AUSTIN REILLY ET AL VS MICHAEL CHARLES PARKER ET AL

Tentative Rulings

Case Number: BC619135    Hearing Date: December 05, 2019    Dept: O

’s motions to strike and tax costs sought by Defendants Foothill Pizza, Inc., and Michael Charles Parker are DENIED, in part, and GRANTED, in part.

Plaintiffs Austin Reilly, Owen Reilly, and Christie Reilly (collectively, the “Plaintiffs”) move to strike and tax costs per California Rule of Court 3.1700(b) after Defendants Foothill Pizza, Inc. and Michael Charles Parker (collectively, the “Defendants”) prevailed at trial.

While Plaintiff Austin Reilly separately filed a motion to tax cost from his parents, Plaintiffs Owen and Christie Reilly, the Court will consider the motions together as they overlap in argument and are identical in several sections of the submitted papers.

As a preliminary matter, the Court finds that these costs can be assessed against all Plaintiffs jointly and severally. The Court also finds that the lack of a Memorandum of Cost Worksheet does not invalidate a Memorandum of Cost as there is no legal basis for this contention by Plaintiffs. While the Court has considered the percentage of costs that will be borne by each plaintiff, the Court believes that most of the costs should be borne solely by Plaintiff Austin Reilly.

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. (CCP § 1032(b).)

The losing party may dispute any or all the items in the prevailing party’s memorandum of costs by a motion to strike or tax costs. (CRC 3.1700(b).) 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. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774, emphasis added.) 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. (Ibid.)

Item 1: Filing Fees:

The Court finds that the court filing fees for Defendant’s three stipulations to continue trial ($60), and Defendant’s motion for summary judgment are proper and necessary to the conduct of litigation. While Plaintiffs essentially requests that the Court apportion the filing fee for the summary judgment between Defendant Foothill Plaza and former defendant Bruce Gibson, there is no risk that Plaintiffs would need to repay an additional cost to Bruce Gibson for this motion. (See Kramer v. Ferguson (1964) 230 Cal.App.2d 237, 249-51.) Accordingly, the Court declines to tax Item 1.

Item 4: Deposition Costs:

The Court finds the witness fees for the depositions of (1) the Covina Police Department officers that responded to the incident, (2) the character witnesses of Defendant Parker, (3) expert witness depositions, and (4) Plaintiff’s medical records were necessary to the conduct of litigation. The Court declines to tax these amounts for Item 4 but will agree to tax $1,408.99 from the total cost of Item 4 for the deposition of Joseph Devereaux.

Items 5 & 8.A: Service of Process; Witness Fees

Likewise, the service of deposition subpoenas to the above witnesses, along with fees associated with those that testified at trial, were also necessary to the conduct of litigation. The Court declines to tax these Items.

Item 8.B: Expert Witness Fees:

As an initial matter, the Court finds that the section 998 offer made by Defendants jointly is valid under California case law. (See Winston Square Homeowner’s Assoc. v. Centex West, Inc. (1989) 213 Cal.App.3d 282, 294 (defendant found not liable on non-joint claim was entitled to rely on joint 998 offer by defendants even though not broken down); see also Stallman v. Bell (1991) 235 Cal.App.3d 740, 745-77; Brown v. Nolan (1979) 98 Cal.App.3d 445, 451.) Thus, expert witness fees are recoverable.

Item 12: Models, Enlargements, and Photocopies of Exhibits:

The Court finds that the costs associated with exhibits used at trial are reasonable and necessary to the conduct of litigation pursuant to Ladas v. California State Auto Ass’n (1993) 19 Cal.App.4th 761.

Item 16: Mediation Fees:

The Court finds that the mediation fees are reasonable and necessary to the conduct of litigation and declines to tax Item 16.

Code of Civil Procedure section 1032 grants the Court discretion to apportion costs between the parties on the same side to the prevailing party of a lawsuit. (CCP § 1032(a)(4).) This discretion allows trial court to assess costs jointly and severally against multiple losing plaintiffs who jointly prosecute claims against a prevailing defendant. (Id.; see also Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1375.) Based on the foregoing and the pleadings filed in this matter, Defendant Foothill Pizza, Inc. is entitled to recover $61,761.77 from Plaintiff Austin Reilly, $64,074.27 from Plaintiffs Owen and Christine Reilly, and Defendant Michael Parker is entitled to recover $21,714.00 from Plaintiffs. Throughout this litigation, it appears that the thrust of this case surrounded the conduct and actions of Plaintiff Austin Reilly and his parents Plaintiffs Owen and Christina Reilly’s involvement in this litigation was minimal. However, the Court is reminded that despite their minimal involvement, the Court was concerned about Plaintiff Owen Reilly’s testimony at trial and finds that all Plaintiffs in this action should be held liable for some portion of the costs. As a result, the Court finds that Plaintiff Austin Reilly, individually, will be responsible for 95% of the total amount of $83,475.77, and Plaintiffs Owen and Christine Reilly will be responsible for 5% of such an amount jointly and severally amongst Plaintiffs plus the additional witness fees of $2,312.50.

Based on the foregoing, motion is DENIED, in part, and GRANTED, in part.