Attorneys for Plaintiff CHARLES DAVID LUSK
 

CAROL MARIA MUSSELMAN and CHARLES DAVID LUSK Plaintiffs, v. BETTY APPLEGATE, et al., Defendants.

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Case No. 85244 PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION FOR ORDER TAXING COSTS Date: June 4 , 1998 Time: 8:30 a.m. Dept: Seven Judge: Edward M. Lacy, Jr.

I. INTRODUCTION

II. THE CLAIMS PRESENTED BY CHARLES DAVID LUSK AND CAROL MARIA MUSSELMAN ARE INDEPENDENT THOUGH RISING OUT OF THE SAME SET OF EVENTS. THEREFORE, MR. LUSK'S COSTS INCURRED FROM PURSUING HIS CLAIM MUST BE IDENTIFIED AND ADDED TO HIS JURY VERDICT IN ORDER TO DETERMINE WHETHER DEFENDANT FAILED TO OBTAIN A MORE FAVORABLE JUDGMENT

A. MR. LUSK HAS STATUTORY COSTS OF OVER $3,000 WHICH SHOULD PROPERLY BE ADDED TO MR. LUSK'S JURY AWARD IN DETERMINING WHETHER DEFENDANT FAILED TO OBTAIN A MORE FAVORABLE JUDGMENT THAN MR. LUSK'S OFFER TO COMPROMISE FOR $8,000. THEREFORE, MR. LUSK SHOULD BE GRANTED ALL HIS CCP § 998 COSTS, INCLUDING INTEREST FROM THE DATE OF HIS OFFER.

B. ITEM # 7 - ORDINARY WITNESS FEES. Mr. Lusk Is Entitled to His Statutory Portion of Fees For Experts Sworn to Testify on Ms. Musselman's Behalf And Who Also Expressed an Opinion Relating to Mr. Lusk's Claims.

1. A party is entitled to ordinary witness fees and mileage for witnesses appearing voluntarily on their behalf, regardless of whether they have been paid.

2. Ordinary witness fees and mileage expense are chargeable for experts who appear voluntarily and are chargeable for each separate cause of action for which they offer an opinion.

3. MR. LUSK is entitled to recover these statutory fees and mileage separately from MS. MUSSELMAN's claims for her costs. This right to recover costs exists even if the witness has not been paid.

C. ITEM # 10 - MODELS, BLOW-UPS, PHOTOCOPIES OF EXHIBITS. MR. LUSK IS ENTITLED TO HIS PORTION OF EXHIBITS USED AT TRIAL WHICH AIDED THE TRIER OF FACT IN UNDERSTANDING HIS CLAIMS.

D. ITEM # 3 - SERVICE OF PROCESS. Mr. Lusk Is Statutorily Entitled to Costs Incurred For Deposition Subpoenas Issued to Obtain Records Necessary For The Litigation of His Claim. These Are Not Mere Charges For Photocopying, But Have The Same Force of Testimony under Oath by the Custodian of the Copied Records.

E. THE POSTAGE AND HANDLING FEES FOR OBTAINING DEPOSITION TRANSCRIPTS ARE PROPER COSTS NECESSARILY INCLUDED IN THE PREVAILING PARTY'S RIGHT TO HAVE THESE TRANSCRIPTS UNDER CODE OF CIVIL PROCEDURE SECTION 1033.5(a)(3).

F. COURT REPORTER'S FEES. Court Reporter's Fees Should Not Be Reduced For The Invoice Dated March 25, 1998. That Invoice Expressly Deducts $200 in Credit For Plaintiffs' Jury Fee Deposit of February 5, 1997. Defendant's Argument Is Wasteful of This Court's Time, Because Defendant Paid The Same Amount as Plaintiff and Should Know That this Was a Proper Cost.

