Monica Lucero v. James Phillip, et al.

1 “Prevailing party,” for purposes of recovery of costs, is defined as “[T]he party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.” (Code of Civ. Proc., §1032, subd. (4).) Page | 4

establish that the sought costs are reasonable and necessary, thereby the prevailing party need not submit any bills, invoices, statements, or other documents. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.)

If the items on the memorandum of costs appear to be proper charges, then the party seeking to tax those costs bears the burden that the costs are unreasonable or unnecessary, but if the items are properly objected to, then the burden of proof lies with the party seeking to recover the costs to show their necessity and reasonableness. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774; Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 283, 243.)

In seeking to tax Plaintiff’s costs, Defendants make two general arguments following by additional particular challenges to certain cost items.

Post-Offer Costs. Code of Civil Procedure section 998, subdivision (c)(1), provides that if a defendant makes an offer, which the plaintiff does not accept, and the plaintiff fails to recover a more favorable judgment, then the plaintiff shall not recover his post-offer costs and shall pay the defendant’s costs from the time of the offer. Defendants, in general, argue Plaintiff is not entitled to any post-offer costs because on July 21, 2021, they served a 998 offer to settle for $30,000 [“Defendants’ 998 Offer”]. (Reisinger Decl. at ¶8, Exh.

D.) The judgment was for $25,900. (Reisinger Decl. at ¶¶9, 13, Exh. E; Scott Decl. at ¶5, Exh. 4.) On the face, the judgment was less than the offer made. However, any pre-judgment, pre-offer interest accrued under Civil Code section 32872 can be added to the judgment to determine if the judgment is greater than the 998 offer. (Bodell Const. Co. v. Trustees of California State University (1998) 62 Cal.App.4th 1508, 1526.)

Here, in relation to Plaintiff’s Motion to Tax Defendants’ post-998 offer costs, the Court found: The Court agrees with Plaintiff that the value of the subject vehicle could have reasonably been calculated by the Defendants from information reasonably available to them. Specifically, sources such as Kelly Blue Book or a similar car valuation guide. Based on the foregoing, the court will add $4,213.65 in prejudgment [pre-offer] interest to the $25,900 for a total net monetary judgment of $30,113.65 before costs. As Plaintiff’s net judgment at the time of Defendants’ section 998 offer was more favorable than the $30,000.00 offer to compromise, the court finds there is no section 998 penalty to be assessed against the Plaintiff.... (See Ruling for Jan. 14, 2026.)

Defendants offer nothing to justify altering that analysis. Therefore, the judgment is not less than Defendants’ 998 Offer, so Plaintiff is entitled to recover her post-offer costs. With that finding, as the sole challenge is predicated upon Plaintiff cannot recover postoffer costs, Defendants request to tax $145 under item 1 (filing fees), $2,107.60 under item 2 (jury fees), and $326.85 under item 13 (models/enlargements/photocopies) is denied.

Lack Substantiation. Defendants argue that $1,062.06 under item 5 (service of process) and $278.23 under item 14 (electronic filing/service fee) should be taxed entirely because Plaintiff fails to substantiate those costs. However, the filing of a verified Cost Memorandum is sufficient to establish that the sought costs are reasonable and necessary, thereby the prevailing party need not submit any bills, invoices, statements, or other documents. (Jones v. Dumrichob

2 Civil Code section 3287, subdivision (a), provides, “A 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 the person under a particular day, is entitled also to recover interest thereon from that day....” Page | 5

(1998) 63 Cal.App.4th 1258, 1267.) Furthermore, Plaintiff submitted the Cost Memorandum worksheet that adequately listed the persons served, costs for service, and service concerns. She also submitted a spreadsheet that details the cost items, which would include the e-service filing fees. Enough is presented. Defendants offer no argument for why any of these fees were not reasonable or necessary. Therefore, deny taxing item 5 and 14 costs.

Item #4/Deposition Costs. Defendants seek to tax the $7,369.95 costs sought for depositions. Initially, it argues that Plaintiff cannot recover any post-offer deposition costs; however, as analyzed above, the Court has concluded the judgment in Plaintiff’s favor exceeded Defendants’ 998 Offer. Next, Defendants argues that the costs for editing videotape depositions for presentation to the jury is not a recoverable cost item because not reasonably necessary for the conduct of the litigation. (El Dorado Meat Co. v.

