Los Angeles County Superior Court
Case Number: BC524999??? Hearing Date: April 27, 2016??? Dept: J
Re: Daniel Clavel, et al. v. Joseph Morales, et al. (BC524999)
MOTION TO TAX COSTS
Moving Parties: Plaintiffs Daniel Clavel and Tracey Walker Clavel
Respondents: No timely opposition filed
POS: Moving OK
Plaintiffs brought this action seeking recovery for damages arising from a motorcycle versus motor vehicle collision on April 30, 2013, at the intersection of Pathfinder Road and Alexdale Lane, in the city of Rowland Heights. Plaintiffs allege that the driver of the motor vehicle was negligent and caused and/or contributed to their loss. Plaintiffs also allege that the incident location constituted a dangerous condition on public property. Plaintiffs commenced this action on 10/18/13, asserting causes of action for:
1. Negligence
2. Premises Liability
3. Dangerous Condition on Public Property
4. Loss of Consortium
On 12/16/13, Defendant County of Los Angeles filed a cross-complaint against Defendant Joseph Morales for equitable indemnity, contribution and declaratory relief.
On 3/10/14, Plaintiffs dismissed Defendant City of Los Angeles from the Complaint.
On 3/20/14, Plaintiffs dismissed Defendants State of California, Department of Transportation and City of West Covina from the Complaint.
On 7/24/15, Plaintiffs dismissed Tanangco Agudo as the Trustee of the Marlene Tanangco Agudo Trust from the Complaint.
On 12/11/15, Defendant County of Los Angeles? motion for summary judgment was granted. Judgment was entered on 2/9/16.
On 2/22/16, the matter was disposed of pending appeal.
On 2/29/16, the County of Los Angeles dismissed its cross-complaint.
Plaintiffs Daniel Clavel and Tracey Walker Clavel (collectively ?Plaintiffs?) move for an order taxing the $19,224.83 in costs claimed by Defendant County of Los Angeles (?County? or ?Defendant?), bringing the total amount to $150.00. The motion is made on the grounds that Defendant has not provided any documents to substantiate their claims of reasonable fees related to trial incurred after serving a statutory 998 Offer to Compromise.
TIMELINESS:
The procedures for claiming prejudgment costs are governed by statute and Judicial Council Rules. (CCP ?? 1034(a), 1034.5; and CRC 3.1700, 3.1702, 3.2000.) The losing party may dispute any or all of the items in the prevailing party’s costs memorandum by a motion to strike or tax costs. (See CRC 3.1700(b).) A motion to strike or tax costs must be served and filed within 15 days after service of the cost memorandum. (CRC 3.1700(b)(1).) If the cost memorandum was served by mail, the period is extended as provided in CCP ? 1013. (Ibid.) Delay in challenging (or failure to challenge) a costs bill waives any objection to the costs claimed thereon. (Douglas v. Willis (1994) 27 Cal.App.4th 287, 290.)
The costs memorandum was served by mail on February 3, 2016. This motion was timely filed on February 16, 2016 and served on February 3, 2016.
OFFER TO COMPROMISE:
If plaintiff turns down defendant’s ? 998 offer and fails to obtain a ?more favorable? judgment at trial: (1) plaintiff cannot recover court costs incurred after the offer was made (pre-offer costs are still recoverable, however, if plaintiff is the prevailing party); (2) plaintiff must pay defendant’s postoffer court costs (if these exceed plaintiff’s verdict, a judgment will be entered against plaintiff for the balance); and (3) the court may order plaintiff to pay reasonable expert witness fees incurred by defendant in preparing for and/or during trial of the case. (CCP ? 998(c), (e); Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th at 532-533?expert witness fees incurred before and after offer allowed; Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 1000.) Section 998 gives trial courts discretion to award defendant’s expert fees regardless of whose witness the expert is, if plaintiff fails to obtain a more favorable judgment. (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 55 ? pursuant to ? 998(c), P had to pay fees incurred by defendant to depose plaintiff’s expert.)