IV. CONCLUSION

Civil Code

Section 3291 1

Section 998
Section 1032
Section 1033.5
Section 1034
Section 1987.3
Section 1989

Section 68093
Section 68097

Section 4300g

City of Downey v. Gonzales (1968) 262 Cal.App.2d 563

Del Mar Can. Co. v. Pacific G. & E. Co. (1941) 44 Cal.App.2d 718

Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48

Ladas v. California State Auto. Assn. (1993) 19 C.A.4th 761

Maguire v. Corbett (l953) 119 Cal.App.2d 244

People Ex Rel. Mosk v. Barenfeld (l962) 203 Cal.App.2d 166

Ray v. Clark (1922) 57 Cal.App. 467

Stallman v. Bell (1991) 235 Cal.App.3d 740

Witkin, California Procedure 4th, Judgment § 128

I. INTRODUCTION

Plaintiff CHARLES DAVID LUSK received a jury award of $5,000.00 in total damages on March 17, 1998. (See Exhibit A attached to the Declaration of Troy Spears in Support of CHARLES DAVID LUSK's Opposition to Defendant's Motion to Strike and Tax Costs (hereinafter, "Lusk Declaration").) Plaintiff served his Memorandum of Costs in the amount of $3,298.31 which, upon review of the records, may have been overstated by $20.95. Plaintiff's jury award plus his statutory costs in the amended amount of $3,277.36 exceed his Code of Civil Procedure Section 998 Offer to Compromise in the amount of $8,000.00 which was served on August 14, 1996. (Attached to the Memorandum of Costs for CHARLES DAVID LUSK.) The test for determining whether Section 998 costs should be awarded is whether defendant failed to obtain a more favorable judgment than plaintiff's rejected offer. (Code Civ.Proc § 998(d); Stallman v. Bell (1991) 235 Cal.App.3d 740; Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48.) Here, defendant has failed to obtain a more favorable judgment than plaintiff's offer to settle for $8,000.00. Plaintiff accordingly asks this Court to award his statutory costs, as well as any costs and interest allowable under Code of Civil Procedure Section 998 and Civil Code Section 3291.

II. THE CLAIMS PRESENTED BY CHARLES DAVID LUSK AND CAROL MARIA MUSSELMAN ARE INDEPENDENT. THEREFORE, MR. LUSK'S COSTS IN PURSUING HIS CLAIM MUST BE IDENTIFIED AND ADDED TO HIS JURY VERDICT IN ORDER TO DETERMINE WHETHER DEFENDANT FAILED TO OBTAIN A MORE FAVORABLE JUDGMENT

Defendant attempts to mislead the Court in claiming that MR. LUSK's costs are purely discretionary under Code of Civil Procedure Section 1033.5(a). Section 1033.5 illustrates the sorts of costs that can be claimed as a matter of right under Code of Civil Procedure Section 1032. "Except as otherwise provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (Code Civ.Proc. § 1032(b), bold added.) Though the right to costs is said to be statutory, it is not possible for the Legislature to foresee all the various items of costs that arise in litigation, and the allowance of items of costs must be left in nearly every instance to the discretion of the trial judge. (People Ex Rel. Mosk v. Barenfeld (l962) 203 Cal.App.2d 166, 185; Maguire v. Corbett (l953) 119 Cal.App.2d 244, 252.)

Here, MR. LUSK was awarded $5,000.00 by jury verdict on March 17, 1998. MR. LUSK is a prevailing party under Section 1032 because he has received "a net monetary recovery." (Code Civ.Proc. § 1032(a)(4).) Therefore, MR. LUSK is entitled to his statutory costs under these provisions, subject to the Court's sound discretion. The court's discretion in awarding costs in such cases includes the power "to apportion costs between the parties on the same or adverse side". (Code Civ.Proc. §§1032(a)(4) & 1034) The discretion of the court to apportion costs between multiple plaintiffs is clear.

A. MR. LUSK HAS STATUTORY COSTS OF OVER $3,000 WHICH SHOULD PROPERLY BE ADDED TO MR. LUSK'S JURY AWARD IN DETERMINING WHETHER DEFENDANT FAILED TO OBTAIN A MORE FAVORABLE JUDGMENT THAN MR. LUSK'S OFFER TO COMPROMISE FOR $8,000. THEREFORE, MR. LUSK SHOULD BE GRANTED ALL HIS CCP § 998 COSTS, INCLUDING INTEREST FROM THE DATE OF HIS OFFER.

"If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment, the court in its discretion may require the defendant to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, the preparation or trial of the case by the plaintiff, in addition to plaintiff's costs." [Bold added.]

