On 12/24/2015 WILLIAM MCCHESNEY filed a Property - Other Real Property lawsuit against SECURITY PAVING COMPANY, INC. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is WILLIAM D. STEWART. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles, California
WILLIAM D. STEWART
1201 VICTORY ASSOCIATES A CALIF. CORP.
MCCHESNEY WILLIAM AN INDIVIDUAL
CENTURY LAW GROUP LLP
THE PEOPLE OF THE STATE OF CALIFORNIA
FRIEDNTHAL HEFFERNAN & BROWN LLP
CALIFORNIA DEPARTMENT OF TRANSPORTATION
SECURITY PAVING COMPANY INC. A CA. CORP
CURTIS KIN A.
MARTINEZ MARLA A. ESQ.
LARSON KAREN ANN
MARTINEZ MARLA ANN ESQ.
BROWN JAY D
HEFFERNAN KEVIN NICHOLAS
7/28/2016: Legacy Document
3/2/2017: Legacy Document
3/24/2017: Minute Order
2/5/2018: Exhibit List
8/10/2018: Stipulation and Order to use Certified Shorthand Reporter
8/13/2018: Legacy Document
10/9/2018: Request for Judicial Notice
10/9/2018: Other -
12/4/2018: Memorandum of Costs (Summary)
12/10/2018: Motion for New Trial
DocketAppeal - Notice of Fees Due for Clerk's Transcript on Appeal (2/20/19 B295879); Filed by ClerkRead MoreRead Less
DocketAppeal Document (2/20/19 B295879 CERTIFICATE RE MISSING DOCUMENTS); Filed by ClerkRead MoreRead Less
DocketAppeal - Notice Court Reporter to Prepare Appeal Transcript (;B295879, NOA 2/20/19;); Filed by ClerkRead MoreRead Less
DocketAppeal - Appendix CRC 8.124 Transcript Certified (NOA:04/09/19- U B296931); Filed by ClerkRead MoreRead Less
DocketAppeal - Ntc Designating Record of Appeal APP-003/010/103 ("U"); Filed by The People of the State of California (Appellant)Read MoreRead Less
DocketAppellate Order Reinstating Appeal (NOA:04/09/19 -U B296931); Filed by ClerkRead MoreRead Less
DocketAppellate Order Dismissing Appeal (NOA:4/9/19 B296931); Filed by ClerkRead MoreRead Less
DocketClerk's Notice of Non-Compliance of Default on Appeal; Filed by ClerkRead MoreRead Less
DocketAppeal - Notice Court Reporter to Prepare Appeal Transcript (;B295879; NOA 2/20/19;); Filed by ClerkRead MoreRead Less
DocketNotice of Default; Filed by ClerkRead MoreRead Less
DocketMinute order entered: 2016-03-08 00:00:00; Filed by ClerkRead MoreRead Less
DocketProof of Service of Summons and Complaint; Filed by 1201 Victory Associates, a Calif. Corp. (Plaintiff); William, McChesney (Plaintiff)Read MoreRead Less
DocketProof of Service of Summons and Complaint; Filed by 1201 Victory Associates, a Calif. Corp. (Plaintiff); William, McChesney (Plaintiff)Read MoreRead Less
DocketRequest For CopiesRead MoreRead Less
DocketNotice of Case Management Conference; Filed by CourtRead MoreRead Less
DocketComplaint; Filed by 1201 Victory Associates, a Calif. Corp. (Plaintiff); William, McChesney (Plaintiff)Read MoreRead Less
DocketSummons; Filed by nullRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by William, McChesney (Plaintiff)Read MoreRead Less
DocketOSC-Failure to File Proof of Serv; Filed by CourtRead MoreRead Less
DocketBrief ; Filed by 1201 Victory Associates, a Calif. Corp. (Plaintiff); William, McChesney (Plaintiff)Read MoreRead Less
Case Number: EC064522 Hearing Date: October 23, 2020 Dept: A
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McChesney v Cal-Trans
Motion to Tax Costs
October 23, 2020
December 24, 2015
Plaintiff William McChesney
This case arises from William McChesney’s ("Plaintiff) claim that he suffered damages because Defendants Security Paving Company, Inc. (“Security”) and the People of the State of California, acting by and through the Department of Transportation (“Caltrans”) trespassed on his property and caused a nuisance when they widened the freeway next to his property. Further, Plaintiff claims that DOT engaged in an adverse condemnation of his property because the freeway is now closer and they did not compensate for the loss of value in his property.
