On 09/01/2016 JILL LAFACE filed a Labor - Other Labor lawsuit against RALPHS GROCERY COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ROBERT L. HESS. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
ROBERT L. HESS
KROGER CO. THE
RALPHS GROCERY COMPANY
DOES 1 THROUGH 10
THE KROGER CO.
JEHDIAN MICHAEL V. ESQ.
JARDINI ANDRE E. ESQ.
JARDINI ANDRE EMILIO
JEHDIAN MICHAEL VAHE
JARDINI ANDRE E
JEHDIAN MICHAEL V
RYAN TIMOTHY FRANCIS
4/5/2019: Proof of Personal Service
1/5/2018: JOINT STATUS REPORT REGARDING EXPERT DISCOVERY
1/23/2018: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE
6/21/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE
10/9/2018: Minute Order
9/1/2016: REPRESENTATWE COMPLAINT UNDER THE PRIVATE ATTORNEYS GENERAL ACT OF 2004 (CALIFORNIA LABOR CODE SECTION 2698 ET SEQ.) DEMAND FOR JURY TRIAL
12/15/2016: NOTICE OF CASE MANAGEMENT CONFERENCE
1/31/2017: Minute Order
5/31/2017: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE
6/6/2017: STIPULATION AND PROTECTIVE ORDER
8/17/2017: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE
at 10:00 AM in Department 24; Jury Trial - Not Held - Advanced and VacatedRead MoreRead Less
at 09:30 AM in Department 24; Final Status Conference - Not Held - Continued - Party's MotionRead MoreRead Less
Notice ( After April 29, 2019 Status Conference); Filed by Ralphs Grocery Company (Defendant)Read MoreRead Less
at 08:30 AM in Department 24; Status Conference (re Jury or Court Trial) - HeldRead MoreRead Less
at 08:30 AM in Department 24; Hearing on Ex Parte Application (FOR ORDER CONTINUING THE TRIAL DATE AND FSC DATE; MEMORANDUM OF POINTS AND AUTHORITIES) - Held - Motion GrantedRead MoreRead Less
Ex Parte Application (FOR ORDER CONTINUING THE TRIAL DATE AND FSC DATE; MEMORANDUM OF POINTS AND AUTHORITIES); Filed by Jill Laface (Plaintiff)Read MoreRead Less
Opposition (to Plaintiff's Ex Parte Application for an Order Continuing the Trial Date and FSC Date; Declaration of Tritia M. Murata); Filed by Ralphs Grocery Company (Defendant)Read MoreRead Less
Minute Order ( (Status Conference re Jury or Court Trial; Hearing on Ex Parte...)); Filed by ClerkRead MoreRead Less
Order Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Ralphs Grocery Company (Defendant)Read MoreRead Less
Declaration in Support of Ex Parte Application; Filed by Jill Laface (Plaintiff)Read MoreRead Less
REQUEST FOR DISMISSALRead MoreRead Less
Partial Dismissal(not entire case); Filed by Plaintiff/PetitionerRead MoreRead Less
DEFENDANT RALPHS GROCERY COMPANY'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINTRead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
FIRST AMENDED REPRESENTATIVE COMPLAINT UNDER THE PRIVATE ATTORNEYS GENERAL ACT OF 2004 (CALIFORNIA LABOR CODE SECTION 2698 ET SEQ.) DEMAND FOR JURY TRIALRead MoreRead Less
SUMMONS ON FIRST AMENDED COMPLAINTRead MoreRead Less
REPRESENTATWE COMPLAINT UNDER THE PRIVATE ATTORNEYS GENERAL ACT OF 2004 (CALIFORNIA LABOR CODE SECTION 2698 ET SEQ.) DEMAND FOR JURY TRIALRead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Jill Laface (Plaintiff)Read MoreRead Less
Case Number: BC632679 Hearing Date: January 07, 2021 Dept: 1
COUNSEL ARE STRONGLY URGED TO SUBMIT ON THE TENTATIVE RULING. IF AN APPEARANCE IS NECESSARY, COUNSEL ARE STRONGLY URGED TO APPEAR REMOTELY VIA LA COURT CONNECT RATHER THAN IN PERSON.