In Stallman v. Bell (1991) 235 Cal.App.3d 740, plaintiffs had made, and defendants rejected, a Code of Civil Procedure Section 998 offer to settle for $225,000.00. Plaintiffs subsequently won a verdict in their favor of $224,500.00. The trial court refused to add any costs to the verdict for the purpose of determining whether the judgment was more favorable than the offer, because the offer contained a provision that, if accepted, each side was to bear its own costs. The trial court did, however, award expert witness fees.

The Court of Appeal affirmed the order awarding expert witness fees and reversed the order denying plaintiff's request for costs, including prejudgment interest. The court also held that the trial court's refusal to add costs to the verdict was error. It held that it was consistent with the statutory purpose of § 998, which is to encourage settlement of litigation without trial by penalizing a party who rejects a reasonable offer and forces the action to trial, to allow plaintiff to add costs to the award of damages to determine whether the judgment exceeded the offer, even though the offer specified that each side was to bear its own costs, since it was defendants who forced the matter to trial by rejecting the offer. Finally, the court held that the trial court correctly awarded plaintiff expert witness fees, since the verdict and statutory costs were more favorable than plaintiffs' offer.

This principle was also applied in Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48. That case was a wrongful death action against a seatbelt manufacturer. Parents of the decedent had offered to settle with defendant in that case for $200,000.00. The offer was rejected and the case went to trial. The jury found total damages to be $500,000.00 and defendant's comparative fault was 35%. The trial court awarded $175,000.00 plus $30,561.17 in ordinary statutory costs. The trial court then found that the award of damages plus ordinary statutory costs exceeded the offer of plaintiffs and then awarded plaintiffs their Code of Civil Procedure 998 costs also. The Court of Appeal held that the trial court did not err.

The court stated at 69-70:

Both parties rely on Stallman v. Bell (1991) 235 Cal.App.3d 740 [286 Cal.Rptr. 755], which held the "judgment" to be compared, under section 998, subdivision (d), to the plaintiff's rejected offer should include the costs due the prevailing party under Code of Civil Procedure section 1032, subdivision (b). (235 Cal.App.3d at pp. 747-750.) Because in Stallman the rejected offer included a waiver of costs (id. at p. 743), Allied-Signal cites it for the proposition costs are to be included in the comparison judgment only where they were waived in the offer. We reject that reading; Stallman, as the trial court here noted, held addition of costs was appropriate despite the offer's cost waiver, not because of it. (Id. at pp. 748-749.)

As the court said in Stallman v. Bell, supra: "We agree that, under section 998, the costs provision in an offer should be taken into account to determine the amount of the offer for purposes of comparing that amount to the amount of the judgment. It does not follow, however, that the costs provision in the offer should determine what costs are added to the award of damages in order to arrive at the amount of the judgment for purposes of section 998." (235 Cal.App.3d at p. 750.) We conclude the trial court correctly added plaintiffs' ordinary statutory costs to the jury's award in order to determine the amount of the judgment under section 998, subdivision (d). [Bold added]

B. ITEM # 7 - ORDINARY WITNESS FEES. Mr. Lusk Is Entitled to His Statutory Portion of Fees For Experts Sworn to Testify on Ms. Musselman's Behalf And Who Also Expressed an Opinion Relating to Mr. Lusk's Claims.

1. A party is entitled to ordinary witness fees and mileage for witnesses appearing voluntarily on his behalf, regardless of whether such fees have been paid.

It has been argued that witnesses who appear voluntarily without service of a subpoena or who appear as experts for another party on the same side are not entitled to their fees and mileage under this provision. However, it has long been settled that such fees are incurred and are costs appropriately awarded to the prevailing party. Furthermore, these fees are chargeable as costs even if the witness has not been paid. (Ray v. Clark (1922) 57 Cal.App. 467, 469; City of Downey v. Gonzales (1968) 262 Cal.App.2d 563, 567, fn. 5; Witkin, California Procedure 4th, Judgment § 128.)

Del Mar Can. Co. v. Pacific G. & E. Co. (1941) 44 Cal.App.2d 718, was a case determined under Political Code Section 4300g, which has been amended and is now Government Code Section 68093. It was also determined under Code of Civil Procedure Section 1989, which has also since been amended. Political Code Section 4300g then provided, as quoted by the Court on 719: "For each day's actual attendance, when legally required to attend upon the superior court, per day, two dollars in civil cases, and one dollar and fifty cents in criminal cases. [¶] Mileage actually traveled, one way only, per mile, ten cents ..." Section 1989 of the Code of Civil Procedure then provided, as quoted by the court at 719: "A witness is not obliged to attend as a witness before any court, ... out of the county in which he resides, unless the distance be less than one hundred miles from his place of residence to the place of trial."

