Motion to tax costs (cross motions)
Mateo County Superior Court for the first appearance fee in that court. Mobilitas may contact the clerk’s office for the appropriate amount of each fee.
Within 10 days of this hearing, Mobilitas is ordered to submit a proposed order for the court’s signature. The order must contain at least the following: (1) the court orders this matter be transferred to the Superior Court of California for San Mateo County, upon payment of all the necessary fees required by law; (2) the basis of the transfer is because San Mateo County is the proper county for filing Kyle Brimm’s uninsured motorist claim; (3) the clerk of this court is authorized to transfer all the pleadings and papers herein to the clerk of the receiving court; (4) the court, division, and address where the case is being transferred and (5) all currently pending motions to compel are vacated without prejudice to being reset in the transferee court.
Finally, the court sets an order to show case re dismissal of this action for failure to timely effectuate transfer for Monday, August 31, 2026, at 9:30 a.m., in Department C23. This hearing to confirm Mobilitas has taken all steps necessary to effectuate the transfer. If there is no appearance at the hearing and the transfer has not been completed, this case may be dismissed without any further notice to the parties.
Mobilitas is ordered to give notice of this ruling.
15. Wilson vs. Before the court are the following two motions to tax costs: Oscar Health (1) the motion of plaintiff John Wilson (Wilson) to tax the Plan of Memorandum of Costs filed by defendant Oscar Health Plan California of California (Oscar), and (2) Oscar’s motion to tax Plaintiff’s Memorandum of Costs. As more fully set forth
below, both motions are GRANTED IN PART and DENIED IN PART.
Motion No. 1: Wilson’s Motion to Tax Oscar’s Costs
“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.” (Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, 774.) “There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267
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party claiming them as costs. (Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1380.) The propriety of costs is a question of fact to be determined by the trial court. (Jones, supra, 63 Cal.App.4th at p. 1266.)
Pre-Section 998 Offer Costs: The parties agree Oscar made a Code of Civil Procedure section 998 settlement offer of $1,000,001 to Wilson on April 2, 2025, Wilson did not accept that offer, and a verdict was returned in Wilson’s favor for $50. Accordingly, Wilson did not beat the offer and therefore Oscar is entitled to recover all costs and fees authorized by section 998, which includes Oscar’s postoffer court costs and reasonable postoffer expert witness fees incurred in preparing for and during trial (in the discretion of the court).
The invoices Oscar submitted show Dr. Jackson’s deposition was taken on April 16, 2025. Therefore, the motion is DENIED as to Dr. Jackson’s deposition cost because it is a post-offer cost.
Exhibits B & C are invoices for deposition charges relating to the deposition of Drs. Hashmi and Vora, both of which are pre-offer costs. Accordingly, the motion is GRANTED as to those two cost items in the amount of $1,195.
Costs Identified In Section B of Motion: In Section B of Wilson’s motion, he seeks to tax the following costs which are part of Items 9 and 15 on the Memorandum of Costs: (1) $50,000 for Decision Analysis; (2) $26,165.31 for trial transcripts not ordered by the court; (3) $75.00 for shipping trial materials; and (4) $27.54 for court file copies.
Oscar concedes these costs are not statutorily recoverable. (Opp. at 2:26.) Further, there are no invoices submitted explaining the details of these charges. Accordingly, the motion is GRANTED in the amount of $76,267.85 as to these times.
Deposition of Heidi Fischer, MD - $760.50: Wilson seeks to tax the charges for the deposition of Dr. Fisher because she did not testify at trial. The statute does not require a person to testify for the costs of their deposition to be a recoverable cost item. Therefore, the motion is DENIED as to this item.
Conference Room Charges - $540: There are two charges for $270 each under Item 15 – Other which are described only as “conference room.” There are no separate invoices supporting these charges. There is no evidence as to how
these are a recoverable cost. Accordingly, the motion is GRANTED as to these items in the amount of $540.
Audio Exhibits -$1,966.91: Under Item 13-Models, Enlargements and Photocopies of Exhibits, Oscar lists charges of $1,261.14 and $705.77 for “Audio Exhibit Transcript Preparation.” Oscar has attached the invoices as Exhibit L in support of the opposition. Oscar explains these were charges for transcribing recordings as required by Rule 2.1040. These are allowable costs as necessary for trial. Accordingly, the motion is DENIED as to these items.
Trial Technician - $10,226.86: Under Item 15-Other, Oscar has four entries for “Trial Technician-Dayna S. Davis” which total $10,226.86. There are no invoices submitted which show the work performed by Dayna S. Davis. Mr. Foster’s declaration does not describe Davis’s experience, qualifications, or expertise and does not discuss the specific charges. Code of Civil Procedure section 1033.5, subdivision (c)(2), states, “allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” Without the invoices or further explanation, it is not possible to determine whether the charges were necessary rather than merely convenient. Accordingly, the motion is GRANTED as to this item in the amount of $10,226.86.
