Feb 27, 2015

LAW & MOTION TENTATIVE RULINGS

TUESDAY, FEBRUARY 24, 2015 - 8:30 a.m.

COURTROOM 19 –Judge Arthur Wick

3055 Cleveland Avenue, Santa Rosa, CA  95403

 

Court Call is now available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances. ** To set up Court Call- Please call 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, it will be necessary for you to contact Judge Wick’s Judicial Assistant by telephone at (707) 521-6730 by 4:00 p.m., MONDAY, FEBRUARY 23, 2015.  Any party requesting an appearance must notify all other parties of their intent to appear.

1.  SCV-254201 Golub v. US Security Associates:

                The undisputed facts indicate that the Plaintiff entered the Santa Rosa Plaza Mall (the Mall) in June of 2013. The Plaintiff went to the mall to return a cell phone case he had purchased at Cellaris, a kiosk store at the Mall. The evidence submitted shows that the Plaintiff attempted to return the case, but for reasons unstated, Cellaris refused to take the Plaintiff’s return. At this point, the Plaintiff alleges that he began protesting Cellaris’ failure to process the return. Cellaris’ employee alerted mall security, which is provided by Defendant USAA.

            Mall security allegedly asked the Plaintiff to stop making a disturbance at the kiosk. When the Plaintiff refused to stop his protest, mall security asked him to leave the premises. The Plaintiff said that he would not leave the premises. The Plaintiff alleges that the Defendant mall security guards then attempted to take him into custody, and a physical altercation ensued. The Plaintiff alleges that his legs were kicked out from under him, and his arms were twisted behind his back. The Plaintiff also contends that one of the Defendant security guards pulled his pants into his rectum, caused distress, pain and discomfort. During the incident, a Defendant security guard also took out a can of pepper spray and threatened to spray the Plaintiff in his eyes. The Plaintiff was handcuffed and transported to a back hallway in the mall. Santa Rosa Police arrived, and cited the Plaintiff with a violation of Santa Rosa City Code § 10-38.010, trespassing and released him.

            The Plaintiff filed the instant lawsuit, alleging six causes of action related to the injuries he suffered during his arrest.  The Plaintiff has named as defendants the individual security guards, the company that employed the guards, and the mall owner.

            The Defendants have filed the instant motion for summary judgment, or in the alternative summary adjudication. The Plaintiff has opposed the motion.[1]

First Cause of Action for False Imprisonment

            The Defendants contend that they cannot be held liable for the false imprisonment of the Plaintiff on the grounds that their arrest of the Plaintiff was supported by probable cause.

“The authority of a private citizen to make an arrest is more limited than that of a peace officer. A peace officer may arrest a person without a warrant whenever he has probable cause to believe that the person has committed a misdemeanor in his presence. [Citation.] A private citizen, however, may arrest another for a misdemeanor only when the offense has actually been committed or attempted in his presence. (Pen.Code, § 837, subd. 1.)” (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 587, 156 Cal.Rptr. 198.) The mere fact that the private person has reasonable cause to believe a misdemeanor offense has been committed or attempted in his presence is not enough. (People v. Martin (1964) 225 Cal.App.2d 91, 94; Collins v. Owens (1947) 77 Cal.App.2d 713, 718.) Store detectives and security guards are retained primarily to protect their employer's interest in property, and they have no more powers to enforce the law than other private persons. (People v. Crowder (1982) 136 Cal.App.3d 841.)

The Defendants’ argument is not supported by well-established case law. The fact that the Defendants may have had probable cause to arrest the Plaintiff is irrelevant in the context of a citizens’ arrest made under the authority of Penal Code § 837. Moreover, the Defendants’ reliance on Santa Rosa City Code § 10-38.010 is misplaced. SRCC § 10-38.010 provides: “No person shall remain upon any business premises after being notified by the owner, lessee, other person in charge, or by a Peace Officer acting at the request of the owner, owner’s agent, or lessee to remove himself or herself from the premises.” While the evidence may support the Defendants’ contention that the Plaintiff was violating this section of the SRCC, the Defendants failed to cite SRCC § 10-38.030(D), which provides: “No provision of Sections 10-38.010 … shall apply in any of the following instances: …(D) When its application would result in an interference with, or inhibition of, any other exercise of constitutionally protected right of freedom of speech, such as, but not limited to, peaceful expressions of political or religious opinion, as required by decisions under the Constitutions of the United States or the State of California.”