On November 12, 2019, bench trial commenced in LaFace before Judge Patricia Nieto.
On January 6, 2020, the Court, by Judge Nieto, found in favor of Ralphs after trial.
On January 31, 2020, Plaintiffs John Yannoulatos and Jill LaFace filed a Complaint against Ralphs Grocery Company and Does (this action is hereinafter referred to as “Yannoulatos”).
On June 9, 2020, Yannoulatos and LaFace filed a peremptory challenge to Judge Nieto under Code of Civil Procedure section 170.6 in the Yannoulatos action. Ralphs opposed this challenge on the ground that Yannoulatos was a continuation of LaFace, in which a peremptory challenge had already been filed.
On June 30, 2020, the Court deemed LaFace and Yannoulatos related cases.
On July 29, 2020, the Court, by Judge Nieto, denied the peremptory challenge, finding Yannoulatos was a continuation of LaFace and that factual issues going to the merits of both actions had been addressed in LaFace, in which LaFace herself was a plaintiff and Plaintiff Yannoulatos was a trial witness and aggrieved employee.
On August 12, 2020, LaFace and Yannoulatos petitioned the Court of Appeal for a writ of mandate requiring the peremptory challenge be granted. Ralphs opposed this.
On November 19, 2020, the Court of Appeal issued a writ requiring the Court grant the peremptory challenge.
On December 2, 2020, the Court by Judge Nieto accepted the peremptory challenge in Yannoulatos and transferred the related cases to Department 1 for reassignment.
On December 3, 2020, the Court by the undersigned found the cases “shall remain related” and reassigned both cases to Judge Elaine Lu in Department 26 for all purposes.
On December 10, 2020, Ralphs filed a Motion for Reconsideration of the December 3 transfer order on the grounds that reassignment of LaFace was improper.
On December 23, 2020, LaFace filed an Opposition to the Motion for Reconsideration.
On December 30, 2020, Ralphs filed a Reply.
Ralphs argues the Court erred in reassigning the LaFace action to Department 26 alongside Yannoulatos, relying primarily on Rothstein v. Superior Court (2016) 3 Cal.App.5th 424. In turn, LaFace argues the motion for reconsideration should be denied on the grounds that (1) Ralphs did not present new facts or law and (2) Rothstein is distinguishable. Ralphs seeks reconsideration of the order reassigning LaFace only and does not dispute that Yannoulatos should be reassigned.
At the outset, the Court has “inherent authority . . . to reconsider its earlier ruling, and its jurisdiction [is] not truncated by section 1008.” (Case v. Lazben Fin. Co. (2002) 99 Cal.App.4th 172, 179.) The presentation of new facts or law is therefore not dispositive here. The Supreme Court has made clear that Section 1008 should not be construed as limiting the Court’s inherent authority to reconsider its interim rulings, instead “interpret[ing] the statutes . . . as imposing a limitation on the parties' ability to file repetitive motions, but not on the court's authority to reconsider its prior interim rulings on its own motion.” (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1104-7.) “If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief.” (Id. at 1108.) In any event, the Court agrees with Ralphs argument that Rothstein constitutes new law for purposes of Section 1008 because there was no prior opportunity to brief and oppose reassignment of LaFace—Ralphs has therefore offered a reasonable explanation for failing to bring Rothstein to the Court’s attention earlier.
The Court is persuaded that Rothstein controls here, notwithstanding LaFace’s efforts to distinguish that case, as discussed below. In Rothstein, the court identified two issues in assessing the effect of the 170.6 peremptory challenge at issue: (1) whether the peremptory challenge was duly presented or “validly filed” in the second action and (2) whether “both cases must be transferred to another judge” if the peremptory challenge is granted. (Rothstein, supra, 3 Cal.App.5th 424, 430.) The Court concluded “the section 170.6 challenge was validly filed” in the second action, and that the second action was not merely a continuation of the first, but found this did not “resolve the controversy before” the Court. (Id.)
