Ronald Wilmot et al vs State of CA Dept of Transportation (Caltrans) et al

Case Number

22CV00456

Case Type

Hearing Date / Time

Fri, 08/09/2024 - 10:00

Nature of Proceedings

Motion: Attorneys Fees; Motion: Tax Costs; Debtor's Exam

Tentative Ruling

For the reasons set forth herein:

1. The State of California Department of Transportation’s motion to tax costs is granted in part and denied in part as follows:

                        a. Attorney Fees of $308,750.00 are taxed.

                        b. Expert Witness Fees of $55,026.21 are taxed.

                        c. Prejudgment Interest in the amount of $47,725.00 is taxed.

                        d. Investigation fees of $16,243.90 are taxed.

                        e. Legal Research costs of $639.96 are taxed.

                        f. Costs for Photocopying and obtaining plaintiff’s medical records in  the amount of $11,323.02 are taxed.

                        g. Hotel charges of $4,027.34 are taxed.

                        h. Parking costs of $447.00 are taxed.

i. The $25.00 fee for Ronald Wilmot’s Government Tort Claim is

            allowed. The remainder of the $61.29 related to the Government

            Tort Claim is taxed.

j. The $25,259.87 in Trial Tech costs will be allowed.

k. $707.96 in costs for models, enlargements, and photocopies of

            exhibits will be allowed. The remainder of the claimed $3,171.46

            is taxed.

l. Service of Process costs for Danielle Thomas, M.D., in the amount of

            $160.00 will be allowed.

m. All other amounts claimed by plaintiff, that were not challenged will be allowed.

2. Plaintiff Ronald Wilmot’s motion for cost of proof fees and costs is denied in its entirety.

3. Counsel for State of California Department of Transportation shall prepare a formal order and deliver it to counsel for plaintiff, for approval as conforming to the court’s order, pursuant to California Rules of Court, rule 3.1312.

Background:

This action arises from an automobile versus bicyclist accident that occurred on January 3, 2021, on Highway 101, crossing the Arroyo Quemada Bridge in Santa Barbara County, California. Plaintiff Ronald Wilmot was riding his bicycle southbound on Highway 101 when he was struck by a vehicle being driven by defendant Susan McCurnin.

Plaintiffs Ronald Wilmot (Plaintiff) and Sandy Wilmot filed their original complaint on February 3, 2022. Thereafter, on May 19, 2022, the Wilmots filed their first amended complaint (FAC) against State of California Department of Transportation (Caltrans), County of Santa Barbara, Susan Gain McCurnin, and Does 1 to 20.

Following a second demurrer being sustained with leave to amend, the Wilmots filed the operative second amended complaint (SAC), on November 7, 2022, against Caltrans, County of Santa Barbara, Susan Gain McCurnin, and Does 1 to 20. The SAC contains causes of action for (1) negligence, (2) negligent entrustment, (3) dangerous condition of public property government code section 835 et seq., (4) negligent act or omission of public entity or public employee (Gov. Code, § 840.2), and (5) loss of consortium. The County of Santa Barbara was dismissed on February 7, 2023.

Sandy Wilmot resolved her claim for loss of consortium and notice of entry of judgment was filed on May 22, 2023.

Following a jury trial, from March 4, 2024, through March 20, 2024, plaintiff obtained a judgment in his favor in the total amount of $3,830,123.00. Caltrans was found to be 30 percent liable and McCurnin was found to be 70 percent liable.

On May 3, 2024, plaintiff filed and served a memorandum of costs, seeking a total of $502,745.02 in costs. Caltrans moves to tax several items of claimed costs.

Plaintiff separately moves for attorney fees and costs for having to prove facts which were denied by Caltrans in response to requests for admissions. (Note: The claimed fees and costs are included in plaintiff’s memorandum of costs which Caltrans moves to strike.)

Analysis:

            1. Motion to Tax Costs:

“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., § 1032, subd. (b).)

Code of Civil Procedure section 1033.5, subdivision (a) sets forth the allowable costs as a matter of right under section 1032. Section 1033.5, subdivision (b) sets forth items that are not allowed as costs except when expressly authorized by law.

