Attorneys for Plaintiff
CAROL MARIA MUSSELMAN

I. INTRODUCTION

II. THE COSTS PRESENTED IN MS. MUSSELMAN'S MEMORANDUM OF COSTS WERE REASONABLY NECESSARY TO HER LITIGATION. MS. MUSSELMAN OBTAINED A JUDGMENT MORE FAVORABLE THAN HER OFFER TO COMPROMISE. THEREFORE, ALL HER CCP § 998 COSTS AND INTEREST SHOULD BE AWARDED.

A. ITEM # 2 - JURY QUESTIONNAIRE. The Jury Questionnaire Is Not an Excluded Cost, But it Is The Right of a Civil Litigant to Ferret Out Bias in Prospective Jurors. Moreover, Defendant Also Requested And Benefitted From Plaintiff's Jury Questionnaires And Should Not Now Be Heard to Say That These Were Not Reasonably Necessary to the Litigation.

B. ITEM # 3 - DEPOSITIONS.

a) Betty Applegate's Transcript Fee
b) Dr. Mark Goldberg's Deposition
c) Officer Michael Allison's and Timothy Sell's Travel Time to Their Depositions
d) Shipping and Handling Charges for Josephine Hampton's Deposition Transcript

C. ITEM # 4 - SERVICE OF PROCESS. Ms. Musselman Is Statutorily Entitled to Costs Incurred For Deposition Subpoenas Issued to Obtain Records Necessary for the Litigation of Her Claim. These  Are Not Mere Photocopying Charges, but Have the  Same Force of Testimony Under Oath by The Custodian of the Copied Records.

D. 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 and Should Know That this Was a Proper Cost.

E. ITEM # 7 - WITNESS FEES. Ms. Musselman Should Be Awarded All the Fees Listed in Her Memorandum of Costs For The Services of Experts in Preparation or Trial of Her Case.

a) Officer Michael Allison
b) Dr. Gary Moran
c) Timothy Sells
d) Treating Doctors -- Prom, Goldberg, Fong, and Rose.
e) Barbara Israels
f) Dr. Louis Nelson & Daniel Layton

F. ITEM # 10 - MODELS, BLOW-UPS, EXHIBITS. All the Exhibits Listed on Ms. Musselman's Memorandum of Costs Were Used at Trial to Aid the Trier of Fact and by Her Retained Experts in Explaining Their Opinions. The Fact That Exhibits from Other Trials Were Also Used Is Irrelevant since These Were Not Charged to Defendant.

G. ITEM # 11 - INTEREST ON COSTS.

IV. CONCLUSION

Civil Code

Section 3291

Section 222.5
Section 998
Section 1033.5
Section 1987.3

Section 68092.5

Rule 228

Ellenberger v. Karr (1982) 127 Cal.App.3d 423

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

Stiles v. Estate of Ryan (1985) 173 Cal.App.3d 1057

I.  INTRODUCTION

Plaintiff CAROL MARIA MUSSELMAN received a jury award of $68,069.91 in total damages on March 17, 1998. (See Exhibit A attached to the Declaration of Troy Spears in Support of CAROL MARIA MUSSELMAN's Opposition to Defendant's Motion to Strike and Tax Costs (hereinafter, "Musselman Declaration").) Plaintiff served her Memorandum of Costs in the amount of $40,010.46, subject to the exceptions noted below. (See Exhibit B attached summary to the Musselman Declaration.) Here, defendant has failed to obtain a more favorable judgment than plaintiff's offer to settle for $24,000.00 which was served on August 14, 1996. (Attached to the Memorandum of Costs for CAROL MARIA MUSSELMAN.) The Court should therefore award plaintiff her statutory costs, as well as any costs and interest allowable under Code of Civil Procedure Section 998 and Civil Code Section 3291.

II. THE COSTS PRESENTED IN MS. MUSSELMAN'S MEMORANDUM OF COSTS WERE REASONABLY NECESSARY TO HER LITIGATION. MS. MUSSELMAN OBTAINED A JUDGMENT MORE FAVORABLE THAN HER OFFER TO COMPROMISE. THEREFORE, ALL HER CCP § 998 COSTS AND INTEREST SHOULD BE AWARDED.

