Filed 6/24/21 Mass v. City of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
HOWARD J. MASS et al., D077680
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2018-
00009001-CU-EI-CTL)
CITY OF SAN DIEGO,
Defendants and Respondents.
APPEAL from an order of the Superior Court of San Diego County,
Joel R. Wohlfeil, Judge. Affirmed.
David A. Kay, for Plaintiffs and Appellants.
Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City
Attorney, and Tyler L. Krentz, Deputy City Attorney, for Defendant and
Respondent.
This is an appeal from an order granting in part and denying in part a
postjudgment motion to tax costs. Although the motion was directed to a
number of items claimed in a memorandum of costs, all that is at issue on
appeal is whether the trial court erred in denying the motion as to $27,926.41
in expert costs pursuant to Code of Civil Procedure section 998.1 The
appellants are plaintiffs Howard J. Mass, Nancy M. Mass, and Jeanine
Coffman (together Plaintiffs), and they were the moving parties in the trial
court. The respondent is the City of San Diego (City), and it was the
opposing party in the trial court.
According to Plaintiffs, “the issue here is whether the trial court
correctly placed the burden of disputing expert witness fees on the opponent
of the costs.” As we explain, the answer is “yes.” As the party opposing the
motion to tax costs in the trial court, the City had the burden only to the
extent Plaintiffs, as the moving parties, argued that the section 998 costs
claimed by the City were not properly authorized. However, since Plaintiffs’
objections to the section 998 costs were limited to whether the City’s
section 998 offer was “made in good faith” and supported by sufficient
“information”—and did not challenge whether the costs were authorized—at
all times Plaintiffs had the burden of persuasion and proof in the trial court.
Since Plaintiffs’ appeal presents no argument based on Plaintiffs
having the burden in the trial court, Plaintiffs present no argument on
appeal that establishes reversible error. Accordingly, we affirm the
postjudgment order.
I. INTRODUCTION
In a related appeal decided this same date, we affirmed the trial court’s
judgment in this case. (Mass v. City of San Diego (June 24, 2021, D077307)
[nonpub. opn.].) In Mass, Plaintiffs appealed from a judgment in favor of the
City following the trial court’s grant of the City’s motion for summary
1 Subsequent undesignated statutory references are to the Code of Civil
Procedure.
2
judgment. In short, we concluded that Plaintiffs did not meet their burden of
establishing reversible error, because they did not establish a triable issue of
material fact as to either: whether the brow ditch that crossed Plaintiffs’
backyards provided a public benefit, or whether the City explicitly or
implicitly approved or accepted the brow ditch as a public improvement.
Because the parties and counsel, who are the same in both appeals, are
familiar with the underlying facts, claims, issues, and rulings in Mass, in this
opinion there is no need to go into any detail regarding the prejudgment
events.
II. FACTUAL AND PROCEDURAL BACKGROUND
In November 2019, the trial court entered judgment in favor of the City
and against Plaintiffs.
In December 2019, the City filed a section 1033.5 memorandum of
costs, in which it claimed, among other items, “Discretionary Expert Witness
Fees Pursuant to Rejected . . . § 998 Offer.” (Bolding and underscoring
omitted.) In its verified memorandum, as section 998 costs, the City
identified nine invoices from four different experts totaling $27,926.41 in fees
and expenses, explaining:
“The court has discretion to award these costs, which are
recoverable pursuant to . . . §§ 998[, subdivision ](c)(1),
1032, and 1033.5[, subdivision ](a)(16), as a result of
Plaintiff’s [sic] rejection of Defendant’s Offer to
Compromise, which was made on June 12, 2019, and
Plaintiff’s [sic] subsequent failure to obtain a more
favorable judgment. (All expert fees listed herein were
incurred post-offer.)”
The next month, Plaintiffs filed a motion to tax costs. As relevant to
the issues in this appeal, Plaintiffs challenged the City’s section 998 expert
witness costs on the basis the City did not make its section 998 offer in good
faith. More specifically, Plaintiffs argued that, in determining
3
reasonableness, (1) the City did not provide sufficient supporting
documentation for the amounts claimed, and (2) the court failed to consider
Plaintiffs’ economic resources. Plaintiffs did not include copies of the
section 998 offers they were challenging or evidence of their economic
resources.
The City filed an opposition, Plaintiffs filed a reply to the opposition,
and the court presided over a hearing on the motion.
In a written order filed February 14, 2020, the court ruled: The City
served separate unconditional offers to compromise on Coffman (in the
amount of $7,000) and on the Masses (in the amount of $14,000); and
Plaintiffs failed to establish that either of the offers was not reasonable based
upon the information known to the parties as of the date of each offer.