“[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.)

As an initial matter: The requested attorney fees of $308,750.00, included as an “other cost,” is the subject of plaintiff’s motion for fees and costs to prove matters not admitted in response to requests for admissions. The fees are not yet properly included as a cost in the memorandum of costs. As such, the fees will be stricken. Additionally, plaintiff has filed and served a sur-opposition to the motion to tax costs in which he informs the court that he is no longer seeking expert witness costs and fees in the amount of $55,026.21 or prejudgment interest in the amount of $47,725.00. As such, those amounts will be taxed. The court will not consider the additional arguments presented by plaintiff, for the first time, in the sur-opposition as the arguments are untimely. The additional arguments should have been included in plaintiff’s original opposition so that Caltrans could have addressed them in their reply brief.

            Investigation Costs

Caltrans seeks to tax plaintiff’s claimed investigation fees of $16,243.90 as disallowed pursuant to Code of Civil Procedure section 1033.5, subdivision (b). (All further references are to Code of Civil Procedure section 1033.5 unless otherwise stated.)

The amount Caltrans seeks to tax, relative to investigations fees, consists of $15,406.30 for Stephen L. Plourd Investigations, Inc. (“Plourd”), $450.00 for John L. Taylor & Associates Private Investigators (“Taylor”) (Note: By way of his opposition, plaintiff admits that this amount is incorrect and should have stated $262.50), and $387.60 for Thomas A. Nelson & Associates Private Investigators.

Plaintiff argues that each of the entities above were not actually “investigating,” but were rather doing things such as “filming,” “monitoring,” “testing,” “inspecting,” or “documenting,” and that the work was reasonably necessary to the litigation. Plaintiff has attached copies of billings as Exhibits 5 through 7 to the Marks declaration in support of the requested costs.

Subdivision (b)(2) specifically disallows “Investigation expenses in preparing the case for trial.”

The court has reviewed the invoices and, despite plaintiff’s characterization of the work, finds that the services provided fall under “investigation,” and are disallowed. Plaintiff even describes the work, in the memorandum of costs, as investigation and documentation of the scene of the incident for Plourd and Taylor. As such, the $16,243.90 in investigation fees will be taxed.

            Legal Research

Caltrans seeks to tax plaintiff’s claimed legal research fees of $639.96 as disallowed by subdivision (a) or subdivision (b) to the extent the research was for investigation.

Plaintiff argues that the legal research was reasonable, necessary, and allowable pursuant to subdivision (c)(4). That section provides: “Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”

Plaintiff has provided no invoices or any other proof that the costs were actually incurred. Additionally: “Fees for legal research, computer or otherwise, may not be recovered under section 1033.5.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 776.)

The claimed cost of $639.96 will be taxed.

            Photocopying

Caltrans seeks to tax plaintiff’s claimed costs for photocopying in the amount of $11,323.02 as disallowed by subdivision (b)(3), which designates as not allowable: “Postage, telephone, and photocopying charges, except for exhibits.”

The specific items Caltrans seeks to tax are: (1) $1,157.97 for ABI Document Support Services for copies of subpoenaed records; (2) $135.65 for Ace Imaging Technologies for copies of subpoenaed records; (3) $4,123.90 for Streamlined Record Retrieval for copies of medical records; (4) $25.00 for Complete Practice Resource, Inc. for copies of medical records; (5) $50.00 for Dr. Adnan Naber for copies of medical records; (6) $56.00 for Dr. Steven Zelko for copies of medical records; and (7) $5,774.50 for Nationwide Legal Services for courtesy copies.

Plaintiff argues that the items are, largely, not for photocopies but rather for obtaining copies of medical records. As for the Nationwide Legal Services costs, plaintiff argues that the costs were for filing documents and providing the court with courtesy copies of filed documents. Plaintiff states that the costs incurred for Nationwide Legal Services actually totals $8,801.55 but that he is only seeking to recover $5,774.50.  Plaintiff attaches, as exhibits 8 through 14 of the Marks declaration, copies of invoices purporting to show that the costs were actually incurred.