Here, the Plaintiff contends that he was exercising his right to freedom of speech, and therefore his actions would not fall under SRCC § 10-38.010. (See also Pruneyard Shopping Center v. Robbins (1980) 447 U.S. 74; see also Hamburg v. Wal-Mart Stores, Inc. (2004)116 Cal.App.4th 497.) There are material issues of fact as to whether a violation of either Penal Code § 602.1 or SRCC § 10-38.010 occurred in the presence of the Defendants thus authorizing them to effect a citizens’ arrest pursuant to Penal code § 837.

Accordingly, the Defendants’ motion for summary adjudication on this cause of action is denied.

Second Cause of Action for Battery

The Defendants contend that the Second Cause of Action for Battery fails as a matter of law because the force used by the Defendants was reasonable. The Defendants argue that the evidence establishes that they used reasonable force to lawfully affect their citizens’ arrest of the Plaintiff for trespassing.  The Defendants’ contention fails. Whether the Defendants were lawfully acting under Penal Code § 837 when they arrested the Plaintiff is disputed—thus putting into dispute whether the force used to effect the arrest was authorized under Penal Code § 837.

Accordingly, the Defendants’ motion for summary adjudication on this cause of action is denied.

Third Cause of Action for Assault

The Defendants argue that the Plaintiff has only alleged a single assault by Defendant Clawson—the alleged threat to use pepper spray on the Plaintiff. The Defendants contend that the other Defendants actions involve actual touching (as opposed to only threats) and therefore cannot be considered assault.  The Plaintiff, in his opposition to the Defendants’ separate statement of facts indicates that he will dismiss the Third Cause of Action for Assault without prejudice.

Accordingly, if the dismissal is entered prior to this ruling that the motion it moot as to this cause of action. If the dismissal is not entered prior to this ruling, the motion is granted as to this cause of action.

Fourth Cause of Action for Intentional Infliction of Emotional Distress

The Defendants aver that their actions did not, as a matter of law, rise to the level of “outrageous” and therefore are entitled to summary adjudication. The Defendants contend that their actions were reasonable, and appropriate under the circumstances. The Plaintiff opposes, arguing that the actions of the Defendants were unjustified, and have caused him sever emotional distress, to the point he is unable to sleep.

“There is no bright line standard for judging outrageous conduct and ... its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser's values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical....” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494 [Citations and internal quotation marks omitted].) Thus, whether conduct is “outrageous” is usually a question of fact for a jury to decide. (Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182; Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1045.)

It is well settled that whether the Defendants’ acts arise to a level of extreme and outrageous is a question for a jury to decide. This is especially true given that the Defendants contend that their actions were justified by their arrest of the Plaintiff. In arresting the Plaintiff, the Defendants used force that allegedly caused him to suffer a concussion and broken bones.  Here, the facts and circumstances cannot lead to one conclusion, and therefore the question of whether the Defendants’ actions were extreme and outrageous becomes a question of fact for the jury. (See Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.)

Accordingly, the Defendants’ motion for summary adjudication on this cause of action is denied.

Fifth Cause of Action for Kidnapping

The Defendants contend that the Fifth Cause of Action for Kidnapping fails as a matter of law under Penal Code § 207(f)(2), which provides that kidnapping charges do not apply to “any person acting under Section … 837.” The Plaintiff has indicated that he will be dismissing the Fifth Cause of Action for Kidnapping without prejudice.

