Anthony Fuller v. Casey J. Crawford, et al

Case Number

22CV05156

Case Type

Hearing Date / Time

Wed, 05/07/2025 - 10:00

Nature of Proceedings

1) Plaintiff’s Motion For Leave To File First Amended Complaint; 2) Defendant’s Motion To Tax Costs; and, 3) Plaintiff’s Motion To Strike Challenge Asphalt’s Memorandum Of Costs Or In The Alternative Motion To Tax Costs

Tentative Ruling

For Plaintiff Anthony Fuller: Patricia A. Boyes, Elizabeth J. Boyes, Boyeslegal, APC, Herm Kalfen, Kalfen Law Corporation

                                   

For Defendant Casey J. Crawford, Trustee of the Casey J. Crawford Trust: Brian S. Dewey, Bretoi, Lutz & Stele

                                   

For Defendants Challenge Asphalt, Inc., and Michael Dewayne Copus: Daniel P. Schrader, Spencer Y. Wong, Manning Gross Massenburg LLP

RULING

(1) For all reasons discussed herein, the motion of plaintiff for leave to file a first amended complaint is denied.

(2) For all reasons discussed herein, the motion of defendant Casey J. Crawford, Trustee of the Casey J. Crawford Trust’s to tax costs is granted, in part and in accordance with this ruling. Except as otherwise herein granted, the motion is denied.

(3) For all reasons discussed herein, the motion of plaintiff to strike or, in the alternative, tax defendants’ memorandum of costs is granted, in part and in accordance with this ruling. Except as otherwise herein granted, the motion is denied.

(4) For all reasons discussed herein, the court disallows costs in the amount of $700 claimed under item 15 of the memorandum of costs filed on March 13, 2025, by defendants Challenge Asphalt, Inc., and Michael Dewayne Copus. The court confirms an award of costs in the amount of $5,162.57 in favor of defendants Challenge Asphalt, Inc., and Michael Dewayne Copus.

The trial date of 6/18/25 is confirmed; the Court has reserved [6/19 is a holiday?]; 6/20; 6/23; 6/24; 6/26; 6/27; 6/30; 7/1; 7/3 = 8 days All trial documents due one week in advance of 6/18/25. [Plaintiff estimated 5-6 trial days]

Background

On December 30, 2022, plaintiff Anthony Fuller filed a complaint against defendant Casey J. Crawford (Crawford), Trustee of the Casey J. Crawford Trust (the Trust), alleging one cause of action for premises liability. In the complaint, plaintiff alleges that a slippery foreign transitory substance present on Crawford’s driveway caused plaintiff to lose his balance, slip, and fall, causing injuries and damages. (Note: The date of the incident as alleged in the complaint appears to include a typographical error.)

On May 22, 2023, Crawford filed an answer to the complaint, generally denying its allegations and asserting nineteen affirmative defenses, and separately filed a cross-complaint (the Crawford cross-complaint) alleging three causes of action for indemnification, apportionment of fault, and declaratory relief against defendants designated by the fictitious names of Roes 1 through 50.

On May 20, 2024, plaintiff filed an amendment to the complaint substituting Challenge Asphalt, Inc. (Challenge) and Michael Dewayne Copus (Copus) for the defendants designated by the fictitious names of, respectively, Doe 1 and Doe 2.

On June 25, 2024, Challenge and Copus filed an answer to plaintiff’s complaint, generally denying its allegations and asserting twenty-three affirmative defenses.

On July 11, 2024, Crawford filed an amendment to the Crawford cross-complaint substituting Challenge for the cross-defendant designated by the fictitious name of Roe 1.

On September 25, 2024, Challenge filed an answer to the Crawford cross-complaint, generally denying its allegations and asserting twenty-three affirmative defenses.

On November 26, 2024, Copus filed a motion for summary judgment (the Copus MSJ) as to the sole cause of action for premises liability alleged in plaintiff’s complaint, on the grounds that Copus did not own, possess, or control the location where the incident at issue occurred, and that the complaint fails to allege facts sufficient to hold Copus liable under an alter ego theory. (Notice of Copus MSJ at p. 2.)

Also on November 26, 2024, Challenge separately filed a motion for summary judgment (the Challenge MSJ) as to the sole cause of action alleged in plaintiff’s complaint and as to the Crawford cross-complaint, on the grounds that in May 2018, Crawford accepted work performed by Challenge at the location where the incident occurred, that Challenge is not liable to plaintiff under the “Accepted Work” doctrine, and that the claims alleged in the Crawford cross-complaint are subject to dismissal under the principle of “no indemnity without liability.” (Notice of Challenge MSJ at pp. 2-3.)

