On November 29, 2017 a
Motion-Secondary
was filed
involving a dispute between
Conrado, Diego,
and
Cls Landscaping Management, Inc,
Espinoza Gonzalez, Jose Juan,
for Personal Injury Motor Vehicle Unlimited
in the District Court of San Bernardino County.
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LAW OFFICES OF GARBER, AV AND DUNCAN
SANDRA K. BRISLIN, State Bar No.: 105221 SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN BERNARDINO
PO BOX 7218 SAN BERNARDINO DISTRICT
London, KY 40742
Telephone: 714-939-0180 FEB 14 2022
Facsimile: 866-547-5409
Attorney Email: Sandra.Brislin@LibertyMutual.com
Attorney for Defendants, CLS LANDSCAPING MANAGEMENT, I
GONZALEZ
SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SAN BERNARDINO - SAN BERNARDINO
ll
12 DIEGO CONRADO, Case No.: CIVDS1723453
Complaint Filed: November 29, 2017
13
Plaintiff, Judge: Honorable Brian S. McCarville
14 Dept.: $30
vs.
15
CLS LANDSCAPING MANAGEMENT, INC.,
DEFENDANTS?’ REPLY TO PLAINTIFF’S
OPPOSITION TO DEFENDANTS’ MOTION by
16 JOSE JUAN ESPINOZA GONZALEZ and FOR COSTS PURSUANT TO C.C.P. § 998 Rare
17 DOES 1 through 50, Inclusive,
Date: February 22, 2022
18 Defendants. Time: 9:00 a.m.
Dept.: $30
19
20 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
21 COME NOW Defendants, CLS LANDSCAPING MANAGEMENT, INC. and JOSE JUAN
22 ESPINOZA GONZALEZ, and present their Reply to Plaintiffs Opposition to Defendants’ Motion for
23 Costs Pursuant to California Code of Civil Procedure § 998.
24 1, PLAINTIFF CANNOT INCLUDE HIS POST-C.C.P. § 998 OFFER COSTS IN
25 DETERMINING WHETHER HE IS THE PREVAILING PARTY
26 Plaintiff argues that Defendants are not entitled to their Costs under California Code of Civil
27 Procedure § 998. He miscalculates that he did better than Defendants’ C.C.P. § 998 Offer_of
28 $ 250,001.00.
2. He does so by including in his net judgment a costs award encompassing post-offer and
-l-
DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR COSTS PURSUANT TO
C.CP. § 998
unrecoverable costs. To begin with, the Court made clear that the end of the January 27, 2022, hearing
regarding costs, that its ruling at that time was subject to change upon hearing this motion for 998 costs.
(See Brislin Decl. at 3.) In any event, section 998 could not be more clear:
“In determining whether the plaintiff obtains a more favorable judgment, the court or
arbitrator shall exclude the pos-toffer costs. (C.C.P. § 998, subd. (2)(A), italics added.)
The Rutter Group Civil Trials Treatise agrees that only pretrial costs are added: “Pre-offer
costs: Costs incurred prior to defendant’s § 998 offer are added to the judgment in determining whether
the judgment is ‘more favorable.”” (W. Wegner, R. Fairbank, N, Epstein, E. Chernow, Civil Trials and
10
Evidence (Rutter Group 2021) { 17:393, italics added.) If plaintiff's monetary damages recovery plus
11
pre-offer costs does not exceed the defense’s offer, under Code of Civil Procedure § 998 his recovery is
12
limited to pre-offer costs and he must pay the defense’s post-offer costs. The idea is that in judging
13
whether the plaintiff obtained a better result than the defense offer, the question is limited to what costs
14
plaintiff would have recovered at the time of the offer.
15
Plaintiff’s inflated costs calculation. Plaintiff has previously submitted his cost bill of]
16
$255,642.38 in total costs. However, it is clear from Plaintiff's Memorandum of Costs Worksheet and
17
the receipts attached in support of the requested costs, as shown below, that the vast majority of claimed
18
costs were incurred after the Code of Civil Procedure § 998 offer was served on Plaintiff. These post-
19
offer costs cannot be included in determining whether Plaintiff is the prevailing party under California
20
Code of Civil Procedure § 998.
21
Plaintiff's burden. Defendants make a prima facie showing that their offer should have been
22
accepted by showing that it exceeded plaintiff's monetary recovery. As plaintiff is the sole custodian of
23
his own costs, the burden then necessarily shifts to the Plaintiff to prove that Defendants are not entitled
24
to section 998’s benefits, that is to show their pre-offer costs coupled with the verdict exceed the
25
defendant's offer. That is because “[w]here the evidence necessary to establish a fact essential to a
26
claim lies peculiarly within the knowledge and competence of one of the parties, that party has the
27
burden of going forward with the evidence on the issue although it is not the party asserting the claim.”
