Tentative Ruling
Re: ?????????????????????????? Arteaga v. Fresno Community Regional Medical Center, et al.
Court Case No. 13 CECG 03906
Hearing Date: ????????? January 31, 2017 ????? ??????????? (Dept. 402)
Motion: ???????????????????? Plaintiffs? Motion to Tax/Strike Bhatt Defendants? Costs
Tentative Ruling:
To grant motion and strike $8,400 in expert witness fees and $1,601.91 in attachment costs.
Explanation:
Items of allowable costs are set forth in Code of Civil Procedure section 1033.5, subdivision (a), and disallowed costs are set forth in subdivision (b).? Items not expressly mentioned in the statute ?upon application may be allowed or denied in the court?s discretion.?? (Code Civ. Proc. ? 1033.5, subd. (c)(4).)? All allowable costs must be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation, and they must be reasonable in amount and actually incurred.? (Code Civ. Proc. ? 1033.5, subd. (c)(1), (2) and (3).)
On a motion to tax costs, the initial burden depends on the nature of the costs that are being challenged.?? ?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.?? (Ladas v. Calif. State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) ?The court?s first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face.? If so, the burden is on the objecting party to show them to be unnecessary or unreasonable.?? (Ibid.)? In order to meet this burden, where the objections are based on factual matters, the motion should be supported by a declaration.? (County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113-4.)
Item 4 ? Deposition Costs
In their reply brief, plaintiffs object to the recovery of all deposition costs except for one, Dr. Chaudhry, arguing that his was the only deposition reviewed by Dr. Bhatt?s expert.? Plaintiffs object to the videotaping costs are per se unreasonable in this case and assert that they cannot determine if the ?taking? portion of the deposition costs are reasonable for any of the other witnesses.
The objection that the ?taking? costs are unreasonable unless the actual invoices are submitted is without merit.?? ? ?[A] ?verified memorandum of costs is prima facie evidence of [the] propriety? of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.? ? (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989.)? Again, the court?s first task is to determine whether the statute expressly allows the disputed item and whether the cost appears proper on its face.? It is then up to the party challenging cost to show them to be unnecessary or unreasonable, by declaration, if the showing is based on factual matters.? (County of Kern v. Ginn, supra, 146 Cal.App.3d at pp. 11131114.)? Code of Civil Procedure section 1033.5, subdivision (a)(3)(A) expressly permits the ?taking? and ?transcribing? of necessary depositions.
Plaintiffs? counsel presumably has copies of their own bills for the subject depositions.? They could have filed a declaration indicating whether the ?taking? portion of the deposition charges were within the ballpark of what a defendant should have been charged.? Plaintiffs? counsel could have contacted the court reporter(s) and obtained an exemplar invoice to the same effect.? Instead they theorized they could make no challenge without seeing the Bhatt defendants? invoices themselves.? This is not permissible and the challenge to the ?taking? portion of the depositions is denied.
The challenge to the videotaping portion is likewise denied.? Code of Civil Procedure section 1033.5, subdivision (a)(3)(A) expressly permits the video taping of necessary depositions.? The necessity of a cost is not judged based on the ultimate usefulness of the cost at the time of trial, but at the time the cost was incurred.? (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.)? Here, the Bhatt defendants intended to present portions of videotaped testimony to the jury.? Given the extremely large damage exposure, the current popular fascination with media of all types and the ever shortening American attention span, the court does not deem this a poor judgment call.? Indeed, appellate courts have been approving these sorts of costs for many years.? In American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, the court rejected the defendants’ argument that the trial court abused its discretion by allowing $19,307.33 for imaging documents and deposition transcripts and for display equipment rental. (Id. at p. 1057.) The court explained that ?[w]hile admittedly ?high-tech,? the methods defendants used to display documents to the jury were specifically approved by the trial court, which found them to be highly effective, efficient, and commensurate with the nature of the case.? (Ibid.)
Finally, the challenge that none of the depositions, save that of Dr. Chaudhry were necessary, should be rejected.? Relevancy is not to be judged from hindsight at the conclusion of the case.? (Nelson v. Anderson, supra, 72 Cal.App.4th at p. 132.)? Here, Dr. Bhatt, although ostensibly only sued for medical malpractice, would reasonably need to attend all the depositions of all the medical personal to observe that none of them had critical opinions of Dr. Bhatt?s care and treatment of any of the plaintiffs.? He would likewise need to attend all the depositions of the hospital personnel to see if any of them would incriminate him in the alleged cover-up or financial gain schemes.? Accordingly, the court finds that all the depositions were ?reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.?
??????????? Item 6 ? Attachment Expenses
?
The Bhatt Defendants claim $1,601.91 in ?attachment expense,? although the expenses are described as ?[m]edical records subpoenaed ?? from various providers.? Code of Civil Procedure section 1033.5 allows ?expenses of attachment including keeper?s fees.?? It therefore refers to the prejudgment remedy of attachment, not the subpoenaing of records.
The Bhatt Defendants make no argument as to why these costs should not be taxed in their opposition.? Accordingly, the court strikes these costs.
??????????? Item 8 ? Witness Fees
?
The Bhatt defendants originally claimed $8,400 in expert witness fees based on a Code of Civil Procedure section 998 offer to compromise served on September 20, 2016.? The Bhatt defendants have withdrawn all but $400 of the expert fees because section 988 was amended effective January 1, 2016 to limit awards of expert witness fees to allow only post offer expert costs, stating that the Court, in its discretion, ?may require the plaintiff to pay a reasonable sum to cover post offer costs of the services of expert witnesses.? (Code Civ. Proc., ?998, subd. (c).)
Nevertheless, the Bhatt defendants are not entitled to recover any expert fees.? Code of Civil Procedure section 988 provides that ?not less than?10 days prior to a trial or arbitration any party may serve an offer to compromise.? ?If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn.?? (Code Civ. Proc. ? 988, subd. (b)(2).)? For the purposes of section 998, ?trial or arbitration shall be deemed to be actually commenced at the beginning of the opening statement of the plaintiff or counsel, or, if there is no opening statement, at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.?? (Code Civ. Proc. ? 988, subd. (b)(3).)? Thus, a summary judgment motion is not a trial.? Here, the Bhatt defendant made their section 998 offer only nine days before the hearing on the summary judgment.? Judgment was entered less than 30 days after the offer, depriving plaintiffs of the full 30 days to consider the offer.
The Bhatt defendants claim plaintiffs could have accepted the offer after entry of judgment by dismissing the appeal.? They could not.? The wording of the 998 offer was to dismiss the case, not the appeal.? (?[T]o file a dismissal with prejudice of the Complaint as to this defendant??)? Accordingly, the entry of judgment revoked plaintiffs? right to consider the offer and once revoked it was no longer an offer for the purposes of the costs benefits of section 998.? (Glencoe v. Neue Sentimental Film AG (2008) 168 Cal.App.4th 874, 880.)
Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary.? The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: ????????????????JYH?? ?????????on 01/30/17
(Judge?s initials) ?????? (Date)