LINDA EVANS, ET AL. vs. EUGENIA BERSANO

LEGAL STANDARD

“A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes[:] . . . (1) Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. (2) A judgment or decree not consistent with or not supported by the special verdict.” (Code Civ. Proc., § 663.) For either circumstance to justify granting a motion under Section 663, the error must “materially affect[] the substantial rights of the party and entit[le] the party to a different judgment[.]” (Ibid.)

DISCUSSION

Plaintiffs point out that the jury found in their favor on their claims for premises liability and breach of the implied warranty of habitability, but found for Defendant on her claims for negligent and intentional interference with prospective economic relations, which were based on Plaintiffs’ failure or refusal to facilitate Defendant’s efforts to obtain COVID-19 rent relief from government programs. (See Chapman Dec., Ex. 1, pp. 28-31; SAXC, ¶¶ 57-74.) Plaintiffs seek relief on the basis that these findings are “inconsistent.” (Memorandum, p. 2.) They cite no authority in connection with this argument and never articulate how the jury’s conclusions are inconsistent.

The Court’s best guess is that Plaintiffs’ chain of logic proceeds like this: (1) The jury found that there were breaches of the implied warranty of habitability at the premises; (2) Thus, Plaintiffs were legally absolved of the obligation to pay Defendant rent for the premises; (3) Because Defendant was not entitled to any rent payments in connection with Plaintiffs’ tenancy, she also was not entitled to COVID-19 rent relief, so Plaintiffs cannot have interfered with the economic relationships described in the SAXC and the jury should have found in their favor on the interference claims.

Assuming this is what Plaintiffs mean, this argument fails at (2). It is not the case that a tenant whose premises are in breach of the implied warranty of habitability is entitled to completely withhold rent from the landlord. The tenant owes reduced rent in the amount of the reasonable value of the property given its condition, not zero rent. (Code Civ. Proc., § 1174.2, subd. (a)(1); see also Green v. Superior Court (1974) 10 Cal.3d 616, 638.) This likewise addresses Plaintiffs’ argument that the jury’s findings on the warranty of habitability issue are inconsistent with its award to Defendant of damages for unpaid rent.

Plaintiffs also argue that the jury’s finding in favor of Defendant on her interference claims was “legally unsupported” due to a lack of a “legally sufficient wrongful act[.]” (Memorandum, p. 2.) “[A] plaintiff seeking to recover for alleged interference with prospective economic relations has the burden of pleading and proving that the defendant’s interference was wrongful ‘by some measure beyond the fact of the interference itself.’ ” (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 392-393 [quoting Top Service Body Shop, Inc. v. Allstate Ins. Co. (1978) 283 Or. 201, 209 [582 P.2d 1365, 1371].)

The verdict forms required the jury to find wrongful conduct in connection with these claims. (See Chapman Dec., Ex. 1, pp. 28 [VF-2202(3)], 31 [VF-2203(5)].) Plaintiffs do not contend that the jury was incorrectly instructed, or not instructed at all, on the meaning of “wrongfully” or “wrongful conduct” as used in these portions of the verdict forms. There is no evidence before the Court suggesting that Plaintiffs ever objected to these verdict forms. On the scant argument presented, the Court has no basis to conclude that the jury held Plaintiffs liable on Defendant’s interference claims absent a legally sufficient wrongful act.

The Court notes, as it did in its June 17, 2026 order denying Plaintiffs’ motion for a new trial, that during the trial, “Cross-Complainant advanced sufficient evidence of independent wrongfulness upon which the jury’s verdict would have been proper.” (June 17, 2026 Order, p. 2.)

The motion to vacate is DENIED. MOTION TO TAX COSTS

LEGAL STANDARD

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code of Civil Procedure, § 1032, subd. (b).) Code of Civil Procedure, section 1033.5 specifies what types of costs are recoverable under Section 1032(b). All allowable costs must be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (§ 1033.5, subd. (c).) “[B]ecause the right to costs is governed strictly by statute a court has no discretion to award costs not statutorily authorized.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)

To recover costs, a prevailing party must file and serve a memorandum of costs. (Cal. Rules of Court, rule 3.1700(a)(1).) The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items therein are correct and were necessarily incurred in the case. (Ibid.)

The opposing party may dispute items in the memorandum of costs through a motion to strike costs (if the entire memorandum of costs is challenged) or a motion to tax costs (if only particular items are challenged). (Cal. Rules of Court, rule 3.1700(b); Fairbank et al., Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2024) ¶ 17:517 [there is no procedural difference between a motion to strike costs and a motion to tax them].) Unless the movant is objecting to the entire memorandum of costs, the motion “must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” (Cal. Rules

of Court, rule 3.1700(b)(2).) The motion must be filed and served within 15 days of service of the prevailing party’s memorandum of costs. (Cal. Rules of Court, rule 3.1700(b)(1).)

“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 [they] 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.” (Ladas, supra, 19 Cal.App.4th 761, 774; accord Oak Grove School Dist. of Santa Clara County v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698-699.) That an item “appear[s] to be proper” means that, on its face, it either falls within one of the categories expressly included as allowable costs under Code of Civil Procedure, section 1033.5, subdivision (a) or appears reasonably necessary to the litigation. (See Ladas, supra, 19 Cal.App.4th 761, 775-776 [placing burden on the party claiming costs where neither of these conditions was satisfied]; see also Nelson v.