The court has reviewed the invoices and it is clear that the costs, except for the Nationwide Legal Services invoices, were incurred to obtain plaintiff’s medical records. As for the Nationwide Legal Services invoices, the costs were incurred for providing copies of documents to the court.

Neither the obtaining of medical records, nor providing copies of documents to the court, is what is meant, under subdivision (b), as photocopies. The obtaining of the records is neither specifically allowed, pursuant to subdivision (a), or specifically disallowed, pursuant to subdivision (b). Therefore, they are discretionary under subdivisions (c)(2) and (c)(4). It is plaintiff’s burden to show that the costs incurred were reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. With respect to these items, plaintiff, in conclusory fashion, merely states that the information was critical to prosecuting the case and that it was reasonably necessary to the conduct of the litigation. No further explanation or reasoning is set forth in the opposition. Neither the opposition nor the declaration of plaintiff’s counsel factually demonstrates the need for the records, the ultimate use of the records, or the reasonableness of the expenses incurred. Again, because the costs are properly challenged, the burden has shifted to plaintiff, and he has failed to meet his burden. The costs of  $11,323.02, for obtaining the medical records and providing the court courtesy copies of documents to the court, will be taxed.

            Hotel Charges

Caltrans seeks to tax $4,027.34 in hotel charges, incurred during trial, as not recoverable under subdivision (a)(3)(C), arguing that the charges were not incurred to attend depositions and not reasonably necessary to the conduct of the litigation.

Plaintiff argues that counsel Lawrence D. Marks was lead trial counsel during the trial and that Marks lives in Redondo Beach, with his office being in Los Angeles. Travel costs for depositions are specifically allowed under subdivision (a)(3)(C). There is no provision either allowing or disallowing travel expenses incurred to attend trial. Although plaintiff does not specifically argue so, it appears that plaintiff seeks discretionary costs, pursuant to subdivision (c)(4).

The court will decline to award costs for plaintiff counsel’s hotel stay during trial. Plaintiff chose to retain out-of-town counsel and the court will not pass on the cost of that decision to Caltrans. The hotel associated fees of $4,027.34 will be taxed.

            Parking Costs

Caltrans seeks to tax $447.00 for parking fees. In opposition, plaintiff acknowledges that the  claimed amount is in error and that plaintiff’s counsel only incurred $327.00 in parking costs. The $447.00 will be taxed for the same reason as the hotel charges.

            Government Tort Claim

Caltrans seeks to tax $61.29 incurred by plaintiff for filing a Government Tort Claim. Plaintiff argues that because Caltrans is a governmental entity, he could not proceed in litigation without first filing a Government Tort Claim.

As it is neither allowed, nor disallowed, the awarding of the costs is discretionary.

Plaintiff’s counsel attaches to his declaration, as exhibit 17, copies of receipts for filing fees and postage expenses related to filing the government tort claim. There are $25.00 filing fees for both Ronald Wilmot and Sandy Wilmot. The postage costs are specifically disallowed under subdivision (b)(3) and will be taxed. Likewise, the filing fee of $25.00 for Sandy Wilmot will be taxed because her case was settled prior to trial. The filing fee of $25.00 for Ronald Wilmot will not be taxed, and will be allowed as reasonably necessary to the conduct of the litigation.

            Trial Tech

Caltrans seeks to tax $25,259.87 in costs incurred to Stary Technologies pursuant to subdivision (c)(2), arguing that the costs were not reasonably necessary to the conduct of the litigation but were merely convenient or beneficial to its preparation.