A. ITEM # 2 - JURY QUESTIONNAIRE. The Jury Questionnaire Is Not an Excluded Cost, But it Is The Right of a Civil Litigant to Ferret Out Bias in Prospective Jurors. Moreover, Defendant Also Requested And Benefitted From Plaintiff's Jury Questionnaires And Should Not Now Be Heard to Say That These Were Not Reasonably Necessary to the Litigation.

Defendant contends that the cost for Jury Questionnaires listed in plaintiff's Memorandum of Costs is improper and a mere photocopying charge. However, it is a civil litigant's right to have a fair and impartial jury, pursuant to Code of Civil Procedure Section 222.5 and California Rules of Court 228.

Code of Civil Procedure Section 222.5 provides:

"To select a fair and impartial jury in civil jury trials, the trial judge shall examine the prospective jurors. Upon completion of the judge's initial examination, counsel for each party shall have the right to examine, by oral and direct questioning, any of the prospective jurors in order to enable counsel to intelligently exercise both peremptory challenges and challenges for cause. During any examination conducted by counsel for the parties, the trial judge should permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case. The fact that a topic has been included in the judge's examination should not preclude additional nonrepetitive or nonduplicative questioning in the same area by counsel.

"The scope of the examination conducted by counsel shall be within reasonable limits prescribed by the trial judge in the judge's sound discretion. In exercising his or her sound discretion as to the form and subject matter of voir dire questions, the trial judge should consider, among other criteria, any unique or complex elements, legal or factual, in the case and the individual responses or conduct of jurors which may evince attitudes inconsistent with suitability to serve as a fair and impartial juror in the particular case. Specific unreasonable or arbitrary time limits shall not be imposed.

"The trial judge should permit counsel to conduct voir dire examination without requiring prior submission of the questions unless a particular counsel engages in improper questioning. For purposes of this section, an "improper question" is any question which, as its dominant purpose, attempts to precondition the prospective jurors to a particular result, indoctrinate the jury, or question the prospective jurors concerning the pleadings or the applicable law. A court should not arbitrarily or unreasonably refuse to submit reasonable written questionnaires, the contents of which are determined by the court in its sound discretion, when requested by counsel.

"In civil cases, the court may, upon stipulation by counsel for all the parties appearing in the action, permit counsel to examine the prospective jurors outside a judge's presence." [Bold and italics added.]

"This rule applies to all civil jury trials. To select a fair and impartial jury, the trial judge shall examine the prospective jurors orally, or by written questionnaire, or by both methods. The Juror Questionnaire for Civil Cases (Judicial Council form MC-001) may be used. Upon completion of the initial examination the trial judge shall permit counsel for each party who so requests to submit additional questions that the judge shall put to the jurors. Upon request of counsel, the trial judge shall permit counsel to supplement the judge's examination by oral and direct questioning of any of the prospective jurors. The scope of the additional questions or supplemental examination shall be within reasonable limits prescribed by the trial judge in the judge's sound discretion.

"The court may, upon stipulation by counsel for all parties appearing in the action, permit counsel to examine the prospective jurors outside a judge's presence." [Bold & italics added.]

Furthermore, the charges incurred for the preparation and distribution of the questionnaires are not disallowed costs for jury investigation or preparation for voir dire under Code of Civil Procedure Section 1033.5(b)(4). Such costs might include the conducting of jury focus groups, or hiring private investigators and demographers to interpret data collected by such investigators. Rather, these are charges necessarily incurred by the civil litigant in the process of administering the voir dire.

It should also be noted that defendant requested, and was benefitted by the completed questionnaires. These allowed defendant's counsel to "intelligently exercise both peremptory challenges and challenges for cause." (Code Civ.Proc. § 222.5.) Defendant should not now be heard to say that these costs were merely convenient and beneficial to plaintiff. In fact, these charges were necessary to the conduct of the litigation in that they ensured a fair and impartial jury for both sides. Counsel for plaintiff performed all the work necessary to prepare these questionnaires; however, this time and labor has not been charged to defendant.

