Law & Motion Calendar

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1.         23CV00140, BERTO v. Dye: Motion to Tax Costs
Plaintiff Matthew Berto’s unopposed motion to tax costs is GRANTED in part and DENIED in part. The Court DENIES taxing Defendant’s costs as to Items 5, 8.b, and 13. The Court GRANTS taxing Defendant’s costs as to Item 11 for court reporter fees in the amount of $7,512, resulting in allowable costs of $1,500 for court reporter fees. Thus, Defendant shall recover $29,800 in costs.

Plaintiff shall submit a written order on its motion to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b). Plaintiff shall also file and serve a corrected judgment reflecting the correct costs awarded to Defendant, $29,800, which is discussed below.

Procedural History

The Court held a jury trial in this matter starting on April 1, 2025. On April 8, 2025, the matter was submitted to the jury for deliberation. The jury returned its verdict to the Court on April 9, 2025 in favor of Defendant Gail Dye. On May 19, 2025, the Court entered judgment for Defendant Dye against Plaintiff. On September 23, 2025, Defendant Dye filed her memorandum of costs for $37,312. Plaintiff now seeks to tax several costs for being excessive or not reasonably necessary.

Governing Law

The prevailing party is generally entitled to recover costs incurred in any action or proceeding. (C.C.P. § 1032(b).) A “prevailing party” is “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (C.C.P. § 1032(a)(4).) The statute enumerates items that are allowable as costs (section 1033.5(a)) and items that are not allowable as costs (section 1033.5(b).) If there is an item that is not enumerated by the statute, a court may assess such item and allow or deny such cost in the court’s discretion. (C.C.P. § 1033.5(c)(4).) However, allowable costs must be reasonable in amount and reasonably necessary to the conduct of the litigation rather than being convenient or beneficial to its preparation. (C.C.P. §§ 1033.5(c)(2)–(3).) Within 15 days after service of a cost memorandum, a party must file its notice of motion to strike or tax costs. (California Rules of Court, Rule 3.1700(b)(1).)

“In ruling upon a motion to tax costs, the trial court's first determination is whether the statute expressly allows the particular item and whether it appears proper on its face.” (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.) If the costs are allowable, then the burden is on the objecting party to show the costs to be unnecessary or unreasonable. (Ibid.) “[W]here the items are properly objected to, they are put in issue, and the burden of proof is upon the party claiming them as costs [citations].” (Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 774.) If the costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary. (Foothill-De Anza Community College Dist., supra, 158 Cal.App.4th at 29.) Whether a cost item was reasonably necessary to the litigation is a question of fact for the trial court. (Id. at 29–30.)

The Court’s October 10, 2025 Amended Judgment

The Court notes that it prematurely signed the October 10, 2025 Amended Judgment that granted Defendant’s costs in their entirety as Plaintiff’s time to file a motion to strike or tax costs pursuant to California Rules of Court, Rule 3.1700(b)(1) had not yet lapsed at that point. Plaintiff’s motion to tax costs was timely filed. Therefore, the Court will hear Plaintiff’s instant motion and further amends the October 10, 2025 Amended Judgment on its own motion pursuant to C.C.P. section 473(d) for a clerical error in awarding Defendant’s costs in their entirety. Plaintiff shall file and serve a corrected judgment in the case reflecting the correct costs awarded to Defendant as discussed below.

Tax Costs

Item 5

Plaintiff first challenges Item 5 of the memorandum of costs list, which lists $1,908 for service of process costs, as being excessive and ambiguous as to which of any of these records were used at trial. Plaintiff argues that records not used at trial should be taxed and Defendant carries the burden.