Yosemite Meat & Locker Service, Inc. (2007) 150 Cal.App.4th 612, 620.) Additionally, expedited fees for a deposition transcript are recoverable if a justifiable or satisfactory reason is given. (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 55.) Although Defendants raise these valid legal standards, they do not reference any fee within item 4 related to such type of charges. Now, a review of the Cost Memorandum and attachments, an invoice (#145275) and check (#0509) for $170 to LitiCourt was located that was identified to pay for the syncing of Alexander’s deposition.

However, there is no evidence that this fee is included in item 4 or any other cost item within the Cost Memorandum. It is not even listed in the spreadsheet attached to the Cost Memorandum. By all evidence, it is a cost item Plaintiff’s Counsel paid but it is not a cost item sought recovered under the Cost Memorandum. Therefore, deny taxing any of the incurred deposition costs.

Item #8b/Expert Fees. Defendants seeks to tax the entire requested $101,650 in paid expert witness fees. They first argue that such are not recoverable because their 998 Offer exceeded the Judgment. However, as analyzed above, that argument fails. They next argue that it is not recoverable because Plaintiff’s 998 Offers to them was less than the Judgment associated with her bodily injury. Generally, expert fees are not recoverable unless ordered by the Court. (Code Civ. Proc., §1033.5, subd. (a)(8).)

Nevertheless, if a plaintiff makes a 998 settlement offer, which is not accepted, and the defendant fails to obtain a more favorable judgment, then the court in its discretion may require the defendant to pay a reasonable sum to cover post-offer costs of the service of expert witnesses, which were actually incurred and reasonably necessary for preparation of trial or during trial. (Code Civ. Proc., §998, subd. (d).)

Here, on January 16, 2020, Plaintiff Lucero made a 998 offer to Defendant James to settle for $15,000 associated with her “bodily injury claims and does not include plaintiff’s property damage claims.” On April 30, 2020, she made the same 998 offer to Defendant Almanza. (Exhs. B-C to Reisinger Decl.; Exhs. 2-3 to Scott’s Decl.) [“Plaintiff’s 998 Offers.”] Again, the Judgment was for $25,900, which by first glance appears more favorable than Plaintiff’s 998 Offers. However, the total is divided between an award of $20,000 for past personal property loss and $5,900 for past medical expenses.

Yet Plaintiff only sought to settle her bodily injury claim. The “bodily injury” recovery is less than Plaintiff’s 998 Offers. Plaintiff offers no authority that in determining if her judgment is greater than her 998 Offer that the court can consider the entire awarded judgment when includes a damage specifically excluded from the 998 settlement offer. In comparing apples-to-apples, the 998 Offer is less than the bodily injury Judgment.

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Nevertheless, in determining if a plaintiff 998 offer exceeds the judgment obtained, the plaintiff’s ordinary costs, pre and post, are added to the judgment to determine if the 998 offer was more favorable. (Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48, 68-69; Stallman v. Bell (1991) 235 Cal.App.3d 740, 748-49.) If remove the expert witness fees ($101,650), the Civil Code section 3281 interest ($3,387.97), and the Civil Code section 3287 interest ($12,664.28) from the total costs sought, Plaintiff’s ordinary costs total $12,508.13. If add that amount to the $5,900 bodily injury, her recovery is $18,408.13, which is greater than her 998 Offers. Thus, in the court’s discretion, she can recover post-offer expert witness costs. (Code Civ. Proc., §998, subd. (d).) As no additional arguments are offered for why the Court should not allow the expert witness costs, deny taxing item 8b.

Item 11/Court Reporter Fees. Defendants request the taxing of the entire court reporter fees of $630.50. They first challenge is under the now-rejected argument that post-offer cost are precluded due to Defendants’ 998 Offer. The second challenge is because the parties agreed to share the reporter fees and did not agree to apportion them. In Anthony v. Li (2020) 47 Cal.App.5th 816, 824, the Court of Appeal held if the parties agree to share costs during litigation, then that agreement will be enforced as written, and if the parties wanted to allow the recovery apportioned costs, then it must be specified in the agreement.