The Rothstein court explained that the “peremptory challenge Precious Time filed in the [second] Civil Case does not disqualify Judge Byrd in the [original] Family Law Case for the most fundamental of reasons: the cases are merely related, not consolidated, and there has been no challenge filed against Judge Byrd in the Family Law Case.” (Id.) “In the words of section 170.6, it has not been established in the Family Law Case that Judge Byrd ‘is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.’” (Id.; CCP sec. 170.6(a)(1).) In turn, the challenging party “emphasiz[ed] both cases have been deemed related under the . . . local rules, which track [CRC] rule 3.300,” arguing that the “Family Law Case . . . should follow the Civil Case when that case is reassigned to another judge.” (Id. at 431.)
The Rothstein court rejected this argument, finding “nothing in section 170.6 that compels such a result.” (Id.) “To the contrary, the judicial administration goals the related case rules ordinarily further must yield to the statutory policy, expressed in section 170.6 itself, of permitting parties a peremptory challenge but preventing use of such a challenge that would result in transfer of a case to a new judge after the currently assigned judge has ruled on disputed matters of fact relating to the merits of a case.” (Id.; CCP sec. 170.6(a)(2) (“The fact that a judge . . . has presided at, or acted in connection with, a pretrial conference or other hearing, proceeding, or motion prior to trial, and not involving a determination of contested fact issues relating to the merits, shall not preclude the later making of the motion provided for in this paragraph”); see National Financial Lending, LLC v. Superior Court (2013) 222 Cal.App.4th 262, 270 (“neither side in a proceeding may make a motion under section 170.6 after trial has commenced or the trial judge has resolved a disputed issue of fact relating to the merits”)) In Rothstein it was “undisputed Judge Byrd ruled on such matters in the Family Law Case before Precious Time filed its peremptory challenge.” (Id.) The court concluded “the substantial rights of a party like Precious Time are fully protected by transfer of only the case in which the challenge was filed; dragging the originally filed case along with it furthers no goal section 170.6 is intended to achieve.” (Id.)
Next, the challenging party “argue[d] that transferring only the Civil Case . . . contravenes principles of judicial economy and could result in inconsistent judicial rulings.” (Id.) The court rejected this argument “for two reasons,” both relevant here. The court found “no possibility of inconsistent rulings here given established priority rules in family law proceedings,” noting the family law court’s exclusive jurisdiction over matters such as division of community property. (Id. at 432.) The court also rejected the efficiency arguments, finding “Precious Time’s judicial economy argument gets things backward,” noting the obvious inefficiencies which would result from “[r]emoving a case from a judicial officer who is substantially familiar with the facts and issues in order to keep that case together with a newly filed case that will go to a judicial officer entirely unfamiliar with either one.” (Id. at 431-32.) The court also recognized that, as a practical matter, the parties should or “will keep the respective judicial officers aware of relevant developments in both actions so that the possibility of conflicting rulings is minimized, if not eliminated” entirely. (Id. at 432.)
LaFace argues Rothstein is primarily about the family law court’s exclusive jurisdiction over marital proceedings. The foregoing discussion shows that this is not the case. The Rothstein court’s discussion of the family law court’s jurisdiction is limited to rebutting the argument that inconsistent rulings would result from partial reassignment. Further, that is merely one of multiple grounds for finding partial reassignment appropriate—the other grounds are considerations of judicial economy equally applicable in any case and discussion of the statutory policies of CCP sec. 170.6 in general. Rothstein is therefore not distinguishable on the ground that it involved reassignment of a family law case; the issues it addressed were not unique to family law proceedings. Further, LaFace’s arguments fail to address those statutory policies expressed by 170.6 as to reassignment of cases where issues of fact going to the merits have been addressed by the current judge. The result sought is inefficient—as explained in Rothstein—and “dragging the originally filed case along . . . furthers no goal section 170.6 is intended to achieve.” (Id.) LaFace has not explained how the instant transfer furthers the goals of Section 170.6 when Judge Nieto has already addressed issues of fact going to the merits.
LaFace argues Ralphs wants the Court to “ignore Judge Nieto’s June 30, 2020 order relating the LaFace and Yannoulatos cases.” This argument is not persuasive. It is undisputed that the cases were properly related pursuant to the Notice of Related Cases filed by Ralphs. However, Ralphs contends the ensuing reassignment of both cases rather than LaFace alone was error because Judge Nieto has already ruled on contested issues of fact going to the merits of the LaFace action. This is plainly a different issue than whether the cases are related.
