Vargas v. Gallizzi ( 2023 )

Filed 10/13/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ANDREA VARGAS et al., B317540
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC638423)
v.
YOLANDA GALLIZZI,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Graciela L. Freixes, Judge. Affirmed in
part, reversed in part and remanded with directions.
Pimentel Law and Gabriel J. Pimentel for Plaintiffs and
Appellants.
Law Offices of Cleidin Z. Atanous, Cleidin Z. Atanous;
Raffalow, Bretoi & Adams and Brian Dewey for Defendant and
Respondent.
________________________________
In 2014 Andrea Vargas and her adult daughter, Ana
Garcia, sued Yolanda Gallizzi for personal injuries related to an
automobile accident in which Gallizzi’s car rear-ended Vargas’s
car. A jury trial resulted in a judgment in favor of Vargas for
past noneconomic damages only, and Vargas and Garcia
appealed. We held the trial court had erred in granting Gallizzi’s
motions for nonsuit on certain claims and had erred in failing to
instruct the jury on loss of use damages. We remanded for retrial
on the amount of Garcia’s past and future noneconomic damages
and Vargas’s loss of use damages and future noneconomic
damages. We affirmed the jury’s award of past noneconomic
damages to Vargas. (See Vargas v. Gallizzi (Aug. 19, 2019,
B287583) [nonpub. opn.].)
After trial on remand a jury awarded Vargas and Garcia a
total of $15,125 in damages. Vargas and Garcia moved for
attorney fees and costs pursuant to Code of Civil Procedure
section 2033.420 1 on the ground Gallizzi had unreasonably
denied several requests for admission regarding, primarily, the
status of certain medical records as business records within the
meaning of Evidence Code section 1271. The trial court denied
the motion and awarded costs to Gallizzi pursuant to Code of
Civil Procedure section 998.
Vargas and Garcia appeal the trial court’s denial of their
motion for fees and costs and the award of costs to Gallizzi. We
affirm the award of costs to Gallizzi, reverse the denial of Vargas
and Garcia’s motion for fees and costs and remand for further
proceedings.
1 Statutory references are to this code unless otherwise
stated.
2
FACTUAL AND PROCEDURAL BACKGROUND
1. The Requests for Admission Regarding Medical Records
During the first trial in 2017 Vargas and Garcia sought to
introduce certain medical records into evidence. 2 The trial court
sustained Gallizzi’s objection to the records based on hearsay,
foundation and authenticity grounds. Specifically, the court
found the custodian declarations submitted with the records
failed to contain sufficient information to establish the records
were subject to the business records exception to the hearsay
rule. (See Evid. Code, §§ 1271, 1560-1562.) In addition, Vargas
and Garcia’s counsel failed to have the custodians of records
deliver the records directly to the clerk of the court in a sealed
inner envelope to be opened by the court in the presence of the
parties. (See Evid. Code, § 1560, subds. (c) & (d).)
In August 2019, in preparation for the second trial, Vargas
and Garcia’s counsel requested by email that Gallizzi’s counsel
stipulate to the “authenticity of medical records as well as that
they are business records.” Having received no response to the
email, in October 2019 Vargas and Garcia served requests for
admission on Gallizzi requesting she admit that the medical
records were genuine and were “business records within the
meaning of California Evidence Code § 1271.” Gallizzi served
responses in which she admitted the genuineness of the medical
records but denied they were business records.
2 The documents at issue consist of, for both Vargas and
Garcia, records from: Azusa Covina Health Services, Citrus
Valley Medical Center and Schaefer Ambulance Service; and, for
Vargas only, records from: Cedars Sinai Medical Group, South
Lake Medical Center and Discovery Radiology Physicians.
3
After receiving the responses, counsel for Vargas and
Garcia issued new document subpoenas to the healthcare
providers for the relevant medical records, this time with
custodian declarations containing more detailed information to
establish the business records hearsay exception within the
meaning of Evidence Code section 1271. The healthcare
providers produced documents and custodian declarations in
response to those subpoenas between January and August 2020.