The Copus MSJ was opposed by plaintiff. The Challenge MSJ was opposed by plaintiff and Crawford.

On February 6, 2025, the parties filed a stipulation to substitute Crawford as Trustee of the Trust, for Casey J. Crawford in the answer to the complaint filed by Crawford on May 22, 2023, among other filings.

On February 13, 2025, plaintiff filed an ex parte application (the application) for leave to file a first amended complaint to add a cause of action for general negligence, and new party Rob Jones Asphalt, based on plaintiff’s purported discovery of new facts during a deposition conducted on January 9, 2025. In the application, plaintiff also requested a trial continuance.

Challenge and Copus opposed the application.

On February 14, 2025, the court entered an order (the Order After Ex Parte), denying the application.

On February 20, 2025, plaintiff filed an amendment to the complaint substituting Rob Jones Asphalt for the defendant designated by the fictitious name of Doe 3.

On February 26, 2025, the court entered a minute order (the MSJ Order) granting the Copus MSJ and the Challenge MSJ.

On February 27, 2025, Challenge and Copus filed a notice of entry of the MSJ Order.

On February 28, 2025, plaintiff filed a motion for leave (the motion for leave) to file a first amended complaint, a copy of which is attached to the declaration of Patricia A. Boyes (Boyes) submitted in support of that motion.

The motion for leave is opposed by Crawford, and separately opposed by Challenge and Copus.

On March 10, 2025, the court entered an order (the Dismissal Order) dismissing, with prejudice, plaintiff’s complaint as to Challenge and Copus, and dismissing, with prejudice, the Crawford cross-complaint as to Challenge. (Dismissal Order, ¶¶ 2-3 & 5.) In the Dismissal Order, the court further ordered that Challenge and Copus shall recover their costs of suit. (Id. at ¶ 6.)

On March 13, 2025, Challenge and Copus (the Challenge Defendants) filed a memorandum of costs (the cost memorandum) requesting an award of costs in the total amount of $5,862.57.

On March 27, 2025, Crawford filed a motion for an order (the Crawford Cost Motion) to tax the costs claimed in the cost memorandum.

On April 1, 2025, plaintiff a motion for an order (Plaintiff’s Cost Motion) to strike or tax the cost claimed in the cost memorandum.

Analysis

(1) The Motion For Leave

The application further described above and the present motion for leave each advance the same or substantively similar factual and legal arguments in support of plaintiff’s request for leave to file a first amended complaint to add a new cause of action for general negligence and new party Rob Jones Asphalt. The first amended complaint attached to the present motion is also substantively identical to the first amended complaint submitted with the application.

In addition to the above, the present motion for leave and proposed first amended complaint include contentions relating to photographs purportedly taken on March 12, 2021, which plaintiff contends show deteriorated asphalt with fissures and indentations at the location where the incident occurred, to cracks and gulleys in the asphalt at the subject location, and relating to a purported recommendation that, to ensure proper curing, asphalt companies such as Rob Jones Asphalt should wait two weeks before applying white markings to asphalt.

As the application requested the same or effectively the same relief as the present motion for leave, was made on the same or effectively identical grounds as the present motion, and was refused pursuant to the Order After Ex Parte, the court considers the present motion to request that the court reconsider plaintiff’s application, and revoke the Order After Ex Parte.

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).)

Code of Civil Procedure section 1008 is jurisdictional, and requires the party requesting a reconsideration of a prior court order to, among other things, submit an affidavit setting forth the new or different facts, circumstances, or law claimed by that party, to demonstrate diligence, and to provide a satisfactory explanation for not presenting the new or different information at an earlier time. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833, 839-840.)

Noted above, the court’s records reflect that the Order After Ex Parte was entered on February 14, 2025, and that written notice of entry of that order was ostensibly served on plaintiff’s counsel by electronic mail on the same date. Plaintiff offers information showing that he did not receive written notice of entry of the Order After Ex Parte on February 14, 2025. For these reasons, the motion for leave does not appear to be timely.

Notwithstanding the timeliness of the present motion, plaintiff also fails to show sufficient grounds to justify the court’s reconsideration of the Order After Ex Parte for all reasons discussed below.

