On 08/25/2017 ANITA BACALL filed a Personal Injury - Elder/Dependant Adult Abuse lawsuit against CEDARS ASSISTED LIVING INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY KEOSIAN. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
THE CEDARS ASSISTED LIVING
CEDARS ASSISTED LIVING INC
DOES 1 TO 200
CEDARS ASSISTED LIVING INC. DBA THE CEDARS ASSISTED LIVING
PECK STEVEN C. ESQ.
PECK STEVEN C.
JAMPOL ALAN R. ESQ.
JAMPOL ALAN R.
5/22/2018: PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES FROM CEDARS ASSISTED LIVING, INC. TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE; ETC.
6/12/2018: PROOF OF PERSONAL SERVICE?CIVIL
7/5/2018: REPLY MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES FROM CEDARS ASSISTED LIVING, INC. TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
2/22/2019: Minute Order
4/25/2019: Proof of Service (not Summons and Complaint)
5/29/2019: Notice of Ruling
9/25/2017: NOTICE OF CASE MANAGEMENT CONFERENCE
at 2:32 PM in Department 61; Ruling on Submitted MatterRead MoreRead Less
Minute Order ( (Ruling on Submitted Matter)); Filed by ClerkRead MoreRead Less
Certificate of Mailing for (Minute Order (Ruling on Submitted Matter) of 05/29/2019); Filed by ClerkRead MoreRead Less
Notice of Ruling (Ruling Re Defendant Cedars Assisted Living, Inc.'s Motion for Summary Judgment or Summary Adjudication); Filed by ClerkRead MoreRead Less
Motion to Strike (not initial pleading); Filed by Anita Bacall (Plaintiff); Lisa Bacall-Tehrani (Plaintiff)Read MoreRead Less
at 09:00 AM in Department 61; Post-Mediation Status Conference - HeldRead MoreRead Less
at 09:00 AM in Department 61; Hearing on Motion for Summary Judgment - Held - Taken under SubmissionRead MoreRead Less
at 08:30 AM in Department 61; Hearing on Ex Parte Application (to Strike Defendant's Supplemental Expert Designation) - HeldRead MoreRead Less
Ex Parte Application (to Strike Defendant's Supplemental Expert Designation); Filed by Anita Bacall (Plaintiff); Lisa Bacall-Tehrani (Plaintiff)Read MoreRead Less
Order Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Cedars Assisted Living, Inc. (Defendant)Read MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
OSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
Declaration; Filed by Plaintiff/PetitionerRead MoreRead Less
DECLARATION OF LISA BACALL-TEHRANI AS SUCCESSOR IN INTEREST TO DECEDENT ANITA BACALL PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 377.32Read MoreRead Less
Declaration; Filed by Attorney for Pltf/PetnrRead MoreRead Less
Complaint; Filed by Anita Bacall (Plaintiff); Lisa Bacall-Tehrani (Plaintiff)Read MoreRead Less
ComplaintRead MoreRead Less
SUMMONSRead MoreRead Less
COMPLAINT FOR DAMAGES 1. ELDER ABUSE (PURSUANT TO WELFARE AND INSTITUTIONS CODE 156OO, ET. SEQ.) ;ETCRead MoreRead Less
Case Number: BC673872 Hearing Date: April 12, 2021 Dept: 61
Plaintiffs Anita Bacall, by and through her successor in interest Lisa Bacall-Tehrani’s Motion to Tax Costs is GRANTED in part. $24,036.39 is taxed from the cost memorandum of Defendant Cedars Assisted Living, Inc., leaving a total costs award of $56,417.77.
I. MOTION TO TAX COSTS
“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (California Rules of Court Rule 3.1700, subd. (b)(1).)
“Code of Civil Procedure section 1032, subdivision (b) , guarantees prevailing parties in civil litigation awards of the costs expended in the litigation: ‘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.’” (Williams v. Chino Valley Independent Fire Dist. (“Williams”) (2015) 61 Cal.4th 97, 100.).
“If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) Although individual cost items are ordinarily challenged by a motion to tax costs, no cost-item is effectively put in issue by “mere statements” claiming them to be unreasonable. (Ibid.) However, where “it cannot be determined from the face of the cost bill whether the items are proper,” “the mere filing of a motion to tax costs may be a ‘proper objection’ to an item.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, 132.)
Plaintiffs object that a number of costs are submitted in Cedars’s memorandum without documentary support or basis to find whether the expenses are proper.
A. Deposition Costs
Plaintiffs argue that the $16,546.45 in deposition costs sought by Cedars are unreasonable because Plaintiffs paid the court reporter and videographer fees for the majority of these depositions, and as such Cedars must produce documents to support the costs they say they incurred. (Motion at p. 4.)