Pursuant to C.C.P. section 1033.5(a)(4), service of process is an allowable cost. Thus, the burden is on Plaintiff to show the costs are unreasonable or unnecessary. (Foothill-De Anza Community College Dist., supra, 158 Cal.App.4th at 29.) Plaintiff only specifically lists “deposition subpoenas for medical or other records” as to Item 5 and does not clearly articulate what records were allegedly not used at trial. Notably, Plaintiff does not cite any authority only allowing for recovery of service of process costs for records actually used at trial and excluding costs for records that were not used at trial. Here, Defendant incurred $1,907.25 for effecting service of process by a registered process server, First Legal Network, which is explicitly recoverable under C.C.P. section 1033.5(a)(4)(B). Defendant lists First Legal Network service charges in its memorandum of costs and lists all charges claimed in Attachment 1g to its memorandum while also providing the corresponding First Legal Network invoices that detail the date, document(s) served, who accepted service, and the number of attempts made to serve. Therefore, Plaintiff fails to show how these costs, as a whole or individually, are unreasonable or unnecessary. (See Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 506 [finding that the trial court’s award of costs for service of process was proper when each item was served by registered process server and party included copies of proofs of service for each item claimed].)

Item 8.b

Plaintiff next challenges the cost of expert witness fees of $5,000 (Dr. Gary Stein for one hour of testimony) and $3,937 (Kirsten White for one hour of testimony) as being facially excessive and unreasonable as to the hourly rate. Plaintiff contends that Defendant may claim expert fees pursuant to C.C.P. section 998 but that such award is discretionary and not automatic.

C.C.P. section 1033.5 only allows for the fees of expert witness to be recoverable if they are ordered by the court or expressly authorized by law. (See C.C.P. §§ 1033.5(a)(8), 1033.5(b)(1).)  However, Plaintiff concedes that Defendant is entitled to fees pursuant to C.C.P. section 998. Even with Plaintiff’s concession, Plaintiff is correct in that the decision to award expert witness fees is vested in the trial court’s sound discretion and such discretion must be explicitly exercised. (Rouland v. Pacific Specialty Ins. Co. (2013) 220 Cal.App.4th 280, 289.) Here, the Court finds in its discretion that Defendant is entitled to its expert witness fees as the prevailing party. As to the reasonableness of those fees, Plaintiff challenges Dr. Stein’s rate of $5,000 for one hour of testimony and Ms. White’s rate of $3,937.50 for one hour of testimony as facially excessive. However, Plaintiff provides no evidence that these rates are unreasonable or excessive, such as comparable or customary expert witness hourly rates. (Gov. Code § 68092.5(a).) Additionally, based on the Talas Engineering invoice attached to Defendant’s memorandum of costs, the $3,937.50 for Ms. White’s time accounts for 7.50 hours of time (equating to $525 per hour), not one hour of time. These 7.50 hours account for “Travel to/from Santa Rosa; meetings with client; attend trial; trial testimony.” Furthermore, the ExamWorks invoice for Dr. Stein’s testimony states that the $5,000 covers a half day of testimony (approximately $1,250 per hour). While the memorandum of costs states that the expert witness fees are for one hour on page five, the invoices attached show that these rates account for more than one hour of time. Thus, Plaintiff has failed to show that these rates are unreasonable to shift the burden to Defendant.

Item 11

Plaintiff challenges the $9,012 cost in court reporter fees under Item 11 as being unreasonable in the amount or reasonably necessary. Plaintiff contends that the cost is too high for such a short trial and that receiving daily transcripts was a convenience and not necessary to justify passing this expense onto Plaintiff.

Court reporter fees are allowable costs. (C.C.P. § 1033.5(a)(11).) Attachment 1g to the memorandum of costs lists six days of court reporter costs from Esquire Deposition Solutions. Defendant also attached all six invoices to the memorandum, which details the job date, location, a description of the services provided, and the amount owed. Plaintiff maintains that $9,012 for court reporter fees is a heightened cost for a six-day trial at least in part due to the fact that the Parties received daily transcripts. The invoices do no break down whether the daily flat rates (described as full day or half day “takedowns”) includes expedited transcript preparation as to increase the daily cost as Plaintiff claims. The Court finds that $9,012 in court reporter fees for a six-day trial is unreasonable and the burden is shifted to Defendant. However, Defendant has failed to oppose this motion and therefore has not met her burden to show that the court reporter fees are reasonable, including whether the charges included expedited transcript preparation and if such expedited preparation was reasonably necessary. Thus, the Court taxes the court reporter fees in the amount of $7,512, as $300 per full day (or $1,500 in this case for four full days and two half days per the invoices) is a reasonable amount for court reporter fees.