B. ITEM # 3 - DEPOSITIONS.

a) Betty Applegate's Transcript Fee

b) Dr. Mark Goldberg's Deposition

c) Officer Michael Allison's and Timothy Sell's Travel Time to Their Depositions

Plaintiff has also included costs for Timothy Sell's travel costs twice under her bill for Item # 3- Deposition Travel, and she has also included the same costs in her cost bill for Item # 7 - Expert Witnesses. This is in fact a "double billing." Plaintiff now withdraws the following costs from her Item # 3 - Deposition Travel cost bill: Timothy Sells in the amount of $503.55. (See Exhibit B attached to the Musselman Declaration.)

d) Shipping and Handling Charges for Josephine Hampton's Deposition Transcript

C. ITEM # 4 - SERVICE OF PROCESS. Ms. Musselman Is Statutorily Entitled to Costs Incurred For Deposition Subpoenas Issued to Obtain Records Necessary for the Litigation of Her Claim. These  Are Not Mere Photocopying Charges, 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.

Furthermore, defendant claims that there is no documentation for $37.21 charge for records from Crestwood Manor. However, defendant noticed this deposition subpoena and is well aware that plaintiff also requested copies of these records. More insulting to plaintiff is that this was the very deposition subpoena that defendant argued justified defendant's second "midnight raid" on plaintiff's employment records a year later during the trial of this matter. Defendant cannot now be heard to argue inconsistently that there was no such charge after using this subpoena to rifle through plaintiff's consumer records. However, plaintiff now offers documentation of the charge. (Attached as Exhibit C to the Musselman Declaration.)

The mailing fee for Service of Process is not a mere postage fee as claimed by defendant. Rather, it is a "recoverable cost" in "the amount actually incurred in effecting service". (Code Civ.Proc. § 1033.5(a)(3).)

D. 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 and Should Know That this Was a Proper Cost.

E. ITEM # 7 - WITNESS FEES. Ms. Musselman Should Be Awarded All the Fees Listed in Her Memorandum of Costs For The Services of Experts in Preparation or Trial of Her Case.

a) Officer Michael Allison

Defendant incorrectly cites Code of Civil Procedure Section 1033.5 as the controlling statute for Officer Allison's, Dr. Moran's, and Timothy Sells travel time to their depositions. (See defendant's Memorandum of Points and Authorities in Support of Motion to Strike and Tax Costs (hereinafter "Motion to Tax Costs") at pages 3-4.) MS. MUSSELMAN was awarded an amount well over her Code of Civil Procedure Section 998 Offer to Compromise, and it is that section that here governs.

Code of Civil Procedure Section 998, subdivision (d) provides:

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.

b) Dr. Gary Moran

c) Timothy Sells

d) Treating Doctors -- Prom, Goldberg, Fong, and Rose.

e) Barbara Israels

f) Dr. Louis Nelson & Daniel Layton

F. ITEM # 10 - MODELS, BLOW-UPS, EXHIBITS. All the Exhibits Listed on Ms. Musselman's Memorandum of Costs Were Used at Trial to Aid the Trier of Fact and by Her Retained Experts in Explaining Their Opinions. The Fact That Exhibits from Other Trials Were Also Used Is Irrelevant since These Were Not Charged to Defendant.

Plaintiff's counsel has prosecuted claims for lower back injuries before and has exhibits from past trials. Some of these exhibits were used at the trial of this matter, but they have not been charged to defendant. (See Musselman Declaration.)

Defendant argues that only exhibits marked and entered into evidence are allowable as costs for exhibits reasonably helpful to the trier of fact. However, defendant cites no authority for this claim. An exhibit can be helpful to the trier of fact regardless of whether or not it has been marked and entered into evidence. Therefore, MS. MUSSELMAN should be allowed all costs for exhibits she incurred due to defendant's rejection of her reasonable Section 998 Offer.

G. ITEM # 11 - INTEREST ON COSTS.

Civil Code Section 3291 provides in pertinent part:

"In any action brought to recover damages for personal injury sustained by any person resulting from or occasioned by the tort of any other person, corporation, association, or partnership, whether by negligence or by willful intent of the other person, corporation, association, or partnership, and whether the injury was fatal or otherwise, it is lawful for the plaintiff in the complaint to claim interest on the damages alleged as provided in this section.

