complaint and the final judgment, this factor generally tends to show that damages were certain or capable of calculation”]; Stein v. Southern Cal. Edison Co., supra, 7 Cal.App.4th at p. 573 [amount claimed in complaint same amount awarded by jury].) Appellant does not direct us to any part of the record that indicates that respondent was aware of the amount of appellant’s medical bills as of July 20, 2007 (or 2006), or any other date (except for the date of judgment). Under the particular facts of this case, we conclude that the trial court did not err in denying prejudgment interest.
Appellant claims on appeal that she is entitled to interest as of July 20, 2007; however, this is presumably a typographical error, as appellant’s supporting exhibit lists July 20, 2006 as the date of her last medical bill.
III. Disposition
The judgment and order granting in part respondent’s motion to tax costs are affirmed. Respondent shall recover his costs on appeal.
We concur: Ruvolo, P. J.Rivera, J.