ETZEL WILLIAMS, III, ET AL VS. PENINSULA CORRIDOR JOINT POWERS BOARD, ET AL

September 2, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ 2:00 PM LINE 3 22-CIV-03763 ETZEL WILLIAMS, III, ET AL VS. PENINSULA CORRIDOR JOINT POWERS BOARD, ET AL

ETZEL WILLIAMS JESSICA DANIELSKI PENINSULA CORRIDOR JOINT POWERS BOARD DALE L. ALLEN

DEFENDANT CITY OF BURLINGAME'S MOTION TO TAX COSTS

TENTATIVE RULING:

Defendant City of Burlingame moves to tax over $111,416.47 of the $164,932.48 costs sought by plaintiffs Etzel Williams III and Desjaunae Williams in connection with the trial of the action for dangerous condition of public property relating to the death of their mother, Cynthia Robinson, at railroad crossing in the City of Burlingame. Defendant’s motion is GRANTED in part.

Plaintiffs are reminded that exhibits must be properly bookmarked. That is, “electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” (Cal. Rules of Court, rule 3.1110(f)(4); see also San Mateo County Superior Court, L.R. 3.3 [“Failure to bookmark exhibits to electronically filed documents may result in rejection of the party’s efiling by the Clerk of the Court or in continuance of the hearing by the Court on the related motion.”].)

A.

Background

The trial was bifurcated, with liability tried first. On August 22, 2025, the jury returned a verdict finding the City’s property was in a dangerous condition that caused Ms. Robinson’s death, apportioning 25% fault to the City and 75% to Ms. Robinson. On August 25, 2025, the court granted the City’s motion for directed verdict as to plaintiffs Darryl Williams and Taniesha Williams because they had not met their burden of proving damages. The jury returned a damages verdict of $4,000,000, which was reduced by the jury’s finding of Ms. Robinson’s 75% comparative fault, for a total judgment of $1,000,000, in favor of Etzel Williams III and Desjaunae Williams apportioned equally between them.

Plaintiffs filed their Memorandum of Costs on October 23, 2025, seeking a total of $164,932.48 in costs. The City moved to tax costs on March 26, 2026.

The City argues that it is a prevailing party as to Darryl Williams and Taniesha Williams because they did not recover any damages.

Plaintiffs argue that they are the prevailing party because they received a net monetary recovery, that is, the judgment in favor of Etzel Williams III and Desjaunae Williams.

September 2, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ The parties also dispute the effect of plaintiff’s joint 998 offer. The offer, for $999,999.00 was served on July 25, 2025; plaintiffs made their opening statement on August 8, 2025.

B. Plaintiffs’ 998 Offer

The City argues that the 998 offer was defective because it was made jointly, on behalf of all four plaintiffs. Plaintiffs cite McDaniel v. Asuncion (2013) 214 Cal.App.4th 1201 (McDaniel) for the proposition that a joint offer in a wrongful death case is appropriate because of the unitary nature of the claim. McDaniel explains that “a wrongful death cause of action is atypical. Under California law, either the heirs or the personal representative on behalf of the heirs may bring a single joint indivisible action for wrongful death. [citation] This means that all heirs should join in a single action and there cannot be a series of suits by heirs against the tortfeasor for their individual damages. [citation] Any recovery for wrongful death is in the form of a lump sum, i.e., a single verdict is rendered for all recoverable damages.” (McDaniel, supra, at pp. 1206- 1207, citations omitted; see also Cross v.

Pacific Gas & Electric Co. (1964) 60 Cal.2d 690, 692 (Cross) [stating that former Code of Civil Procedure, section 377, now sections 377.20, 377.40, 377.60, 377.61, 377.62 “is a procedural statute establishing compulsory joinder and not a statute creating a joint cause of action.”].)

The City cites contrary authority, holding that a joint, unallocated, 998 offer in a wrongful death case is invalid. (See MPA, at pp. 15, citing Gilman v. Beverly California Corp. (1991) 231 Cal.App.3d 121 and Hurlbut v. Sonora Community Hospital (1989) 207 Cal.App.3d 388.)

Although the appellate courts differ as to whether a joint, unallocated, 998 offer is invalid, the cases are fact-specific. (See Gonzalez v. Lew (2018) 20 Cal.App.5th 155, 164-170 (Gonzalez) [discussing cases].) In Gonzalez, notwithstanding that the joint 998 offer was made by plaintiffs who were heirs of two different decedents, the court found that it was not invalid. The court likewise finds that the joint offer was valid, given the unity of interest among the plaintiffs, Ms. Robinson’s four children.