Science Applications Int’l v. Superior Court (1995) 39 Cal.App.4th 1095 (Science Applications Int’l) stood for the proposition that “costs incurred in editing videotaped depositions for more effective presentation to the jury has been deemed an unnecessary (unrecoverable) expense.” In Science Applications Int’l, the court reasoned that “the State spent over $35,652 to have the videotaped depositions edited for effective presentation of the testimony to the jury. If, however, the State had selected portions of the depositions to admit into evidence and presented them to the jury, as is normally done, with one lawyer reading the questions and another the answers into the record, the charge would not be recoverable. The fact that the State took a state-of-the-art approach to the testimony does not make it allowable. To the contrary, the existence of the alternative but mundane method of reading aloud strongly suggests the editing ‘was not reasonably necessary to the conduct of the litigation,’ however ‘convenient or beneficial’ it may have been.” (Science Applications Int’l v. Superior Court, supra, 39 Cal.App.4th at p. 1105.) The court was “troubled by review of a case in which a party incurred over $2 million in expenses to engage in high-tech litigation resulting in recovery of only $1 million in damages.” (Ibid.) “If a party litigant chooses unwisely to expend monies in trial presentation in excess of the value of the case, utilizing advanced methods of information storage, retrieval and display, when more conventional if less impressive methods are available, the party must stand his own costs.” (Ibid.) In this case, the plaintiff did not expend more money in trial presentation than he recovered.

Notwithstanding Science Applications Int’l, Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968 supports the awarding of the costs claimed for trial tech. “Almost 20 years have passed since Science Applications was decided, during which time the use of technology in the courtroom has become commonplace (including a technician to monitor the equipment and quickly resolve any glitches), and technology costs have dramatically declined. In a witness credibility case such as this, it would be inconceivable for plaintiff's counsel to forego the use of technology to display the videotapes of plaintiff’s interviews after his beating, in the patrol car and at the sheriffs’ station, and key parts of other witnesses’ depositions. The court in Science Applications was ‘troubled by review of a case in which a party incurred over $2 million in expenses to engage in high-tech litigation resulting in recovery of only $1 million in damages.’ [Citation.] This is not such a case. The costs at issue total just over $24,000, and the trial court specifically found the trial technology enhanced counsel’s advocacy and was reasonably necessary to the conduct of the litigation. The court acted well within its discretion in allowing recovery of these costs.” (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 991.)

As long as the costs are “reasonably helpful to aid the trier of fact” they are recoverable costs pursuant to subdivision (a)(13). (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 90-91.)

The court finds that plaintiff’s trial exhibits and presentations were very helpful, informative, and well done. They were reasonably necessary to the conduct of the litigation and helpful to the jury in reaching a verdict. The costs for trial tech will not be taxed. Caltrans points out that plaintiff seeks duplicative costs, in the amount of $18,945.00, paid to Stary Technologies in plaintiff’s motion for attorneys’ fees. Caltrans will not be double charged for these costs.

            Models, Enlargements, and Photocopies of Exhibits

Caltrans seeks to tax $3,171.46 in costs claimed for models, enlargements, and photocopies of exhibits, arguing that the costs are unreasonable, excessive, and unjustified. Caltrans requests that the costs be taxed to reflect a reasonable amount that plaintiff can support with invoices.

In opposition, plaintiff argues that $1,788.00 was incurred to create court-ordered trial binders, $675.50 was incurred for photocopies of trial exhibits made prior to and during trial, and $707.96 was incurred to create five enlargements of trial exhibits that were used during trial and during closing arguments.

Plaintiff provides no evidence of incurring $1,788.00 in preparing trial binders. Even if plaintiff had provided receipts for costs incurred in preparing trial binders, that would constitute photocopying, other than for exhibits, which is disallowed pursuant to subdivision (b)(3). The claimed cost will be taxed.

In support of the claim of $675.50 for photocopies of trial exhibits, plaintiff attaches, as exhibit 24, what purports to be an invoice from one of plaintiff’s attorneys to the other in that amount. The court finds that the invoice is sufficient to show that the costs were actually incurred, and photocopies of trial exhibits are allowable costs in the courts discretion. However, plaintiff has provided no evidence of exactly what was copied and why the costs were reasonably necessary rather than merely convenient or beneficial. The $675.50 will be taxed.

In support of the claim of $707.96 incurred to create enlargements of trial exhibits, plaintiff provides a receipt from FedEx Office in that amount. The enlargements were helpful for the jury and reasonably necessary to the conduct of the litigation. The cost for the enlargements will not be taxed.