The motion for leave is supported by the Boyes declaration, in which Boyes states that plaintiff’s counsel substituted into this case on December 12, 2023, that the parties have conducted written discovery, that Crawford has taken the depositions of plaintiff and Challenge, that a deposition of the “PMK” of Challenge Asphalt revealed that Challenge hired Rob Jones Asphalt to do the striping and arrows in the driveway and parking area at the subject property, that plaintiff will need to conduct further discovery including by taking deposition of the “PMK” of Rob Jones Asphalt, that the parties participated in a mediation on February 5, 2025, during which the case did not settle, and that if plaintiff is not allowed to add a cause of action for general negligence, Rob Jones Asphalt could request a trial continuance for the purpose of filing a motion for summary judgment which Boyes asserts would further delay this proceeding. (Boyes Decl., ¶¶ 8, 11-12, 14, 17.)

The Boyes declaration submitted in support of the motion for leave, and the motion itself, fails to set forth new or different facts, circumstances, or law. By way of example, the Boyes declaration described above includes the same or substantially similar information as the declaration submitted in support of the application. Moreover, except as to the additional allegations described above, the first amended complaint which plaintiff proposes to file includes the same or substantively similar allegations as the first amended complaint submitted with the application. Plaintiff fails to provide is “any explanation for the fact the [application and motion for leave are] identical.” (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 383.)

Furthermore, to the extent the present motion for leave is based on new assertions or allegations that were not included in the prior application or proposed first amended complaint, plaintiff offers no information to show when plaintiff obtained knowledge of these purportedly new facts or circumstances. To the extent these facts or circumstances were known to plaintiff at the time the application was filed, plaintiff fails to provide any explanation showing why they were not produced or identified at an earlier time. (Yolo County Dept. of Child Support Services v. Myers (2016) 248 Cal.App.4th 42, 50.)

In addition, as to the request to add a cause of action for negligence against the Challenge Defendants, there exists a question as to whether the court has jurisdiction to grant plaintiff leave to assert a new cause of action under the circumstances present here.

Pursuant to the Dismissal Order described above, the complaint as to the Challenge Defendants was dismissed with prejudice based on the court granting the Challenge MSJ and the Copus MSJ. A dismissal with prejudice “ ‘is determinative of the issues in the action and precludes the dismissing party from litigating those issues again.” [Citations.] ‘ “The statutory term ‘with prejudice’ clearly means the plaintiff’s right of action is terminated and may not be revived.” [Citation.]’ [Citation.]” (Estate of Redfield (2011) 193 Cal.App.4th 1526, 1533, original italics.)

Plaintiff does not appear to dispute that the cause of action for negligence which plaintiff proposes to include in the first amended complaint is based on the same set of facts at issue in the complaint. (Motion For Leave at pp. 7-8.) The dismissal of the Challenge Defendants from the complaint, with prejudice, serves as a judgment on the merits of plaintiff’s claims and bars a future action for negligence against these defendants to the extent that cause of action arises from the same subject matter. (Lama v. Comcast Cablevision (1993) 14 Cal.App.4th 59, 64.) Further, the dismissal of the action as to the Challenge Defendants deprives the court of personal jurisdiction over these defendants. (Casa De Valley View Owner’s Assn. v. Stevenson (1985) 167 Cal.App.3d 1182, 1192.) For these reasons, the proposed first amended complaint is barred as to the new cause of action for general negligence against the Challenge Defendants.

For all reasons discussed above, plaintiff has failed to identify new or different facts, circumstances, or law sufficient to justify the court’s reconsideration of the application or to revoke the Order After Ex Parte. Furthermore, plaintiff’s right of action against the Challenge Defendants was terminated by the dismissal of these defendants from the action, with prejudice. Therefore, and for all reasons discussed above, the court will deny the motion for leave.

(2) The Crawford Cost Motion and Plaintiff’s Cost Motion

As to the Crawford cross-complaint, Crawford does not appear to dispute in the Crawford Cost Motion that the Challenge Defendants are the prevailing party.

As to plaintiff’s complaint, though plaintiff asserts in Plaintiff’s Cost Motion that the Challenge Defendants are not a prevailing party because plaintiff’s motion for leave is pending, the court will, for all reasons discussed above, deny the motion for leave. Plaintiff further contends that the Challenge Defendants are not a prevailing party as to the complaint because they did not obtain a net monetary recovery and a dismissal has not been entered.