C. Plaintiffs are the Prevailing Party Only as to Etzel Williams III and Desjaunae Williams

The City of Burlingame contends that because two of Cynthia Robinson’s four children, Darryl Williams and Taniesha Williams, proved liability but did not testify at the damages phase of the trial and a directed verdict was entered against them, the City is the prevailing party as to them. Plaintiffs counter that a wrongful death claim is unitary and that because all plaintiffs proved liability they are, collectively, the prevailing party.

Although this case involved a tragic death and was brought by the decedent’s heirs, it did not involve a wrongful death cause of action. Rather, notwithstanding that the jury awarded plaintiffs a single undivided damages award, because the defendants were public entities, the plaintiffs’ claims were for dangerous condition of public property, not wrongful death.

Plaintiffs argue that they proved liability as to all four of the plaintiffs. However, because a “prevailing party” includes “a defendant as against those plaintiffs who do not recover any

September 2, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ relief against that defendant” (Code Civ. Proc., § 1032, subd. (a)(4)) and Darryl Williams and Taniesha Williams recovered no relief against the City, the City is therefore the prevailing party as to these two plaintiffs. Accordingly, the court further finds that while Etzel Williams III and Desjaunae Williams are the prevailing parties as against the City, the City is the prevailing party against Darryl Williams and Taniesha Williams.

D. Plaintiff’s Requested Costs

“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 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 v. California State Auto Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).) “[B]ecause the right to costs is governed strictly by statute [citation] a court has no discretion to award costs not statutorily authorized.” (Ibid., citation omitted.)

While some costs are statutorily authorized, others are prohibited, and still others are left to the court’s discretion. (Code Civ. Proc., § 1033.5.)

1. Plaintiffs’ Counsel’s Travel and Lodging Expenses

The City argues that plaintiffs’ counsel, Nathan Karlin’s, expenses should be taxed because plaintiffs did not need to retain Mr. Karlin, a resident of Kansas, who was admitted pro hac vice.

Mr. Karlin’s expertise in railroad litigation was not “merely convenient” but reasonably necessary to the case against Caltrain (which was settled) and to that against the City. While the lawsuit involved, ultimately, the question of whether the City’s timing of its lights was a dangerous condition, the lights in question are located at a complex railroad crossing. The issues relating to the timing of the City’s traffic lights and Caltrain’s signaling were complicated and required both fact and expert witnesses to explain the circumstances surrounding Ms. Robinson’s death to the jury. Mr. Karlin’s expertise with railroad litigation was “reasonably necessary” to plaintiff’s presentation of this factually and legally complex case.

Plaintiffs’ counsel seek $11,510.82 in travel, lodging, and meal expenses for Mr. Karlin (which includes $49.25 in unspecified trial supplies) and $3,186.92 for Jessica Danielski in travel, lodging, and meal expenses to attend the trial. (See Opp., Danielski Decl., exh. 15 at pp. 274- 276.)

Meal expenses incurred during a trial to which counsel must travel are compensable as costs. (See Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 698 (Doe).) In Doe, the appellate court affirmed travel expenses for a paralegal who had worked on the case from the begging and prepared and filed documents during trial was reasonably necessary to conduct the litigation, and allowed her meals and lodging expenses during the trial. (Doe, supra, 37 Cal.App.5th at p. 696, citing Code Civ., Proc., § 1033.5, subd.

September 2, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ (c)(2).) Here, because both counsel did not leave within a reasonable distance of the court, travel, lodging, and meal expenses were likewise necessary and reasonable.

2. Deposition Costs for Manito Velasco and Tod Eidson

Manito Velasco is a local resident who was deposed; the court granted the City’s motion precluding his testimony at trial. (Gilbert Decl. iso Mot. to Tax Costs, ¶ 9.) The City seeks to tax deposition and service costs relating to him, as follows: service of process ($100.32); deposition ($2,243.65); and witness fee ($37.00) for Mr. Velasco. (See Pltfs.’ Memo. of Costs, at pp. 3-4.) Until the court ruled on the City’s motion the parties could not have known whether the court would exclude his testimony. Accordingly, the court will not tax these costs.

The City also moves to tax the deposition costs for Tod Eidson. Apparently before he was served with a subpoena, plaintiffs learned that Mr. Eidson had suffered a stroke and was incapacitated. Accordingly, he was not deposed. (Gilbert Decl., ¶ 10; Reply at p. 7.) Plaintiffs did not incur deposition costs for Mr. Eidson, and therefore the court taxes those costs in the amount of $183.02 for service of process; $40.00 for witness fees; and $1,375.65 for transcript and video fees. (See Pltfs.’ Memo. of Costs, at pp. 7, 9.)

3. Videotaped Depositions

The use of videotaped deposition testimony is now wholly routine and necessary. Where the deponent is not present at trial, it permits the jury to evaluate their demeanor and credibility. Where the deponent is present and is impeached or rehabilitated with their deposition testimony, it likewise permits the jury to determine whether the statements at deposition or at trial are the more credible. (See Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.) The court will not tax videotaped deposition costs.