The question before the court arose because plaintiffs in that case appealed from a portion of the order of the trial court taxing costs. The items objected were mileage fees allowed for one hundred miles, one way, for 19 witnesses who voluntarily appeared and testified at the request of defendant. Each of these witnesses lived outside the county and more than one hundred miles from the place of trial. The sole question that was addressed was whether a successful litigant may recover costs for mileage fees of witnesses who appear voluntarily and testify and who also reside out of the county at a distance greater than one hundred miles from the place of trial. (Id., at 718.)

The court stated at 719-20:

"It has long been settled that if a witness resides within the effective range of a subpoena the mere fact he appears voluntarily does not prevent his fees being allowed as costs. This was the precise point involved in Linforth v. San Francisco Gas etc. Co., 9 Cal. App. 434 [99 Pac. 716]. It was there held that witnesses who had not been subpoenaed, but who had appeared voluntarily, were entitled to their fees, and that they were properly charged as costs. The opinion does not state whether the witnesses resided within the range of a subpoena, but the inference is that they did. Hence, they were witnesses that could have been subpoenaed. The court held that, although they had appeared voluntarily, witness' fees were properly included within the cost bill. It was held that when a witness is sworn and testifies, he is legally required to attend upon the court equally with the witness who has been subpoenaed. The court expressed the view that to require witnesses to be subpoenaed as a condition precedent to allowance of a witness fee, would simply mean that the cost of serving the subpoena would be imposed on the losing party."

"A logical argument could be advanced to the effect that any witness voluntarily appearing is not "legally required to attend", as required by section 4300g of the Political Code, supra., [now Government Code Section 68093] and is therefore neither entitled to an attendance nor a mileage fee. But the Linforth case, supra., decided in 1908, so far as attendance fees are concerned, decided otherwise. This view was reaffirmed in the Naylor case, supra., decided in 1911. This has been the unquestioned law for thirty-three years. If that be accepted as the law, and appellants do not challenge that doctrine, then such witness, when voluntarily appearing, is "legally required to attend" within the mileage provision. Section 4300g of the Political Code must be read together with section 1989 of the Code of Civil Procedure."

All these experts have been paid and disbursements have been made. However, it is not necessary that any disbursement have been made if the cost has been incurred. Citing Ray v. Clark (1927) 57 Cal.App. 467, the Court of Appeal in City of Downey v. Gonzales (1968) 262 Cal.App.2d 563 in footnote 5 at page 568, stated:

"Government Code section 68097: 'Witnesses in civil cases may demand the payment of their mileage and fees for one day, in advance, and when so demanded shall not be compelled to attend until the allowances are paid except as hereinafter provided for members of the California Highway Patrol, sheriffs, deputy sheriffs and city policemen.'

"In Ray v. Clark, 57 Cal.App. 467 [207 P. 501], the court said (p. 469): 'The memorandum of costs, with such an affidavit attached, established prima facie the right of the plaintiff to have the total amount shown by those items inserted in the judgment (Barnhart v. Kron, 88 Cal. 447 [26 P. 210]; Miller v. Highland D. Co. et al., 91 Cal. 103 [27 P. 536].) It devolved upon the moving party to show that the items were not properly included within the cost bill, and this it failed to do. There was no showing that any witness had waived his costs and, presumptively, each having been duly required by subpoena to attend at the trial, each would have a legal claim against the plaintiff for the amount of his fees. Plaintiff having incurred such liability was entitled to have judgment to cover it. It is not essential to the right of a party who claims witness fees as costs that he should have first paid the fees. (Linforth v. San Francisco Gas & Electric Co., 9 Cal.App. 434 [99 P. 716].)'" [Bold added.]

2. Ordinary witness fees and mileage expense are chargeable for experts who appear voluntarily and are chargeable for each separate cause of action for which they offer an opinion.