Code of Civil Procedure section 1032 defines a “prevailing party” to include “a defendant in whose favor a dismissal is entered….” (Code Civ. Proc., § 1032, subd. (a)(4).) (Note: Undesignated code references below shall be to the Code of Civil Procedure unless otherwise stated.) As further discussed above, plaintiff’s complaint as to the Challenge Defendants was dismissed with prejudice pursuant to the Dismissal Order. For this reason, the Challenge Defendants are the prevailing party as to the sole cause of action alleged in plaintiff’s complaint.

“Section 1032 is the fundamental authority for awarding costs in civil actions. It establishes the general rule that ‘[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.’ [Citation.]” (Scott Co. of California v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Unless otherwise provided by statute, “the court has no discretion to deny costs to the prevailing party.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 128-129 (Nelson). )

Under subdivision (a)(4) of section 1032, and for all reasons discussed above, the Challenge Defendants are a prevailing party as to plaintiff’s complaint and the Crawford cross-complaint.

Section 1033.5, subdivision (a), sets forth items categorically allowable as costs, if incurred. (Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 667.) Costs which are not mentioned in section 1033.5 and claimed under subdivision (c)(4), are allowable in the court’s discretion. (Ibid.) “Costs are allowable . . . whether or not paid[]”, and must be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5, subd. (c)(1)-(3); see also Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 856 (Benach) [verified memorandum is prima facie evidence that costs were necessarily incurred].)

“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 [sic] 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); see also Benach, supra, 149 Cal.App.4th at p. 855 [trial court’s first determination is whether the statute expressly allows item and if it appears proper on its face].)

Under items 1, 4, 5, and 15 of the cost memorandum, the Challenge Defendants request, respectively, filing and motion fees in the amount of $3,164.55, deposition costs in the amount of $642.75, service of process fees in the amount of $1,355.27, and “other” costs in the amount of $700. (Cost Memo. at p. 1.) The costs claimed by the Challenge Defendants totals $5,862.57. (Ibid.)

Costs incurred for filing and motion fees, the taking and transcribing of necessary depositions, and service of process are expressly allowable under Code of Civil Procedure section 1033.5, subdivision (a)(1), (3), and (4). For these reasons, the costs claimed under items 1, 4, and 5 of the cost memorandum appear proper on their face. As to the “other” costs claimed under item 15, there is insufficient information in the cost memorandum to permit the court to determine whether the statute expressly allows this item, or to show that the costs claimed in this item are proper on their face.

For reasons further discussed above, plaintiff and Crawford bear the burden to show why any costs which appear proper on their face were not reasonable or necessary, or to otherwise properly object to the costs claimed in the cost memorandum.

In the Crawford Cost Motion, Crawford contends that the filing and motion fees claimed under item 1 of the cost memorandum include attorney service fees in the amount of $594.55, which Crawford contends are not recoverable. Crawford further contends that the costs claimed under item 5 for service of process improperly reflect recovery of subpoenaed records. In addition, Crawford asserts that the costs described as “other” under item 15 include a mediation fee which Crawford argues should be stricken in its entirety.

In Plaintiff’s Cost Motion, plaintiff also contends that the costs for service of process and “other” costs claimed under, respectively, items 5 and 15 of the cost memorandum include improper costs for subpoenaed documents and a mediation fee. As to the filing and motion fees claimed in item 1 of the cost memorandum, plaintiff contends that, because the Challenge Defendants have not specified what documents were filed for what purpose, the Challenge Defendants may only recover the cost to file an answer to the complaint in the amount of $435. As to the deposition costs claimed under item 4, plaintiff asserts that the Challenge Defendants have failed to identify the name of any deponent, and may not recover costs to obtain a copy of plaintiff’s deposition transcript.

In their separately filed oppositions to Plaintiff’s Cost Motion and the Crawford Cost Motion, the Challenge Defendants advance the same if not substantially similar points. The Challenge Defendants assert that, as to the motion and filing fees claimed under item 1, these costs include court and other fees to electronically file an answer, a notice relating to jury fees, motions for summary judgment, and a joint stipulation by the parties, each of which the Challenge Defendants contend are recoverable. The Challenge Defendants also contend that the service of process fees claimed under item 5 of the cost memorandum were incurred to obtain medical records from plaintiff’s treatment providers which were necessary to obtain evidence of plaintiff’s damages, to defend against the claims asserted in the Crawford cross-complaint, and to conduct an expert evaluation of the reasonableness and necessity of plaintiff’s treatment.

