Filed 9/15/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
MARGARET ELIZABETH MEEHAN, B343396
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV20756)
v.
JAIME MARTIR AGUIRRE et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of
Los Angeles County, James E. Blancarte, Judge. Affirmed.
Kowal Law Group, Timothy M. Kowal, Teddy T. Davis,
Ryan Merker and Richard J. Radcliffe, for Plaintiff and
Appellant.
Horvitz & Levy, John F. Querio and Steven S. Fleischman;
Skane Mills, Elizabeth A. Skane, Heather L. Mills and Jonathan
E. Tarkowski for Defendants and Respondents.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Plaintiff and Appellant Margaret Meehan appeals from an
order granting in part defendants and respondents Jaime Aguirre
and R & Y Castellanos Trucking, Inc.’s (defendants) motion to tax
costs. Meehan, the prevailing party in her personal injury action,
sought, among other things, expert witness costs and
prejudgment interest from the date of her first settlement offer
made pursuant to Code of Civil Procedure section 998. 1 The trial
court found that she could not recover her expert costs or
prejudgment interest because her recovery did not exceed her
final pretrial section 998 offer. The trial court also taxed certain
costs requested by Meehan under section 1033.5 for her failure to
demonstrate that they were reasonably necessary or reasonable
in amount. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 4, 2017, Meehan was riding her bicycle in the
bike lane on Woodruff Avenue in Lakewood, California, when she
collided with a semi-trailer operated by Aguirre and owned by his
employer, R & Y. Meehan sued Aguirre and R & Y for damages
she claimed resulted from this collision, including a traumatic
brain injury. Meehan filed her complaint, alleging motor vehicle
negligence, on June 12, 2019.
During the pendency of the parties’ action, Meehan served
four settlement offers pursuant to section 998 on Aguirre and
R & Y. The first offer, in the amount of $1,000,000 to resolve the
matter in its entirety, was made on August 26, 2021. The second
and third offers, also for $1,000,000, were made on March 4, 2022
and March 6, 2023, respectively. The defendants allowed all
1 All further undesignated statutory references are to the Code of
Civil Procedure.
2
three of these offers to expire. On April 27, 2023, nearly four
years after the initiation of the lawsuit and after 29 months of
open discovery, Meehan made a final section 998 offer of
$2,000,000. Defendants did not accept this offer and it expired
after the statutory 30-day period. (§ 998, subd. (b)(1).)
Meehan’s case proceeded to a six-week bench trial,
beginning on November 29, 2023. After the conclusion of the
trial, submission of closing briefs, and additional briefing from
the parties on the issues of causation and damages, the court
took the matter under submission and rendered its judgment on
August 27, 2024. The court found defendants negligent and
Meehan comparatively negligent, apportioning damages 85
percent to defendants and 15 percent to Meehan. The trial court
awarded damages to Meehan of $1,250,000, reduced to
$1,062,500 after accounting for her comparative negligence.
After trial, Meehan filed a memorandum of costs, seeking a
total of $993,180.30 in costs. This included $313,510.27 in
prejudgment interest, calculated from August 26, 2021, the date
that Meehan served defendants with her first section 998 offer,
and $326,093.10 2 in expert witness fees. Meehan argued that she
was entitled to expert fees and prejudgment interest under
section 998 and Civil Code section 3291, which respectively
authorize the trial court to award expert costs and require the
recovery of prejudgment interest, where an “offer made by a
plaintiff is not accepted and the defendant fails to obtain a more
favorable judgment.” (§ 998, subd. (d); Civ. Code, §3291.)
Meehan additionally sought $17,952.59 in court reporter fees and
2 The record variously refers to witness fees in the amount of
$326,195.10. The difference is immaterial to the court’s analysis.
3
$284,316.13 for models, enlargements and photocopies of
exhibits, among other recoverable costs under section 1033.5.
Defendants filed a motion to tax or strike costs, arguing
that Meehan was not entitled to interest or expert fees because
her recovery did not exceed her final section 998 offer of
$2,000,000. Defendants also sought to tax $6,345.30 of the
requested court reporter fees as nonrecoverable trial transcript
costs and to tax $274,947.53 of the costs requested for models,
enlargements, and photocopies as “excessive and unreasonable.”
Meehan opposed this motion.
After taking the matter under submission, the trial court
issued its ruling on December 5, 2024, granting defendants’
motion in part. The court found that Meehan’s fourth and final
section 998 offer of $2,000,000 was controlling for purposes of
determining whether the defendants “fail[ed] to obtain a more
favorable judgment” at trial. (§ 998, subd. (d).) It reasoned that
when Meehan’s “allowable costs of $353,474.93 are added to the
judgment amount of $1,062,500, Plaintiff’s total judgment is
$1,415,974.93,” and thus defendants obtained a more favorable
judgment at trial than had they accepted Meehan’s last section
998 offer of $2,000,000. It therefore struck Meehan’s request for
expert fees and prejudgment interest in its entirety.