The Court of Appeal reversed and remanded with directions as to how to apportion the costs among the defendants. The Court of Appeal held that the charge for the eighth day when the expert appeared voluntarily was a properly chargeable statutory cost. The Court further held that the cost was chargeable for each of the 13 separate causes of action. (There were 13 causes of action for 15 parcels because one group had interests in two parcels and one individual owned another two parcels.) The Court finally held that the chargeable cost for an expert appearing voluntarily should be limited to an ordinary witness fee.

The court held at 569:

"Defendants are correct in the proposition that a witness need not appear under the coercion of a subpoena before statutory witness fees can be recovered in connection with his testimony. The fact that a witness who resided within the effective range of a subpoena appeared voluntarily did not prevent the allowance of such witness fee as costs, since when a witness was sworn and testified, he was "legally required to attend" within the meaning of Political Code section 4300g (now Gov. Code, § 68093) providing for allowance of witnesses' fees. (Del Mar Canning Co. v. Pacific Gas & Elec. Co., 44 Cal.App.2d 718 [112 P.2d 953]; Linforth v. San Francisco Gas etc. Co., 9 Cal.App. 434 [99 P. 716]; 54 Cal.Jur.2d, Witnesses, §§ 204, 207, pps. 668, 673.) In certain circumstances a witness need not actually testify in the proceedings before a fee can be recovered for his appearance. The necessity for the expenditure objected to was a subject for determination by the trial court in the exercise of a legal discretion. (Moss v. Underwriters' Report, Inc., 12 Cal.2d 266, 275-276 [83 P.2d 503]; City of Burbank v. Nordahl, 199 Cal.App.2d 311, 332 [18 Cal.Rptr. 710]; Whitaker v. Moran, 23 Cal.App. 758 [139 P. 901].)

"Witness fees and mileage of expert witnesses called by the defendant are proper costs. (Frustuck v. City of Fairfax, 230 Cal.App.2d 412, 416 [41 Cal.Rptr. 56]; City of Los Angeles v. Vickers, 81 Cal.App. 737 [254 P. 687].) It is improper, however, to assess witness fees in excess of those for an ordinary witness, even where the witness is called as an expert. (People v. Bowman, 173 Cal.App.2d 416 [343 P.2d 267]; Code Civ. Proc., § 1871 (in effect at the time of trial, though now repealed; now Evid. Code, § 733).)"

Mr. Layton and Officer Allison were called as accident reconstructionists who testified as to the impact transferred into the vehicle occupied by both plaintiffs. Each was paid by plaintiffs' counsel, Machado & Cousins. MR. LUSK as the prevailing party is entitled to his recover costs for the statutory fee for each of the three days Officer Allison attended deposition and trial, including statutory mileage for each of Officer Allison's three trips from Roseville to Modesto. MR. LUSK is further entitled to recover his statutory fee for the plaintiffs' noticed deposition appearance of Mr. Layton.

Dr. Gary Moran was called as a biomechanic who testified at deposition and at trial as to the impact's effects upon the passengers' bodies. His testimony was almost exclusively directed to the effect of the collision on MS. MUSSELMAN, but he also expressed opinions as to the type of injury suffered by MR. LUSK. Dr. Moran was paid by plaintiffs' counsel, Machado & Cousins. MR. LUSK is also entitled to recover costs for the statutory fee for each of the two days Dr. Moran attended deposition and trial, including statutory mileage for each of Dr. Moran's two trips from Alameda to Modesto.

Drs. Prom, Fong, and Nelson were called as medical experts who expressed opinions as to both plaintiffs medical treatment. All three doctors were paid by plaintiffs' counsel, Machado & Cousins. MR. LUSK, as a prevailing party is entitled to recover costs for the statutory fees for each of the two days that Dr. Prom attended trial, even though he only was called to testify twice. MR. LUSK is further entitled to recover costs for the two days that Dr. Fong attended deposition and trial. MR. LUSK is entitled to recover his statutory fee for the attendance of Dr. Louis Nelson at plaintiffs' noticed deposition.

Furthermore, there has been no double billing as defendant alleges. All of MR. LUSK's statutory fees and mileage have been deducted from each of the above experts' total bills in MS. MUSSELMAN's Memorandum of Costs. (See Lusk Declaration.)

3. MR. LUSK is entitled to recover these statutory fees and mileage separately from MS. MUSSELMAN's claims for her costs. This right to recover costs exists even if the witness has not been paid.