Accordingly, if the dismissal is entered prior to this ruling that the motion it moot as to this cause of action. If the dismissal is not entered prior to this ruling, the motion is granted as to this cause of action.

Sixth Cause of Action for Negligent Hiring, Training, and Supervision

            “An employer may be liable to a third person for the employer's negligence in hiring or retaining an employee who is incompetent or unfit. [Citation.]” (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564-1565.) “[A]s defined by California authority ...,” this duty “is breached only when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed.” (Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, 1214; see also Roman Catholic Bishop v. Superior Court, supra, 42 Cal.App.4th at p. 1565.)

            Here, the Plaintiff concedes that he “has no evidence to support his claims for negligent retention of the individual security guards … because the evidence does not contain any particular black mark against any of them prior to the incident.” (Plaintiff’s Memo. Points & Authorities, pg. 16, Fn. 3.) Then the Plaintiff presents an argument based on respondeat superior, arguing that Defendant EMI is vicariously liable for the acts of its employees. This argument, however, does not save the Sixth Cause of Action, as it does not speak to whether Defendant EMI “antecedently had reason to believe that an undue risk of harm would exist because of the employment. ...’ (Rest.2d Agency, supra, § 213, com. d..)” (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564–1565; and see Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 842–843.)

            Defendant EMI has met its burden to demonstrate that the Plaintiff cannot establish each element of this cause of action. As a result the burden shifted to the Plaintiff to put a material issue of fact in dispute, which he has failed to do as he has adduced no evidence that Defendant EMI was on notice that any of the security guards or USAA were unfit or posed an undue risk of harm.

Accordingly, Defendant EMI is entitled to summary adjudication on the Sixth Cause of Action.

            Punitive Damages

            The Defendants also move for summary adjudication of the punitive damages as to each of the Defendants. The Defendants argues that the undisputed evidence does not support an imposition of punitive damages as to the individual security guards, nor does the evidence support punitive damage claims against the corporate defendants. The Plaintiff opposes, contending that the issue of punitive damages is one for the jury to decide where there are disputed issues of fact. Further, the Plaintiff contends that the corporate Defendants ratified the conduct of the individual security guards, thus exposing them to punitive damages as well.

            For purposes of awarding punitive damages, malice is statutorily defined as either “conduct which is intended by the defendant to cause injury to the plaintiff,” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ.Code, § 3294, subd. (c)(1); see Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1052-1053.)  In the usual case, the question of whether the defendant's conduct will support an award of punitive damages is for the trier of fact, “since the degree of punishment depends on the peculiar circumstances of each case.” (Hannon Engineering, Inc. v. Reim (1981) 126 Cal.App.3d 415, 431; see also, e.g., Nippon Credit Bank v. 1333 North Cal. Boulevard (2001) 86 Cal.App.4th 486, 501, 103 Cal.Rptr.2d 421 [“entitlement to punitive damages is generally an issue for the trier of fact”].)

            Here, the undisputed facts demonstrate that each of the Defendant security guards participated in the arrest of the Plaintiff, which included the physical altercation that allegedly led to his injuries. Further, there are disputed facts as to whether the Defendant security guards acted lawfully in arresting the Plaintiff; or whether their act in arresting the Plaintiff was unauthorized. The disputed facts are such that the Defendant security guards are not entitled to summary adjudication on this issue. The facts, as presented in the evidence, could support an imposition of punitive damages against the Defendant security guards. The Defendants contention that they were merely doing their jobs, or following the instructions of their superiors is unavailing. More to the point, the Defendants present no authority for the position that a security guard who makes an unauthorized false arrest may escape liability under the theory that they were merely doing their job or following orders.