The Challenge Defendants also assert that, as to the deposition costs claimed under item 4, they required a copy of the transcript of plaintiff’s deposition because that deposition was taken before the Challenge Defendants appeared in this action.

The Challenge Defendants offer no reasoned argument showing why the “other” costs in the amount of $700 are allowable.

Filing and motion fees (Cost Memorandum Item 1):

As to the filing and motion fees claimed under item 1 in the amount of $3,164.55, attached to the cost memorandum are eight invoices from “Asap Legal” dated June 21, September 26, November 27, December 13, and December 27, 2024, and January 10 and 24, 2025. (Cost Memo. at pdf pp. 3, 17-18, & 20-24.) These invoices separately identify court filing fees incurred by the Challenge Defendants in connection with various documents filed in this action, and e-filing, processing, and transaction fees (collectively, the attorney service fees) imposed by Asap Legal in connection with each court filing. (Ibid.)

The invoices from Asap Legal attached to the cost memorandum shows that the Challenge Defendants incurred fees charged by the court to file responsive pleadings, two motions for summary judgment, and a motion to continue the trial. (Cost Memo. at pdf pp. 3, 18, 20.) These costs are expressly allowable under subdivision (a)(1) of section 1033.5.

As to the attorney service fees charged by Asap Legal in connection with the electronic filing of the documents described above, subdivisions (a) and (b) of section 1033.5 do not expressly state whether or not attorney service charges incurred in connection with court filings are allowable. “Thus, these costs fall within the ‘discretionary category,’ subdivision (c)—that is, they are allowable if in the court’s discretion they were ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’” (Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1132 (Sanford).)

Though plaintiff generally contends that the Challenge Defendants may not recover attorney service fees, plaintiff offers no reasoned argument in Plaintiff’s Cost Motion to show why these fees are unreasonable or unnecessary.

In addition, though Crawford also generally asserts in the Crawford Cost Motion that attorney service fees are categorically not allowable, to the extent these costs are reasonably necessary to the conduct of the litigation, the court has discretion to allow these fees for reasons further discussed above. (Sanford, supra, 246 Cal.App.4th at pp. 1132-1133.)

Furthermore, in their oppositions to the Crawford Cost Motion and Plaintiff’s Cost Motion, the Challenge Defendants present an adequate basis for why the court should allow the attorney service fees included under item 1 of the cost memorandum, which is sufficient to show that these fees were necessary to the conduct of the Challenge Defendants’ defense in this litigation and for matters that were necessary to the conduct of this litigation as to all parties to this action. (Benach, supra, 149 Cal.App.4th at p. 858.) The attorney service fees included in the Asap Legal also do not, on their face, appear unreasonable, unnecessary, or excessive. (Cf. Nelson, supra, 72 Cal.App.4th at p. 132 [messenger fees were unreasonable when compared to the cost of alternatives].) As further discussed above, neither plaintiff nor Crawford have provided a basis for concluding that the attorney service fees are of doubtful necessity or reasonableness.

For all reasons discussed above, the court finds that the filing and motion fees claimed under item 1 of the cost memorandum are expressly allowable, reasonable, and reasonably necessary to the conduct of this litigation. Therefore, the court will allow these costs.

Deposition costs (Cost Memorandum Item 4):

Deposition costs in the amount of $642.75 claimed under item 4 of the cost memorandum appear to relate to an invoice from Norman Schall & Associates dated July 26, 2024, for fees to obtain one “e-copy” of the transcript of plaintiff’s deposition. (Cost Memo. at pdf p. 4.) Information appearing in this invoice also reflects that the deposition of plaintiff at issue was taken on September 28, 2023. (Ibid.)

In their opposition to Plaintiff’s Cost Motion, the Challenge Defendants assert that, at the time plaintiff’s deposition was taken in this action, they had not yet appeared and, therefore, did not have an opportunity to attend that deposition. For this reason, the Challenge Defendants argue, it was necessary to obtain statements made by plaintiff as reflected in the transcript in order conduct their defense of this litigation including to support the Copus MSJ and the Challenge MJS further described above.

The court’s records described above reflect that the Challenge Defendants were not named as defendants in this action until May 20, 2024, and did not appear until June 25, 2024. As plaintiff’s deposition was ostensibly taken before the date the Challenge Defendants appeared in this action, the Challenge Defendants have made a sufficient showing that the deposition costs claimed under item 4 of the cost memorandum were reasonably necessary to the conduct of their defense of this litigation. Further, the fee incurred by the Challenge Defendants to obtain a copy of plaintiff’s deposition transcript appears reasonable on its face.