Item 13

Lastly, Plaintiff challenges the $15,704 cost for the accident reconstructionist presentation under Item 13 (Models, etc.) as excessive and not reasonably necessary. Plaintiff asserts that the presentation was for Defendant’s convenience and does not justify this cost.

Models and the enlargement, photocopying, and electronic presentation of exhibits are allowable costs under C.C.P. section 1033.5(a)(13) if they were reasonably helpful to aid the trier of fact. Plaintiff relies upon Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761 to support his position but the instant case is not factually analogous to Ladas. The court in Ladas found that Defendant could not recover for trial exhibit costs under former section 1033.5(a)(12) (now section 1033.5(a)(13)) because the case never went to trial, but the instant case went to trial. (Ladas, supra, 19 Cal.App.4th at 775.) Furthermore, Plaintiff’s reliance on Nelson v. Anderson (1999) 72 Cal.App.4th 111 is unfounded as the party in Nelson used “cutting edge technology” of “videotapes and laser discs” used such technology sporadically during the trial and often unsuccessful in using such technology and reverted to traditional “low tech” methods for presenting the evidence. (Nelson, supra, 72 Cal.App.4th at 132–133.) The Court finds that the accident reconstructionist was reasonably helpful to the trier of fact given the nature of the accident in the case and was thoroughly used in trial. Defendant provided the invoices for the reconstruction from Avalie Trial Technologies supporting the $13,959.36 cost, which details the service provided, the number of hours spent on each service, and the rate of such services. Furthermore, Defendant provided the invoice for the $1,745.02 from DSU Discovery for the costs of exhibit copies. Plaintiff has failed to meet his burden to show such costs to be unnecessary or unreasonable.

2.         SCV-265233, State Farm Mutual Automobile Insurance Company v. Lee:  Plaintiff’s Motion to Vacate Dismissal and Enforce Settlement
Plaintiff State Farm Mutual Automobile Insurance Company’s motion to vacate dismissal and enforce settlement is CONTINUED to Friday, January 23, 2026 at 3:00 p.m. in Department 18 for failure to comply with C.C.P. section 128.7(a). State Farm’s counsel filed an amended MPA and declaration in support of the motion on October 15, 2025. However, these documents are not signed in violation of section 128.7(a). Unless promptly corrected, the Court shall strike the unsigned papers pursuant to section 128.7(a).
 

3. & 4. SCV-268721, Russell v. Russell: Defendant’s Motion to Set Aside Default and Motion to Correct Clerical Error
Plaintiff Cliff R. Russell (“Plaintiff’) filed the presently operative first amended complaint (“FAC”) against defendant Robert J. Russell, trustee of the Robert John Russell Trust (“Defendant”). Default was entered against Defendant on August 19, 2021. This matter is on calendar for the motion by Plaintiff under Code Civ. Proc. (“CCP”) § 473 (b) to set aside the default due to attorney mistake.

Plaintiff served Defendant with the Complaint on July 9, 2021. Defendant never filed an answer, and Plaintiff took Defendant’s default on August 19, 2021. Thereafter, after the Court denied Defendant’s motion to set aside under the discretionary portion of CCP § 473(b) and partially set aside the default under CCP § 473(d). Plaintiff obtained a default judgment on March 3, 2023. In that judgment, the Court made substantive changes before signing it. Thereafter, Plaintiff submitted a duplicative request for judgment on March 6, 2023, which the Court signed on March 13, 2023 without modification. Defendant filed an appeal of the judgments on May 22, 2023. The instant motion to set aside default under the mandatory provision of CCP § 473(b) was filed on July 21, 2023. Plaintiff filed this motion to correct clerical mistake on September 28, 2023, seeking clarity which of the judgments was legally effective. Due to the pending appeal, the Court was without jurisdiction to reach the merits of either of these motions. These motions have remained stayed pending resolution of the appeal. The appeals resolved, affirming the judgments, except for the entry of punitive damages. Remittitur, issued on November 3, 2025. With the remittitur having issued, the court has regained jurisdiction to rule on the motions.