In May 2020 Vargas and Garcia’s counsel again sent an
email to Gallizzi’s counsel suggesting they “discuss reaching a
stipulation re: authenticity of the subpoenaed medical records as
well as a stipulation that they are business records.” After
Gallizzi’s counsel responded he was unwilling to stipulate to
“admissibility of medical records,” Vargas and Garcia’s counsel
followed up several times in August and September 2020,
clarifying he sought a stipulation not to admissibility but only
that the records qualified as business records.
With no stipulation reached, in September 2020 Vargas
and Garcia’s counsel served another set of requests for admission
on Gallizzi requesting she admit the genuineness of the
subpoenaed medical records and that the records were business
records. After initially responding she lacked sufficient
information to admit or deny the requests, in February 2021
Gallizzi served responses denying the requests for admission.
In April 2021 Vargas and Garcia’s counsel served
subpoenas on the healthcare providers directing them to produce
documents and appear at trial. In June 2021 Vargas and
Garcia’s counsel served additional subpoenas on the healthcare
providers ordering them to produce the medical records to the
court pursuant to the procedures set forth in Evidence Code
4
section 1560, along with a declaration establishing the
requirements of the business records exception to the hearsay
rule.
2. The Requests for Admission Regarding the Timeline of
Treatment
In October 2020 Vargas and Garcia served a total
of 117 requests for admission regarding their medical treatment
after the accident. Each request sought an admission from
Gallizzi that Vargas or Garcia had visited a particular medical
provider on a certain date and complained of various injuries or
ailments at that time. Gallizzi denied each request.
3. The Requests for Admission Regarding Causation
Also in October 2020 Garcia served two requests on Gallizzi
seeking admission that the accident had caused “at least some”
physical and emotional harm to Garcia. Gallizzi denied both
requests.
4. The Trial and Verdict
In July 2021 the parties filed a proposed joint exhibit list
stating Vargas and Garcia intended to offer approximately
30 sets of medical records into evidence (most of which were less
than 20 pages each). For each proposed exhibit Gallizzi indicated
she would stipulate to authenticity but intended to object on
hearsay grounds.
During pretrial conferences on July 27 and July 30, 2021
the court heard argument regarding the parties’ motions
in limine. No reporter’s transcripts for these hearings have been
provided on appeal, but it appears the admissibility of medical
records was argued because the minute order for July 30, 2021
states, “The Court rules that any sealed subpoena records
5
received will be considered as business records. The admissibility
of said records is deferred to the time of trial.”
The issue was revisited during trial when Vargas and
Garcia’s counsel indicated he would use some of the medical
records to refresh Vargas’s recollection during her testimony.
Gallizzi’s counsel objected that Vargas could not authenticate the
documents and the records contained hearsay. The court
responded, “I’ve deemed them not hearsay with regards to
authentication and foundation because they were provided . . . as
part of the subpoenaed records.” Ultimately the medical records
proffered by Garcia and Vargas were admitted into evidence at
trial except for approximately 10 pages the court ruled contained
hearsay within hearsay.
After hearing five days of testimony, the jury returned a
verdict for Vargas and Garcia. The jury awarded Vargas $9,125
in loss of use damages and nothing in future noneconomic
damages. Garcia was awarded $6,000 in past noneconomic
damages and nothing in future noneconomic damages. Judgment
was entered on August 17, 2021 against Gallizzi for a total of
$15,125 in damages, plus costs to be determined.
5. Postjudgment Motions
On August 26, 2021 Gallizzi filed a memorandum of costs
seeking an award of more than $30,000 in section 998 post-
settlement-offer costs. Vargas and Garcia moved to strike or tax
costs, arguing some of Gallizzi’s costs were incurred prior to the
section 998 offer and other costs were unreasonable.