Anderson (1999) 72 Cal.App.4th 111, 131.) Whether a particular cost was reasonably necessary is a question of fact to be determined by the trial court. (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1487.)

DISCUSSION

Plaintiffs first filed a Memorandum of Costs on April 16, 2016 (the “Original MOC”). On April 23, 2026, Plaintiffs filed the Amended MOC. As compared to Original MOC, the Amended MOC changed only the amount claimed in connection with Item 8, witness fees. Both the Original MOC’s Item 8 and the Amended MOC’s Item 8 seek recovery of costs associated with the same three expert witnesses: James Cantrell, Steve Zivolich, and Erik Volk. The only change across the two documents is that Plaintiffs adjusted the time spent by Cantrell and Volk upward in the Amended MOC. (See Original MOC, p. 4, Item 8(b); Amended MOC, p. 4 Item 8(b).) Plaintiffs now seek $26,437.501 in expert witness fees where before they sought $22,089.25. (Ibid.)

First, Defendant argues that the Court should tax any costs asserted for the first time in the Amended MOC because the document was not timely filed. Memoranda of costs must be filed within 15 days of service of the notice of entry of judgment (Cal. Rules of Court, rule 3.1700(a)(1)), and Defendant contends that a timely filed memorandum of costs may not be amended outside that time frame. Given that the Original MOC was timely and there is no apparent prejudice to Defendant from the timing of the amendment (she was not deprived of her chance to contest the new charges, but in fact filed a complete set of moving papers directed specifically at the Amended MOC in addition to a set directed at the Original MOC), the Court will not tax the costs specific to the Amended MOC on timeliness grounds. (See Pollard v.

Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 381 [“In the absence of prejudice, the trial court has broad discretion in allowing relief on grounds of inadvertence from a failure to timely file a cost bill.”].) Ultimately, this decision is without consequence, because the Court is granting Defendant’s motion to tax as to all of the expert witness charges, whether stated for the first time in the Amended MOC or not.

1 The Amended MOC lists the total amount sought for expert witnesses as $27,243.10. Plaintiffs explain that they are withdrawing their costs claim as to $805.60 of that sum because the vendor forgave the charge. (Chapman Dec., ¶ 26.)

The Court will address each challenged item in turn.

Item 4, Deposition Costs

The cost of “[t]aking, video recording, and transcribing necessary depositions” is expressly recoverable (Code Civ. Proc., § 1033.5, subd. (a)(3)(A)), so Defendant carries the burden of showing that these costs are not reasonable or necessary. (Ladas, supra, 19 Cal.App.4th 761, 774.) She takes issue with the following charges:

$650 associated with the deposition of Community Action Marin: Community Action Marin was never deposed. (Gilg Dec., ¶ 6.) This was a cancellation charge. (Chapman Dec., ¶ 17.) This is recoverable under Section 1033.5(c)(4), which gives a court discretion to award costs for items not expressly deemed recoverable in Section 1033.5. This discretion is subject to the caveat that the costs must be “reasonably necessary to the conduct of the litigation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5, subd. (c)(2)-(3).)

This was a reasonably necessary deposition given the nature of the claims in this case. (See Chapman Dec., ¶ 15.) Plaintiffs ultimately cancelled it shortly before it was to take place because the entity deponent failed to designate a person most knowledgeable and would not confirm that anyone would appear. (Id. at ¶¶ 16-17.) The amount of the charge is consistent with the Court’s expectations of a last-minute deposition cancellation fee. The Court will permit Plaintiffs to recover this cost.

$3,994.30 in total associated with the two depositions of Ronald Bongar Campos: Defendant takes issue with the fact that although Plaintiffs deposed Ron Campos and Defendant for the exact same amount of time (Gilg Dec., ¶¶ 8-9), they seek $2,161.35 more in connection with Campos’ deposition than Defendant’s. Her argument that this means the Campos deposition charge is necessarily excessive or unreasonable relies on the idea that Plaintiffs were charged for these depositions strictly based on time.

This was not the case. (Chapman Dec., ¶ 11.) The $3,994.30 associated with Campos’ deposition reflects separate charges for transcripts and videography, which are both expressly recoverable. (Ibid.; Code Civ. Proc., § 1033.5, subd. (a)(3)(A).) $3,025.30 associated with the deposition of Tod Schlesinger: Defendant’s argument again depends on the idea that Plaintiffs were charged purely based on the length of the deposition, which was not the case. (Chapman Dec., ¶ 11 & Ex. E.) Defendant has not carried her burden as to this charge.

Item 5, Service of Process Costs

Defendant requests that the Court tax service of process costs associated with all of the following to $0: Community Action Marin; Romeo Bacnotan; Eric Faulks2; Paul Dingeldein; Thomas McCarville; and Jock McDonald. Because these charges are for service of process by a registered process server (see Amended MOC, p. 4, Item 5 & Attachment 5(d)), they are expressly recoverable and the burden of showing their unreasonableness or lack of necessity is on Defendant. (Code Civ. Proc., § 1033.5, subd. (a)(4); Ladas, supra, 19 Cal.App.4th 761, 774.)