            Service of Process

Plaintiff seeks to recover $160.00 for service of process fees for the subpoena to Danielle Thomas, M.D., arguing that Dr. Thomas was neither disclosed nor did she testify at trial.

Plaintiff has provided evidence showing that Dr. Thomas was disclosed and the cost for subpoenaing her was $160.00. The cost for subpoenaing a party is a recoverable cost pursuant to subdivision (a)(4). It is of no consequence that Dr. Thomas did not end up testifying at trial. Trials are often fluid situations where the need for particular witnesses changes. The cost to subpoena Dr. Thomas will not be taxed.

2. Fees and Costs for Plaintiff to Prove Matters Not Admitted in Response to Requests for Admissions:

“If a party fails to admit . . . the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves . . . the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.” (Code Civ. Proc., § 2033.420, subd. (a).) Relevant here, the court is required to award attorney fees authorized under subdivision (a) of section 2033.420 unless it finds the admission sought was “of no substantial importance”, that “[t]he party failing to make the admission had reasonable ground to believe that that party would prevail on the matter”, or that another good reason exists for the party’s failure to admit. (Code Civ. Proc., § 2033.420, subd. (b)(2)-(4); Grace v. Mansourian (2015) 240 Cal.App.4th 523, 529 (Grace).)

Plaintiff seeks to recover $413,636.00 in fees and costs for Caltrans’ failure to admit: (1) That the subject roadway was in a dangerous condition at the time of the subject incident; (2) That prior to the incident, Caltrans knew there was a dangerous condition for bicycles on the subject roadway caused by limited space for bicycles on the bridge; and (3) Prior to the date of the incident, Caltrans knew that a bicyclist could not safely travel on the subject roadway if vehicles were occupying both lanes of vehicle traffic. (Plaintiff’s Separate Statement.)

The requests for admission were served on July 18, 2022. (Motion, p. 1, ll. 27-28.) Caltrans served its responses to the requests for admissions on August 19, 2022. (Id., at p. 2, ll. 7-8.)

As noted above, plaintiff filed the complaint in this matter on February 3, 2022, his FAC on May 19, 2022, and his SAC on November 7, 2022. Caltrans filed its answer to the SAC on March 9, 2023.

The court agrees with the reasoning in Universal Home Improvement, Inc. v. Robertson (2020) 51 Cal.App.5th 116, 130-131 (Universal): “Frankly, we are troubled that a defendant can at the very inception of litigation, at a time when, as best we can tell, no discovery had taken place, and certainly no deposition, serve RFAs essentially seeking responses admitting that plaintiff had no case, and then, if plaintiff ultimately proves unsuccessful, recover costs of proof attorney fees, as here. This, it could be said, is tantamount to a form of strict liability: make a claim; deny an early-served RFA that the claim has no merit; vigorously pursue the claim; lose the claim; and pay. That cannot be the law.”

Although Universal involved a situation where the defendant prevailed and sought costs of proof, the reasoning is the same in the present situation. Plaintiff cannot propound requests for admission prior to a party even filing an answer and expect to recover cost of proof fees and costs.

Also, based on the evidence available, Caltrans had reasonable grounds to believe that it would prevail on the matter. According to the traffic collision report, co-defendant McCurnin was the sole cause of the accident, and CHP officer Gutierrez testified at trail in accordance with that conclusion. Just because the jury disagreed does not in any way mean that Caltrans improperly denied the requests for admission.

Finally:

“Plaintiffs must show they spent the amounts claimed to prove the issues defendants should have admitted [Citations.] The requested amounts must be segregated from costs and fees expended to prove other issues. [Citations.]” (Grace, supra, 240 Cal.App.4th at p. 529.)

           

Plaintiff seeks to recover many items of fees and costs that were clearly not incurred to prove the denied admissions. Plaintiff essentially includes everything, including items such as opposing a motion for summary judgment, deposing numerous witnesses, preparing for trial, etc. Plaintiff has failed to properly segregate the costs and fees and the court cannot tell from the submitted declarations which portions of which activity pertain to proving the denied requests for admission.

For all of the above reasons, plaintiff’s motion for cost of proof fees and costs will be denied.