Costs for transcribing necessary depositions are expressly allowable under subdivision (a)(3)(A) of section 1033.5. Considering that plaintiff’s deposition occurred before the Challenge Defendants were named or appeared in this action, and that neither plaintiff nor Crawford appear to contend that plaintiff’s deposition was not necessary, the cost incurred by the Challenge Defendants to obtain a copy of the transcript of that deposition was reasonably necessary to the conduct of the Challenge Defendants’ defense of this litigation. For these and all reasons discussed above, the court will allow the deposition cost claimed under item 4 of the cost memorandum.

Service of process (Cost Memorandum Item 5):

Costs incurred for “[s]ervice of process by a public officer, registered process server, or other means” are expressly allowable under the provisions of Code of Civil Procedure section 1033.5, subdivision (a)(4). Attached to the cost memorandum are invoices from “Lexitas” which show that the costs claimed under item 5 of the cost memorandum were incurred by the Challenge Defendants in connection with the preparation and service of “subpoenas” directed to Channel Islands Surgery Center, Community Memorial Health System, St. John’s Regional Medical Center, MDRS Spine and Sport, Inc., Pacific Foot & Ankle, Quest Diagnostics, Ventura Orthopedics, and Optum360. (Cost Memo. at pp. 5-16.)

Plaintiff and Crawford each contend, in a conclusory fashion, that costs for service of process claimed under item 5 are not allowable solely because they relate to subpoenaed records. Apart from these conclusory statements, wholly absent from Plaintiff’s Cost Motion and the Crawford Cost Motion is any reasoned factual or legal argument showing why the costs claimed in item 5 of the cost memorandum are not allowable. For this reason, plaintiff and Crawford have each failed to put these costs at issue. (Ladas, supra, 19 Cal.App.4th at p. 774.)

Furthermore, neither plaintiff nor Crawford offer any information or argument to show why the subpoenas described in the Lexitas invoices submitted with the cost memorandum are not directed to medical professionals who provided treatment for plaintiff’s injuries, why the Challenge Defendants were not justified in pursuing the production of documents from these providers, or why fees incurred in connection with the subpoenas described in the Lexitas are not reasonable or  reasonably necessary to the conduct of this litigation. (See Garcia v. Tempur-Pedic North America, LLC (2024) 98 Cal.App.5th 819, 824-825 [allowing fees for service of process to pursue deposition of medical professionals who treated plaintiff for injuries].)

Considering that the undisputed evidence and information in the record is sufficient to show that the costs claimed under item 5 of the cost memorandum were incurred by the Challenge Defendants in connection with subpoenas to medical professionals who treated plaintiff for the injuries at issue in this action, and for all reasons further discussed above, the court finds that these costs were reasonably necessary to the litigation of this action. Therefore, and for all reasons discussed above, the court will allow the costs claimed under item 5 of the cost memorandum.

Other (Cost Memorandum Item 15):

As to the “other” costs claimed under item 15 of the cost memorandum, attached to that memorandum is an “mediation notice” from mediator R.A. Carrington, which identifies a deposit of $700 due from each of the parties to this action for a mediation which ostensibly occurred on February 5, 2025. (Cost Memo. at pdf p. 19.) Absent a dispute or other explanation from the Challenge Defendants, it appears to the court that the “other” costs in the amount of $700 claimed under item 15 of the cost memorandum relate to mediator fees incurred in connection with a mediation. (Ibid.)

Fees of a mediator are not expressly allowable under subdivision (a) of section 1033.5. In addition, the Challenge Defendants fail to explain why costs incurred for mediator fees were reasonably necessary to the conduct of this litigation, and offer no reasoned argument showing why the court should exercise its discretion to allow this cost. (See, e.g., Sanford, supra, 246 Cal.App.4th at pp. 1127, 1131 [general discussion of court’s discretion to allow mediator fees that are reasonably necessary to the conduct of the litigation].)

For all reasons discussed above, the “other” cost claimed in item 15 of the cost memorandum does not appear to be proper on its face. Further, plaintiff and Crawford have met their burden to show why the cost claimed in item 15 is not allowable. As the Challenge Defendants offer no information to show why mediator fees were reasonably necessary to the conduct of this litigation, the court will disallow the cost claimed under item 15 of the cost memorandum.