2 Defendant’s request for judicial notice is granted. (Evid. Code, § 452, subd. (d).) Plaintiffs’ requests for judicial notice are likewise granted. (Ibid.)

Defendant argues that these charges were unnecessary and unreasonable because none of these people testified at trial. (Gilg Dec., ¶ 11.) These charges were incurred in connection with attempts to secure deposition or trial testimony from witnesses with clear relevance to the claims in this case. (Chapman Dec., ¶¶ 15, 18-22.) The Court is not persuaded that the fact that a witness was ultimately not called to testify at trial means that earlier efforts to secure that witness’ testimony were unnecessary.

Item 8, Expert Witness Costs

Plaintiffs seek to recover costs associated with expert witnesses James Cantrell, Seve Zivolich, and Erik Volk. (See Amended MOC, p. 4, Item 8(b).) “Fees of experts not ordered by the court” are “not allowable as costs, except when expressly authorized by law[.]” (Code Civ. Proc., § 1033.5, subd. (b)(1).) There were no court-ordered experts involved in this case. (See Gilg Dec., ¶ 13.)

One statute expressly authorizing recovery of costs associated with expert witnesses, without regard to whether they were court-ordered, is Code of Civil Procedure, section 998. The statute provides that “[n]ot less than 10 days prior to commencement of trial . . ., any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time” – in other words, a settlement offer. (Code Civ.

Proc., § 998, subd. (b).) “If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award . . ., the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial . . ., or during trial . . ., of the case by the plaintiff, in addition to plaintiff’s costs.” (Code Civ.

Proc., § 998, subd. (d).)

In this case, Plaintiffs served Defendant with a joint offer under Section 998 on August 16, 2024. (Chapman Dec., ¶ 24 & Ex. F.) The offer proposed that “Defendant shall pay Plaintiffs the total sum of eighty thousand dollars ($80,000)” to settle the case, both sides would dismiss their pleadings with prejudice, and everyone would bear their own attorney’s fees and costs. (Ibid. [emphasis added].) The joint offer did not specify any particular portion of the $80,000 total that should go to each of the four plaintiffs. Each of the four plaintiffs in this case ultimately recovered $15,000 on the complaint, for a total plaintiffs’-side recovery of $60,000. (Chapman Dec., ¶ 3 & Ex. A, p. 22.)

In Gilman v. Beverly California Corp. (1991) 231 Cal.App.3d 121, multiple plaintiffs similarly made an unapportioned joint Section 998 offer to the sole defendant and then collectively obtained a more favorable judgment than that offer against the defendant. (231 Cal.App.3d 121, 124.) The Sixth District held that the plaintiffs’ Section 998 offer was invalid because its unapportioned and joint nature made it impossible for the defendant “to determine whether each individual plaintiff in fact obtained a more favorable judgment than [the] offer.” (Ibid.) It denied the plaintiffs their expert witness fees under Section 998 on this basis. (Id. at p. 126; accord Hurlbut v. Sonora Community Hospital (1989) 207 Cal.App.3d 388, 408-409 [expert witness fees under Section 998 denied to prevailing plaintiffs because, among other reasons, the

joint nature of their offer “preclud[ed] a determination of whether each plaintiff received a judgment more favorable than the offer”].)

In Stallman v. Bell (1991) 235 Cal.App.3d 740, the Second District cautioned that courts addressing Section 998 disputes should not “mechanically apply a rule that renders void any joint offers[.]” (235 Cal.App.3d 740, 746.) Instead, courts should “look[] beyond the simple fact of joint offer to see if it [can] be determined whether the party [requesting] costs [] actually received the more favorable judgment.” (Id. at p. 746.) In Stallman, there was an unapportioned joint offer from two plaintiffs and “a unitary award of damages to both” of them that did not specify how much was to go to each. (Id. at p. 747.)

Given that there was “but a single verdict to be compared to a single offer,” it could “be clearly determined whether or not the [plaintiffs] received a more favorable judgment[,]” and the Section 998 offer was valid notwithstanding that it was unapportioned and joint. (Ibid.) Stallman distinguished this from a situation involving an unapportioned Section 998 offer followed by separate verdicts awarding individualized damages to each of multiple plaintiffs. (Ibid.)

This case presents the fact pattern the Second District distinguished in Stallman. Given that Plaintiffs’ joint Section 998 offer did not apportion the proposed $80,000 settlement figure among the four plaintiffs, it is impossible to know what to compare each Plaintiff’s $15,000 award to and so impossible to say that Defendant “fail[ed] to obtain a more favorable judgment or award” as to any given plaintiff. (Code Civ. Proc., § 998, subd. (d).) The Court does not have discretion to award expert witness costs under these circumstances. The motion to tax is GRANTED as to the expert witness costs.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for August, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1615487764?pwd=Ob4B5J7LLKcpnkxzJjjEOSHNzEGafG.1 Meeting ID: 161 548 7764 Passcode: 502070

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov