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This case was last updated from Los Angeles County Superior Courts on 01/18/2021 at 21:03:43 (UTC).

WALTER H O'ROURKE ET AL VS NAYYER Z ALI M D ET AL

Case Summary

On 07/12/2013 WALTER H O'ROURKE filed a Personal Injury - Medical Malpractice lawsuit against NAYYER Z ALI M D. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are GREGORY KEOSIAN, ROSS KLEIN, MICHAEL P. VICENCIA and MARK C. KIM. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4989

  • Filing Date:

    07/12/2013

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

GREGORY KEOSIAN

ROSS KLEIN

MICHAEL P. VICENCIA

MARK C. KIM

 

Party Details

Plaintiffs, Petitioners and Appellants

O'ROURKE WALTER H.

O'ROURKE WENDY L.

WALTER H. O'ROURKE

WENDY L. O'ROURKE

Defendants and Respondents

ALI NAYYER Z. M.D.

CBO- MEDICAL CORP (DOE 17 )

CHARLES B. O'BRIEN M.D.

COMMUNITY HOSPITAL LONG BEACH

DOES 1 THROUGH 100

DOES 1 THROUGH 100 INCLUSIVE

EMERGENCY PHYSICIANS MEDICAL ASSO LB(D/18

EMMANUEL C. "MIKE" VASILOMANOLAKIS M.D.

MEMORIAL HEALTH SERVICES

MEMORIALCARE HEALTH SYSTEM

NAYYER Z. ALI M.D.

O'BRIEN CHARLES B. M.D.

VASILOMANOLAKIS EMMANUEL C. (MIKE) M.D.

ALI M.D. NAYYER Z.

NAYYER ALI M.D. INC. DOE 15

CBO- MEDICAL CORP DOE 17

17 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LAW OFFICE OF KATHRYN B. MEADOWS

LAW OFFICES OF KATHRYN B. MEADOWS

VAAGE ROBERT FRANK

MEADOWS KATHRYN BETH

BURNETT LISA

Defendant and Respondent Attorneys

BROBECK WEST BORGES ETC(S.ROSA/M YARVIS

ROSA STEPHEN A.

MCKENNA ROBERT L. III. ESQ.

CARROLL KELLY TROTTER (C WEINSTEIN )

SINCLITICO & BURNS APLC

PITTMAN MICHAEL ROUGH

MCKENNA III ROBERT L. ESQ.

ROSA STEPHEN ALLEN

 

Court Documents

Legacy Document - LEGACY DOCUMENT TYPE: REQUEST

4/18/2014: Legacy Document - LEGACY DOCUMENT TYPE: REQUEST

Declaration - DECLARATION OF KATHRYN B. MEADOWS SUBMITTED IN SUPPORT OF PLAINTIFFS EX PARTE APPLICATION FOR ORDER TO EXTEND DEPOSITION OF DEFENDANT EMMANUEL C. "MIKE" VASILOMANOLAKIS

10/21/2015: Declaration - DECLARATION OF KATHRYN B. MEADOWS SUBMITTED IN SUPPORT OF PLAINTIFFS EX PARTE APPLICATION FOR ORDER TO EXTEND DEPOSITION OF DEFENDANT EMMANUEL C. "MIKE" VASILOMANOLAKIS

Legacy Document - LEGACY DOCUMENT TYPE: OBJECTION DOCUMENT FILED

6/6/2016: Legacy Document - LEGACY DOCUMENT TYPE: OBJECTION DOCUMENT FILED

Legacy Document - LEGACY DOCUMENT TYPE: EX-PARTE APPLICATION

6/13/2016: Legacy Document - LEGACY DOCUMENT TYPE: EX-PARTE APPLICATION

Legacy Document - LEGACY DOCUMENT TYPE: REPLY

7/1/2016: Legacy Document - LEGACY DOCUMENT TYPE: REPLY

Legacy Document - LEGACY DOCUMENT TYPE: Receipt

5/2/2018: Legacy Document - LEGACY DOCUMENT TYPE: Receipt

Order -

9/19/2018: Order -

Ex Parte Application - EX PARTE APPLICATION FOR CONTINUANCE OF TRIAL DATE AND TRIAL-RELATED DATES AND FOR WAIVER AND EXTENSION OF CCP 583.310 TIME PERIOD

4/19/2019: Ex Parte Application - EX PARTE APPLICATION FOR CONTINUANCE OF TRIAL DATE AND TRIAL-RELATED DATES AND FOR WAIVER AND EXTENSION OF CCP 583.310 TIME PERIOD

Declaration - DECLARATION OF KATHRYN B. MEADOWS IN SUPPORT OF EX PARTE APPLICATION FOR ORDER COMPELLING PRODUCTION OF DEFENDANTS' EXPERT WITNESS

8/9/2019: Declaration - DECLARATION OF KATHRYN B. MEADOWS IN SUPPORT OF EX PARTE APPLICATION FOR ORDER COMPELLING PRODUCTION OF DEFENDANTS' EXPERT WITNESS

Motion in Limine - MOTION IN LIMINE 7 OF 14 TO EXCLUDE EVIDENCE OF ACC REVIEW OF DR. SHAPIRA'S PRIOR UNRELATED EXPERT OPINION; DECLARATION OF ELIZABETH TEIXEIRA

9/25/2019: Motion in Limine - MOTION IN LIMINE 7 OF 14 TO EXCLUDE EVIDENCE OF ACC REVIEW OF DR. SHAPIRA'S PRIOR UNRELATED EXPERT OPINION; DECLARATION OF ELIZABETH TEIXEIRA

Notice - NOTICE OF NON-OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE N0.14

9/27/2019: Notice - NOTICE OF NON-OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE N0.14

Proof of Service (not Summons and Complaint)

9/27/2019: Proof of Service (not Summons and Complaint)

Objection - OBJECTION TO DEFENDANT CHARLES B. O'BRIEN, M.D.'S, CBO, A MEDICAL CORP'S, EMERG PHYSICIANS MED ASSOC OF LONG BEACH'S OPP TO PLFS' TIFFS' MOTION IN LIMINE NO. 5 TO EXCLUDE EVIDENCE OF CANAD

10/10/2019: Objection - OBJECTION TO DEFENDANT CHARLES B. O'BRIEN, M.D.'S, CBO, A MEDICAL CORP'S, EMERG PHYSICIANS MED ASSOC OF LONG BEACH'S OPP TO PLFS' TIFFS' MOTION IN LIMINE NO. 5 TO EXCLUDE EVIDENCE OF CANAD

Trial Brief

10/15/2019: Trial Brief

Request for Judicial Notice

1/13/2020: Request for Judicial Notice

Memorandum - MEMORANDUM OF POINTS & AUTHORITIES IN REPLY TO ALI DEFENDANTS' OPPOSITION TO MOTION TO TAX AND STRIKE COSTS

6/8/2020: Memorandum - MEMORANDUM OF POINTS & AUTHORITIES IN REPLY TO ALI DEFENDANTS' OPPOSITION TO MOTION TO TAX AND STRIKE COSTS

Appellate Order Extending Time for Reporter Transcript Prep - APPELLATE ORDER EXTENDING TIME FOR REPORTER TRANSCRIPT PREP NOA: 03/20/20 B305139

10/27/2020: Appellate Order Extending Time for Reporter Transcript Prep - APPELLATE ORDER EXTENDING TIME FOR REPORTER TRANSCRIPT PREP NOA: 03/20/20 B305139

COMPLAINT FOR PROFESSIONAL NEGLIGENCE AND LOSS OF CONSORTIUM

7/12/2013: COMPLAINT FOR PROFESSIONAL NEGLIGENCE AND LOSS OF CONSORTIUM

717 More Documents Available

 

Docket Entries

  • 01/14/2021
  • DocketNotice of Change of Firm Name; Filed by CBO- MEDICAL CORP (DOE 17 ) (Defendant); M.D. CHARLES B. O'BRIEN (Defendant); EMERGENCY PHYSICIANS MEDICAL ASSO LB(D/18 (Defendant)

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  • 12/07/2020
  • DocketOrder ([Proposed] Order Re: Plaintiffs' Motion to Tax and Strike Costs - O'Brien); Filed by WALTER H. O'ROURKE (Plaintiff); WENDY L. O'ROURKE (Plaintiff)

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  • 12/07/2020
  • DocketOrder ([Proposed] Order Re: Plaintiffs' Motion to Tax and Strike Costs - Ali); Filed by WALTER H. O'ROURKE (Plaintiff); WENDY L. O'ROURKE (Plaintiff)

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  • 12/02/2020
  • DocketNotice of Ruling; Filed by WALTER H. O'ROURKE (Plaintiff); WENDY L. O'ROURKE (Plaintiff)

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  • 12/02/2020
  • DocketNotice of Ruling; Filed by WALTER H. O'ROURKE (Plaintiff); WENDY L. O'ROURKE (Plaintiff)

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  • 12/01/2020
  • Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Hearing on Motion to Tax Costs - Held

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  • 12/01/2020
  • Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Hearing on Motion to Tax Costs - Held

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  • 12/01/2020
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore ((Adra Pittman, CSR: 13298)); Filed by Clerk

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  • 12/01/2020
  • DocketCertificate of Mailing for ((Hearing on Motion to Tax Costs; Hearing on Motion to Tax Costs) of 12/01/2020); Filed by Clerk

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  • 12/01/2020
  • DocketMinute Order ( (Hearing on Motion to Tax Costs; Hearing on Motion to Tax Costs)); Filed by Clerk

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969 More Docket Entries
  • 09/13/2013
  • DocketNtc and Acknowledgement of Receipt; Filed by Attorney for Plaintiff/Petitioner

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  • 09/13/2013
  • DocketNotice and Acknowledgment of Receipt

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  • 09/13/2013
  • DocketNOTICE AND ACKNOWLEDGMENT OF RECEIPTCIVIL

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  • 09/13/2013
  • DocketNotice and Acknowledgment of Receipt

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  • 09/13/2013
  • DocketNotice and Acknowledgment of Receipt

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  • 09/13/2013
  • DocketNOTICE AND ACKNOWLEDGMENT OF RECEIPTCIVIL

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  • 07/12/2013
  • DocketComplaint

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  • 07/12/2013
  • DocketComplaint; Filed by WALTER H. O'ROURKE (Plaintiff); WENDY L. O'ROURKE (Plaintiff)

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  • 07/12/2013
  • DocketCOMPLAINT FOR PROFESSIONAL NEGLIGENCE AND LOSS OF CONSORTIUM

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  • 07/12/2013
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC514989    Hearing Date: December 01, 2020    Dept: S27

  1. Background Facts

Plaintiffs, Walter and Wendy O’Rourke filed this action against numerous defendants for medical malpractice. The action proceeded to jury trial against Defendants, Nayyer Z. Ali, M.D., Nayyer Z. Ali, M.D., Inc. (collectively “Ali”), Charles B. O’Brien, M.D., CBO, a medical corporation, and Emergency Physicians Medical Associates of Long Beach (collectively “O’Brien”). At the conclusion of trial, the jury found Defendants had not acted negligently, and consequently judgment was entered in favor of Defendants.

On 12/27/19, Ali and O’Brien each filed memoranda of costs. Ali sought to recover a total of $151,990.32 in costs, and O’Brien sought to recover a total of $156,332.45 in costs. On 1/10/20 and 1/13/20, Plaintiffs timely filed these motions to tax costs. The motions were originally scheduled for hearing on 6/11/20, but were continued due to the ongoing COVID-19 pandemic. Defendants filed timely opposition per the original hearing date, and Plaintiffs filed timely reply per the original hearing date.

  1. Motion to Tax Costs (O’Brien)

Plaintiffs move to tax most of the costs in O’Brien’s memorandum of costs. The Court will discuss each item separately below.

  1. Burdens on Motion to Tax Costs

    Allowable costs under CCP §1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. An item not specifically allowable under §1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). 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.) 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.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Ibid.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Ibid.) Discretion is abused only when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances being considered.”

  2. Request for Judicial Notice

    Plaintiffs, with their moving papers, seek judicial notice of various documents filed in connection with this action. The RJN is granted. Plaintiffs, with their reply papers, seek judicial notice of additional documents filed in this action, as well as transcripts of proceedings in this action. The RJN submitted with the reply is also granted.

  3. Initial Note

    Plaintiffs lodged VOLUMINOUS documents with their moving and reply papers. They failed, however, to use the “outlines” feature of eCourt, which would allow the Court to move easily between the various documents and exhibits. This rendered meaningful review of the exhibits virtually impossible. The Court asks Plaintiffs’ attorney to ensure use of the outlines feature in the future in connection with this and other actions.

  4. Filing and Motion Fees

    O’Brien seeks to recover a total of $3571.39 in “filing and motion fees,” which is item 1 on the memorandum of costs. Plaintiffs state, at page 6, line 5 of their motion, that $2855 of these fees are recoverable, and the remainder should be taxed. However, they list specific filing fees they contend are appropriate on page five of their motion, and those fees only total $1985. In their reply, they state that they only conceded $1985 of fees were appropriate in their moving papers.

    O’Brien, in opposition, concedes $215.14 of these costs are inappropriate. The parties disagree concerning the remainder of the fees. Plaintiffs contend (a) there is no evidence these fees were incurred, and (b) to the extent these are electronic filing fees, they should have been listed in item 14, not item 1. O’Brien concedes the electronic filing fees were listed in item 1 instead of item 14, but contends this does not render them non-recoverable. Plaintiffs, in reply, drop the issue of whether the fees should have been on item 1 or item 14, but contend O’Brien only provided receipts totaling $375.75 (in addition to the original $1985) fees conceded in the moving papers.

    O’Brien’s attorney, Andrew W. Salmond, declares in opposition to the motion that Exhibit C to his declaration is a copy of the receipts for filing and motion fees, including electronic filing charges. Exhibit C contains 22 $13.65 receipts, plus one $75.45 receipt, for a total of $375.75. The Court therefore awards the originally conceded $1985 plus the receipts of $375.75, for a total of $2360.75. The difference between the claimed $3571.39 and the awarded $2360.75, or $1210.64, is taxed.

  5. Deposition Costs

    O’Brien seeks to recover $33,251.57 in deposition costs. Plaintiffs contend the costs bill is unreliable, as it seeks to recover the same cost for the same deposition more than once. Plaintiffs also contend costs for transcribing depositions for which O’Brien’s counsel maintained custody of the originals was merely convenient and therefore not recoverable.

    O’Brien, in opposition to the motion, discusses the costs for the extra copy of the depositions, and correctly notes that the Code expressly permits recovery of the cost of an original and one copy of each transcript. See CCP §1033.5(a)(3). The Court finds Plaintiffs’ argument that these extra copies were merely convenient to be unavailing in light of the Code’s express language making the original and one copy recoverable.

    O’Brien fails, in the opposition, to address the contention that many of the depositions were listed twice, or that O’Brien has claimed twice as much for the O’Rourke depositions as the Ali Defendants claimed. Defendants do submit their deposition receipts as Exhibit D to the opposition, but they do not meaningfully detail how those bills support the amount sought. Plaintiffs, in reply, created a chart purporting to show which costs they claim were duplicative, which were “merely convenient,” and which were not included in the costs memorandum or were in a different amount. The chart, however, is sideways and nearly impossible to read.

    The Court asks the parties to meet and confer prior to the hearing to agree to an amount of deposition fees. The Court will allow the costs for the original and one copy of the transcripts. The Court will not, however, allow duplicative costs or costs that are different in the receipt from the amount claimed in the memorandum of costs. If the parties are unable to agree on an exact amount, they must be prepared to argue, at oral argument, concerning any amounts that remain in dispute.

  6. Service of Process Costs

    The parties agree that $161.26 in item 5 should be stricken. This is the sole cost claimed in item 5. Item 5 is therefore stricken in its entirety.

  7. Ordinary Witness Fees

    The parties also agree that $175 in ordinary witness fees under Item 8A must be stricken. Item 8 is reduced by $175.

  8. Expert Fees

    Defendants seek to recover $107,506.14 in expert witness fees per CCP §998. Plaintiffs argue the fees are inappropriate because (a) many of the fees were incurred prior to the §998 offers, which were served on 10/03/19 and on 10/10/19; (b) Defendants’ offer was not sufficient to constitute a valid §998 offer, and (c) Defendants’ offer was a mere token and not a real offer.

    Defendants concede, in their opposition, that their expert fees from prior to 10/03/19 are not recoverable. They therefore reduce their request for fees from $107,506.14 to $43,841.52. They argue the offers were not token in nature, and had substantial value at the time they were made.

    Plaintiffs, in reply, contend (a) the offers were not valid offers, (b) the offers were mere tokens, and (c) Defendants have not supported their request for $43,841.52 in costs.

    The first issue is whether the offers were valid offers. Plaintiffs, in their moving papers, argued that the offers were not valid offers for two reasons. First, they argued that the language of the offers rendered them invalid. Second, they argued the offers to Plaintiff, Wendy O’Rourke were not timely made. Defendants did not meaningfully address either argument in their opposition.

    The Court finds the language of the offers does not render them invalid. Plaintiffs quote the purportedly offending language as follows: “In addition, the Court, in its discretion, may require plaintiff…to pay this offering defendant’s costs from the date the Complaint was filed as well as a reasonable sum to cover costs of the services of expert witnesses…” Plaintiffs argue this language renders the offers invalid because the language suggests, erroneously, that Plaintiffs will be liable for expert fees from the inception of the litigation. It does not. It correctly states that Plaintiffs will be liable for “costs from the date the Complaint was filed,” but it does not contain language about “from the date the complaint was filed” with respect to expert fees.

    Plaintiffs also argued, in their moving papers, that the offers served on Wendy O’Rourke were not valid offers because they were served on 10/10/19, less than ten days prior to commencement of trial, in express violation of the statute. Defendants, in opposition, do not address this argument, but refer to all offers by all O’Brien Defendants to both Plaintiffs as having been made on 10/03/19, which Plaintiffs concede was at least ten days prior to start of trial. Plaintiffs, in reply, drop this argument. The Court cannot locate copies of the §998 offers. Because Plaintiffs do not address this argument in reply, the Court finds the offers were timely made.

    The second issue is whether the offers were merely token in nature such that expert costs are not appropriately awarded. The Court finds costs were substantial at the time the offer was made, such that the offer had real economic value. While Plaintiffs were clearly claiming substantial damages in comparison to the waiver of costs, there was a very real possibility, at the time of the offer, that Defendants would prevail entirely in the case. The Court therefore finds the offer was not merely “token,” and Plaintiffs cannot avoid paying expert costs based on this argument.

    The third issue is whether Defendants have supported their reduced request for $43,841.52 by showing that these costs were actually incurred after Defendants made their offer. Plaintiffs, in reply, contend (a) the invoices do not total the amount sought by Defendants, (b) some of the invoices are for services rendered prior to 10/03/19, and (c) some of the invoices are objectively unreasonable.

    The invoices are submitted as Exhibit E to the Declaration of Counsel, Salmond, with the opposition. Plaintiffs correctly note that most of Olzack’s fees are from prior to 10/03/19. The Court has totaled the fees incurred, without Olzack’s claimed fees from prior to 10/03/19, and they total $36,483.89; notably, even if all of Olzack’s fees were included, the fees would total $38,547.42, not the $43,841.52 claimed by Defendants in their opposition papers.

    Notably, the award of expert fees after failure to accept a §998 offer is discretionary, not automatic. See Santantonio v. Westinghouse Broadcasting Co., Inc. (1994) 25 Cal.App.4th 102, 121-124. The Court is inclined to exercise its discretion to deny the award of fees in its entirety. The issue of whether or not the offer was merely a token is a very close one. Compounding the issue, Defendants originally sought a completely erroneous amount of expert fees, then submitted documentation of an amount much less than the amount sought in the opposition. The Court is not inclined to award this behavior with a substantial expert fees award.

  9. Court Reporter Fees

    Defendants concede that $2056.51 in claimed court reporter fees must be stricken. The motion to tax these costs is granted.

  10. Exhibits

    Defendants seek to recover $1739.00 for models, enlargements, and photocopies of exhibits. Plaintiffs contend this cost should be taxed because the Ali Defendants, not the O’Brien Defendants, created all of the exhibits. Plaintiffs also contend the exhibits were not used at trial.

    Defendants, in opposition, contend this was the cost for their trial exhibit notebook. Plaintiffs, in reply, contend Defendants did not use the exhibits at trial. The Court recollects Defendants using substantial exhibits during trial, and recollects the exhibits being helpful to the trier of fact. The motion to tax these costs is therefore denied.