The instant action proceeded to a bench trial (Hon. Curtis Kin, J., presiding,) and the Court returned a verdict in favor of Plaintiff in the first portion; later a jury returned a money verdict in favor of plaintiff.
On July 30, 2020, the Court of Appeal reversed the judgment in favor of Plaintiff and directed this Court to enter judgment in Caltrans' favor, which was done.
Plaintiff filed the instant motion on October 02, 2020, Caltrans filed an opposition on October 09, 2020, and Plaintiff filed a reply on October 16, 2020.
Plaintiff moves to tax the costs submitted by Caltrans in their memorandum of costs in the amount of $227,150.86, consisting of: (1) $3,775 on Caltrans' Deposition Costs in the amount of $20,091.50; (2) 189,875.13 on Caltrans' Witness Fees in the amount of $189,875.13; and (3) $33,500.73 on Caltrans' Court Reporter fees in the amount of $33,500.73.
Standard of Review – The costs incurred by the parties to a civil action consist of the expenses of litigation, usually excluding attorney fees. (Patricia Bakey – Hoey v. Lockheed (2003) 111 Cal.App.4th 592, 597.) Under the common law rule, parties to litigation must bear their own costs. (Ibid.; see also Davis v. KGO-TV, Inc. (1998) 17 Cal.4th 436, 446) (Although the purpose of much civil litigation is to make the injured party “whole,” the traditional common law rule is that the parties must bear their own costs.). The right to recover any costs is, thus, determined entirely by statute. (Patricia Bakey – Hoey, supra, 111 Cal.App.4th at 597.) In the absence of an authorizing statute, no costs can be recovered by either party. (Ibid.) The general rule is subject to numerous exceptions, including that found in CCP § 998, which provides that upon the rejection of a settlement offer made pursuant to CCP § 998, “the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses … actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff's costs.”
“[T]he verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285.) Evidence is generally required in order to support an objection, and the mere submission of conclusions or bare allegations typically does not justify taxing costs. (See County of Kern v. Ginn (1983) 146 Cal.App.3d 1107) (bare allegation that depositions were neither necessary nor reasonable insufficient to overcome right to costs). Allegations are sufficient, however, if they depend upon undisputed facts where nothing more needed to be, or could have been, added by additional declarations or affidavits. (Fennessy v. Deleuw-Cather Corp. (1990) 218 Cal.App.3d 1192, 1196.)
Merits – As a preliminary matter, Caltrans has conceded in its opposition briefing that its request for court reporter costs in the amount of $33,500.73 is unsupported by law and withdraws such request. The only amounts at issue are thus deposition costs in the amount of $3,775 and witness costs in the amount of $189,875.13.
Plaintiff argues that Caltrans is not entitled to any costs or fees pursuant to CCP § 1036, and to the extent it is entitled to any recoverable costs, its recovery is limited to permissible costs under CCP §§ 1032 and 1033.5. Plaintiff also argues that Caltrans' award of costs in the appellate decision was limited to costs on appeal. In opposition, Caltrans argues it is entitled to costs pursuant to CCP § 998 whether or not it may recover under CCP § 1036. Caltrans further cites CCP § 1032(4), which defines "prevailing party" to include "a defendant as against those plaintiffs who do not recover any relief against that defendant" and CCP § 1032(b), which states “[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” to argue that the appellate court's remittitur entitles it, as the prevailing party, to recover costs in the instant action. In reply, Plaintiff argues that a court may only award fees under CCP § 998 after considering whether the settlement offer was made in good faith, pursuant to Melendrez v. Ameron Internat. Corp. (2015) 240 Cal.App.4th 632, 647, and contends that Caltrans' settlement offer of $15,000 on November 16, 2016 was not made in good faith
CCP § 1036 states: "In any inverse condemnation proceeding, the court rendering judgment for the plaintiff by awarding compensation, or the attorney representing the public entity who effects a settlement of that proceeding, shall determine and award or allow to the plaintiff, as a part of that judgment or settlement, a sum that will, in the opinion of the court, reimburse the plaintiff’s reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred . . . ."
CCP § 1033.5 restricts allowable costs to, in relevant part, "[f]iling, motion, and jury fees" and "[t]aking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed."
Concerning CCP § 998, the Melendrez court read "a good faith requirement" into the statute, ruling that a settlement offer must be "realistically reasonable under the circumstances of the particular case" with "some reasonable prospect of acceptance." (Melendrez, supra, 240 Cal.App.4th at p. 647.) "Where the defendant obtains a judgment more favorable than its offer, [']the judgment constitutes prima facie evidence showing the offer was reasonable . . . .[']" (Ibid.)