            Further, there are disputed facts with respect to the ratification of the Defendant Security Guards actions by Defendant USAA. CC § 3294(b) provides that “An employer shall not be liable for damages ... based upon acts of an employee of the employer, unless the employer ... ratified the wrongful conduct. ... With respect to a corporate employer, the ... ratification ... must be on the part of an officer, director, or managing agent of the corporation.” “Ratification ... may be established by any circumstantial or direct evidence demonstrating adoption or approval of the employee's actions by the corporate agent. [Citations.] Such ratification may be inferred from the fact that the employer, after being informed of the employee's actions, does not fully investigate and fails to repudiate the employee's conduct by redressing the harm done and punishing or discharging the employee. [Citations.]” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 621 [citation omitted].)

            Here, the Plaintiff submits evidence that the incident that led to the Plaintiff’s allegedly false arrest and battery did not lead to any reprimand or discipline. Indeed, Defendant USAA’s manager stated that the Plaintiff’s arrest complied with USAA’s procedures. The Plaintiff’s evidence of Defendant EMI’s purported ratification, however, does not support a claim under CC § 3294. The evidence submitted by the Plaintiff only indicates that Defendant EMI knew of the arrest and actions of the guards, and does not speak to ratification.

            Accordingly, the Defendants motion for summary adjudication for punitive damages with respect to Defendant EMI is granted, the balance of the motion is denied as to the other co-Defendants.

Conclusion

            Accordingly, and for the foregoing reasons, the Defendants motion for summary judgment is denied. The Defendants motion for summary adjudication, however, is granted as to the Third, Fifth, and Sixth Causes of Action, and to the claims for punitive damages against Defendant EMI. The balance of the motion is denied. The Defendants shall draft an order consistent with this ruling.

 

2.  MCV-230262 Unifund v. Soto:

The Plaintiff’s motion for judgment on the pleadings is denied. The notice of motion directs the Defendant to Department 19 in Fairfield, California. As such the notice is defective. The Plaintiff shall draft an order consistent with this ruling.   

 

3.  SCV-254656 Cline v. Sonoma:

            The hearings on the motions in this matter have been dropped from calendar, as the parties were able to resolve the issues.

           

4.  SCV-248442 Tuttle v. Dal-Tile:

This is on calendar for Defendant UVMC’s motion to tax the memorandum of costs submitted by the Plaintiff.  The Defendant is challenging four distinct areas of costs: (1) Expert fees and pre-judgment interest pursuant to CCP § 998 ($226,037.03 and $349,308 respectively); (2) trial technology and presentation ($65,119.08); (3) fees paid to Nancy DuFresne, R.N. ($5,866.25); and (4) excessive lodging costs ($19,092.39).  The Plaintiffs oppose, arguing that they are entitled to expert witness fees and pre-judgment interest pursuant to CCP § 998. Further, the Plaintiffs argue that they are entitled to the technology costs pursuant to the holding in Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968. The Plaintiffs also defend the fees of Ms. DuFresne, arguing that her expertise in summarizing the medical bills was necessary to the presentation of the case, citing El Dorado Meat Co. v. Yosemite Meat and Locker Service, Inc. (2007) 150 Cal.App.4th 612. Lastly, the Plaintiffs argue that their lodging costs were reasonable given that they needed four rooms, and arrived the weekend prior to trial call to prepare the Plaintiffs and other local witnesses.[2]

A verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. (See Ladas v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774–776; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) Cost items that are properly objected to, however, are put in issue, and the burden of proof is on the party claiming them as costs. (Ladas v. California State Auto. Ass'n, supra, 19 Cal.App.4th at 774–776.)

Expert Witness Fees and Prejudgment Interest

The court has already found in its February 6, 2015 ruling that the Plaintiffs are not entitled to expert witness fees or prejudgment interest. To the extent necessary the court’s finding and analysis from that previous ruing is incorporated into this order. As a result, the Plaintiffs’ claimed costs for expert witnesses and prejudgment interest are properly taxed.