Cedars in opposition contends that Plaintiffs’ argument on this point is inadequate to place the costs in question. (Opposition at p. 3.) It presents the testimony of attorney Alan R. Jampol, who testifies that Cedars incurred the costs because it had “to order and pay for copies of every deposition.” (Jampol Decl. ¶ 6.) Costs are permissible for copies of depositions. (Code Civ. Proc. § 1033.5, subd. (a)(3)(A).)
In reply, Plaintiffs point to several invoice items for amounts it claims are non-compensable. (Reply at p. 2, citing Jompal Exh. 2.) While the identified surcharges for “video deposition” are compensable under the statute’s provision for “video recording” depositions, Plaintiffs are correct that certain identified charges for “rough drafts” of deposition transcripts are not compensable under the statute. These charges amount to $432.15, and will accordingly be taxed.
B. Witness Fees
Plaintiffs object to the $27,450.00 sought for expert witness fees under Code of Civil Procedure § 998, on the grounds that the amounts sought cannot be verified without documentation. (Motion at pp. 4–5.)
Cedars claims these costs under Code of Civil Procedure § 998, subd. (c), because Cedars made a settlement offer to Plaintiff, after which Plaintiff failed to obtain a more favorable judgment or award. In such circumstances, a plantiff may be made “to pay a reasonable sum to cover postoffer costs of the services of expert witnesses.” (Code Civ. Proc. § 998, subd. (c)(1).) Here, a section 998 offer was made on July 18, 2019, for the sum of $100,001.00, which Plaintiffs did not accept. (Opposition Exh. 3.) Jampol testifies that the costs sought were incurred post-offer, and do not include amounts paid for the services of Plaintiffs’ experts. (Jampol Decl. ¶¶ 13–15.) Moreover, Cedars presents the invoices for the services they obtained. (Jampol Decl. Exh. 4.)
Plaintiff argues that no authority exists for the reimbursement of fees paid to depose the experts of the opposing party, as Cedars claims here. (Motion at p. 5.) But such fees are permissible. Section 998 allows for the reimbursement of fees for “the services of expert witnesses,” without regard for whether they are retained by an adverse party. In deposing an opposing expert, a party must “pay the expert's reasonable and customary hourly or daily fee for any time spent at the deposition.” (Code Civ. Proc. § 2034.430, subd. (b).) In making such payments, one pays for “the services” of the expert witness. Accordingly, these costs ought not to be taxed.
C. Court Reporter Fees
Plaintiffs contend that they agreed to equally split court reporter fees with Cedars, and request documentation to prove that the amount requested is Cedars’s proportionate share. (Motion at p. 5.)
Cedars in opposition concedes that the split-fee arrangement was agreed to, but argues that neither the reporter service nor their insurer were amenable to the issuing of split invoices to Cedars and Plaintiffs, resulting in them paying the entire amount. (Opposition at p. 4; Jampol Decl. ¶¶ 16–17.) Cedars also presents its bills for the reporter fees. (Jampol Decl. Exh. 5.) Cedars argues that Plaintiffs should be made to reimburse Cedars for the entire amount, since if the agreement had been honored, they could be made to pay the same: first their share to the reporter company under the agreement, then Cedars’s share when it prevailed against Plaintiffs at trial. (Opposition at p. 4.)
The costs here are properly reduced. Although Cedars is the prevailing party, the ordinary system whereby prevailing parties recover costs does not prevent the parties from “from stipulating to alternative procedures for awarding costs in the litigation.” (Code Civ. Proc. § 1032, subd. (d).) Here, there was an agreement to split costs evenly rather than apportion them according to the formula provided in Code of Civil Procedure § 1032. Thus Plaintiffs may be made to pay their share of the $19,078.17 sought here, which amounts to $9,539.09.
Plaintiff in reply argues that costs must be taxed in the amount of $11,278.17, because certain costs identified in the invoices are not compensable. (Reply at p. 3.) But this argument is unsupported by any reasoning or legal authority.
The costs are therefore taxed in the amount of $9,539.09.
Plaintiffs argue that Cedars’s claimed costs for exhibits should be reduced by 75%, since Cedars used only a quarter of the exhibits they had prepared for trial. (Motion at pp. 5–6.) Plaintiffs also move to exclude costs incurred for a video recreation of the underlying events that this court ultimately ordered excluded. (Motion at p. 6.)
Costs for “[m]odels, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.” (Code Civ. Proc. § 1033.5, subd. (a)(13).) Plaintiffs rely on authority holding for the proposition that exhibits not used at trial are by definition not helpful to the trier of fact, and therefore cannot be awarded. (Motion at pp. 5–6, citing Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761, 775.) Cedars points to authority holding that exhibit costs can be reimbursed even if not used at trial, since an abundance of preparation helps triers of fact by promoting efficient litigation. (Opposition at pp. 5–6, citing Segal v. Asics America Corp. (2020) 50 Cal.App.5th 659, 667 [disapproving Ladas].)