On September 8, 2021 Vargas and Garcia moved for an
award of more than $350,000 in attorney fees and costs pursuant
to section 2033.420 based on Gallizzi’s failure to admit the
requests for admission regarding the medical records, timeline of
6
treatment, and causation. 3 The motion argued Gallizzi had no
reasonable ground to deny the requests for admission based on
the information available to her at the time. In opposition
Gallizzi argued Vargas and Garcia were not entitled to an award
pursuant to section 2033.420 because they had not proved at trial
any of the issues raised in the requests for admission. In
particular, Gallizzi argued she had stipulated to the “foundation
of all medical records at issue” and, therefore, there was no
entitlement to costs under section 2033.420. Other than
two sentences disparaging opposing counsel’s abilities, Gallizzi’s
opposition did not challenge the amount or calculation of the fees
or costs sought.
At a hearing on October 5, 2021 the court denied Vargas
and Garcia’s motion for fees and costs. The court noted Gallizzi
had filed a “scant opposition, which does not separately or
specifically address the numerous requests for admissions that
are the subject of plaintiffs’ motion, nor does defendant address
the basis for her denials.” However, regarding the requests to
3 Vargas and Garcia also filed a memorandum of costs
seeking more than $15,000 in costs as the prevailing parties
pursuant to section 1032. The trial court declined to award these
costs. While Vargas and Garcia state in their opening brief that
they have appealed the “Order granting Defendant’s motion to
strike/tax costs,” the brief fails to address this argument in any
substantive way. As such, the challenge to that ruling is
forfeited. (See Golden Door Properties, LLC v. Superior Court
(2020) 53 Cal.App.5th 733, 786 [issues not supported in a party’s
opening brief with legal analysis and citation to authority are
forfeited]; Benach v. County of Los Angeles (2007)
149 Cal.App.4th 836, 852 [appellant forfeits issue not raised or
supported by substantive argument].)
7
admit the medical records were business records, the court found,
because it had ruled the records were business records “before
trial was commenced, as defined in CCP 581,” 4 Vargas and
Garcia had not been “required to prove, and did not prove, the
authenticity of the records at trial, but only prepared to do so.”
After hearing argument from Vargas and Garcia’s counsel, the
court reiterated, “Defense counsel had indicated that he was
stipulating to authenticity. There was no proof that was required
at trial that these were business records. Defense counsel didn’t
dispute that fact at all during the trial. . . . You were not
required to prove that the medical records were business records.
I found that to be the case before we ever called a jury in here.”
Because it found Vargas and Garcia had not proved the business
records exception during trial, the court ruled costs should not be
awarded pursuant to section 2033.420 on that issue.
Turning to costs based on the refusal to admit the accident
caused at least some harm to Vargas and Garcia, the trial court
found Gallizzi’s denials were unreasonable given the information
she had at the time. Nevertheless the court declined to award
costs because it found the trial would not “have been shortened or
expedited had defendant admitted these requests.” The court
explained that, because the issue before the jury was the amount
of noneconomic damages to be awarded, Vargas’s and Garcia’s
testimony had focused on their emotional experiences.
Accordingly, an admission of some physical injury would not have
changed the amount of time spent on their testimony.
4 Section 581, subdivision (a), provides, “As used in this
section: [¶] . . . [¶] (6) ‘Trial.’ A trial shall be deemed to actually
commence at the beginning of the opening statement or
argument of any party or his or her counsel . . . .”
8
The court also denied costs based on Gallizzi’s failure to
admit the details regarding Vargas’s and Garcia’s healthcare
visits and complaints. The court found the matters sought in the
requests were not proved at trial.
Finally, the court affirmed in part the motion to tax
Gallizzi’s costs, striking costs that had been incurred prior to the
section 998 offer and costs for certain court reporter fees. The
court found the remaining expert fees and court reporter fees
were reasonable and costs were warranted pursuant to
section 998.
The court entered a judgment for costs on January 5, 2022,
which stated the court had denied all claims of costs and
attorneys fees by Vargas and Garcia and awarded $28,547.66 in
costs to Gallizzi.