(February 2020 Order).
Plaintiffs timely appealed from the February 2020 Order.
III. DISCUSSION
Plaintiffs raise two arguments on appeal. First, Plaintiffs contend that,
by filing their motion to tax costs, the burden fell on the City to establish that
its section 998 offers to Plaintiffs (1) “were not conditional on both parties
[i.e., the Masses and Coffman] accepting [their respective offers],” and
(2) were “reasonable considering the evidence available at the time [the offers
were] made.” Second, Plaintiffs contend the trial court failed to “properly
consider whether the imposition of such a large cost bill on two middle class
homeowners would improperly discourage other homeowners from filing
legitimate claims against the City.”
According to Plaintiffs, the premise for their arguments is that the trial
court erred by placing the burden of disputing the section 998 expert witness
costs on Plaintiffs (as the party opposing the costs), rather than on the City
4
(as the party seeking the costs). We disagree. As we explain, because
Plaintiffs are unable to establish the burden-of-proof premise for their
appellate arguments, Plaintiffs have not established reversible error.
A.
The Legislature adopted section 998 “to encourage early settlement of
lawsuits to avoid the time delay and economic waste of trial, and to reduce
the number of meritless lawsuits by requiring the losing party to pay the
costs incurred by the prevailing party.” (Culbertson v. R. D. Werner Co., Inc.
(1987) 190 Cal.App.3d 704, 711.) Section 998 achieves its goal by
“punish[ing] the plaintiff who fails to accept a reasonable offer from a
defendant.” (Ibid.; accord, Heritage Engineering Construction, Inc. v. City of
Industry (1998) 65 Cal.App.4th 1435, 1439 [§ 998 is “a cost-shifting statute
which encourages the settlement of actions, by penalizing parties who fail to
accept reasonable pretrial settlement offers”].) Section 998 applies to inverse
condemnation proceedings. (Regency Outdoor Advertising, Inc. v. City of Los
Angeles (2006) 39 Cal.4th 507, 530.)
“ ‘When a defendant perceives himself to be fault free and has
concluded that he has a very significant likelihood of prevailing at trial, it is
consistent with the legislative purpose of section 998 for the defendant to
make a modest settlement offer. If the offer is refused, it is also consistent
with the legislative intent for the defendant to engage the services of experts
to assist him in establishing that he is not liable to the plaintiff. It is also
consistent with the legislative purpose under such circumstances to require
the plaintiff to reimburse the defendant for the costs thus incurred.’ ”
(Melendrez v. Ameron Internat. Corp. (2015) 240 Cal.App.4th 632, 650.)
Where, as here, a plaintiff refuses a defendant’s section 998 offer and
then fails to obtain a more favorable judgment, not only is (1) a plaintiff
5
precluded from recovering its costs incurred after the offer was made and
(2) a defendant entitled to recover its costs incurred after the offer was made,
but also (3) the trial court has the discretion to order a plaintiff to pay some
or all of a defendant’s expert witness expenses. (§ 998, subd. (c)(1).2) In
denying Plaintiffs’ motion to tax as costs the City’s expert witness expenses,
the trial court exercised its discretion by requiring Plaintiffs to pay these
expenses.
B.
“ ‘[T]he right to recover costs is purely statutory, and, in the absence of
an authorizing statute, no costs can be recovered. . . .’ ” (Davis v. KGO-T.V.,
Inc. (1998) 17 Cal.4th 436, 439, disapproved on another ground in Williams v.
Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 106-107.)
Section 1032 controls the award of costs in trial court litigation.
(Charton v. Harkey (2016) 247 Cal.App.4th 730, 737.) Subdivision (b)
provides in full: “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.”
Section 1033.5, subdivision (a)(1)-(15) identifies 15 specific cost items
which a prevailing party is entitled to recover as a matter of right (e.g., filing,
2 In full, 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 not recover his or her postoffer costs
and shall pay the defendant’s costs from the time of the offer. In addition, in
any action or proceeding other than an eminent domain action, the court or
arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum
to cover postoffer costs of the services of expert witnesses, who are not
regular employees of any party, 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.”
6
motion, jury, witness, court-appointed expert, and court reporter fees, to
identify some of the more common ones). In addition, as a catchall,
section 1033.5, subdivision (a)(16) provides that a prevailing party is also
entitled to recover “[a]ny other item that is required to be awarded . . .
pursuant to statute as an incident to prevailing in the action[.]” (Italics
added.) Section 998 is such a statute. (See Wagy v. Brown (1994) 24
Cal.App.4th 1, 8 [a § 998 award of interest “is an item of costs” under
§ 1033.5, subd. (a)(16)].)
