Mercedes Rodriguez vs. Scott Patterson, M.D.; Facey Medical Group; Providence Holy Cross Medical Center; and Does 1-25

Rules of Court, rule 3.1700(a)(1).) If the items on a verified cost bill appear to be proper charges, they are prima facie evidence that the costs, expenses, and services listed therein were necessarily incurred. (Oak Grove School Dist. v. City Title Insurance Co. (1963) 217 Cal.App.2d 678, 698.) "[T]he trial court's first determination is whether the statute expressly allows the particular item and whether it appears proper on its face; if so, the burden is on the objecting party to show the costs to be unnecessary or unreasonable." (Foothill-DeAnza Community College Dist. v.

Emerich (2007) 158 Cal.App.4th 11, 29 (Foothill-DeAnza).) Where the items are properly objected to, they are put at issue, and the burden of proof is on the party claiming them as costs. (Oak Grove, supra, 217 Cal.App.2d at p. 698.) In other words, if the cost is expressly allowable, the burden is initially on the objecting party to show that the costs are not proper. Then, the burden shifts to the moving party to justify its costs and expenses. If the costs are not facially proper, that is, the costs are not expressly allowed under a statute, then the charging party must justify the requests for the expenses.

Under section 1033.5, "[a]n 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.'" (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) A. Motion to Tax Costs Dr. Patterson's Memorandum of Costs seeks the following costs: Filing and motion fees: $6,055.61 Jury fees: $957.51 Deposition costs: $6,978.15 Witness fees: $30,839.80 Court reporter fees: $23,580.50 The Court notes that the memorandum is verified by Dr.

Patterson's counsel. "Initial verification will suffice to establish the reasonable necessity of the costs claimed." (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) Plaintiff objects to the witness fees and court reporter expenses as being improper because they are not authorized by statute and Dr. Patterson failed to provide a valid Code of Civil Procedure section 998 offer that would permit shifting of these costs. (Mot., at pp. 3-4.) Plaintiff further contends that a portion of the filing and motion fees claimed were not reasonably necessary to the litigation. (Id., at pp. 4-5.) (1) Section 998 Offer "If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover their postoffer costs and shall pay the defendant's costs from the time of the offer." (Code Civ.

Proc., Sec. 998, subd. (c)(1).) In addition, the court may, in its discretion, "require the plaintiff 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 arbitration, or during trial or arbitration, or the case by the defendant." (Ibid.) The costs allowed by section 998 are meant to augment the costs allowable pursuant to Code of Civil Procedure sections 1031 and 1032. (Sec. 998, subd. (a).) "[I]n order to accomplish the legislative purpose of encouraging settlement of litigation without trial ... a good faith requirement must be read into section 998.

In other words, the pretrial offer of settlement required under section 998 must be realistically reasonable under the circumstances of the particular case. Normally, therefore, a token or nominal offer will not satisfy this good faith requirement." (Wear v. Calderon (1981) 121 Cal.App.3d 818, 821.) In other words, there must be a reasonably possibility that the offeree will accept the offer. In an action where the defendant is exposed to great potential liability, if there is a reasonable possibility, however slight, that the defendant will be held liable, a token offer of settlement with no reasonable prospect of acceptance will not suffice to shift

postoffer fees under section 998. (Ibid.) Dr. Patterson asserts that he extended an offer of compromise to Plaintiff on August 11, 2025, offering to waive all costs and waive Dr. Patterson's abuse of process and malicious prosecution claims in exchange for dismissal of Plaintiff's action with prejudice. (Opp'n, at p. 2.) Plaintiff contends that the offer was not reasonable and is therefore invalid to trigger the fee-shifting provision of section 998. (Reply, at p. 2.) The Court finds that Dr. Patterson's offer to waive costs had no reasonable prospect of being accepted under the circumstances.

Plaintiff avers that the offer was extended only four months before the case came to trial, after she had already incurred significant costs and retained a medical expert who supported her position. The record reflects that, at the time of the offer, Plaintiff had litigated the case for five years, prevailed against a motion for summary judgment brought by Dr. Patterson, and obtained the opinion of an expert who opined that Dr. Patterson's conduct fell below the relevant standard of care and that Rene Rodriguez's death was preventable. (Minute Order, Apr. 20, 2022, at p. 5.)