            Trial Technology and Presentation

The court further finds that the cost item for the trial technology and presentation should be taxed. While costs such as these are recoverable, they must be both “’reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation,’” and “reasonable in amount.” (Bender, supra, 217 Cal.App.4th at 990.) Here, the technology utilized by the Plaintiffs was not “necessary” and instead falls under the category of “merely beneficial to its presentation.” The Plaintiffs’ reliance on Bender is problematic. There, the court found that “the costs should be allowed—in a case like this where attorney fees are recoverable costs—if the services in question ‘enhanced counsel's advocacy during the trial,’ so long as the costs were ‘reasonably necessary to the conduct of the litigation.’” (Id. at 990.)

Here, attorney fees are not recoverable, the Plaintiffs utilized a technician, but fail to explain how his expertise was “necessary.” Attachment 13 to the cost memorandum includes a single line item for $65,119.08. The Plaintiffs have simply failed to present sufficient evidence to demonstrate how these costs were necessary. Indeed, the Plaintiffs provide no details of the work performed for $65,119.08 beyond the single sentence on their attachment, and the conclusory statements in their opposition that the costs were necessary.  Indeed, the court notes that the Defendant did not require a technician to present substantially similar evidence to the jury. While the Plaintiffs’ use of technology was helpful, it cannot be characterized as “necessary.” As discussed above, the burden to demonstrate that the costs were reasonable and necessary is on the Plaintiffs, a burden they have failed to meet. Accordingly, the Defendant’s motion to tax these costs is granted. 

Costs for Ms. DuFresne, R.N.

The Defendants further challenge the cost item for Ms. DuFresne. The Plaintiffs contend that these costs were necessary to summarize Mr. Tuttle’s voluminous medical records. The Defendant argues that this summarization is paralegal or attorney type work, which is not recoverable. The Plaintiffs aver that the Defendant, a hospital, had assistance readily available to help deal with the medical records. Further, the Plaintiffs argue that Ms. DuFresne provided “medical consultation and preparation of medical chronology.”

First, the court notes that costs for document summarization is a discretionary cost pursuant to CCP § 1033.5(c)(4). (See El Dorado Meat Co., supra, at 617.) In El Dorado, the allowed costs were for:

[A] 37–page document containing charts and graphs that were projected on a screen during trial. The exhibit summarized voluminous business records produced in discovery by both parties; Yosemite produced 100,000 pages and El Dorado produced 60,000 pages. The records summarized in the exhibit included financial records of Yosemite and El Dorado pertaining to livestock purchases and sales and other matters. The summaries in the exhibit covered the period from 1996 to 2003 and related to such matters as compensation paid to Yosemite's employees, Yosemite's meat purchases and sale prices per pound, and Yosemite's total meat purchases and sales. Other charts and graphs in the exhibit showed El Dorado's financial performance over a 20–year period, including the period during which Yosemite's conduct allegedly caused El Dorado's performance to decline.

Id. at 615.

As explained by the El Dorado court, this exhibit was necessary to the litigation, and noted that the evidentiary support for the cost item was “light” but that the “weighing of this evidence was for the trial court and we cannot say it was so light as to be insubstantial.” (Id. at 618.) Here, the Plaintiffs offer no evidence to establish what services were provided by Ms. DuFrense. What did she actually bill for? How much of the work she performed required specialized knowledge? How much medical consulting did she provide? It is impossible to determine whether her contribution was “necessary” and therefore the cost cannot be allowed.

Lodging

The Defendant also challenges the Plaintiffs lodging bill, arguing that it is excessive. The Defendant compares the Plaintiffs’ $19,092.39 to its own lodging costs of $4,472.52. The Plaintiffs argue that the Defendant’s comparison is misleading because the Defendant’s attorneys commuted for a week of trial, and that the Plaintiffs required four hotel rooms.  The court agrees, in part, with the Defendant. The claimed lodging bill is not reasonable, however, will allow the Plaintiffs costs for two rooms, representing counsel and co-counsel. It appears that the claimed costs of $19,092.39 covers three rooms, thus the court will allow $19,092.39, divided by three, multiplied by two, which equals an allowed cost for lodging of $12,728.26. 