In view of the foregoing, the Court finds Rothstein controls here on the issue of whether this peremptory challenge requires reassignment of the earlier-filed LaFace case notwithstanding Judge Nieto’s resolution of factual issues. The Court concludes such reassignment is not required by Section 170.6. The LaFace and Yannoulatos actions “are merely related, not consolidated, and . . . no challenge [was] filed” in LaFace against Judge Nieto. Further, as Ralphs argues, any such challenge would have been untimely where trial is complete in LaFace. (CCP sec. 170.6(a)(2) (“In no event shall a judge, court commissioner, or referee entertain the motion if it is made . . . after trial of the cause has otherwise commenced.”)) Rothstein therefore requires LaFace not be reassigned with Yannoulatos. A “section 170.6 challenge filed in a case that is related to (not consolidated with) an earlier-filed case in which the assigned judge has resolved a disputed factual issue relating to the merits requires transfer of only the later-filed case to another judge,” here Yannoulatos. (Rothstein, supra, 3 Cal.App.5th at 428.)
The Motion for Reconsideration is therefore GRANTED. The reassignment of LaFace was not required by Section 170.6. The actions were related, not consolidated, and so did not need to be reassigned together; further, no challenge was filed (or could have been filed) in LaFace. Where Judge Nieto has already conducted a full trial in LaFace, reassignment would be inefficient due to Judge Nieto’s familiarity with the factual issues of LaFace. (CCP sec. 170.6(a)(2); Rothstein, supra, at 431.) The two cases will not be unrelated.
The Motion for Reconsideration is GRANTED. Moving party is ordered to give notice.
Case Number: BC632679 Hearing Date: August 25, 2020 Dept: 24
Plaintiff Jill LaFace’s motion to tax costs is GRANTED in part for $56,655.16 and DENIED as to the remainder.
On September 1, 2016, Plaintiff Jill LaFace (“Plaintiff” or “LaFace”) filed a Private Attorneys General Act of 2004 (“PAGA”) complaint against Defendants Ralphs Grocery Store (“Ralphs”) and The Kroger Co. (collectively “Defendants”). On October 11, 2016, Plaintiff filed the First Amended Complaint (“FAC”), alleging a single cause of action for a violation of Lab. Code section 1198, which bars conditions of labor prohibited by orders of the Industrial Wage Commission (“IWC”). Plaintiff is a checker/cashier at a Ralphs grocery store. LaFace alleges that Ralphs and Kroger failed to provide her and other checkers/cashiers with seats required by Code Regs. tit. 8, sec. 11040 subd. 14 (“section 14”).
The action proceeded to a court trial on November 12, 2019. On March 20, 2020, the Court entered judgment in favor of Ralphs. On April 1, 2020, Plaintiff filed notice of appeal. On April 3, 2020, Ralphs served its Memorandum of Costs (“MOC”). On April 6, 2020, Ralphs served an Amended Memorandum of Costs (“AMOC”).
On April 21, 2020, Plaintiff filed a motion to tax the memoranda. On August 12, 2020, Ralphs filed an opposition. On August 18, 2020, Plaintiff filed a reply.
In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. (CCP § 1032 (a)(4).)
“Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (CCP § 1033.5(c)(2).) “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 Auto. Assn. (1993) 19 Cal. App. 4th 761, 774.) 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.)
Requests for Judicial Notice
Plaintiff requests judicial notice of various court documents. This request is GRANTED. (Evid. Code § 452(d).)
Plaintiff’s objections to the Murata declaration are OVERRULED.
The Court finds that the AMOC was timely filed. “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under  section 664.5[.]” (CRC Rule 3.1700(a)(1).) The clerk served notice of entry of judgment by mail on March 20, 2020. The fifteenth day after the clerk served notice of entry of judgment was Saturday, April 4. Considering the five calendar day extension per CCP section 1013(a), Ralphs’ deadline to file was April 9, 2020. The AMOC was filed on April 6, 2020. Even if the time was not extended, the AMOC was still timely on April 6, 2020 since the deadline fell on the weekend. The Court is thus not inclined to strike the entirety of the AMOC.