4. Service of Process and Witness Fees

The City challenges the costs sought for service of process and witness fees.

It was reasonable for plaintiffs to subpoena Kevin Aguigui. His employer, Kimley-Horn was not a party by the time of trial and absent a subpoena he might not have appeared.

Plaintiffs have not explained the generic references to the following service of process fees: One Legal Civil Subpoena & Witness Fee, San Mateo County Sheriff’s Office. (See Reply, at p. 8.) Those fees will be taxed in the amount of $768.22. (See Pltfs. Memo. of Costs, at p. 9.)

Further, plaintiffs have not explained the witness fees for anyone except Kevin Aguigui on Attachment 8a(6). (See Pltfs. Memo. of Costs, at p. 10.) Accordingly, all of those fees are taxed, except for the fees for Mr. Aguigui; the amount taxed totals $1,126.22.

September 2, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ 5. Expert Witness Fees

The City challenges the expert witnesses’ fees as unwarranted under the 998 offer and as unreasonable. As noted above, the court found that the offer was valid.

The City also contests the timing and reasonableness of plaintiffs’ experts’ fees and expenses (see Danielski Decl., exh. 8b), specifically the requested reimbursements for George Gavalla ($9,805.64); Gary Norris ($25,739.24) and Erwin Boer ($42,696.83). The City asserts that these individual were deposed on June 30, 2025; June 24, 2025; and July 1, 2025, respectively — before the 998 offer was served. (Gilbert Decl., ¶ 7.) The 998 offer attached as exhibit A to the Gilbert Declaration states that it was served on July 25, 2025. The court presumes that the experts’ fees and costs for their depositions were addressed at the time their depositions were taken, pursuant to Code of Civil Procedure, sections 2034.430-2034.460.

Plaintiffs’ Memorandum of Costs does not supply any detail concerning the fees sought for the three experts. However, plaintiffs supplied some detail in their opposition to defendant’s motion.

George Gavalla’s fees for 5.5 hours at $350/hour, totaling $1,925, plus travel expenses of $1,880.64, which predate the 998 offer are taxed. The remaining fees and expenses including travel to and from California for trial testimony are reasonable. (See Opp., Danielski Decl., exh. 8b at p. 135.)

Gary Norris has supplied no information about the dates on which he spent 40 hours in “prep/review.” Because the invoice period is listed as August 2025, the court therefore will not tax those fees. However, the following expenses are not recoverable as costs: Gary Norris’s expenses for canceling his attendance at a conference, in the among of $7,662.94, and travel expenses to San Francisco for an unidentified person named “Dariel,” of $396.21. (See Opp., Danielski Decl., exh. 8b at p. 131.)

Dr. Erwin Boer’s fees post-dating July 25, 2025 appear reasonable, however, his $10,146.83 in expenses lack any supporting detail. (See Opp., Danielski Decl., exh. 8b at p. 134.) The court will tax the pre-July 25, 2025 fees, which amount to 14.8 hours at $400/hour = $5,920. Further, given that Dr. Boer supplied no information concerning his travel expenses, the court cannot determine their reasonableness, and they are taxed in their entirety.

6. Other Expenses

Defendant objects to plaintiffs’ request for $16,245.11 in costs for models, enlargements, and photocopies of exhibits, noting that defendant spent $678.11 in photocopying trial exhibits. (See Opp., Danielski Decl., exh. 13, at pp. 154-163.)

Litigation support vendor services are recoverable as costs. (Doe, supra, 37 Cal.App.5th at p. 696.) Those include preparation of exhibits and electronic document presentation. (Green v. County of Riverside (2015) 238 Cal.App.4th 1363, 1374 [affirming award of $40,610.68 in paralegal costs that “reflected amounts defendants incurred for preparation and presentation of

September 2, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ electronic evidence, including videos of deposition testimony, exhibits and excerpts from audio recordings, at trial. . . . Use of such technology, including a technician to monitor the equipment and quickly resolve any glitches, has become commonplace, if not expected by jurors. [citation] The trial court did not abuse its discretion in allowing these costs as reasonably helpful to aid the jury.”].)

To the extent that the court has not addressed other specific items of costs identified by the City, the parties are to meet and confer about those items.

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, the City’s counsel shall prepare a written order consistent with the court’s ruling for the court’s signature, providing written notice of the ruling to all parties who have appeared in this action, pursuant to California Rules of Court, Rule 3.1312 and Local Rule 3.403(b)(iv), which states in part that the “prevailing party on a tentative ruling is required to prepare a proposed order repeating verbatim the tentative ruling” (emphasis added). The order should be e-filed only, do not email or mail a hard copy to the court.