Correspondingly, section 1033.5, subdivision (b)(1) provides that parties
may not recover expert witness fess as costs, “except when expressly
authorized by law.” Notably, such “express authorization exists in instances
. . . when the judgment awarded is lower than a rejected settlement offer”
under section 998. (First Nationwide Bank v. Mountain Cascade, Inc. (2000)
77 Cal.App.4th 871, 876 (First Nationwide Bank); accord, LAOSD Asbestos
Cases (2018) 25 Cal.App.5th 1116, 1126 (LAOSD).) Section 998 contains such
express authorization at subdivision (c). (See fn. 2, ante.)
C.
“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. 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.” (Ladas v. California State Automobile Assn. (1993)
19 Cal.App.4th 761, 774 (Ladas).) The trial court’s determination that a cost
item was reasonably necessary to the litigation is reviewed for abuse of
discretion. (Ibid.)
“ ‘[I]f the items on a verified cost bill appear proper charges they are
prima facie evidence that the costs, expenses and services therein listed were
7
necessarily incurred.’ ” (Wagner Farms, Inc. v. Modesto Irrigation Dist.
(2006) 145 Cal.App.4th 765, 773-774.) In such event, the “burden is on the
objecting party to show the costs to be unnecessary or unreasonable.” (Litt v.
Eisenhower Medical Center (2015) 237 Cal.App.4th 1217, 1224, italics added;
accord, Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, 1115 (Whatley-
Miller).)
D.
Plaintiffs argue that, once they filed their motion to tax costs, the City
had the burden of proving that each of the two offers (one to Coffman, one to
the Masses) was unconditional. On the present record, we disagree. That is
because if a cost item is authorized, then the burden is on the party seeking
to tax costs—here, Plaintiffs—to demonstrate that the item at issue was not
reasonable or necessary. (Ladas, supra, 19 Cal.App.4th at p. 774.)
We acknowledge that the mere filing of a motion to tax costs may, in
certain circumstances, be the type of an objection to place at issue whether a
specific cost item is “proper”—meaning authorized—in which event the
burden of proof in the trial court is on the party claiming it as a cost. (Ladas,
supra, 19 Cal.App.4th at p. 774.) The costs at issue in this appeal, however,
are expert witness expenses under section 998—which are expressly
authorized by law (LAOSD, supra, 25 Cal.App.5th at p. 1126; First
Nationwide Bank, supra, 77 Cal.App.4th at p. 876). Thus, since the cost item
here “ ‘ “appear[s] to be [a] proper charge[ ], . . . the burden of showing that
[this] item is not properly chargeable or is unreasonable is upon the [objecting
party].” ’ ” (Whatley-Miller, supra, 212 Cal.App.4th at p. 1115, italics added;
accord, Ladas, at p. 774.) Here, Plaintiffs are the objecting parties. Under
these circumstances, because “ ‘the [City’s] verified memorandum is prima
facie evidence the [expert witness] expenses were necessarily incurred by the’
8
[City], . . . [t]o controvert this evidence, the burden is on [Plaintiffs] to present
evidence showing the contrary.” (Whatley-Miller, at p. 1115.)
Here, in their presentation in the trial court, Plaintiffs did not attempt
to meet either burden. The entirety of the evidence Plaintiffs submitted in
support of their motion was a declaration from trial counsel, in which: (1) he
described generally each of the separate section 998 offers the City made to
Coffman and the Masses; (2) he explained the status of the discovery at the
time of the City’s section 998 offers in June 2019 (16 months after the filing
of the action); (3) he testified that the City filed its summary judgment
motion in August 2019 (18 months after the filing of the action); and (4) he
authenticated the City’s memorandum of costs (in which the City claimed
expert witness expenses under § 998) and portions of his three clients’
deposition transcripts. From this evidence—which did not include either of
the City’s section 998 offers—the trial court did not err in ruling that
Plaintiffs did not meet their burden of establishing that either offer was not
made in good faith or lacked supporting information.
On appeal, Plaintiffs present their arguments a bit differently, but the
premise for each is that the City did not, and cannot, meet its burden of
establishing the sufficiency of each of its section 998 offers.3 As we explained
ante, since the City’s claim for expert witness expenses was statutorily
authorized—as expressly set forth both in the City’s memorandum of costs
3 On appeal, Plaintiffs argue that the City had the burden to establish
that its section 998 offers to Plaintiffs: (1) “were not conditional on both
parties [i.e., the Masses and Coffman] accepting [their respective offers]”; and
(2) were “reasonable considering the evidence available at the time [the offers
were] made.”