"In Lichtenauer v. Dorstewitz, 200 Cal.App.2d 777 [19 Cal.Rptr. 654], a similar question to that before us was posed. In that case the issue was as to separate causes or actions brought by two plaintiffs. The court, in upholding the trial court's striking of a cost bill for the two plaintiffs (on the theory that the total of the two recoveries entitled them to costs), said at page 779:

"'As stated in Colla v. Carmichael U-Drive Autos, Inc., 111 Cal.App.Supp. 784 [294 P. 378], at page 788: "In the complaint filed, each 'case' or cause of action preserved its identity and each plaintiff prayed for and obtained a segregated award based on the damages individually proved. The code section [Code Civ. Proc., § 378] contemplates of course an action single in form, but with each 'case' or demand retaining its distinctive identity as though pleaded in an independent action. No plaintiff is interested in the entire complaint. The interest of each is in his own 'case' or cause of action; and the complaint as a whole is merely a series of 'cases' embodied in one document. [¶]

". . . . 'Since each cause of action retained its distinctive identity and each plaintiff recovered on his or her separate demand, the matter of the right to costs had to be determined with respect to each award separately and not in the light of the aggregate amount awarded to both plaintiffs. (Cf. Fields v. Napa Milling Co., 164 Cal.App.2d 442, 450 [330 P.2d 459, 68 A.L.R.2d 1052].)'"

C. ITEM # 10 - MODELS, BLOW-UPS, PHOTOCOPIES OF EXHIBITS. MR. LUSK IS ENTITLED TO HIS PORTION OF EXHIBITS USED AT TRIAL WHICH AIDED THE TRIER OF FACT IN UNDERSTANDING HIS CLAIMS.

MR. LUSK is statutorily entitled to half the costs of the exhibits showing the damage to plaintiff's vehicle, defendant's vehicle, and the area map of the site of the accident. (See Exhibit B attached to Lusk Declaration.) The vehicle blow-ups and area map were prepared by Third Millennium Graphics which billed $2,098.41 for 25.7 hours of work on March 27, 1997. Of these 25.7 hours, 5.5 hours were spent preparing the vehicle boards and area map. Dividing 5.5 by 25.7 shows that 21.4% of this bill was applied exhibits used on behalf of both plaintiffs. 21.4% multiplied by the total amount is $449.08. And half of this cost, $224.54, should be apportioned to MR. LUSK. In addition to the preparation of these three exhibits, these exhibits were mounted by Harris Color Graphics which billed $668.44 on March 5, 1997. These were the only exhibits that Harris Color Graphics prepared, and half of this total, which is $333.17, should be awarded to MR. LUSK in that the pictures of the vehicles and the map of the area were useful to the trier of fact in understanding his claims.

Furthermore, MR. LUSK is also entitled to the full cost of the exhibit referred to herein as the "Charles David Lusk Damage Board". Third Millennium Graphics also prepared this exhibit and billed $2,813.23 for 20 hours of work on March 17, 1998. Of these 20 hours, only 1 hour was spent on MR. LUSK's Damage Board. Dividing 1 by 20, shows that 5% of this bill was applied to MR. LUSK's Damage Board. 5% of $2,813.23 is $140.66 which is erroneously represented as $260.98. Therefore, $120.32 should be subtracted from MR. LUSK's Memorandum of Costs and added back into MS. MUSSELMAN's Costs.

Moreover, MR. LUSK is statutorily entitled to half of the cost of the exhibits prepared and used by Officer Allison to explain how energy is transferred through a vehicle on collision. Mr. Allison's charge for preparing these exhibits was $187.50. This charge was not noted on MR. LUSK's Memorandum of Costs, although it was included in MS. MUSSELMAN's Memorandum. Half of this charge, $93.75, should be added to MR. LUSK's Costs and subtracted from MS. MUSSELMAN's Costs. Officer Allison's expenses in mounting the exhibits was $198.74, half of this charge is $99.37 which should be awarded to MR. LUSK.

After adding and subtracting the above miscalculations, MR. LUSK's Memorandum of Costs for Exhibits should be reduced $20.95, and MS. MUSSELMAN's Costs should be increased by the same amount.