"If the plaintiff makes an offer pursuant to Section 998 of the Code of Civil Procedure which the defendant does not accept prior to trial or within 30 days, whichever occurs first, and the plaintiff obtains a more favorable judgment, the judgment shall bear interest at the legal rate of 10 percent per annum calculated from the date of the plaintiff's first offer pursuant to Section 998 of the Code of Civil Procedure which is exceeded by the judgment, and interest shall accrue until the satisfaction of judgment." [Bold and italics added.]

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 Code of Civil Procedure Section 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.

The court stated at 749:

"Where, as here, it is the plaintiff who makes the section 998 offer, and the defendant who rejects it, the Bennett rationale does not apply. There is, then, no reason to limit the plaintiff to damages plus preoffer costs for purposes of determining whether the judgment exceeds the offer. Rather, both pre- and postoffer costs should be added to the verdict to determine the amount of the judgment. In this case it is the defendant who has impeded the statutory purpose by rejecting the offer, thus allowing the plaintiff to incur postoffer costs." [Bold added.]

"As we have noted, the chief purpose of section 998 is to encourage settlement of litigation without trial by penalizing a party who rejects a reasonable offer and forces the action to proceed to trial. Where, as here, a plaintiff's offer includes waiver of costs and the defendant rejects the offer, thereby forcing the matter to a trial, allowing the plaintiff to add costs to the award of damages to determine whether the judgment exceeds the offer is consistent with the statutory purpose. By contrast, precluding plaintiff from doing so, and limiting plaintiff to the damages award for purposes of comparison with the offer, might, as in the case before us, reward the non-settling defendants. Such a result is not consistent with the intent of the statute."

III. DEFENDANT'S ARGUMENT CONCERNING TREATING DOCTORS AND CHALLENGES FOR POSTAGE FEES IN HER MOTION TO STRIKE AND TAX COSTS IS FRIVOLOUS. IN THE INTEREST OF DISSUADING OPPOSING COUNSEL FROM SIMILAR FUTURE ARGUMENT, THE COURT SHOULD ALSO AWARD SANCTIONS TO REIMBURSE COSTS FOR ATTORNEY TIME AND LABOR.

Defendant has cited a case that was determined under a statute that has been amended for 22 years, arguing that treating doctors are only entitled to ordinary witness fees pursuant to Government Code Section 68092.5. (Motion to Tax Costs, at page 9-10.) It cannot be believed that defendant's counsel is not aware of the proper costs for treating doctors. Curtis & Arata paid Dr. Fong and Dr. Prom -- both treating physicians -- those doctors' customary expert witness fees when that firm sought the doctors' testimony for defendant's case. Plaintiff subsequently reimbursed defendant's counsel when plaintiff also determined that the doctors' testimony was necessary for plaintiff's case. (See Musselman Declaration and Exhibit F attached thereto.)

IV. CONCLUSION

Plaintiff has withdrawn the amount of $935.05 from her Memorandum of Costs for Deposition expenses. Plaintiff also has withdrawn costs billed for Barbara Israels in the amount of $1,492.50 from her Memorandum of Costs for Expert Witness Fees. In summary, plaintiff CAROL MARIA MUSSELMAN should be granted regular costs in the amended amount of $8,947.17, costs under Code of Civil Procedure Section 998 for experts in the amended amount of $28,636.04, and interest accruing from August 14, 1996, the date of plaintiff's 998 Offer to Compromise. (Attached to CAROL MARIA MUSSELMAN's Memorandum of Costs.) All of the incurred costs were reasonably necessary for the trial or in preparation thereof. Plaintiff respectfully requests that the Court award the remainder of her costs and interest as set forth in Plaintiff's Memorandum of Costs and in this Memorandum of Points and Authorities.

DATED: May 27 , 1998

Respectfully Submitted,
MACHADO & COUSINS
 
 

Troy Kevin Spears
Attorneys for Plaintiffs