DISCUSSION
1. The Trial Court Erred by Denying Vargas and Garcia’s
Motion for Expenses Pursuant to Section 2033.420
a. Governing law and standard of review
During pretrial discovery a party may serve a written
request that another party “admit the genuineness of specified
documents, or the truth of specified matters of fact, opinion
relating to fact, or application of law to fact.” (§ 2033.010.) Such
requests “‘are primarily aimed at setting at rest a triable issue so
that it will not have to be tried. Thus, such requests, in a most
definite manner, are aimed at expediting the trial. For this
reason, the fact that the request is for the admission of a
controversial matter, or one involving complex facts, or calls for
an opinion, is of no moment. If the litigant is able to make the
admission, the time for making it is during discovery procedures,
and not at the trial.’” (Bloxham v. Saldinger (2014)
9
228 Cal.App.4th 729, 752; accord, Orange County Water Dist. v.
The Arnold Engineering Co. (2018) 31 Cal.App.5th 96, 115
[“‘[r]equests for admission are not restricted to facts or
documents, but apply to conclusions, opinions, and even legal
questions. [Citations.] Thus, requests for admission serve to
narrow discovery, eliminate undisputed issues, and shift the cost
of proving certain matters’”].)
If a party denies a request for admission that is later
proved, section 2033.420, subdivision (a), provides for an award of
costs of proof: “If a party fails to admit the genuineness of any
document or the truth of any matter when requested to do so
under this chapter, and if the party requesting that admission
thereafter proves the genuineness of that document or the truth
of that matter, the party requesting the admission may move the
court for an order requiring the party to whom the request was
directed to pay the reasonable expenses incurred in making that
proof, including reasonable attorney’s fees.” Subdivision (b)
provides, “The court shall make this order unless it finds any of
the following: [¶] (1) An objection to the request was sustained or
a response to it was waived under [Code of Civil Procedure]
Section 2033.290. [¶] (2) The admission sought was of no
substantial importance. [¶] (3) The party failing to make the
admission had reasonable ground to believe that that party
would prevail on the matter. [¶] (4) There was other good reason
for the failure to admit.” An award of expenses pursuant to
section 2033.420 “is not a penalty. Instead, it is designed to
reimburse reasonable expenses incurred by a party in proving the
truth of the requested admission.” (Brooks v. American
Broadcasting Co. (1986) 179 Cal.App.3d 500, 509.)
10
“‘The determination of whether “there were no good reasons
for the denial,” whether the requested admission was “of
substantial importance,” and the amount of expenses to be
awarded, if any, are all within the sound discretion of the trial
court.’” (Bloxham v. Saldinger, supra, 228 Cal.App.4th at p. 753.)
“By contrast, if the trial court exercises its discretion and
determines that the requirements of the statute exist, reasonable
expenses must be awarded.” (Brooks v. American Broadcasting
Co., supra, 179 Cal.App.3d at p. 508.) “On appeal, the trial
court’s decision will not be reversed unless the appellant
demonstrates that the lower court abused its discretion.” (Id. at
p. 509.) An abuse of discretion is shown if the trial court based
its decision on an incorrect legal standard or if the court’s factual
findings are not supported by substantial evidence. (See Costco
Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.)
b. Vargas and Garcia are entitled to recover expenses
incurred in proving the medical records were
business records
As discussed, the trial court ruled an award of expenses
regarding the medical records was not warranted because Garcia
and Vargas had not proved the records were business records
within the meaning of Evidence Code section 1271. 5 The court’s
5 The business records exception to the hearsay rule requires
a showing that (1) the writing was made in the regular course of
business; (2) the writing was made at or near the time of the act,
condition or event; (3) the custodian or other qualified witness
testifies to its identity and mode of preparation; and (4) the
sources of information and mode, method and time of preparation
indicate trustworthiness. (Evid. Code, § 1271; see
Conservatorship of S.A. (2018) 25 Cal.App.5th 438, 447.) These
11
reasoning was twofold: First, the hearsay exception had not been
proved “at trial”; second, Gallizzi had stipulated to the records’
authenticity and did not dispute their status as business records
at trial. Neither finding supported the denial of expenses.