Given that liability was contested and Plaintiff's potential recovery was significant, Plaintiff would not realistically have been expected to accept an offer of waiver of costs. The August 11, 2025 offer was accordingly not valid to augment Dr. Patterson's fee recovery pursuant to section 998. (2) Expert Witness Fees and Court Reporter Fees Code of Civil Procedure section 1033.5 permits a prevailing party to recover expert witness fees for expert witnesses ordered by the court. (Code Civ. Proc., Sec. 1033.5, subd. (a)(8).)

The fees of experts not ordered by the court are expressly disallowed as costs. (Sec. 1033.5, subd. (b)(1).) These fees are accordingly not recoverable, and the Court taxes $30,839.80 claimed by Dr. Patterson for expert witnesses. (MC-011, P. 8b.) A prevailing party may recover for court reporter fees as established by statute. (Code Civ. Proc., Sec. 1033.5, subd. (a)(11).) Government Code section 68086, subdivision (c) provides that the prevailing party in litigation in the superior court may recover costs for the services of the official court reporter.

When an official court reporter is not available, a party who arranges for the presence of a certified shorthand reporter to be present in the courtroom and serve as the official reporter pro tempore may recover the fees and charges of the certified shorthand reporter. (Gov. Code., Sec. 68086, subd. (d)(2).) Plaintiff contends that the court reporter fees are not recoverable because the reporters were not provided at the expense of the Court, but were instead retained by Dr. Patterson. (Mot., at p. 4.)

Dr. Patterson correctly notes that recovery of court reporter fees is not limited to reporters provided at the expense of the Court and extends to official court reporters and reporters appointed as official reporters pro tempore, contending that that the court reporters present during the trial proceedings were official reporters. (Opp'n, at p. 5.) Plaintiff does not challenge that designation. The Court accordingly does not find the court reporter charges to be improper. (3)

Filing and Motion Fees Plaintiff challenges two categories of filing and motion fees: (1) the December 23, 2021, First Legal Network fee for a notice of lodging records, and (2) subpoena and records fees billed by Ronsin Photocopy, Inc. (Mot., at p. 5.) Filing and motion fees are expressly allowable by statute. (Code Civ. Proc., Sec. 1033.5, subd. (a)(1).) As to the fee for the notice of lodging, therefore, the burden is on Plaintiff to show that it was not reasonably incurred. (Foothill-DeAnza, supra, 158 Cal.App.4th, at p. 29.)

Plaintiff's conclusory assertion that there was no reason to lodge a volume of physical records large enough to incur the charge is not sufficient to meet that burden. (See Mot., at p. 5.) As to the subpoena and records fees, Plaintiff correctly notes that these do not constitute filing, motion, and jury fees, and are improperly characterized by Dr. Patterson. (See Mot., at p. 5.) Fees associated with obtaining business records through a deposition subpoena are recoverable as deposition costs. (Code Civ.

Proc., Sec. 1033.5, subd. (a)(3); Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 578.) Upon review of the costs, however, several charges are for the production of the medical records of Plaintiff. (MC-011, Attach. 1g.) This action concerned the wrongful death of decedent Rene Rodriguez, and Plaintiff's medical condition was not at issue. Plaintiff has thus properly objected to these fees, and Dr. Patterson does not establish that Plaintiff's medical records were reasonably necessary to the litigation.

The Court accordingly taxes $327.89 in fees incurred from Ronsin Photocopy, Inc. The Court taxes the total amount of $31,167.69 ($30,839.80 in expert fees plus $327.89 in medical records fees), reducing Dr. Patterson's total costs to $37,243.88. The Motion is thus GRANTED IN PART. CONCLUSION Plaintiff's Motion to Strike and/or Tax Costs is GRANTED IN PART, consistent with the foregoing ruling. Moving party to give notice. | Home -->)" -->