Christopher Duran vs. Jonathan Irmler

202200570270CUPA: Christopher Duran vs. Jonathan Irmler

“[S]ection 1033.5, enacted in 1986, codified existing case law and set forth the items of costs which may or may not be recoverable in a civil action. [Citation.]” ([Citation].) An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (§ 1033.5, subd. (c)(2).)

If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. ([Citations].) 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. ([Citation].) However, because the right to costs is governed strictly by statute ([citation]) a court has no discretion to award costs not statutorily authorized. ([Citations].)

(Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 773–774.)

Initial verification will suffice to establish the reasonable necessity of the costs claimed. There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted.

(Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267 (Jones).)

Here, Defendant was not initially required to attach invoices or statements to its verified memorandum of costs. (Id.) However, Plaintiff’s challenge of any costs not expressly allowed by statute shifts the burden to Respondent to show the charges were reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation and that the costs are reasonable in amount. (Code of Civ. Proc. § 1033.5, subd. (c)(2), (c)(3).)

1. Costs incurred prior to Defendant’s offer pursuant to Code of Civil Procedure section 998

Plaintiff challenges all costs incurred by Defendant prior to the expiration of its September 22, 2025 offer to compromise pursuant to C.C.P. section 998, contending that a party who rejects an offer to compromise can be liable for only post-offer costs. (Motion p. 4, lines 21-24.) This is an incorrect statement of the law.

When a party serves the opposing party with a written offer to compromise under C.C.P. section 998, and the opposing party rejects the offer, a judge may withhold or augment costs allowed under C.C.P. sections 1031 and 1032 as provided in C.C.P. section 998 (Code Civ. Proc. § 998, subd. (a).)

The effect of a valid C.C.P. section 998 offer that is not accepted is to establish a fee-shifting procedure shifting some post-offer costs on a party’s refusal to settle (Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1128-1129.) It encourages settlement by penalizing the party who fails to

202200570270CUPA: Christopher Duran vs. Jonathan Irmler

accept a reasonable settlement offer. (Auburn Woods I Homeowners Ass’n v. State Farm Gen. Ins. Co. (2020) 56 Cal.App.5th 17, 724.) It does not abolish the prevailing party’s right to recover costs to which they are entitled by statute or which are reasonably necessary to the conduct of the litigation.

Madrigal v. Hyundai Motor America (2025) 17 Cal.5th 592, cited by Plaintiff, is not applicable. There, the California Supreme Court considered the narrow question of whether a plaintiff who rejects a C.C.P. section 998 offer, but later agrees to settle for an amount less than the offer, necessarily avoids the post-offer cost-shifting effects of Section 998. The Court held that “a plaintiff does not necessarily avoid section 998’s reach in this scenario. Rather, section 998 sets out the default rule, imposing cost shifting whenever its terms are met.” (Id. at 599; italics in original.)

The Court noted the following:

The general cost recovery rule in California entitles the prevailing party in a civil action or proceeding to recover its litigation costs as a matter of right. Code of Civil Procedure section 1032 sets out the rule and defines who qualifies as a “prevailing party.” (§ 1032, subds. (a)(4), (b).) Section 1033.5 identifies the items allowable as costs, which include attorney fees when authorized by statute. (§ 1033.5, subd. (a)(10)(B).)

Section 998 modifies section 1032’s general rule. To encourage the settlement of cases before trial, section 998 shifts the liability for costs under some circumstances. As relevant here, when a plaintiff rejects or fails to timely accept a qualifying defense offer (998 offer), and then “fails to obtain a more favorable judgment or award,” the plaintiff is not entitled to its postoffer litigation costs and must pay some or all of the defendant's postoffer costs. (§ 998, subd. (c)(1).)

(Id. at 599.)

2. Filing and Motion Costs

Plaintiff challenges all filing and motion fees in the amount of $1,093.77 as lacking foundation, itemization, or legal/evidentiary support. Filing and motion fees are specifically allowable costs. (Code Civ. Proc. § 1033.5, subd. (a)(1); Rozanova v. Uribe (2021) 68 Cal.App.5th 392, 400.) The memorandum of costs attaches an itemization of those costs and they appear to be proper charges. The memorandum is therefore prima facie evidence of their propriety and the burden is on the plaintiff to show how they were not reasonable or necessary. (Hooked Media Group, Inc. v. Apple Inc. (2020) 55 Cal.App.5th 323; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131-132.) Plaintiff offers no explanation as to why he contends the filing and motion costs were not reasonable or necessary. No costs in this category are taxed.

