Maria Daniel vs City of Santa Barbara et al

Analysis: "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 Civ. Proc., Sec. 1032, subd. (b).) Code of Civil Procedure section 1032, subdivision (a)(4), provides, in relevant part, "'[p]revailing party' includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.

If any party recovers other than monetary relief and in situations other than as specified, the " 'prevailing party' " shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034."

Defendants do not dispute that plaintiff is the prevailing party. CCP Sec. 1033.5(a) identifies cost items that are allowable under section 1032; CCP Sec. 1033.5(b) identifies items that are not allowable; and CCP Sec. 1033.5(c)(4) provides that "[i]tems not mentioned in this section ... may be allowed or denied in the court's discretion." "Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation" and "shall be reasonable in amount." CCP Sec. 1033.5(c)(2) & (3).

"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. [Citation] Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court...." (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).).

"[T]he verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary." (612 South, LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th 1270, 1285.) "[W]hen [costs] are properly challenged the burden of proof shifts to the party claiming them as costs." (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) "[T]rial courts have a duty to determine whether a cost is reasonable in need and amount." (Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548.)

Expert Witness Fees

Plaintiff's request for expert witness fees in brought pursuant to Code of Civil Procedure section 998, subdivision (d) ("998 offer"), which provides: "If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, 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 arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff's costs." The award of expert witness fees is, by the plain language of the statute, discretionary.

"An offering party who prevails on its offer bears the later burden of showing that the offer was " 'valid' " under Code of Civil Procedure section 998, meaning compliant with the statute and " ' "sufficiently specific to permit the recipient meaningfully to evaluate it and make a reasoned decision whether to accept it, or reject it and bear the risk [one] may have to shoulder [the] opponent's litigation costs and expenses. [Citation.]" ' " [Citations.] Validity is determined as of the date the offer was served. [Citation.]

Once the validity of a Code of Civil Procedure section 998 offer is established by the offeror, the burden then shifts to the offeree to demonstrate that the offer was unreasonable or not made in good faith. [Citation.] If the actual judgment is more favorable to the offeror than was the offer, it is prima facie evidence of the offer's reasonableness. [Citation.] Whether an offer is made in good faith is based on whether, at the time it was made, it carried a reasonable prospect of acceptance by the offeree. [Citation.]

The court inquires: " ' "First, was the [Code of Civil Procedure section] 998 offer within the " 'range of reasonably possible results' " at trial, considering all of the information the offeror knew or reasonably should have known? [Citation.] Second, did the offeror know that the offeree had sufficient information, based on what the offeree knew or reasonably should have known, to assess whether the " 'offer [was] a reasonable one,' " such that the offeree had a " 'fair opportunity to intelligently evaluate the offer' "?' [Citations.]' " [Citation.]" (Glassman v.

Safeco Ins. Co. of America (2023) 90 Cal.App.5th 1281, 1313-1314.)

Here, plaintiff has provided ample evidence that the offer was reasonable, made in good faith, and that defendants possessed sufficient information to assess that the offer was reasonable at the time it was made. As such, the court determines that the 998 offer is valid. The relevant 998 offer is: On March 26, 2025, plaintiff served each defendant with a 998 offer in the amount of $995,000.00. (Karpov decl., P. 13 & Exh. D.) Plaintiff obtained a more favorable verdict at trial.

As noted above, defendants move to strike plaintiff's request for expert witness fees or, in the alternative, tax them. While plaintiff's original request for expert witness fees was $38,289.00, by way of her opposition, plaintiff claims to now be seeking $16,955.01, because initially the amount included certain costs that were incurred prior to the service of the relevant Code of Civil Procedure section 998 offer of settlement. The revised amount of expert witness fees consists of: (1) $5,555.01 for Liability Expert Zachary M. Moore, from March 26, 2025 to October 15, 2025; (2) $5,500.00 for Record Review by Andrew Fox MD consisting of $4,500.00 for 3 hours of record review and $1,000.00 for deposition preparation; and (3) $5,900.00 for trial preparation and testimony of Andrew S. Morris DC.

By way of the motion as well as their reply brief, defendants initially ask the court to exercise its discretion and strike the expert costs completely. The court declines to do so. In asking the court to, alternatively, tax the costs, defendants argue, by way of the reply brief, that $3,696.00 of Zachary M. Moore's fees are not supported by any evidence provided by plaintiff. Reviewing Exhibit M of the Karpov declaration, defendants are correct that the evidence fails to reflect that amount of fees.

However, On April 17, 2026, when this matter was originally scheduled for hearing, the court continued the hearing, granted plaintiff leave to file her April 10, 2026, supplemental brief in support of opposition, and granted defendants until May 8, 2026, to file and serve any response to the supplemental brief. Defendants did not file any response to plaintiff's supplemental brief. The supplemental brief provides the documentation that was not present in the original opposition. The evidence shows expert costs for Moore total $3,696.00 following service of plaintiff's 998 offer to defendants. (Karpov Supp. decl. P.P. 3,4 & Exh. M-1.) Liability in this matter was a key issue. The court finds that Moore's fees were reasonably incurred, and the fees will neither be stricken nor taxed.

