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Raymond Martinez et al v. Brownco Construction Company

February 10, 2012


APPEAL from an order of the Superior Court of Los Angeles County. Elihu Berle, Judge. Affirmed in part and reversed in part. (Los Angeles County Super. Ct. No. KC050128)

The opinion of the court was delivered by: Chaney, J.


All parties appeal from an order awarding costs to the plaintiffs following a jury trial. Defendant maintains plaintiffs are not entitled to the cost of presenting an edited video recording of the deposition of a witness or the cost of a PowerPoint presentation used during closing argument. Plaintiff Gloria Martinez contends the court erred in taxing expert witness fees incurred between her successive Code of Civil Procedure section 998 settlement offers.*fn1 We conclude plaintiffs are entitled to the cost of the video presentation but not the PowerPoint presentation. Gloria is entitled to expert witness costs incurred from the date of her earliest reasonable offer.


Raymond Martinez was injured in an electrical explosion at work. He and Gloria, his wife, sued Brownco Construction Company (Brownco), which had performed demolition work at the job site, for negligence and loss of consortium.*fn2 Brownco answered, alleging that Raymond's and his employer's negligence caused the explosion.

On August 30, 2007, Raymond served on Brownco a statutory offer to compromise pursuant to section 998 in the amount of $4,750,000. Gloria offered to compromise for $250,000. Brownco neither accepted nor rejected the offers, and they were withdrawn by operation of law after a statutory 30-day period had passed. (§ 998, subd. ((b)(2).) On February 8, 2010, Raymond offered to compromise for $1,500,000. Gloria's offer was $100,000. Brownco took no action on these offers either, and they were withdrawn by operation of law when trial began on February 18. (Ibid.)

At trial, plaintiffs' theory was that as part of the demolition work, Brownco employees sawed through several vertical electrical conduits (metal tubes carrying electrical wires) directly above a live, high voltage electrical panel, causing metal shavings to fall down through the conduits into the panel. The shavings caused electrical arcs within the panel, creating superheated plasma which then exploded, severely burning Raymond. Brownco's theory was that while disassembling the electrical panel, Raymond left two live electrical lines unsecured and exposed. The wires came into contact with other parts of the panel, causing arcing that ultimately resulted in the explosion.

Brownco's foreman in charge of the demolition was Dwayne Taylor. Taylor allegedly ignored advice that the proper way to remove the conduits was either to disconnect them or to cut them "beyond the '90'," i.e., at a location beyond a 90 degree bend, so that metal shavings would at worst fall onto the electrical panel's external housing, not down through the conduits to the panel's interior. Plaintiffs took a video recording of Taylor's deposition. Shortly before trial, Brownco notified plaintiffs that Taylor no longer worked for it and could not be found. At trial, plaintiffs presented video excerpts of Taylor's deposition. The deposition testimony of other absent witnesses was read into the record by attorneys.

During closing argument to the jury, plaintiffs' counsel used a PowerPoint presentation that featured several photographic views of the workspace, including the electrical panel, conduits, and signs of arcing, with textual insets setting forth plaintiffs' argument. The presentation also included photographs of Raymond's physical injuries, bullet point lists of the impact his injuries had on his and Gloria's daily lives, and tables showing his economic damages.

In a special verdict, the jury found Raymond to be 10% at fault, his employer 40% at fault, and Brownco 50% at fault. Judgment was entered awarding Raymond $1,646,674 and Gloria $250,000.

After trial, plaintiffs sought $561,257.14 in itemized costs, including $11,956 for editing and presenting video excerpts of Taylor's deposition, $87,282.86 for the PowerPoint presentation used during closing argument, $188,536.86 in expert fees incurred after their first section 998 offers but before their second offers, and $64,555.45 in expert fees incurred after the second set of offers.

Brownco moved to tax the cost items for the video presentation of Taylor's deposition, the PowerPoint, and the $188,536.86 in expert fees incurred between plaintiffs' first and second section 998 offers. It argued the recording of the Taylor deposition was not reasonably necessary for trial, as attorneys could simply have read the questions and answers into the record, as is normally done when a witness is unavailable for trial and as was otherwise done in this case. Brownco argued the PowerPoint presentation was similarly unnecessary and Gloria was not entitled to expert fees incurred before her second 998 offer to compromise.

Plaintiffs opposed the motion, arguing the Taylor video recording and PowerPoint presentations were reasonably necessary and Gloria should recover all witness fees incurred after her first section 998 offer.

Judge Warren Ettinger, who had presided over the trial, retired before Brownco's motion came on calendar. The motion was heard by Judge Elihu Berle, who agreed with Brownco that Gloria was not entitled to witness fees incurred between her first and second section 998 offers but found plaintiffs were entitled to the costs of editing and presenting the Taylor video and creating and presenting the PowerPoint slides.

Both sides appeal from the ensuing judgment.


A. Reasonably Necessary Costs

Brownco contends it was not reasonably necessary for plaintiffs to present Taylor's deposition in video format at trial or to make a PowerPoint presentation during closing argument.

1. Legal Principles

Section 1032 permits an award of costs to a prevailing party. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 128-129.) Section 1033.5 sets forth the items of costs that may or may not be recovered. Subdivision (a) of section 1033.5 itemizes allowable costs, which include: "Taking, video recording, and transcribing necessary depositions." (§ 1033.5, subd. (a).) Subdivision (b) of section 1033.5 itemizes certain items not allowable as costs. An item not specifically allowed under subdivision (a) or disallowed under subdivision (b) nevertheless may be recoverable in the court's discretion. (§ 1033.5, subd. (c)(4).) Only costs that are "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation" may be awarded. (§ 1033.5, subd. (c)(2).) If the non-prevailing party objects to an item of costs, the burden of proof is on the prevailing party to establish the item's reasonable necessity. (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698-699.)

Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court, whose decision is reviewed for substantial evidence. (Lubetzky v. Friedman (1991) 228 Cal.App.3d 35, 39.) When an issue is tried on declarations, the rule on appeal is that declarations favoring the contention of the prevailing party establish the facts stated and all facts reasonably inferable therefrom. (Ibid.)

Brownco suggests our review should be de novo because Judge Berle, who presided over the costs hearing, had not presided over trial, leaving him in no better position than we to assess whether a cost item was reasonably necessary. We disagree.

In ruling on a motion to tax costs, the trial court applies the standards set forth in section 1033.5 to the litigation facts and determines whether a particular cost item was reasonably necessary to produce the successful result. Litigation facts include the nature of the action, the underlying facts alleged before and developed during trial, the nature and complexity of legal issues presented, and the practical and procedural steps necessary to present the underlying facts, apply the pertinent law, and reach a successful result. A party seeking costs must establish the litigation facts and persuade the trial court that those facts meet the requirements of section 1033.5. (Evid. Code, § 115; see generally People v. Dubon (2001) 90 Cal.App.4th 944, 953-954.) As a practical matter, establishing the litigation facts is most easily accomplished when the bench officer hearing the costs motion also presided over trial, as the parties may rely on the officer's familiarity with the litigation in lieu of an unnecessarily detailed evidentiary showing. If the bench officer did not preside over the trial, the parties' evidence must be more complete. That does not mean a bench officer who did not preside at trial is equally positioned with the ...

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