Despite a defense verdict, several courts have held that CCP ? 998 penalties may be refused where the court determines that defendant’s ? 998 offer was merely a ?token? or ?bad faith? offer; i.e., one for which there was no reasonable prospect of acceptance. (Wear v. Calderon (1981) 121 Cal.App.3d 818, 821 ? expert witness fees denied despite defense verdict because defendant’s $1 offer not reasonable; Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 62-63 ? defendant’s offer of $2,500 so disproportionate to plaintiff’s $10 million demand as to be ?unreasonable?; compare Thompson v. Miller (2003) 112 Cal.App.4th 327, 339 ? plaintiff must pay expert witness fees because Ds’ $300,000 offer was within range of potential liability; trial court abused its discretion in finding offer was not in good faith.) The California Supreme Court has not decided this issue. (See Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, 531 ? ?Assuming without deciding that [? 998] entails such a requirement,? no abuse of discretion in trial court’s fees and costs award (brackets added).)
The decision whether an offer was reasonable and made in good faith lies within the trial court’s sound discretion and is reversible on appeal only for abuse of discretion. (See Regency Outdoor Advertising, Inc. v. City of Los Angeles, supra, 39 Cal.4th at 531; Hartline v. Kaiser Found. Hosps. (2005) 132 Cal.App.4th 458, 471-473.) Generally, ?reasonableness ? is measured, first, by determining whether the offer represents a reasonable prediction of the amount of money, if any, [the offeror] would have to pay [the offeree] following a trial, discounted by an appropriate factor for receipt of money by [the offeree] before trial ?? (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699 (brackets added); Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1485.)
Whether a CCP ? 998 offer was ?realistically reasonable? is tested by circumstances existing at the time the offer was made, not by hindsight. (Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 264.)
The party seeking to avoid ? 998 penalties bears the burden of proving the rejected offer was a ?token? offer made in bad faith. (Santantonio v. Westinghouse Broadcasting Co., Inc. (1994) 25 Cal.App.4th 102, 116-117; Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d at 700; see also Najera v. Huerta (2011) 191 Cal.App.4th 872, 877 ? on appeal, burden is on the complaining party to establish abuse of discretion.)
Whether a CCP ? 998 offer was made in good faith is determined by all the circumstances in the case, including:
(1) Defendant’s apparent liability: Even ?modest? offers, in relation to the damages claimed, may be in ?good faith? if defendant reasonably believes there is no liability;
(2) Plaintiff’s damages: The nature and amount of damages a jury might award;
(3) Insurance coverage: The adequacy (or lack) of defendant’s liability insurance coverage or ability to respond in damages;
(4) Jury reports: Historic patterns of jury verdicts in the court where the action is pending;
(5) Information available to plaintiff: Whether plaintiff knew or reasonably should have known (e.g., through discovery) enough information to evaluate defendant’s offer when it was made: ?If the offeree has no reason to know the offer is reasonable, then the offeree cannot be expected to accept the offer.? (Elrod v. OregonCummins Diesel, Inc., supra, 195 Cal.App.3d at 698-699; Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 154; Najera v. Huerta, supra, 191 Cal.App.4th at 878?offeree must have ?fair opportunity to intelligently evaluate the offer.?)
Plaintiffs contend that the Court should exercise its discretion to deny the entire amount (less $150.00 in jury fees) on the following grounds: (1) Defendant?s 998 Offer to Compromise was unreasonable under the circumstances; (2) to promote fairness given Plaintiffs? current financial and physical condition; and (3) because Defendant has failed to prove any of their costs are recoverable or accurate as stated on their Memorandum of Costs.
Specifically, Plaintiffs contend that the $5,000.00 offer made to each Plaintiff was not reasonable because it did not take into account the high level of damages associated and the facts of this case, i.e., (1) the cost would not even cover their own costs claimed for expert witness; (2) this lawsuit involved severe injuries resulting from a motorcycle accident and a dangerous condition of public property; (3) Plaintiff Daniel Clavel?s injuries resulted in hospitalization and multiple surgeries, and Plaintiff was forced to miss nine months of work to recover; (4) there was an obvious trap at the intersection; (5) Plaintiff Daniel Clavel?s paid medical bills alone exceeded $366,000.00, not to mention the nine month worth of wages; and (6) Defendant made a ?no-risk? offer. Plaintiffs also contend that all of Defendant?s costs were unsubstantiated and are unrelated to preparation of trial.
Defendant did not oppose the motion, thereby impliedly conceding to the merits of the motion. Thus, the motion to strike is granted.