WESLEY OSAZE, SUCCESSOR IN INTEREST OF DECEDENT ANYA VALENCIA, ET AL VS. SKYLINE PET HOSPITAL, UNKNOWN ENTITY, ET AL

August 28, 2026 Law and Motion CalendarPAGE 2 HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ Case Title / Nature of Case 9:00 AM Line 1 21-CIV-04015 WESLEY OSAZE, SUCCESSOR IN INTEREST OF DECEDENT ANYA VALENCIA, ET AL VS. SKYLINE PET HOSPITAL, UNKNOWN ENTITY, ET AL

WESLEY OSAZE, SUCCESSOR IN INTEREST OF DECEDENT SAMI SEDGHANI ANYA VALENCIA SKYLINE PET HOSPITAL, UNKNOWN ENTITY ALICIA R KENNON

Plaintiff’s Motion to Strike or Tax Costs

TENTATIVE RULING:

Plaintiffs Wesley Osaze’s and Lamberto Valencia’s Motion to Strike and Tax costs from the Memorandum of Costs filed by Defendants Skyline Pet Hospital, et al., served on April 23, 2025, is DENIED.

The Court DECLINES plaintiffs’ request in their January 21, 2026 supplemental brief that the Court exercise its discretion to continue the stay of further proceedings on costs pending resolution of the appeal and rules as set forth below.

Costs in the amount of $40,767.69 are awarded to Defendants, including $30,756 in expert witness fees. Plaintiff shall file an undertaking with the Court within fifteen (15) days after service of the Order after hearing with regards to the expert fees of $30,756 to stay the expert fees pending the outcome of the appeal. The undertaking shall be consistent with the requirements of Code of Civil Procedure Section 917.1(b) (double the amount awarded by a nonadmitted surety, or one and half times the amount awarded by an admitted surety).

BACKGROUND

The underlying action regards decedent Plaintiff Anya Valencia’s fatal fall at defendant Skyline Pet Hospital’s business in defendant Restani’s building. No one saw the fall happen.

A complaint was filed in June 2021. The parties attempted settlement but were unable to reach an agreement. The matter concluded upon Defendants’ successful motion for summary judgment (hereinafter “MSJ”) on March, 28, 2025, when this Court granted defendants Skyline Pet Hospital, Hilda Aparicio-Gee dba Skyline Pet Hospital, and Mark W. Restani as Trustee of Restani Family Trust’s MSJ on the grounds that Plaintiffs could not prove causation because the

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ decedent’s fall was unwitnessed. In granting defendants’ motion for summary judgment, the Court ultimately ruled plaintiffs did not meet their burden to demonstrate a question of material fact with respect to causation for the fall, finding the testimony of plaintiff’s expert witnesses based on “pure speculation.” (Order Ruling on MSJ, filed March 28, 2025, at p.4.)

On April 23, 2025, Defendants filed Judicial Counsel of California forms MC-010 [Memorandum of Costs (Summary)] and MC-O11 [Memorandum of Costs (Worksheet)] requesting total costs of $40,767.69, which forms the basis of the instant motion.

On May 1, 2025, Plaintiffs filed the instant motion in opposition. In it, plaintiffs assert the costs should be denied as untimely filed and unnecessary.

On May 2, 2025, the Court’s judgment was signed and entered.

Defendants filed their opposition to the instant motion on August 22, 2025 contending there was a valid Code of Civil Procedure section 998 offer that had been rejected and plaintiffs failed to meet their burden under Code of Civil Procedure section 1035, subdivision (a) to demonstrate that the costs requested were unnecessary or unreasonable.

On September 5, 2025, hearing on the instant motion was held and the Court continued to February 2, 2026 for supplemental briefing because, although parties argued the validity of a Code of Civil Procedure section 998 offer, neither party provided the Court with a copy of the offer, rendering it impossible for the Court to rule on the issue. In January 2026 defendants filed a supplemental opposition attaching the written section 998 offer and plaintiffs filed a supplemental reply.