28
Sanchez v. Unemployment Ins. appeals Bd. (1977) 20 Cal.3d 55, 71; accord Wolf v. Superior
2.
DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR COSTS PURSUANT TO
CCP. § 998
Document Filed Date
February 14, 2022
Case Filing Date
November 29, 2017
Category
Personal Injury Motor Vehicle Unlimited
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7 w~ LAW OFFICES OF GARBER, AV AND DUNCAN SANDRA K. BRISLIN, State Bar No.: 105221 SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN BERNARDINO PO BOX 7218 SAN BERNARDINO DISTRICT London, KY 40742 Telephone: 714-939-0180 FEB 14 2022 Facsimile: 866-547-5409 Attorney Email: Sandra.Brislin@LibertyMutual.com Attorney for Defendants, CLS LANDSCAPING MANAGEMENT, I GONZALEZ SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SAN BERNARDINO - SAN BERNARDINO ll 12 DIEGO CONRADO, Case No.: CIVDS1723453 Complaint Filed: November 29, 2017 13 Plaintiff, Judge: Honorable Brian S. McCarville 14 Dept.: $30 vs. 15 CLS LANDSCAPING MANAGEMENT, INC., DEFENDANTS?’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION by 16 JOSE JUAN ESPINOZA GONZALEZ and FOR COSTS PURSUANT TO C.C.P. § 998 Rare 17 DOES 1 through 50, Inclusive, Date: February 22, 2022 18 Defendants. Time: 9:00 a.m. Dept.: $30 19 20 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: 21 COME NOW Defendants, CLS LANDSCAPING MANAGEMENT, INC. and JOSE JUAN 22 ESPINOZA GONZALEZ, and present their Reply to Plaintiffs Opposition to Defendants’ Motion for 23 Costs Pursuant to California Code of Civil Procedure § 998. 24 1, PLAINTIFF CANNOT INCLUDE HIS POST-C.C.P. § 998 OFFER COSTS IN 25 DETERMINING WHETHER HE IS THE PREVAILING PARTY 26 Plaintiff argues that Defendants are not entitled to their Costs under California Code of Civil 27 Procedure § 998. He miscalculates that he did better than Defendants’ C.C.P. § 998 Offer_of 28 $ 250,001.00. 2. He does so by including in his net judgment a costs award encompassing post-offer and -l- DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR COSTS PURSUANT TO C.CP. § 998 unrecoverable costs. To begin with, the Court made clear that the end of the January 27, 2022, hearing regarding costs, that its ruling at that time was subject to change upon hearing this motion for 998 costs. (See Brislin Decl. at 3.) In any event, section 998 could not be more clear: “In determining whether the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the pos-toffer costs. (C.C.P. § 998, subd. (2)(A), italics added.) The Rutter Group Civil Trials Treatise agrees that only pretrial costs are added: “Pre-offer costs: Costs incurred prior to defendant’s § 998 offer are added to the judgment in determining whether the judgment is ‘more favorable.”” (W. Wegner, R. Fairbank, N, Epstein, E. Chernow, Civil Trials and 10 Evidence (Rutter Group 2021) { 17:393, italics added.) If plaintiff's monetary damages recovery plus 11 pre-offer costs does not exceed the defense’s offer, under Code of Civil Procedure § 998 his recovery is 12 limited to pre-offer costs and he must pay the defense’s post-offer costs. The idea is that in judging 13 whether the plaintiff obtained a better result than the defense offer, the question is limited to what costs 14 plaintiff would have recovered at the time of the offer. 15 Plaintiff’s inflated costs calculation. Plaintiff has previously submitted his cost bill of] 16 $255,642.38 in total costs. However, it is clear from Plaintiff's Memorandum of Costs Worksheet and 17 the receipts attached in support of the requested costs, as shown below, that the vast majority of claimed 18 costs were incurred after the Code of Civil Procedure § 998 offer was served on Plaintiff. These post- 19 offer costs cannot be included in determining whether Plaintiff is the prevailing party under California 20 Code of Civil Procedure § 998. 21 Plaintiff's burden. Defendants make a prima facie showing that their offer should have been 22 accepted by showing that it exceeded plaintiff's monetary recovery. As plaintiff is the sole custodian of 23 his own costs, the burden then necessarily shifts to the Plaintiff to prove that Defendants are not entitled 24 to section 998’s benefits, that is to show their pre-offer costs coupled with the verdict exceed the 25 defendant's offer. That is because “[w]here the evidence necessary to establish a fact essential to a 26 claim lies peculiarly within the knowledge and competence of one of the parties, that party has the 27 burden of going forward with the evidence on the issue although it is not the party asserting the claim.” 28 Sanchez v. Unemployment Ins. appeals Bd. (1977) 20 Cal.3d 55, 71; accord Wolf v. Superior 2. DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR COSTS PURSUANT TO CCP. § 998