Caltrans' Ability to Recover – Plaintiff contends that, because the Court of Appeals ruled that Caltrans is to be awarded its costs on appeal, that Caltrans is limited to recover only its costs on appeal. Plaintiff cites no particular legal authority to support this contention. Absent a good faith basis for the modification or extension of an existing law, litigants are generally prohibited from asserting a position in litigation without authority. (See, e.g., In re Estate of Randall (1924) 194 Cal. 725, 728-29) (“Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.”) (internal quotations omitted); California Rules of Professional Conduct, Rule 3.1. Additionally, the citation to general propositions of law, general statutes and rules, or the assertion that a legal principle applies, without analysis or authority, provides no basis for the court to analyze or adopt the request of the party, and requires no substantive analysis by the court. (See Lafferty v. Wells Fargo Bank (2013) 213 Cal. App. 4th 545, 571-72.) The Court finds that Caltrans' award of costs is not limited to costs on appeal.
The rationale of the decision in the Court of Appeal was “ . . .that the evidence [was] insufficient to establish that the plaintiffs’ properties suffered direct, substantial, and peculiar damage as a result of the . . . project.” The basis of plaintiffs’ claim in the jury trial had to do with the consolidation of numerous lanes in the area adjoining his properties, and that apparently was the basis of the presentation on appeal. But this court is aware of evidence in the jury trial (and presumably in the first stage as well, in support of plaintiff’s claim in the record, but which was not advanced in the trial court, nor apparently on appeal, which such evidence gives plaintiff’s claim inherent and cognizable value substantially above the offer of defendant, thereby influencing the prospects of the case at the time of the offer.
That evidence is that plaintiff built three homes in a design which the court observes to be quite unusual in Southern California, i.e., two story homes with a pitched roof containing a dormer window. Photographs of such conditions were in evidence Such dormers are much more common in single story homes such as bungalows. In any reasonable view, the vibrations created in those homes was because of those roof-dormers making the interior (inferentially, an attic-like space) act much like a drum. The sound waves from the freeway, following the removal of trees and addition of lanes were converted to mechanical energy as well as amplified by the unusual architectural feature. Thus, for the purpose of analysis of this limited question, the court finds that there was this direct, substantial and “peculiar” damage noticeable and observable to the average reasonable person at the time of the claim and litigation, which such conditions would not occur to two-story homes of more typical architecture without a dormer. (This finding does not conflict with the law of the case because it goes only to noticeable conditions at the time of money offers.)
Witness Costs – Caltrans submits only arguments on the applicability of CCP §§ 998 and 1033.5, and not CCP § 1036, and so the Court will not address CCP § 1036. Regarding CCP § 998, the final judgment is entered in favor of Caltrans, which represents an outcome more favorable than its $15,000 offer. Pursuant to Melendrez, this constitutes prima facie evidence showing the offer was reasonable. Plaintiff contends that Caltrans made this offer solely to recover expert witness fees, arguing that Caltrans' one-month $15,000 settlement offer was unreasonable in light of Plaintiff's $438,770 tort claim and a lack of discovery at the time of the offer. The Court finds that Plaintiff sufficiently rebuts the prima facie showing of reasonability under the circumstances of the case pursuant to CCP § 998. For the reasons set forth above, the motion will be granted at the witness costs of $189,875.13. will be taxed.
Deposition Costs – Plaintiff contends that videotaping was not reasonably necessary to the conduct of the litigation. As to deposition costs, the Court finds that CCP § 1033.5 allows costs relating to video recording; further, "the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (612 South LLC, supra, 184 Cal.App.4th at p. 1285.) Plaintiff fails to bear its burden to show any evidence that such costs were not reasonable or necessary.
Accordingly, the Court will grant the instant motion in part, as to witness costs of $189,875.13. and deny as to deposition costs $3,775.00, and grant as to court reporter costs $33,500.73
In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.
Plaintiff William McChesney's Motion to Tax Costs came on regularly for hearing on October 23, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:
THE MOTION IS DENIED IN PART AND GRANTED IN PART. Items #8 and #11 on the memorandum of costs filed September 18, 2020 at 10:56 AM are taxed in their entirety; item #4 is not taxed at all; total costs allowed therefore equal $20,661.65.
DATE: _______________ _______________________________
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