Under the mandatory relief provision of CCP § 473(b), “the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any . . . (2) resulting default judgment or dismissal entered against his or her client unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” CCP §473(b) (emphasis added). “Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” Elston v. City of Turlock (1985) 38 Cal.3d 227, 233. Courts will generally indulge all presumptions and resolve all doubts in favor of orders setting aside defaults and an order setting aside a default under section 473 will not be reversed unless the record clearly shows an abuse of discretion. Pearson v. Continental Airlines (1970) 11 Cal.App.3d 613, 619. Calculation of the six months to move for mandatory relief due to attorney mistake runs from the time of entry of judgment. Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 297.

Under the mandatory relief provisions, the intentional failure by counsel to respond to a complaint to save on fees may be strategic, but it is nonetheless neglect and must be set aside. Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1010. “From the client's point of view, it doesn't matter a whit whether the default was due to gross carelessness or bad strategy; either way, the client is the one stuck with the judgment resulting from the attorney's error. In both cases, it is the attorney's ‘neglect’ to carry out his duty to his client that causes the problem. In both cases, the client should be entitled to relief if the attorney admits that the inaction was his responsibility.” Ibid.

In a declaration, Simran Sekhon (“Defendant’s Counsel”),  admits responsibility for the default, and requests that the Court set aside the default judgment under the mandatory provision of CCP § 473 (b). Court is not persuaded. Defendant’s Counsel contends several factual issues which are clearly neglectful (See Sekhon Declaration, ¶ 5), and some which are, as is admitted by Defendant’s Counsel, strategic. While Plaintiff argues that the conduct here isn’t mistake, inadvertence, or neglect, the

Weighing between the neglect of Defendant’s Counsel and the erroneous strategic decisions, the Court finds that the conduct at issue is appropriate for relieving the default of defendant. While there may have been “strategic” contributions to Defendant’s default, the default relies on counsel’s neglect more than any other factor. The strategic conduct is sufficiently secondary to the accompanying neglect that the Court finds the strategic conduct was not particularly material to the resulting default.

Even if the strategic conduct was the primary cause, there would still be reason to set aside Defendant’s default. Strategic conduct of counsel has nonetheless been found to constitute attorney mistake or neglect which can be set aside under mandatory relief provisions of CCP § 473(b). Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1010. Plaintiff contends that the neglect at issue was on the part of Defendant, and not his counsel. Plaintiff provides no evidentiary support for this contention. There is no evidence in the record that Defendant knew or contributed to the failure to respond to the Complaint. Further, the Court finds Defendant’s Counsel’s complete and unambiguous acceptance of fault for the failure to respond credible. The important factor in determining the scope of attorney error is the attorney accepting culpability for the neglectful conduct. This has clearly occurred here. See Sekhon Declaration, ¶¶ 14, 16.

Nor is this a motion for reconsideration. Defendant’s prior motions relied on other provisions of CCP § 473. Plaintiff did file a motion under CCP § 473(b), but expressly couched that under the discretionary provisions therein. That such key and distinguishable forms of relief are couched under a rather bloated subdivision is not persuasively construed as the same motion. Clearly, the order on the discretionary motion contemplated the necessity of the mandatory motion as a separate action. To construe the order as otherwise requiring a motion for reconsideration would set Defendant up for failure, as he would be unable to meet the necessary burden of showing why the information was not offered at the time the original motion was made. See New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212. The instant motion is not one for reconsideration of the original set aside motion, nor should it be.

Accordingly, relief is mandatory. The motion to set aside is GRANTED. The default entered against the Defendant, along with the default judgments of March 3, 2023 and March 13, 2023, are VACATED. Defendant’s will file their answer along with the order on this motion. CCP § 1019.5.

As to Plaintiff’s motion for the Court to correct clerical error and determine which of the interlocutory judgments control, that issue appears to have been rendered MOOT as a result of the determination that Defendant is entitled to set aside of said judgment.

Defendant’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).

***This is the end of the Tentative Rulings***