Filing and Motion Fees
Plaintiff moves to tax $1,036.65 in costs for filing and motion fees because they are unsupported and unspecified. The filing and motion fees Ralphs seeks to recover include fees associated with filing its Answer, stipulations and proposed orders to govern confidential information and for site inspections, and motion fees. (See Murata Decl., Ex. A-1) Such fees are allowed and supported by declaration. Plaintiff does not dispute this in reply. Thus, the Court will not tax these costs.
Plaintiff moves to tax the deposition costs because the videotaping of the depositions were unreasonable and was not helpful to the trier of fact. However, these costs, including taping, are expressly allowable. (CCP § 1033.5(a)(3).) The Court is not inclined to these costs which are expressly provided for by statute.
Court Reporter Fees
Plaintiff moves to strike Ralph’s court reporter fees because the only transcripts of court proceedings that are allowable are those ordered by the Court, and none were ordered. (CCP § 1033.5(a)(9).) Plaintiff also argues that transcription fees would be limited by Gov. Code section 69948(a).
Several entries as to item 11 relate to expedited transcript fees regarding court proceedings, which were not ordered by the Court. Based on a review of the entries, the Court finds that the appropriate costs as to item 11 would be $6,975.00, which excludes non-trial fees and expedited fees. Plaintiff provides no other specific objections to the entries.
As to reporters fees as deposition costs, the cited costs are allowable. (CCP § 1033.5(a)(11); see Burd v. Barkley Court Reporters, Inc. (2017) 17 Cal.App.5th 1037, 1050 [section 69950 does “not prevent a private reporter from charging contract rates . . . for producing deposition transcripts”].) The deposition costs were charged by the private reporters the parties retained to transcribe the depositions. (Murata Decl., Ex. A-2.) Plaintiff’s counsel selected the court reporting service and thus controlled the rates that both parties had to pay for deposition transcripts. (Murata Decl., ¶ 10.) The Court is not inclined to tax costs here.
Expert Witness Fees
Plaintiff moves to strike the request for expert fees on the grounds that they are disallowed. Generally, expert fees are not recoverable as costs. (CCP § 1033.5(b)(1).) A section 998 may authorize recovery of expert fees. (First Nationwide Bank v. Mountain Cascade, Inc. (2000) 77 Cal.App.4th 871, 875-876.) In pertinent part, CCP section 998(c)(1) provides:
If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, ... 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, who are not regular employees or any party, actually incurred and reasonably necessary in either, or both, preparation for trial … or during trial … of the case by the defendant.
The purpose of section 998 is to encourage settlement without a trial. (Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 63.) To effectuate this purpose, a section 998 offer must be made in good faith. (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1529.) Whether a section 998 offer is reasonable and made in good faith is left to “the sound discretion of the trial court.” (Bates v. Presbyterian Intercommunity Hospital, Inc. (2012) 204 Cal.App.4th 210, 221.)
The reasonableness of a section 998 settlement offer is evaluated in light of the information available to the parties at the time the offer was made. (Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, 1112.) Reasonableness is generally measured by first “determining whether the offer represents a reasonable prediction of the amount of money, if any, defendant would have to pay plaintiff following a trial,” based on “information that was known or reasonably should have been known to the defendant.” (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699.) “If the offer is found reasonable by the first test, it must then satisfy a second test: whether defendant’s information was known or reasonably should have been known to plaintiff.” (Ibid.)
The offer must carry with it some reasonable prospect of acceptance. (People ex rel. Lockyer v. Fremont Gen. Corp. (2001) 89 Cal.App.4th 1260, 1271.) “One having no expectation that his or her offer will be accepted will not be allowed to benefit from a no-risk offer made for the sole purpose of later recovering large expert witness fees.” (Ibid.) Further, in determining reasonable amount of costs recoverable by an employer-defendant, courts should consider employee's financial resources before imposing unreasonably high costs in light of those facts. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1562.) That said, a defendant may make a reasonably low offer, including waiving costs and fees, if they reasonably believe they are fault free and have a significant likelihood of prevailing. That a defense section 998 offer was modest in comparison to the amount the plaintiff sought does not preclude a finding of reasonableness. (Melendrez v. Ameron Internat. Corp. (2015) 240 Cal.App.4th 632, 649; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.)