The finding Vargas and Garcia had not proved the business
records exception “at trial,” while perhaps literally correct, was
an improper ground for the denial of an expense award. Code of
Civil Procedure section 2033.420, subdivision (a), provides
expenses shall be awarded if the party requesting the admission
“thereafter proves the genuineness of that document or the truth
of that matter.” The statute contains no requirement the proof be
made “at trial” (nor is it apparent the technical definition of the
commencement of trial found in section 581 would be applicable
in this context). Here, during a pretrial hearing the court ruled
the medical records would be considered business records. That
ruling necessarily meant the court had determined the
documents satisfied the requirements of Evidence Code
section 1271, including that the sources of information and modes
of preparation indicated trustworthiness. By providing evidence
sufficient for the court to make these findings, Vargas and Garcia
proved the matter. Accordingly, they met the threshold for
reimbursement of expenses incurred following Gallizzi’s denials.
The trial court additionally erred by finding Vargas and
Garcia were precluded from receiving cost-of-proof expenses
because Gallizzi had not disputed the medical records’ status as
business records at trial. Given the pretrial ruling on that issue,
of course, Gallizzi could reasonably have concluded that
continuing to contest the business records designation would
requirements may be satisfied by affidavit or declaration. (Evid.
Code, §§ 1561 & 1562; see also Conservatorship of S.A., at p. 447.)
12
have been futile. And nothing in the record supports the court’s
apparent belief that Gallizzi had stipulated to the business
records designation. As the trial court observed, in the joint
exhibit list Gallizzi had stipulated only to the authenticity of the
records, which is a separate requirement for admissibility. That
stipulation was simply an agreement that the medical records
identified by Vargas and Garcia were in fact the medical records
described. 6 The record is devoid of any basis to find Gallizzi also
stipulated to the additional facts necessary to find the records
were business records under Evidence Code section 1271.
To the contrary, although Gallizzi specifically asserted
hearsay objections to each of the medical records listed on the
joint exhibit list, at trial she made double hearsay objections to
only a few pages of the medical records. No general hearsay
objections were made to the medical records. In this context, the
only reasonable conclusion is that the hearsay objections on the
joint exhibit list were directed to the overarching business
records designation, objections that were effectively overruled at
the pretrial hearing. Indeed, such a pretrial ruling would have
been unnecessary if the parties had been in agreement on the
issue.
Having found Vargas and Garcia proved the medical
records were business records, section 2033.420 required
expenses be awarded unless one of the exceptions had been
established. Gallizzi attempts to support the trial court’s ruling
by contending an award was unwarranted because she had a
6 Authentication of a writing, pursuant to Evidence Code
section 1400, requires “introduction of evidence sufficient to
sustain a finding that it is the writing that the proponent of the
evidence claims it is.”
13
reasonable ground to believe she would prevail on the issue.
(See § 2033.420, subd. (b)(3).) Even if not forfeited for not having
been raised in the trial court (see Sea & Sage Audubon Society,
Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417 [issues not raised
in trial court cannot be raised for the first time on appeal]), the
argument lacks merit. 7
Gallizzi does not actually contend she had a reasonable
basis to believe Vargas and Garcia could not prove the medical
records were business records. Instead, she argues that, because
Vargas and Garcia did not properly subpoena the records and
declarations for the first trial resulting in their exclusion, she had
a reasonable belief the records would be excluded on the same
grounds at the second trial. However, a hope that opposing
counsel will make a mistake does not constitute a reasonable
basis to believe a party will prevail on the merits of an issue. “To
justify denial of a request [for admission], a party must have a
‘reasonable ground’ to believe he would prevail on the issue.”
(Grace v. Mansourian (2015) 240 Cal.App.4th 523, 532; accord,
Brooks v. American Broadcasting Co., supra, 179 Cal.App.3d at
p. 511 [denying party must have “a reasonably entertained good
faith belief that the party would prevail on the issue at trial”].)
