WICKS BREWING CO., LLC v. COUNTY OF SAN BERNARDINO, et al.

A similar litigation was filed by Wicks Brewing and Edmund against Bryan J., Nicole E., & Christine Boeldt, and Nicholas Andrade in Riverside County Superior Court, CVRI2301765. On May 28, 2024, that case was ordered transferred and consolidated with this litigation.

On October 20, 2025, the Court granted Defendants County and Anderson’s Motion for Summary Judgment against Plaintiff Wick Brewing’s FAC, finding the official duty privilege precluded all causes of action. Judgment on that ruling was entered on December 29, 2025. Plaintiff Wicks Brewing has appealed the ruling/judgment.

Meanwhile, as prevailing parties, Defendants County and Anderson filed their Cost Memorandum on January 14, 2026. Plaintiff Wicks Brewing moves to strike/tax costs therein. Defendants County and Anderson oppose. Plaintiff Wicks Brewing replies.

Except as otherwise stated, a prevailing party is entitled, as a matter of right, to recover costs in any action or proceeding. (Code Civ. Proc., §1032, subd. (b).) The costs allowed shall be reasonably necessary to the conduct of the litigation and reasonable in amount. (Code Civ. Proc., §1033.5, subd. (c)(2)-(3).) 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 (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 of showing 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.)

Initially, Plaintiff moves to strike the entire Cost Memorandum because, contending that, although served timely (i.e., on January 14, 2026), it was never filed. (Pearcy Decl. at ¶¶3-4.) However, the Cost Memorandum was timely received by the Court. The Memorandum was efiled and deposited in the system que on January 14, 2026. Due to backlog, the court clerk did not process it until February 2, 2026 (after plaintiff filed its motion), and it was file stamped displaying the date it was actually received.

Next, Plaintiff moves to tax the expert witness fees of $18,822.50, entirely or in part, on three grounds: (1) the section 998 offer was not in good faith, (2) amount of fees are excessive and inappropriate, and (3) an agreement to share cost exists between the consolidated Defendants

998 Offer.

On August 22, 2024, Defendants County and Anderson made a collective section 998 offer that in exchange for their dismissal, they would waive costs. (Exh. D to Pearcy’s Decl.) Plaintiff argues that the Code of Civil Procedure section 998 offer made by Defendants lacked good faith, and therefore, the expert costs (item 8b) must be taxed.

Expert fees are recoverable if a plaintiff rejects a Code of Civil Procedure section 998 offer and fails to recover greater than the offer. (Code Civ. Proc., §998, subd. (c)(1).) However, for a 998 offer to be valid, it must be made in good faith, which means the offer of settlement was realistically reasonable under the circumstances of the particular case. (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1528 [Essex].) “A token or nominal offer made with no reasonable prospect of acceptance will not pass the good faith test.” (Ibid.)

Yet an offer is presumed reasonable when a party obtains a judgment more favorable than its pretrial offer. (Ibid.) In such cases, the opposing party bears the burden to show otherwise. (Ibid.) An offer that includes foregoing costs could have a significant monetary value, which can make the offer reasonable and in good faith based on the circumstances at the time the offer is made. (Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 154 [Carver].)

Whether a section 998 offer is reasonable and good faith is in the sound discretion of the trial court. (Essex, supra, 186 Cal.App.4th at p. 1528.)

Plaintiff contends that at the time of the 998 Offer it was making a claim exceeding $52,000,000 for economic losses due to cessation of the business and therefore there was no realistic prospect that the offer would be accepted. “Whether an offer to compromise is made in good faith, however, cannot be measured by the amount of claimed damages or a party’s subjective belief in the case’s value. An offer to compromise may be ‘realistically reasonable’ and justify cost shifting even though the party receiving the offer is unlikely to accept it as a consequence of the party’s skewed valuation of the case.” (Essex, supra, p.1530).

As stated above, the defendant has obtained a judgment more favorable than the offer, giving rise to a presumption of reasonableness and the plaintiff has the burden of establishing that the 998 Offer was no in good faith. The plaintiff presents no facts supporting its belief that its claim exceeded $52,000,000 at the time it rejected the offer.

It is also the plaintiff’s position that the state of the law did not support the application of Defendants’ immunity defense under the circumstances of this case and this is another reason there was no reasonable prospect for plaintiff’s acceptance of the 998 Offer. A good faith offer must have a reasonable prospect of being accepted. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262-63.) Because “[o]ne having no expectation that his ... offer will be accepted will not be allowed to benefit from a no-risk offer made for the sole purpose of later recovering large expert witness fees.” (Id. at p. 1263.)

There is no evidence in this instance that the Defendants’ offer was made for the sole purpose of later recovering large expert witness fees. There is no probative evidence, circumstantial or otherwise, that Defendants held the perception that the official duty privilege defense was without merit and therefore a strategic decision was made to communicate a no-risk offer on the off chance that said affirmative defense was successful.

Plaintiff’s expectation of recovering in excess of $52,000,000 and opinion that the official duty privilege defense was totally without merit does not, standing alone, under the circumstances of this case, satisfy the burden of making a showing that the 998 Offer was not in good faith. Accordingly, the court denies the motion to strike the memorandum of costs in its entirety.

Excessive.

Plaintiff further argues that the expert witness fees are excessive because the fees are invoiced by Medical Consultant Services, Inc. and the damages sought were economic, not personal injury.

Plaintiff is accurate the Cost Memorandum references Medical Consultant Services, Inc., but the court also notes the expert is Richard Ruiz, MBA, CFE. Furthermore, Defense Counsel attests that fees were incurred by Ruiz, an expert forensic economist. Medical Consultant Services was a third-party expert broker that Ruiz used for billing, document production, and communications. (Traver Decl. at ¶3.) When Plaintiff seeks economic damages arising from loss of business, the retention of an economic expert is reasonable.

Sharing Expert Costs.

Plaintiff lastly argues that the expert witness fee should be reduced because Defendants indicated the economic expert was being shared with the consolidated co-Defendants of Boeldt and Andrade. In their Motion to Transfer and Consolidate, Defense Counsel stated in the points and authorities and his declaration that a reason to justify the transfer and consolidation was because the Defendants were sharing the costs of a forensic economist. (Exhs. E [Traver Decl. at ¶9] and F [p. 7:10-11] to Pearcy’s Decl.)

Defendants argue that the amount listed for the expert fee is the amount paid by the County. Ruiz’s invoices were not split between the parties. Rather, Counsel’s understanding is that Ruiz issued separate invoices to each side. (Traver Decl. at ¶4.)

For purposes of establishing that the Economist’s billed amount for 36.5 hours to review extensive records (2 inch thick) and for verbal report preparation, as well as additional time to prepare P&L Statements, etc., represents an allocated share to the County for work performed in this case, the court requires more than the hearsay and counsel’s understandings contained in counsel’s declaration. The court requires a declaration by Ruiz that the bill represents an allocation between the consolidated cases, especially since the issue of damages is identical in the consolidated cases.

Consequently, the court reduces the invoices generated by Medical Consultant Services, Inc. by one half as an allocation of the expert’s work performed on behalf of the defendants between the two consolidated cases.

TENTATIVE RULING

The court grants, in part, the motion to tax and awards reduced costs to the Defendants as follows:

• $9,411.25 for expert witness fees. • $10,558.21 for remaining uncontested costs.

Total Costs awarded to moving Defendants: $19,969.46