At the February 2, 2026 hearing, the Court once again continued the motion on its own motion “for approximately six months to allow the pending Appeal of the Judgment to conclude, with the continued hearing set for August 28, 2026 at 9:00 a.m.” (CMO filed February 20, 2026.) The Court also exercised its discretion and stayed the matter to preserve the status quo and to protect the effectiveness of the appeal citing Reed v. Superior Court (2001) 92 Cal.App.4th 4489, 454 455. (Id.)

LEGAL STANDARD

A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Code Civ. Proc. § 437; Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342.) A court may, upon motion or in its discretion, “[s]trike out any irrelevant, false, or improper matter inserted in any pleading” and “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc, § 436, subds. (a)-(b).) Under Code of Civil Procedure section 1032, subdivision (b), as prevailing party, Defendants are entitled to recover costs. (Code Civ.Proc., § 1032, subd. (b).)

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ The right to recover costs in litigation “ ‘exists solely by virtue of statute.’ ” (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 989, 73 Cal.Rptr.2d 682, 953 P.2d 858, quoting Estate of Johnson (1926) 198 Cal. 469, 471, 245 P. 1089.) The general rule, as mentioned above, is that the prevailing party is entitled to recover its litigation costs. (§ 1032; DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1147, 202 Cal.Rptr.3d 429, 370 P.3d 996 (DeSaulles).) Section 998 “modifies the general rule of section 1032 that only the prevailing party recovers its costs.” (Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1112, 86 Cal.Rptr.2d 614, 979 P.2d 974 (Scott).)

(Madrigal v. Hyundai Motor America (2025) 17 Cal.5th 592, 602 (Madrigal).)

DISCUSSION

Plaintiffs first contend the Court should strike the motion as invalid due to untimeliness pursuant to the California Rules of Court, rule 3.1700, because it was not filed within 15 days of service of the notice of entry of the May 2, 2025, judgment. As the costs memorandum was filed prior to entry of judgment on April 23, 2025, the Court declines to do so. (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 880 [courts can treat prematurely filed cost bills as being timely filed].)

As to the merits of the costs request, plaintiffs challenge three designations of costs: (1) filing fees; (2) deposition costs; and (3) expert witness deposition costs, all on the basis that defendants are seeking to recover costs that were not reasonably necessary to the conduct of the litigation and were instead “merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2); MPA at pp. 3-4) Furthermore, defendants provided no documentation to support the necessity of the expenses. Defendants oppose, contending the Code of Civil Procedure section 998 offer was valid and plaintiffs declined it. Thereafter, defendants’ motion for summary judgment was granted and defendants are entitled to recover their expert witness fees in the amount of $30,756, along with other costs recoverable pursuant to Code of Civil Procedure section 1033.5. The Court agrees.

Defendants’ Section 998 Offer

Section 998, subdivisions (c) and (e) address what happens if a defendant makes an offer, which is rejected or deemed withdrawn, and “the plaintiff fails to obtain a more favorable judgment or award.” Under those circumstances, the plaintiff “shall not recover ... postoffer costs,” “shall pay the defendant's costs from the time of the offer,” and may be required to pay some postoffer expert witness costs. (§ 998, subd. (c)(1).)

(Madrigal, 17 Cal.5th at 602–603 [emphasis added].)

The policy behind section 998 is to encourage the settlement of lawsuits before trial. (Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1019, 157.) “It does so ‘by providing a strong

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ financial disincentive to a party — whether it be a plaintiff or a defendant — who fails to achieve a better result than that party could have achieved by accepting his or her opponent's settlement offer. (This is the stick. The carrot is that by awarding costs to the putative settler the statute provides a financial incentive to make reasonable settlement offers.)’ (Bank of San Pedro, at p. 804, 12 Cal.Rptr.2d 696, 838 P.2d 218.)” (Madrigal, 17 Cal.5th at 603.)

