Mar 28, 2017

TENTATIVE RULINGS                                                                      
WEDNESDAY, MARCH 22, 2017, 3:00 p.m.
Courtroom 18 –René Auguste Chouteau
3055 Cleveland Avenue, Santa Rosa


CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.   Please contact CourtCall directly at (888) 882-6878.


The following tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, YOU MUST notify the Court by telephone at (707) 521-6547, and all other opposing parties of your intent to appear by 4:00 p.m. today, TUESDAY, MARCH 21, 2017.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.





1. MCV-240278; KBR Inc. v. Davis

Dropped from calendar per moving party’s request.



2. SCV-258977; Ross v. Gray
Defendant’s motion to strike the memorandum of costs is denied, but the alternative motion to tax costs is granted in part.


Plaintiff’s objections to the Declaration of Fullerton are overruled as to paragraph 5 and sustained as to the improper legal argument in paragraphs 6-8 and 10.


This action settled at the start of trial with defendant agreeing to pay plaintiff the sum of $450,000.  The settlement agreement terms were placed on the record and a stipulated judgment for $450,000 was entered. Costs were not mentioned when the agreement was read into the record and the line item for costs on the judgment was left blank. After entry of judgment plaintiff filed a cost memorandum, which defendant now challenges.

There appears to be no dispute that plaintiff is the prevailing party, but defendant argues plaintiff “explicitly” waived costs, therefore, the cost memorandum must be stricken.

“When parties settle a case, they are free to allocate costs in any manner they see fit, although they must do so in language specifically addressing such allocation.” (deSaulles v. Community Hosp. of Monterey Peninsula (2016) 62 Cal.4th 1140, 1147.)  “[A]bsent affirmative agreement of the parties to the contrary, the trial court retains jurisdiction after the filing of a compromise agreement to entertain a cost bill.”  (Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 679.)

As the deSaulles Court explained:

The cases make clear that if a settlement agreement, compromise offer pursuant to section 998, or stipulated judgment is silent on the matter of costs, the plaintiff is not barred from seeking costs. (See Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 679, 186 Cal.Rptr. 589, 652 P.2d 437 (Folsom ); Rappenecker v. Sea–Land Service, Inc. (1979) 93 Cal.App.3d 256, 263–264, 155 Cal.Rptr. 516 (Rappenecker ); Slater v. Superior Court (1941) 45 Cal.App.2d 757, 761, 115 P.2d 32 (Slater ); Rapp v. Spring Valley Gold Co. (1888) 74 Cal. 532, 533, 16 P. 325 (Rapp ).) The reason for this rule is that compromise agreements “‘regulate and settle only such matters and differences as appear clearly to be comprehended in them by the intention of the parties and the necessary consequences thereof, and do not extend to matters which the parties never intended to include therein, although existing at the time.’ [Citations.] Thus they ordinarily conclude all matters put in issue by the pleadings—that is, questions that otherwise would have been resolved at trial. [Citation.] They do not, however (absent affirmative agreement of the parties), conclude matters incident to the judgment that were no part of the cause of the action.” (Folsom, at p. 677, 186 Cal.Rptr. 589, 652 P.2d 437.)

(Id. at pp. 1154–55.)


Here, the settlement agreement terms and the stipulated judgment are completely silent as to costs.  As explained by the cases cited above: silence does not equate to an explicit or affirmative waiver of costs.  Consequently, plaintiff is not barred from seeking costs and defendant’s motion to strike the entire memorandum of costs is denied.

Defendant alternatively argues that if the costs memorandum stands, some costs must be taxed as improper.  Plaintiff has conceded the $4,000 in witness fees for Alexander Iezza, M.D. are not recoverable. Therefore the alternative motion to tax costs is granted as to those costs.


However, the court finds the witness fees incurred under Government Code § 68097.2(b), the costs for unused trial exhibits and the erroneously categorized service of process fees are allowable costs.  The motion to tax those costs is therefore denied.


Plaintiff shall submit an order consistent with this ruling.



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