The California Supreme Court has granted a petition for review of the Segal decision. (Segal v. ASICS America (Cal. 2020) 269 Cal.Rptr.3d 199.) “Pending review and filing of the Supreme Court's opinion, unless otherwise ordered by the Supreme Court under (3), a published opinion of a Court of Appeal in the matter has no binding or precedential effect, and may be cited for potentially persuasive value only.” (CRC Rule 8.1115, subd. (e)(1).)
Segal is not binding under the above rules and its reasoning is not persuasive. It holds that exhibits “reasonably helpful to aid the trier of fact” include exhibits that were never presented to the trier of fact. This holding relies on an interpretation that renders the statutory language at issue superfluous. If “helpful to aid the trier of fact” means merely that the exhibits’ preparation helped to expedite proceedings — i.e. that they were “reasonably necessary to the conduct of the litigation” — then the additional language serves no purpose, since all compensable costs are subject to that restriction. (Nelson, supra, 72 Cal.App.4th at p. 129.) The addition of this particular “helpful” language reflects a restriction particular to the matter that the language modifies. And exhibits not presented to the trier of fact are not “helpful” in the sense that they aid the trier of fact in coming to its factual determinations.
This is not an adverse reflection on the practice of preparing (or overpreparing) one’s trial presentation, but a legislative determination on the best measure by which compensable costs for such preparation may be calculated.
Exhibits prepared outside this framework are not compensable under Code of Civil Procedure § 1033.5, subd. (c)(4). That provision states that costs may be awarded in the court’s discretion for “[i]tems not mentioned in this section.” (Code Civ. Proc. § 1033.5, subd. (c)(4).) But as held in the case Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, costs for exhibits are mentioned in section 1033.5, only subject to particular restrictions that the court lacks discretion to alter. (Seever, supra, 141 Cal.App.4th at p. 1558–59.) Attorney fees are also awardable as costs according to specific circumstances under Code of Civil Procedure § 1033.5, subd. (a)(10). But as the Seever court reasoned, the discretionary carve-out for unlisted costs does not give the court discretion to award attorney fees other than prescribed in the statute. (Seever, supra, 141 Cal.App.4th at p. 1559.)
Cedars points to the case Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, but the case is inapposite. There, the court held that a prevailing party could recoup the deposition costs of an expert witness when that witness had not testified at trial. (Id. at pp. 53–54.) But expert witness fees are permissible costs by express provision of statute, without the caveat that they be “helpful to aid the trier of fact.”
These costs will accordingly be taxed in the amount of $7,691.28 for the video recreation that this court ordered excluded, and $2,034.72 for the exhibits that were not presented to the trier of fact.
Plaintiff moves to exclude costs for matters not expressly allowed by statute on the grounds that they were not necessary for the conduct of this litigation or were expressly prohibited from reimbursement by statute. (Motion at pp. 6–7.)
“Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.” (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.)
Cedars in opposition presents compelling justifications for its courier service fees ($206.94), courtesy copy fees ($100.50), and lacourt.org document access fees ($5.00). Jampol testifies that these expenses were incurred to ensure the delivery of a proposed judgment to the court after their e-filing of said judgment was rejected, and to monitor the docket to ensure judgment was entered. (Jampol Decl. ¶¶ 28–29, 31–32.) Court call expenses ($94) are also reasonably incurred in light of the ongoing pandemic.
The amounts sought for legal research ($642.42), messenger costs ($1,440.82), and travel expenses ($2,255.91) will be taxed. Legal research expenses fall within the umbrella of investigation costs and are accordingly non-compensable under section 1033.5, subd. (b)(2). (See Ladas, supra, 19 Cal.App.4th at p. 776.) And while messenger costs are not prohibited from reimbursement, it is Cedars’s burden to establish that they were reasonably necessary. (Foothill De Anza Community College Dist., surpa, 158 Cal.App.4th at p. 29.) No evidence of their necessity is presented here, execpt Jampol’s testimony that messenger fees are incurred in litigation as a general matter. (Jampol Decl. ¶ 34.) These $1,440.82 and $642.42 charges are appropriately taxed.
Finally, travel costs are compensable only “to attend depositions.” (Code Civ. Proc. § 1033.5, subd. (a)(3)(C).) Although Cedars in opposition claims that the travel costs sought here are only for depositions (Opposition at p. 11), this is plainly contradicted by the memorandum of costs itself, which (1) categorizes the costs as “other,” and (2) specifically states they are for client meetings, premises inspection, travel to court hearings and mediation, and trial attendance. These $2,255.91 in travel expenses are properly taxed.
The motion to tax costs is therefore GRANTED in part. $24,036.39 are taxed from the Cedars’s cost memorandum, leaving a total costs award of $56,417.77.
Plaintiff to give notice.
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