To trigger the operation of section 998, an offer must be valid and made in good faith. An offer is valid if it: (i) complies with the statutory requirements that it be in writing, contains the terms of the offer, include a mechanism for acceptance, and provides for entry of judgment or a legal equivalent if accepted (Perez v. Torres (2012) 206 Cal.App.4th 418, 425, 141 Cal.Rptr.3d 758 (Perez); see also § 998, subd. (a)); and (ii) is “sufficiently specific to allow the recipient to evaluate the worth of the offer and make a reasoned decision whether to accept the offer” (Fassberg Construction Co. v.

Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 764, 60 Cal.Rptr.3d 375 (Fassberg)). An offer is made in good faith if it “is ‘ “realistically reasonable under the circumstances of the particular case” ’ [citation]—that is, if the offer ‘ “carr[ies] with it some reasonable prospect of acceptance” ’ ” (Licudine v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, 924, 242 Cal.Rptr.3d 76 (Licudine).)

Ayers v. FCA US, LLC (2024) 99 Cal.App.5th 1280, 1293 reh'g denied (Mar. 20, 2024), review dismissed, cause remanded sub nom. Ayers v. FCA US (Cal. 2025) 335 Cal.Rptr.3d 275 [573 P.3d 38]

At the original motion hearing date on September 5, 2025, the Court found there was inadequate proof of the section 998 offer because the offer was not included anywhere in the record or the parties’ moving papers. To address this, the Court required supplemental briefing from the parties at the September hearing. On January 16, 2026, defendants filed their supplemental opposition and appended the offer as Exhibit A. In pertinent part it reads:

Defendants SKYLINE PET HOSPITAL, HILDA GEE dba SKYLINE PET HOSPITAL, and MARK W. RESTANI as Trustee of RESTANI FAMILY TRUST (collectively “Defendants”) hereby collectively offer to compromise the above- entitled pending action as to Plaintiffs, collectively, for the total sum of One Hundred Fifty Thousand and 01/100 dollars ($150,000.01), in exchange for a dismissal with prejudice of the Complaint, Plaintiffs’ agreement that each party shall bear his/her/its/their own fees and costs, Plaintiffs' agreement that they will satisfy any and all liens out of the proceeds paid, and Plaintiffs’ agreement that they will provide proof to Defendants that any Medicare liens have been satisfied.

PLEASE TAKE NOTICE that if Plaintiffs do not accept this offer within thirty (30) days from the date it is made, or prior to trial, whichever occurs first, and Plaintiffs fail to obtain a more favorable judgment or award, Plaintiffs shall not recover costs and Defendants will seek costs, and expert witness fees as provided for in Code of Civil Procedure § 998.

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________

This offer is deemed withdrawn if not accepted within thirty (30) days, plus any additional time required pursuant to Code of Civil Procedure § 1013 due to the method of service employed.

DATED: December 26, 2024

(Defendants’ Supplemental Opposition to Motion to Strike, Ex. A.)

The offer expired thirty days from the date of the offer, December 26, 2024, or on Saturday January 25, 2025. It is undisputed that plaintiffs did not accept the offer before its expiration.

In their memorandum in support of the instant motion plaintiffs assert that the section 998 offer was invalid thereby precluding the award of expert fees because the settlement offer was in exchange for a dismissal with prejudice. (MPA at p.6.) Defendants oppose, asserting that the Defendants’ joint offer of $150,000.00 was valid because it made it clear that defendants were only offering to pay a fixed amount regardless of any lien amounts. (Opp. at pp.7-8.)

In the supplemental briefing, the Court notes defendant does not present much argument regarding the validity of the section 998 offer other than to call it “valid”. (Supp. Opp. p.3.) Plaintiff does not contest the validity, merely argues that the Court properly called out defendants’ failure to attach the offer and allowing defendants multiple months to cure this omission after the filing deadline would improperly shift the burden and reward defective motions.

Upon the Court’s review, the Court finds the offer meets the criteria of a valid offer because it is in writing, succinctly contains the terms and conditions, contains a place for written acceptance under a separate block titled “ACCEPTANCE OF OFFER TO COMPROMISE” with a signature line, and provides for entry of judgment upon acceptance in that plaintiffs will “[provide] a dismissal with prejudice of the entire Complaint.” (Supp. Opp. Ex. A.) Finding there was a valid offer which was turned down, the Court reviews the substance of the fees requested.