It is undisputed that Defendant made a 998 offer to compromise. On June 27, 2018, Ralphs served a 998 offer, requesting dismissal in exchange for waiver of costs and fees and asserting that the expert opinion shows that a Ralphs cashier does not permit the use of a seat. Plaintiff did not respond to the offer, and thus rejected it. Plaintiff failed to obtain a more favorable judgment after trial. The central question as to these costs thus is whether the 998 offer was in made good faith.
Plaintiff argues that the 998 offer was not in good faith. Plaintiff points out that prior to the offer, the parties exchanged reports prepared by their ergonomics experts. The experts gave contrasting opinions as to whether Ralphs cashiers could perform their jobs using seating. Defense expert Dr. Jeffrey Fernandez’s report comes to the conclusion that the work of a Ralphs front-end cashier did not reasonably permit the use of a seat. (Murata Decl., ¶ 6.) Conversely, Plaintiff's expert Dr. Stephen Morrissey opines that a Ralphs front-end cashier reasonably permits the use of a seat. (Jardini Supp. Decl., ¶¶ 9-15.)
Plaintiff argues that the potential exposure for this suit was enormous, potentially over $100 million. Plaintiff also notes that she brought a PAGA claim as an agent/proxy of the state, and that settlements in PAGA actions must bear a realistic relationship to the value of the case and should be approved by the court/LWDA. Plainitff argues that her counsel, who has extensive experience in evaluating seating cases, evaluated the case to be in the millions. Other seating cases around that period had similarly high settlements that included agreements to provide seating. (Jardini Decl., ¶¶ 18-21.) Plaintiff also cites to several cases involving Fernandez as a witness where the defendant eventually settled for substantial amounts and agreed to provide seating. (Jadini Decl., ¶¶ 11-12.)
Defendant argues that the offer was reasonable because it reasonably reflected what they believed to be their liability. Defendant argues that the reports clearly established that a Ralphs cashier could not reasonably use seating. They argue even a modest sum, such as a waiver of costs and fees, is a reasonable settlement offer in light of those facts.
The Court finds that Defendant’s offer was made in good faith. The reports corroborated Ralphs’ position that the nature of the work of Ralphs cashiers does not reasonably permit the use of seats. Plaintiff had the ergonomics expert reports that Ralphs relied on in making its offer. Thus, she also knew the basis for the offer and could have reasonably accepted the offer in light of that evidence. The offer therefore represented a reasonable prediction that Defendant would not be held liable at trial, and did provide a non-token value of a waiver of costs and fees. Thus, this was not a “no risk” offer as Plaintiff posits. While the Court agrees that it doubts Plaintiff would have ever taken such an offer, that it not the standard for good faith. Of course, plaintiffs may reject good faith offers.
Plaintiff moves to tax the amount requested as unreasonably high. Specifically, Plaintiff objects to Fernandez’s associate ergonomist sitting through most every day of trial, time spent travelling, and is completely out of scale with a court trial on these issues. (Jardini Decl., ¶ 43.) However, Plaintiff does not specify which portions should be taxed, or in what amount. Certainly, this grounds would not eliminate the entirety of the costs as Plaintiff argues. Thus, the Court does not find that Plaintiff meets her burden to make a specific objection to costs here.
Plaintiff objects to costs as to models, the enlargements of exhibits and photocopies of exhibits. These costs are expressly allowed. (CCP § 1033.5(a)(12.) Plaintiff suggests that some portion of the fees went to exhibits that were not useful to the Court because they were not admitted into evidence or used demonstratively. Plaintiff points to no specific costs that were associated with “cutting edge” technology or were otherwise not allowed as a part of these costs. Plaintiff simply concludes without discussion that any particular items are disallowable. Therefore, the Court is not inclined to tax these costs.
Plaintiff objects to e-filing costs because there is no support for these costs. In opposition, Defendant supplies such support. Plaintiff ignores this issue in reply. Thus, the Court is not inclined to tax these costs.