7 Gallizzi also argues for the first time on appeal—in one
paragraph with no citations to the record or legal authority—that
the designation of the medical records as business records was
not substantially important to the case (see § 2033.420,
subd. (b)(2)) because portions of the records were excluded due to
hearsay within hearsay and the jury did not find the records “to
be meaningful or persuasive.” This argument has been forfeited.
(See Sea & Sage Audubon Society, Inc. v. Planning Com., supra,
34 Cal.3d at p. 417; Golden Door Properties, LLC v. Superior
Court, supra, 53 Cal.App.5th at p. 786.)
14
The denial “must be grounded in the evidence; it cannot be based
merely on ‘hope or a roll of the dice.’” (Orange County Water Dist.
v. The Arnold Engineering Co., supra, 31 Cal.App.5th at p. 116.)
Gallizzi argues she should not be “required to excuse
[Vargas and Garcia] of their obligation to lay a proper
foundation” for the medical records “merely because they
boisterously asserted they would do so on their second bite of the
apple.” We agree “a defendant ‘cannot be forced to admit [a] fact
prior to trial despite its obvious truth. [Citation.]’ [Citation.]
But the failure to do so comes with consequences, exposure to a
costs of proof award.” (Grace v. Mansourian, supra,
240 Cal.App.4th at p. 532.) Gallizzi had no reasonably held good
faith belief she could prevail on the merits of the business records
issue. Her denial rested solely on the potential for opposing
counsel’s procedural error. Accordingly, Vargas and Garcia were
entitled to recover the reasonable expenses incurred in proving
the medical records were business records. (Cf. Wimberly v.
Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 638 [defendant’s
reliance on inadmissible testimony and hope plaintiff would not
object at trial did not provide a reasonable basis to deny requests
for admission].)
c. Any error in failing to award expenses based on the
timeline of treatment denials was harmless
As discussed, Vargas and Garcia requested that Gallizzi
admit they had received treatment from various healthcare
professionals on specific dates and had complained of certain
ailments during those visits. Gallizzi denied each request. The
court denied Vargas and Garcia’s motion for expenses incurred to
prove these matters because it found the motion did not establish
15
each of the requested admissions had actually been proved at
trial.
Vargas and Garcia contend the proof of each visit was
contained in the medical records admitted at trial, which they
concede were the same records covered by their business records
exception requests. Accordingly, we need not consider whether
this denial of expenses was an abuse of discretion because, even if
the court had awarded expenses, they would be the same as, or
substantially overlap with, the expenses awarded for failure to
admit the business records exception.
d. The trial court did not abuse its discretion by denying
expenses for the denial of requests regarding causation
We agree with the trial court it was unreasonable of
Gallizzi to deny she had caused “some injury” to Garcia. The
record contains substantial evidence that at the time of the
requests for admission, Gallizzi knew at least some injury had
been caused by the accident. This evidence included photographs
of the damaged vehicle and records of medical treatment at the
scene of the accident. However, as the trial court correctly found,
Gallizzi conceded at trial that at least some harm was caused by
the accident. During his opening statement Gallizzi’s counsel
told the jury that Gallizzi conceded Vargas and Garcia were
injured by the accident. 8 In addition, Gallizzi’s expert testified at
trial that Garcia suffered sprains of the neck and back as a result
of the accident.
8 Gallizzi’s counsel stated: “I believe these ladies were
injured. . . . Plaintiff was taken to the hospital by ambulance.
She was treated at the hospital with what we believe, we will tell
you, was appropriate care. . . . You will never hear me or any
witness from my side say that was not reasonable.”
16
Garcia argues, notwithstanding Gallizzi’s concession, she
should be reimbursed for the evidence presented at trial proving
her injuries. It is true Garcia presented considerable evidence at
trial regarding her injuries. However, this evidence was
presented not to show some injury had occurred, but the extent of
her injuries. Even if Gallizzi had admitted the requests for
admission, Garcia would have needed to present the same
evidence to assist the jury in determining a proper damages
award. Given Gallizzi’s concession, we cannot say Garcia
incurred any costs to prove “some injury” occurred.