Filing fees

Plaintiff takes issue with costs for the demurrer and motion to enforce settlement, contending that these motions were unsuccessful therefore “they cannot meet the statutory requirement of necessity” because a motion that fails to achieve its intended result is not reasonably necessary to the conduct of the litigation under CCP § 1033.5(c)(2). (MPA at p. 4.) The Court disagrees. “Filing, motion and jury fees” are the very first items listed as allowable costs under Code of Civil Procedure section 1033.5, subdivision (a). Accordingly, the request to strike filing costs is DENIED.

Depositions

Taking “necessary depositions” is an allowable cost. (Code Civ.Proc., § 1033.5, subd. (a)(3).)

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ Plaintiff takes issue with “the vast majority” of the $8, 118.59 requested in deposition costs because “they were unnecessary to the adjudication of the [MSJ].” (MPA at p.4.) Because the MSJ focused solely on causation, the only deposition costs that should be allowed are those of Hilda Gee and Mark Restani which were cited in connection with the MSJ. (MPA at p.5.) Defendants counter, asserting Plaintiff does not meet their burden to rebut the presumption of reasonableness. The Court agrees.

“The necessity for a deposition and for the related expenditures is a question for the trial court’s sound discretion. [Citation.] The burden of proof that the deposition was unnecessary or that the costs of taking the deposition were unreasonable is on the party seeking to have that item taxed or reduced. [Citation.].” (County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113.) However, a verified cost memorandum (sworn under penalty of perjury) serves as prima facie evidence that the costs were reasonably incurred, shifting the burden to the objecting party to rebut this presumption (Id. at 1114.)

The underlying action was set for trial one month from the MSJ hearing and settlement had already been rejected. The Court is at a loss to imagine when else these witnesses would have been deposed. Moreover, the standard isn’t whether the costs were necessary to a singular motion in a vacuum, it is whether the costs were necessary to the entirety of the litigation. Accordingly, the motion to strike the challenged deposition costs is DENIED.

Expert Witnesses Deposition Fees

The primary thrust of the instant motion regards the $30,756.00 sought in expert witness fees. “Recoverable costs generally do not include the fees of expert witnesses not ordered by the court. (§§ 1032, 1033.5, subd. (b)(1).) Such expert witness fees are recoverable in some circumstances, however, when a more favorable judgment for the defendant follows a plaintiff's rejection of a pretrial section 998 settlement offer, thus triggering section 998’s cost-shifting provisions. [Citation.]” (Kahn v. The Dewey Group (2015) 240 Cal.App.4th 227, 237.) The Court addresses the expert witnesses and their fees as follows:

- Brad Wong, accident reconstruction expert, 24.5 hours @$350/hr = $8,575. Because this case turned entirely on the mechanics of the fall as the fall was unwitnessed, a defense accident reconstruction expert was necessary to counter plaintiff’s accident reconstruction expert. - Carla Kinslow, Toxicologist, 18.1 hours @ $580= $10,556. Decedent’s blood had alcohol in it and the toxicologist would testify about its impact related to the fall. In the absence of witnesses, the Court finds a toxicologist’s testimony would be especially relevant. - Sandra Shefrin, MD, 10 hours @$950/hr= $9,500.

Again, because no one saw the fall, the Court finds it especially relevant and topical because this was not decedent’s treating doctor thus she would have less likelihood for any preexisting bias regarding decedent’s medical condition in general. - Dean Stolworthy, PhD, 5 hours @$425/hr= $2,125. A biomechanical expert retained after receiving Plaintiff’s expert witness disclosure. Again, given the paucity of factual information due to lack of witnesses to the fall, the Court finds this testimony would be reasonable.

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________

Accordingly, for the reasons stated above, plaintiff’s motion to strike the fees and costs requested is DENIED.

Any party who contests a tentative ruling must email Dept20@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to CRC Rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the CRC. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be filed or e-filed only, do not email or mail a hard copy to the Court.