D. ITEM # 3 - SERVICE OF PROCESS. Mr. Lusk Is Statutorily Entitled to Costs Incurred For Deposition Subpoenas Issued to Obtain Records Necessary For The Litigation of His Claim. These Are Not Mere Charges For Photocopying, But Have The Same Force of Testimony under Oath by the Custodian of the Copied Records.

This is so because they can be classified as a Subpoena Duces Tecum under Code of Civil Procedure Section 1987.3 which does not require the personal appearance of the custodian of records at the proceeding. They can furthermore be classified as a deposition of the custodian of records before the deposition officer/ photocopier, wherein the custodian declares under penalty of perjury "that I am the duly authorized custodian of records" and "that the accompanying records are the original and complete records maintained in the regular course and scope of business of my employer and constitute all records requested in the Subpoena Duces Tecum." The custodian further testifies before the deposition officer/photocopier that "the information in said records was entered by a person(s) having actual knowledge thereof at the time or soon after the occurrence of the events or incidents which they intend to convey."

Either classification shows that these are not mere photocopying charges disallowed under Code of Civil Procedure Section 1033.5. If a subpoena duces tecum, then the charges are allowable as charges necessary to effect the subpoena. If a deposition, then the charges are allowable as deposition charges reasonably necessary to the conduct of the litigation. Defendant issued these subpoenas, and cannot now be heard to declare that these records were not reasonably necessary to the conduct of this litigation.

E. THE POSTAGE AND HANDLING FEES FOR OBTAINING DEPOSITION TRANSCRIPTS ARE PROPER COSTS NECESSARILY INCLUDED IN THE PREVAILING PARTY'S RIGHT TO HAVE THESE TRANSCRIPTS UNDER CODE OF CIVIL PROCEDURE SECTION 1033.5(a)(3).

F. ITEM # 5 - COURT REPORTER FEES. Court Reporter's Fees Should Not Be Reduced For The Invoice Dated March 25, 1998. That Invoice Expressly Deducts $200 in Credit For Plaintiffs' Jury Fee Deposit of February 5, 1997. Defendant's Argument Is Wasteful of This Court's Time, Because Defendant Paid The Same Amount as Plaintiff and Should Know That this Was a Proper Cost.

III. IF THE COURT DOES NOT FIND THAT MR. LUSK OBTAINED A JUDGMENT MORE FAVORABLE THAN HIS OFFER TO COMPROMISE, MS. MUSSELMAN SHOULD BE APPORTIONED THE FULL AMOUNT OF HER COSTS SINCE THEY WERE RETAINED AND/OR DEPOSED TO DEVELOP HER CASE AND SPENT CONSIDERABLY MORE TIME PREPARING DISCUSSING THE COLLISION'S RELATION TO HER CLAIMS.

The fees for the above named experts, both retained and deposed, were reasonably necessary expenses incurred in the prosecution of CAROL MUSSELMAN's claims for a disc herniation with radiculopathy, which was impacting her job as a Certified Nursing Assistant. The costs advanced by MS. MUSSELMAN's attorneys were intended to prosecute her claims. Without MS MUSSELMAN's claims, the costs would not have been advanced on behalf of MR. LUSK. The experts, retained and deposed, only incidentally formed any opinions as to MR. LUSK's medical condition and chiropractic treatment. Therefore, if the Court does not see fit to apportion part of the fees paid to the experts as statutory costs recoverable by MR. LUSK, the Court should grant all the experts' fees to MS. MUSSELMAN as her allowable costs under Code of Civil Procedure Section 998. (See Lusk Declaration.)

IV. CONCLUSION

In summary, plaintiff CHARLES DAVID LUSK should be granted regular costs in the amount of $3,277.31, costs under Code of Civil Procedure Section 998, and interest accruing from the date of plaintiff's 998 Offer to Compromise. All of the incurred costs were reasonably necessary for the trial or in preparation thereof. Plaintiff withdraws the amount of $20.95 from his Memorandum of Costs for Models, Blow-ups, Exhibits. Plaintiff respectfully requests that the Court award the remainder of his costs and interest as set forth in Plaintiff's Memorandum of Costs and in this Memorandum of Points and Authorities.

DATED: May , 1998

Respectfully Submitted,
MACHADO & COUSINS
 

Troy Kevin Spears
Attorneys for Plaintiffs