Plaintiff attacks several items as to the “other” costs. First, Plaintiff addresses messenger fees. Plaintiff asserts that the costs of messengers or couriers used to file or deliver documents are not permitted. (CCP § 1033.5(b); Nelson v. Anderson (1999) 72 Cal.App.4th 111 [messenger fees not permitted when they were of doubtful necessity due to alternatives such as mail, federal express, or personal filing by parties].) The Court may grant such fees where such deliveries and messengers were reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (CCP § 1033.5(c).) The Court does not, in this instance, consider the courier and messenger fees anything but for the convenience of counsel. Thus, the Court is inclined to strike the other costs as to subsections a, b and g. This would reduce total costs by $5,519.77.
Other Court Reporter Costs
Plaintiff objects to the other court reporter costs, which include parking fees for the court reporters on hearing and trial days, and the cost for Realtime court reporting to the Court, as requested in its Trial Guidelines, and to Ralphs’ counsel. The Court finds the parking fees reasonably necessary for the conduct of the litigation, as well as the Realtime reporting to the Court. However, the Court does not find that the Realtime costs here were necessary as to counsel, as opposed to convenient. Thus, the Court is inclined to tax $2,635.50 from this item.
Trial Technician Expenses
Plaintiff moves to tax various expenses related to technicians utilized during trial.
Section 1033.5(a)(13), allows for the recovery of “the electronic presentation of exhibits, which may including the rental of equipment such as projectors and the technicians to support them. (See CCP § 1033.5(c).) The trial court has discretion over whether the use of advanced technology, including a technician to monitor equipment and quickly resolve any glitches, is allowable as costs. Indeed, courts have recognized that the use of such services has become commonplace during trials. (See Green v. County of Riverside (2015) 238 Cal.App.4th 1363, 1374 [not an abuse of discretion to allow for such costs]; see also Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 990; American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1057.) The Court finds that the use of these technicians in this instance was reasonably helpful to the trier of fact here. Thus, the Court is inclined to find these allowable as costs.
However, the technician travel expenses would not be recoverable here. Ralph requests costs for travel, meal and lodging out-of-town trial technicians and a firm technologist. The Court does not find these costs associated with the presentation of electronic exhibits, such that they may be seen as costs for section 1033.5(a)(13). Otherwise, these costs were not reasonably necessary for the litigation since Defendant could have hired local technicians that did not require meal and travel expenses. Choosing out of town technicians is a matter of convenience, rather than necessity. The Court is therefore inclined to tax the travel expense costs for $18,295.99.
Plaintiff moves to tax costs associated with travel expenses, including meals and lodging, for out-of-town trial counsel and paralegals. Defendant claims these costs are allowable discretionary costs. Here, the costs were incurred for two out-of-town trial counsel from San Francisco. (Murata Decl., ¶ 23, Exs. A-11, A-16.) One attorney gave the opening and closing argument, and the other examined a kinesiology expert. The two non local paralegals assisted with preparation and trial organization. (Id. ¶ 24.) The Court does not find these were necessary for litigation purposes. Defendant does not explain why these out of town counsel/paralegals were necessary for trial, as opposed to using local attorneys/paralegals. Thus, the Court is inclined to tax these costs by $15,700.28.
Trial war room
Plaintiff moves to tax costs associated with a “trial war room” that Defendant rented. Indeed, this appears to be a textbook example of convenience. Therefore, the Court is not inclined to allow these as discretionary costs. The Court will tax these costs for $14,503.62.
Plaintiff moves to strike these fees since they are unauthorized by statute. “Witness fees and expenses are clearly proper costs.” (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 524 [affirming award for witness fees and mileage expenses for witnesses to attend trial].) Travel expenses for witnesses to attend trial to offer testimony necessary to a party’s case are recoverable in the Court’s discretion. (CCP § 1033.5(c)(4); Ladas, supra, 19 Cal.App.4th at 774.) Plaintiff gives no reason why these travel expenses were unnecessary. The Court finds that they are. Therefore, the Court is not inclined to tax these costs.
Beliare Notice Fees
The Court finds that Ralphs may recover the fee paid to Rust Consulting to administer the Belaire notice in this matter. (See In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395, 1431-1432; Murata Decl., Ex. A-18.) These expenses were required by the Court, and thus reasonably necessary for the litigation.
Plaintiff’s motion is GRANTED in part. The Court taxes the total costs requested by $56,65516. Moving party is ordered to give notice.
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