3. Deposition Costs

Petitioner challenges the entirety of $29,348.35 in deposition costs contending that $5,682.60 are pre-998 offer expenses and $23,665.75 are not deposition costs.

202200570270CUPA: Christopher Duran vs. Jonathan Irmler

Taking, videorecording and transcribing necessary deposition, including an original and one copy of those taken by the party claiming costs and one copy of those taken by the party against whom costs are claimed, plus travel expenses to attend those depositions are recoverable costs. (Code Civ. Proc. § 1033.5, subd. (a)(3).) $6,287.60 of the costs claimed are for depositions of parties and witnesses in this case. Plaintiff offers no explanation as to why he contends the costs of depositions were not reasonable or necessary to the conduct of the litigation.

The remainder of the costs claimed ($23,060.75) are for court reporter fees during trial. Code of Civil Procedure section 1033.5, subdivision (a)(11) allows for the recovery of “court reporter fees as established by statute.” Government Code section 68086, subdivision (d)(2) allows for the fees and charges of the certified shorthand reporter if an official court reporter is not available. Defendant asserts that no portion of the costs claimed are for transcripts. Yet every invoice attached to his Opposition shows that each invoice for the services of the court reporter includes costs for a rough and a final transcript each day of the trial for a total cost of $11,074.50. The Court did not order transcripts of the court proceedings and these costs are not recoverable. (Code Civ. Proc. 1033.5(a)(9).)

Costs of $11,074.50 are taxed, reducing the total recoverable court reporter fees to $18,273.85.

4. Service of Process

Plaintiff challenges the entirety of service of process fees of $6,214.00 on grounds they are preoffer expenses, and lack foundation, itemization, or evidentiary support. Service of process for 47 subpoenas for plaintiff’s medical records in this personal injury case are reasonable and proper. (Lowry v. Port San Luis Harbor Dist. (2020) 56 Cal.App.5th 211, 222). Plaintiff has not met his burden to establish that these costs were not reasonable or necessary to the conduct of the litigation. No costs in this category are taxed.

5. Witness Fees

Plaintiff challenges the entirety of the witness fees of $17,750.00 on grounds they are pre-offer expenses and violative of Code of Civil Procedure section 1033.5 subdivision (b) (presumably subdivision (b)(1).)

A judge has the discretion to order a plaintiff to pay the post 998 offer costs a defendant incurred for the services of expert witnesses. (Code Civ. Proc. § 998, subd. (c)(1); Heimlich v. Shivji (2019) 7 Cal.5th 350, 359; Varney Entertainment Group Inc. v. Avon Plastics, Inc. (2021) 61 Cal.App.5th 222, 229.) The Court finds the testimony of Dr. Macyszyn was reasonably necessary to the conduct of the trial and therefore awards those witness fees incurred post-offer. Plaintiff makes a reference to the need to scale an expert witness fee downward so that it will not unduly pressure modest income plaintiffs into accepting unreasonable offers but has not provided evidence to support any request to limit the witness fees.. The expert fees incurred before the offer are taxed.

Costs of $10,000.00 are taxed, reducing the total recoverable witness fees to $7,750.00

202200570270CUPA: Christopher Duran vs. Jonathan Irmler

6. Trial Technical Assistance

Plaintiff challenges the entirety of the costs for trial technical assistance of $3,400.00. This amount was merely described as “Other” on the memorandum of costs and no documentation was attached supporting the request. Defendant is not entitled to the fees by statute and therefore the burden shifts to Defendant to show that the incurred costs were reasonable and necessary to the conduct of the litigation. Defendant has not carried its burden to show that its use of trial presentation services was reasonable or necessary to the conduct of the litigation. Therefore these costs are taxed in their entirety.

Note: The tone and language used by Defendant’s counsel, E. Richard McGuire in his Opposition is condescending, inappropriate, and sanctionable conduct. Defense counsel is admonished to refrain from disparaging opposing counsel.

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