  11. Miscellaneous Costs

    Defendants seek to recover $5386.12 in “other” costs as item 16. Plaintiffs contend some of these claimed costs are expressly not recoverable per Code. Defendants, in opposition, argue that “extraordinary” photocopying and “extraordinary” travel costs should be awarded by the Court. CCP §1033.5(b)(3) expressly precludes an award of photocopying costs, whether “extraordinary” or not. Pursuant to Ladas, supra, at 775-776, when a party is seeking to recover travel costs, the burden is on the party to show the charges were necessary to the conduct of the litigation; Defendants’ opposition is silent on this issue. Defendants did not meaningfully justify any of these claimed costs, and the motion to tax them is granted in its entirety.

  1. Motion to Tax Costs (Ali)

Plaintiffs also move to tax most of the costs in the Ali Defendants’ opposition. Each issue will be discussed in turn.

  1. RJN

    Plaintiffs filed requests for judicial notice with their moving and reply papers. the RJNs are granted for the reasons discussed above.

  2. Joint Representation

    Counsel for the Ali Defendants represented Co-Defendants Emmanuel C. Vasilomanolikis, M.D. and his wholly-owned corporation, as well as the Ali Defendants, from 5/25/16 until 8/04/17 (in reply, Plaintiffs contend the joint representation was from 10/02/13 to 5/25/16, but this appears to be incorrect). Plaintiffs argue all costs that were jointly incurred during that time must be apportioned. Defendants argue the costs would have been necessarily incurred by them regardless of the joint representation, and therefore the costs need not be apportioned.

    When a prevailing party incurs costs jointly with one or more co-parties who remain in the litigation (e.g., D1 prevails by summary judgment and litigation continues against D2 and D3), during pendency of the litigation that party may recover only those costs he or she actually incurred in litigating the case. (Otherwise, at the conclusion of the case P could be faced with duplicative memoranda of costs or could be forced to pay the costs of a non-prevailing defendant. Alternatively, if D2 and D3 ultimately prevail at trial, they would have to sue D1 to recover their share of the costs.) Fennessy v. Deleuw-Cather Corp. (1990) 218 Cal.App.3d 1192, 1196.

    On the other hand, when recoverable costs among multiple prevailing co-parties are awarded after conclusion of trial, the costs need not be apportioned … because there is no chance of additional successful co-parties subsequently seeking costs from an opposing party who already paid some of those costs. See Kramer v. Ferguson (1964) 230 Cal.App.2d 237, 249-251.

    Where co-parties jointly incurred costs and fewer than all co-parties prevail at the conclusion of trial, the court must apportion costs between the parties based on the reason the costs were incurred and whether the costs were reasonably necessary to the prevailing co-parties' conduct of the litigation. The court may not simply divide the total costs jointly incurred by all co-parties by the number of prevailing co-parties. Charton v. Harkey (2016) 247 Cal.App.4th 730, 743-745.

    In this case, it is not clear whether Vasilomanolikis already recovered any of the costs at issue. If he did, then the Ali Defendants cannot also recover the costs. If he did not, however, then the Ali Defendants can cover the entirety of the costs so long as the costs were reasonably incurred on their behalf. The Court located the 8/04/17 dismissal in its file, and did not locate any memorandum of costs filed by Vasilomanolikis subsequent to the dismissal. The Court therefore finds it appears Vasilomanolikis did not recover the costs, and therefore the entirety of the costs can be recovered by the Ali Defendants so long as they reasonably incurred the costs. The Court will deny the motion to tax costs on this ground unless Plaintiffs provide proof, at the time of the hearing, that they paid the costs to Vasilomanolikis.

  3. Filing Fees in Item 1

    Plaintiffs move to tax a portion of the filing fees in item 1 on the ground that they were jointly incurred with Vasilomanolikis. The motion to tax those costs is denied as discussed above.

    Plaintiffs also move to tax costs in excess of $1055 on the ground that those costs are sought in connection with motions that do not require filing fees, such as motions in limine, oppositions, etc. Defendants, in opposition to the motion, provide evidence that of the entire amount of filing fees sought. Plaintiffs, in reply, drop all arguments except the argument that the joint filing fees incurred with Vasilomanolikis should be taxed. The motion to tax filing fees from item 1 is therefore denied in its entirety.

  4. Deposition Costs

    Plaintiffs argue various deposition costs are not recoverable in item 4. They contend (a) expert fees are not deposition costs that can be recovered under this section, (b) costs for transcribing deposition costs where the Ali Defendants had the original were merely convenient and not necessary, and (c) deposition costs should be pro-rated between the Ali Defendants and Vasilomanolikis.