Oscar’s Post-Offer Expert Charges: Code of Civil Procedure Section 998, subdivision (c)(1), states, “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 their 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.”
In exercising its discretion to allow expert fees, the court should consider if the expert witness fees are reasonable. (Rouland v. Pacific Specialty Insurance Company (2013) 220 Cal.App.4th 280, 289.) It is not required that the expert take the stand or be deposed to allow the recovery. The time the expert spends in preparation for trial is allowable. (Michelson v. Camp (1999) 72 Cal.App.4th 955,
In the motion, Wilson challenges the charges of Dr. Heidi Fischer, Dr. Nitin Bhatia, and Dr. Peter Cassini as being unreasonable and unnecessary. The court has reviewed the invoices submitted at Exhibit N (Bhatia), Exhibit Q (Cassini) and Exhibit T (Fischer). The court finds, although the charges are high, they were not beyond what might have been anticipated in an expert intensive case such as this. Accordingly, the motion is DENIED as to expert charges and the total expert charges allowed under Item 8 is the $98,625.35 requested.
Finally, the court has considered Wilson’s request for an overall reduction of expert fees and costs based on his claim of limited financial resources. Wilson has provided a conclusory declaration regarding his income and monthly expenses, but has not provided any other information about his financial condition, such as any savings or other assets. The court also finds this is not a case in which Oscar sought to force Wilson to accept an unreasonable settlement offer based on his financial circumstances. The court finds the offer of approximately $1 million is reasonable offer, not a token or bad faith offer made for any inappropriate reason. Indeed, Wilson does not contend that it was. Based on the totality of the circumstances, Wilson’s request for the court to exercise its discretion to reduce the fees and costs based on his financial circumstances is DENIED.
In total, the motion is GRANTED as to the total of $88,229.71 described above. The motion is DENIED as to all other amounts. That leaves a total costs award to Oscar of $115,376.12.
Motion No. 2: Oscar’s Motion to Tax Wilson’s Costs
Post Section 998 Offer Costs: Wilson concedes several costs are post offer and properly taxed. (Opp. at 2:4-5.) Wilson, however, argues one charge for a copy of Dr. Jackson’s deposition in the amount of $257.95 should be considered pre-offer because the deposition was taken before the offer even though the copy was purchased after the Section 998 offer. The court disagrees. Accordingly, the motion is GRANTED as to the post-offer costs in the amount of $7,709.49.
Charges for Serving Subpoenas: The cost for serving subpoenas is a recoverable cost. Although Oscar argues Wilson should not have served a subpoena for records on it when a request for production would have sufficed, there is
no prohibition on using a subpoena to obtain records from a party. Further, while the charge for serving Dr. Hoedebecke with a subpoena in Texas was high, it is supported by invoices showing the reasonableness of the charges. Wilson, however, concedes the charges referenced at page 7, lines 18-23 of the motion should be taxed. Accordingly, the motion is PARTIALLY GRANTED as to these costs in the amount of $730.25.
Vague and Ambiguous Charges: Oscar seeks to tax the following items because they are not adequately described:
1. Steno Invoice 1646325 Hearing: $35.00; 2. One Legal Accounting Filing a Notice of Entry of Order: $15.65; 3. One Legal Order Number 20931952: $13.33; 4. One Legal Filing Fee Order number 20810884: $15.65; 5. Greenfiling to take Deposition Outside California: $58.62; 6. Check – Don Green Filing ID 12030393: $14.27; 7. OC E-File 12067413: $14.27; 8. OC E-File 12017676: $14.27; 9. $455.18 for filing the Complaint; 10. Filing fee for Opposition to Petition to Compel Arbitration: $16.64; 11. Serve Oscar Health Plan of California served @330 N Brand Blvd Ste 700 Glendale, CA, 91203-2336 on 1/4/2023 at 12:09 PM: $99.15; 12. Notice of Ruling on Defendant Oscar Health Plan of California's Petition for an Order Compelling Arbitration and Staying Superior Court Action: $16.64; and 13. Orange County Superior Court Purchase of Minute Order: $7.50.
In the opposition, Wilson concedes no. 13 should be stricken. (Opp at 9:16-17.) In the reply, Oscar withdraws its challenge to nos. 6 and 8-12. (Reply at pages 5-6.) Oscar argues number one ($35 charge on Exh. P) is for a copy of the transcript from a hearing that took place on November 7, 2024, but which was ordered after April 2, 2025. This post-offer cost will be taxed. Charges numbers three and four are supported by invoices at Exhibits M and N and are reasonable. The remainder of the charges are not reflected in the attached invoices and are therefore taxed. In total, the Court will tax all but items three and four which makes the total amount taxed $292.01 as to which the motion is GRANTED.
In total, the motion is GRANTED IN PART as to $8,731.75 of the $35,815.64 stated in Wilson’s Memorandum of Costs.
The motion is DENIED as to the balance of the challenged costs. That leaves a total costs award to Oscar in the amount of $27,083.89.
Oscar’s counsel is ordered to give notice of these rulings.
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