Defendants next challenge Dr. Fox's fees of $4,500.00 for record review. Defendants do not challenge the $1,000.00 claimed for deposition preparation. Defendants correctly point out that the evidence presented in support of the request, Exhibit H to the Karpov declaration, reflects that the work was performed on March 30, 2025 and August 15, 2025, without specifying what amount of work was performed on which day. Defendants' contention that March 30, 2025 was before the service of plaintiff's 998 offer is incorrect. As noted above, and as evidenced by Exhibit H to the Karpov declaration, the 998 offer was served on March 26, 2025. Both days listed on the Dr. Fox statement are after the service of the 998 offer was made by plaintiff. The fees for Dr. Fox will not be stricken or taxed.

Defendants do not appear to specifically contest the $5,900.00 sought in connection with Andrew S. Morris DC, for trial preparation and trial testimony. The amount will not be stricken or taxed.

Defendants next challenge $1,005.00 in fees for a nurse observer to attend a defense medical exam (DME) of plaintiff. "The attorney for the examinee or for a party producing the examinee, or that attorney's representative, shall be permitted to attend and observe any physical examination conducted for discovery purposes, and to record stenographically or by audio technology any words spoken to or by the examinee during any phase of the examination." (Code Civ. Proc., Sec. 2032.510, subd. (a).) The court is not convinced, even though it is permissible, that it was reasonable or necessary to have a paid nurse attend and observe the DME. Plaintiff's attorney, or support staff, could have simply attended and recorded the examination. The $1,005.00 for the DME observer will be taxed.

Pre-Judgment Interest

By way of the initial motion papers, defendants sought to strike prejudgment interest at the rate of 10 percent per annum. Since filing the initial motion papers, defendants have waived that argument, so it need not be addressed. (Karpov decl., P. 35 & Exh. P.)

Trial Technician

Defendants next argue that plaintiff is not entitled to $4,750.00 in costs for a technician that was not present at trial and did not offer any tech support. Defendants argue that plaintiff's counsel used his own computer to edit and prepare deposition videos that were played for the jury, and that plaintiff did not utilize any exhibits at trial other than copies in binders or an ELMO to project items.

In opposition, plaintiff argues that defendants' argument is "pure speculation," and that: "Technical support is frequently provided remotely via cloud-based tools and background labor. The requested amount of $950.00 per day covers the labor required to ensure that the electronic presentations and complex video clips played for the jury functioned seamlessly without 'glitches.' " (Opp., p. 15, ll. 16-21.)

The court is very familiar with both cases cited relative to tech costs: Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, and the latter case of Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968. The costs are discretionary pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(4). Conspicuously absent from plaintiff's opposition is a description of what their technician actually did for the days charged. Because plaintiff has failed to adequately show that the work performed by the technician was reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial, the costs will not be allowed.

Models, Blowups, and Photocopies of Exhibits

Defendants next challenge $17,368.46, listed under Models, Blowups and Photocopies of Exhibits, incurred from Time Code Pro Sync Program for deposition video preparations of all the witnesses that testified in the case, including experts that neither testified at trial nor had their videos played for the jury. Plaintiff argues that these costs are allowed pursuant to Code of Civil Procedure section 1033.5(a)(13), which provides: "Models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact."

The court does recognize that there is a split in authority as to whether "fees are not authorized for exhibits not used at trial," (Ladas, supra, 19 Cal.App.4th at p. 775) or whether "costs incurred in preparing models, blowups, and photocopies of exhibits may be awarded under section 1033.5, subdivision (a)(13), even if these materials were not used at trial." (Segal v. ASICS America Corp. (2020) 50 Cal.App.5th 659, 667 (Segal).) While the court tends to agree with Segal, the facts at hand are distinguishable. In the present case, "video synchronization," which process is not adequately explained by plaintiff, appears to have been unnecessary and excessive. Witnesses were made available for trial testimony and deposition transcripts could have been used if impeachment was called for. $17,368.46 for video synchronization will not be allowed.

Defendants also challenge $5,305.57 under this category, claiming that the printing costs lack any information or invoices supporting that the costs were related to trial exhibits. In opposition, plaintiff provides invoices supporting the assertion that the costs were incurred. (Karpov decl., P.P. 26, 27 & Exhs. I-K.) Plaintiff argues that they are allowable costs pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(13). Allowable costs include: "Models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact." (Code Civ. Proc., Sec. 1033.5, subd. (a)(13).) The court finds that the exhibits were reasonably helpful to aid the jury and the $5,305.57 will be allowed.

Travel Costs

Defendants next challenge $1,050.21 for parking, mileage, and hotel costs. In opposition, plaintiff argues that the costs are discretionary pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(4), which is set forth above. In her opposition, plaintiff cites Ladas in support of her argument. However, Ladas does not help plaintiff, as it holds: "The only travel expenses authorized by section 1033.5 are those to attend depositions. (Sec. 1033.5, subd. (a)(3).) Routine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation." (Ladas, supra, 19 Cal.App.4th at pp. 775-776.) The travel costs will not be allowed.

Tentative Ruling: Mark Signa et al vs The Regents of the University of CA et al

Tentative Ruling: Mark Signa et al vs The Regents of the University of CA et al