    Defendants argue (a) they are entitled to ordinary costs associated with expert depositions, (b) the Code permits them one copy of the depositions, and (c) no pro-rating is necessary for the reasons discussed above.

    The invoices submitted as Exhibit 2 to the opposition show that many of the fees Defendants are seeking to recover as “deposition costs” include expert fees. For example, there is an invoice from JNS Consultants for 5.2 hours of deposition testimony at the rate of $850/hour that totals $4420. This is not a recoverable “cost” for deposition. See Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1149-1150, 1156-1157. Plaintiffs show that these improper fees total $24,070; therefore, fees in the amount of $24,070 are taxed. Notably, Defendants argue, alternatively, that these fees are recoverable per CCP §998. Defendants chose to claim these fees as deposition costs, which they are not; the Court will not attempt to place the fees into the proper category if Defendants did not do so. Plaintiffs also show, in reply, that $642.54 of the claimed cost is a nonrecoverable travel cost; that amount is therefore also taxed.

    Plaintiffs’ second and third arguments are rejected. Plaintiffs’ argument concerning the copy of the transcripts is rejected for the reasons discussed above in the motion relating to the O’Brien Defendants’ costs. The argument relating to pro-rating the fees is denied for the reasons discussed above.

    Item 8 is reduced from $51,894.42 to $27,824.42.

  5. Expert Fees

    Plaintiffs move to tax Defendants’ expert fees, contending (a) Defendants have not shown the fees were incurred after they submitted their §998 offer, (b) Defendants seek fees jointly incurred with the O’Brien Defendants, (c) the §998 offers mis-stated the law and are therefore invalid, and (d) the offers were not reasonable or made in good faith.

    Defendants show, in opposition to the motion, that all of their claimed fees were incurred after they served their §998 offer, which was on 5/27/16. Defendants provide evidence, in opposition to the motion, that they actually incurred the expert fees claimed. Thus, the two issues before the Court are whether the §998 offer was defective and/or whether the offer was a mere token offer.

    The Ali Defendants’ offer, in contrast to the O’Brien Defendants’ offer, discussed above, specifically contained language saying that failure to accept the offer could expose Plaintiffs to liability for Defendants’ expert witness fees, including expert witness fees incurred PRE-offer. This was a mis-statement of the law in effect at the time Defendants served the offer. Plaintiffs therefore contend they were unable to properly value their potential exposure and the offers were a nullity. Plaintiffs cite various cases holding that §998 offers must be strictly construed against the offeree; no case, however, is directly on point. The Court rejects Plaintiffs’ argument for two reasons. First, the TERMS of the offer were properly stated in the offer, and only the legal effect of failing to accept the offer was mis-stated; Plaintiffs are, however, represented by a competent attorney, who clearly knew, at the time, that this was a mis-statement of the applicable law. Second, if anything, a belief that pre-offer expert fees could potentially be assessed if the offer were rejected would, at most, render Plaintiffs’ potential exposure HIGHER, making them MORE likely to accept the offer, not LOWER, making them less likely to accept the offer. Thus, any mis-statement in the offer could not have adversely affected their decision.

    The real issue is whether the offer made was merely a token offer or not. The offer was for a waiver of costs only. The offer was made shortly after Plaintiffs filed opposition to the Ali Defendants’ summary judgment motion, including an expert declaration in Plaintiffs’ favor. At the time of the offer, trial was scheduled to commence in approximately six weeks; it was, of course, subsequently continued for several years thereafter. The Court finds, similar to the O’Brien Defendants above, that the offer was more than a mere token and was made with the good faith belief that the Ali Defendants could prevail entirely in the case. The motion to tax the Ali Defendants’ expert witness fees is therefore denied.

  6. Exhibits

    Plaintiffs move to tax Defendants’ exhibit costs, contending they were not actually used at trial. Defendants, in opposition, provide Exhibit 4 to substantiate these costs. It is clear that at least some of these costs are not recoverable. For example, the very first cost is $1326.42 for “photocopies,” which are expressly not recoverable per Code. Because Defendants did not meaningfully itemize or discuss the costs, the costs are stricken with the exception of the $350 Plaintiffs concede, in reply, is recoverable. Item 12 is reduced from $9975.06 to $350.

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