            Conclusion

            Accordingly, the Defendant’s motion to tax is granted in part and denied in part. The court will tax the entirety of the Plaintiffs’ claims for expert witness fees, prejudgment interest, the trial technology, and the costs associated with Ms. DuFresne. The court will allow lodging costs of $12,728.26.  The Defendant is to draft an order consistent with this ruling.

           

5.  SCV-252508 Wagner v. City of Santa Rosa:

This is on for Defendant City of Santa Rosa’s motion to compel compliance with a deposition subpoena. In May 2013, the Defendant served a deposition subpoena on CVS for the Plaintiff’s prescription drug records. CVS produced some records in June 2013. The Defendant now contends that it is entitled to additional records, and brings the instant motion to compel. The motion is not opposed.

CCP § 2025.480(a) provides: “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” CCP § 2025.480(b) provides in pertinent part: “This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration….” (CCP § 2025.480(b) [emphasis added]; see also Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127.) Responses to a business records subpoena are the “deposition record” for purposes of measuring the 60–day period for a motion to compel. (Id. at 132–133.)

Here, the deposition record was complete in June 2013, and the instant motion was filed December 17, 2014—a year and a half later. The motion is untimely, and denied as such. The Defendant shall draft an order consistent with this ruling.

 

6.  SCV-256196 Timmons v. Land and SCV-256255 Timmons v. DuClos:

This is on for Defendants’ motions to require the Plaintiff to post security in both Timmons v. Land et al., SCV-256196 and Timmons v. DuClos et al., SCV-256255. (CCP §§ 391.1; 391.3.)  The Defendants’ contend that the Plaintiff has been deemed a vexatious litigant in SCV-251615, and that he has no reasonable probability of prevailing in these cases.  The Plaintiff has not filed any opposition. The respective requests for judicial notice are granted.

The Defendants’ motion is properly granted.  The Plaintiff has been deemed a vexatious litigant in SCV-251615.  (See First Western Development Corp. v. Superior Court (1989) 212 Cal.App.3d 860, 867 [purpose of vexatious litigant statutes is to require vexatious litigant to put up reasonable costs of obsessive and persistent conduct which can cause serious financial costs to the object of the litigation].)

“Section 391.3 provides: ‘If, after hearing the evidence upon the motion, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix.’ [Citation.]” (Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 784.) In ruling on the motion to provide security, the trial court may weigh the evidence presented on the motion; it is not required to assume the truth of the plaintiff's alleged facts. (Moran, supra, 40 Cal.4th at p. 782.)  Here, the Defendants have established that the Plaintiff does not have a reasonable probability of prevailing. Cases Timmons v. Land et al., SCV—256196 and Timmons v. DuClos et al., SCV-256255 allege facts that are nearly identical to cases that the Plaintiff has brought in the past and has lost. (See e.g. Order Sustaining Demurrer to SCV—251615; and Final Decision After Hearing in SCV-251718.)

Consequently, the Plaintiff will be ordered to provide security in the amount of $25,000 in each of the following cases: Timmons v. Land et al., SCV-256196, and Timmons v. DuClos et al., SCV-256255, pursuant to CCP § 391 et seq., within 10 days of this order. The Defendants are to draft orders in each case consistent with this ruling.





[1] The Plaintiff has filed objections to the evidence, however he only filed the first and last page of the objections. Therefore, the court is unable to rule on the incomplete objections.

[2] The Plaintiffs seek to augment their costs by $6,675.20 to reflect the cost of lodging the computer presentation technician. The Plaintiffs’ request is denied. The relief the Plaintiffs seek is not properly raised in an opposition to a motion to tax costs.  The trial court, however, has discretionary power to grant relief under CCP § 473(b) for “inadvertence” or “excusable neglect.” (See Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 927; see also Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 1012. The Plaintiffs have not sought relief under CCP § 473. In any event, in light of the court’s disallowing the technology costs, the lodging of the technician himself would be likewise unrecoverable.

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