9
and in Plaintiffs’ motion to tax costs4—Plaintiffs, not the City, had the
burden of showing that the City’s expert witness expenses were either not
properly chargeable or unreasonable. (Whatley-Miller, supra, 212
Cal.App.4th at p. 1115; Ladas, supra, 19 Cal.App.4th at p. 774.)
E.
Without mentioning the burden of proof in the trial court, Plaintiffs
additionally argue on appeal that, because the court “did not perform any
analysis of the relative economic positions of the parties,” the court “did not
properly consider whether the imposition of such a large cost bill on two
middle class homeowners would improperly discourage other homeowners
from filing legitimate claims against the City.”5
In support of their argument, Plaintiffs rely on Seever v. Copley Press,
Inc. (2006) 141 Cal.App.4th 1550, an employment case under the California
Fair Employment and Housing Act (Gov. Code, § 12900 et seq.). In Seever,
the plaintiff employee lost his age and disability discrimination case, and the
employer sought an award of discretionary expert witness costs because the
employee did not accept the employer’s section 998 offer. (Seever, at pp. 1553,
1555, 1560-1561.) The appellate court reversed an award of section 998
4 In its memorandum of costs, the City sought “Discretionary Expert
Witness Fees Pursuant to Rejected . . . § 998 Offer.” (Bolding and
underscoring omitted; italics added.) In its motion, Plaintiffs sought to tax
“Discretionary Witness Fees Pursuant to Rejected . . . § 998 Offer.” (Bolding
omitted; italics added.)
5 In the trial court, Plaintiffs argued that the section 998 costs should be
taxed, because “Plaintiffs do not have the same financial means as the City.”
Notably, Plaintiffs present no authority for the proposition—and we are
aware of none—that, in order to make a section 998 cost award, the court
must find that the parties have (at least) the same financial means.
10
expert witness costs and remanded for a new evidentiary hearing, because
the trial court “made no inquiry about [the former employee’s] financial
situation” before awarding the costs. (Id. at pp. 1562-1563.) According to the
opinion, in determining reasonableness, “the trial court also must take
account of the offeree’s economic resources in determining what is a
‘reasonable’ cost award.” (Id. at p. 1561.)
The entirely of Plaintiffs’ argument on appeal reads:
“The City is a government agency with taxing powers, a
large staff of attorneys and a substantial budget for
litigation. [¶] On the other side are three middle class
homeowners. Nancy Mass is a retired schoolteacher who
has not worked since 2008. [Citation to her deposition.]
Howard Mass is a retired schoolteacher who has not
worked in the previous 14 years. [Citation to his
deposition.] Jeanine Coffman is a nurse for Kaiser
Permanente, employed there for 2½ years prior to her
deposition. [Citation to her deposition.] She owned the
subject property as a rental, and two additional single
family home rentals in the same neighborhood. [Citation to
her deposition.]”
Plaintiffs present no evidence or record reference for their assertion
regarding the City’s taxing powers, legal staff, or litigation budget.
In support of their statement that they are “middle class homeowners,”
Plaintiffs do not define or describe what they consider “middle class.”
Moreover, they cite only to evidence from their prejudgment depositions in
which: Howard Mass testified that he has been retired from teaching for
14 years; Nancy Mass testified that she has been retired from teaching for
12 years; and Jeanine Coffman testified that she works as a nurse and owns
at least three rental homes in the neighborhood of the Maisel Way
11
properties.6 As presented, the evidence of each of Plaintiffs’ current
employment status is irrelevant to the issue of “economic resources.”
Without more information—e.g., evidence of assets and liabilities—Plaintiffs
have not presented evidence (or inferences from evidence) to support a
finding of lack of economic resources.
In any event, the trial court expressly found that “awarding expert
costs [against Plaintiffs] is not inequitable.” As Plaintiffs acknowledged in
the trial court, “Whether a cost is reasonable is a question of fact.”
Substantial evidence—e.g., each of Plaintiffs’ employment status and some of
Plaintiffs’ real estate holdings—supports the court’s finding. Accordingly,
Plaintiffs did not meet their burden of establishing that the trial court
abused its discretion in awarding the City its section 998 expert witness
costs.
6 At her deposition, Coffman would not answer questions regarding the
extent of her real estate holdings, other than to state that she owns the
Maisel Way property at issue in the litigation and two additional homes
within a mile of it.
12
IV. DISPOSITION
The February 2020 Order is affirmed. The City is entitled to its costs
on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
GUERRERO, J.
13