2. The Trial Court Did Not Abuse Its Discretion in
Awarding Costs to Gallizzi Pursuant to Section 998
Section 998, subdivision (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 plaintiff . . . shall pay the
defendant’s costs from the time of the offer.” In addition, if a
plaintiff’s recovery is less than the defendant’s offer, the court in
its discretion “may require the plaintiff 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 defendant.” (§ 998, subd. (c)(1); see Sviridov v.
City of San Diego (2017) 14 Cal.App.5th 514, 520 [“[s]ection 998
is itself an exception to section 1032’s provision that only a
prevailing party is entitled to costs. [Citation.] It makes an
award of ordinary costs mandatory against a plaintiff who did not
accept a statutory offer to compromise and failed to obtain a more
17
favorable judgment. It also gives the court discretion to award
reasonable expert witness costs”].) 9
Section 1033.5 provides that “[a]llowable costs shall be
reasonably necessary to the conduct of the litigation rather than
merely convenient or beneficial to its preparation . . . [¶] . . . [and]
shall be reasonable in amount.” (§ 1033.5, subd. (c)(2) & (3).) “If
items on a memorandum of costs appear to be proper charges on
their face, those items are prima facie evidence that the costs,
expenses, and services are proper and necessarily incurred.
[Citations.] The burden then shifts to the objecting party to show
them to be unnecessary or unreasonable.” (Doe v. Los Angeles
County Dept. of Children & Family Services (2019)
37 Cal.App.5th 675, 693.) The trial court has broad discretion to
determine what costs were reasonably necessary to the conduct of
the litigation and whether they were reasonable in amount.
(Howard v. American National Fire Ins. Co. (2010)
187 Cal.App.4th 498, 541.) We review the trial court’s
determination that costs were reasonable in amount and
reasonably necessary to the litigation for an abuse of discretion.
(Berkeley Cement, Inc. v. Regents of University of California
(2019) 30 Cal.App.5th 1133, 1139, 1140.)
Gallizzi’s memorandum of costs included $12,000 for expert
witness fees that the trial court declined to strike. Vargas and
Garcia argue the amount was unreasonable because the expert’s
designation stated his hourly fee for trial testimony was $6,000
9 In July 2021 Gallizzi served offers to compromise on Garcia
and Vargas for $30,000 and $15,000, respectively. Vargas and
Garcia do not contend their recovery was greater than Gallizzi’s
pretrial offers to compromise, nor do they contend no award of
costs was proper.
18
for up to four hours and he testified for fewer than four hours.
However, as the trial court observed, the expert designation
stated, “This expert’s daily fee for providing trial testimony is
$6,000.00 / up to four hours.” Because the expert testified over
the course of two days, the court found it appropriate that he
charged a total of $12,000 for his trial testimony. This award
was well within the trial court’s discretion.
Finally, Vargas and Garcia argue that approximately
$5,000 of the court reporter fees awarded were for nonallowable
real-time transcription costs and the reporter’s daily rate was not
reasonable in amount. During the hearing on the award of costs,
the trial court stated it had reviewed the invoices attached to
Gallizzi’s memorandum of costs and found the real-time
transcription fees and the reporter’s rates were appropriate and
reasonable. Vargas and Garcia have not cited any authority for
the proposition that real-time transcription fees are not allowable
when deemed appropriate by the trial court. Nor have they given
any basis for their argument the reporter’s daily rate of $1,390
should have been reduced to $375. The trial court acted within
its discretion in allowing recovery of these costs.
19
DISPOSITION
The judgment for costs is reversed. The order awarding
costs of $28,547.66 to Gallizzi is affirmed. The order denying
Vargas and Garcia’s motion for expenses pursuant to
section 2033.420 is reversed. The case is remanded for the trial
court to determine the amount to which Vargas and Garcia are
entitled for proving the medical records were business records.
The parties are to bear their own costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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