Attorney Reisinger attests that the parties had no provision for recovery of court reporter fees by the prevailing party. (Reisinger Decl. at ¶19.) Plaintiff argues that the parties had no agreement to share costs on court reporter fees. Here, the Court is presented with a dispute on even if an agreement exists. Furthermore, under Anthony, the implication is the agreement would need to be in writing. No written agreement to share court reporter costs is presented for the Court to find the holding of Anthony would apply here.

Therefore, deny taxing item 11.

Item 16/Other-Interest. In the Cost Memorandum, Plaintiff seeks to recover two types of pre-judgment interest: (1) Civil Code section 32913 interest on the $5,900 portion of the Judgment, which totals $3,387.97; and (2) Civil Code section 3287, subdivision (a), interest on the $20,000 portion of the Judgment, which totals $12,664.28. The finding herein and under the Tax Cost Motion to Defendants’ Cost Memorandum supports the recovery of prejudgment interest associated with the property loss under Civil Code section 3287.

Defendants challenge the Civil Code section 3291 interest because Plaintiff Lucero did not obtain a more favorable judgment than her 998 Offers. However, as analyzed above, when include Plaintiff’s ordinary costs (i.e., exclude expert witness fees and all interest) her recovery is greater than her 998 Offer. Alternatively, if compare the total Judgment (not just the bodily injury portion) with Plaintiff’s 998 Offers, the Judgment of $25,900 is greater than the $15,000 998 Offers.4 Thus, interest under Civil Code section 3291 is permissible.

3 Civil Code section 3291 allows the recovery of interest, at 10% per annum, in personal injury actions when a plaintiff’s 998 offer is not accepted by the defendant and the plaintiff obtains a more favorable judgment. 4 For Civil Code section 3291, the comparison involves looking at the total awarded damages, even if the included damages is matter not subject to section 3281 interest. (Steinfeld v. Foote-Goldman Proctologic Medical Group, supra, 60 Cal.App.4th at p. 18.) That would mean, the damages awarded for Page | 7

Therefore, deny taxing any sought interest outlined in item 16/other. Based on the foregoing, no item of cost is taxed. Therefore, Plaintiff Lucero is entitled to her sought costs totaling $130,210.38.

Ruling DENY Defendants James and Almanza’s Motion to Tax Plaintiff’s costs totaling $130,210.38.

Movant to give notice.

Dated-

____________________________ Judge

loss of personal property and medical expenses are considered together to see if the awarded damages are greater than the 998 Offer, even though the 998 Offer was limited to bodily injury. Page | 8

TENTATIVE RULINGS 6-3-26 Department R17- Judge Gilbert G. Ochoa

This court follows California Rules of Court, rule 3.1308(a) (1) for tentative rulings. (See San Bernardino Superior Court Local Emergency Rule 8.) Tentative rulings for each law & motion will be posted on the internet (https://www.sb-court.org) by 3:00 p.m. on the court day immediately before the hearing.

If you do not have internet access or if you experience difficulty with the posted tentative ruling, you may obtain the tentative ruling by calling the Administrative Assistant. You may appear in person at the hearing but personal appearance is not required and remote appearance by CourtCall is preferred during the Pandemic. (See www.sbcourt.org/general-information/remote-access)

If you wish to submit on the ruling, call the Court call the Court, check-in and state that you will be submitting on the Tentative, and your appearance is not necessary. But you must check in. If both sides do not appear, the tentative will simply become the ruling. If any party submits on the tentative, the Court will not alter the tentative and it will become the ruling. If one party wants to argue, Court will hear argument but will not change the tentative. If the Court does decide to modify tentative after argument, then a further hearing for oral argument will be reset for both parties to be heard at the same time by the Court. This procedure is meant to minimize your waiting time in Court.

ERICKA PEREZ BERUMAN v. VOLKSWAGEN GROUP OF AMERICA, INC., ET AL.

Motion(s): Motion for Summary Judgment or, in the Alternative, Summary Adjudication

Movant(s): Defendants Volkswagen Group of America, Inc. and Martin Motors of San Bernardino, Inc. dba Volkswagen of San Bernardino

Respondent(s): Plaintiff Ericka Perez Beruman

DISCUSSION

Statement of the Law:

A summary judgment motion cuts through the parties’ pleadings to determine if a trial on

the facts is necessary. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar.)

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