The trial court then addressed defendants’ request to tax
specific costs sought by Meehan. With respect to the trial
transcripts sought as part of the court reporter fees, the court
found that they were not expressly prohibited nor authorized by
statute. However, the court found that Meehan presented “no
evidence” regarding any court order for transcripts, nor had she
provided any invoices, and therefore had “not met her burden in
substantiating such costs.” The court consequently granted
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defendants’ motion to tax the $6,345.30 attributable to the trial
transcripts. The trial court also granted defendants’ request to
tax $12,125 of the requested costs for models, enlargements, and
photocopies, which reflected the cost of creating a “Day in the
Life” video that was not presented at trial. Again, the court
granted the motion because it found that Meehan failed to meet
her burden to “attest[ ] to the reasonableness or necessity of such
video.” The trial court also granted defendants’ request to tax
$175,409.75 in trial technician costs within this same category
because Meehan failed to provide invoices substantiating those
costs to allow the court to assess their reasonableness and
necessity.
The trial court denied the defendants’ requests to reduce
the $22,065.60 Mehan sought for the preparation of video
animations and the $12,319.78 sought for binder printing and
delivery services. The trial court found that defendants failed to
substantiate their objections to these costs on their stated
grounds that the requested amounts were excessive and
unreasonable, and therefore had “not met their burden in
challenging the necessity or reasonableness of such cost[s].” The
court taxed Meehan’s costs for a total of $833,585.42 and
awarded costs of $159,594.88.
Meehan timely appealed the trial court’s costs order.
DISCUSSION
Meehan challenges the trial court’s order denying recovery
of expert fees and prejudgment interest under section 998 and
Civil Code section 3291. A trial court’s award of costs, including
its determination whether the prerequisites of section 998 have
been satisfied to allow an award of costs under either section 998
or section 3291, is reviewed for an abuse of discretion. (Adams v.
5
Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1482; Lewis v.
Ukran (2019) 36 Cal.App.5th 886, 896.) Where this application is
based upon the trial court’s interpretation of the statute, this is a
question of law, which we review de novo. (See, e.g., Litt v.
Eisenhower Medical Center (2015) 237 Cal.App.4th 1217, 1221
[“Ordinarily, review of a trial court’s determination that a litigant
is a prevailing party and the reasonableness of a section 998
award is for an abuse of discretion. [Citations.] However, de
novo review is required where the matters before the appellate
court involve the resolution of questions of law, rather than the
resolution of disputed facts”]; see also Martinez v. Brownco
Construction Co. (2013) 56 Cal.4th 1014, 1018 (Martinez)
[“Because this issue involves the application of law to undisputed
facts, we review the matter de novo”].) Meehan is additionally
challenging the trial court’s order taxing the costs she sought
under section 1033.5 as not reasonably necessary to the
litigation, and this is also reviewed for an abuse of discretion.
(Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571,
576.)
We therefore review de novo the trial court’s construction of
section 998 and Civil Code 3291, and we review for an abuse of
discretion the trial court’s order taxing specific items of costs.
The court will not disturb the trial court’s cost award absent a
showing “that the trial court exercised its discretion in an
‘arbitrary, capricious or patently absurd manner.’ ” (Adams v.
Ford Motor Co., supra, 199 Cal.App.4th at p. 1482.)
Code of Civil Procedure Section 998 and Civil Code Section 3291
“The right to recover costs in litigation ‘ “exists solely by
virtue of statute.” ’ ” (Madrigal v. Hyundai Motor America (2025)
17 Cal.5th 592, 602 (Madrigal).) Section 1033.5 sets forth
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generally allowable costs, subject to the trial court’s
determination that they were “reasonably necessary to the
conduct of the litigation rather than merely convenient or
beneficial to its preparation.” (§ 1033.5, subd. (c)(2).) The
scheme created by section 998 additionally authorizes a court to
award plaintiff their costs for expert witnesses—a cost not
generally allowed under section 1033.5—provided the
prerequisites of the statute are satisfied. (§ 998, subd. (d).) The
plaintiff is eligible to reap the benefits of section 998 if they make
a written offer that (1) conforms with the content requirements of
that section, (2) is not accepted within 30 days, and (3) the
defendant “fails to obtain a more favorable judgment or award” at
trial. (§ 998, subds. (b), (d).) If those requirements are met, then
the court may award the plaintiff their expert costs incurred after
the date of their section 998 offer. (§ 998, subd. (d).) Civil Code
section 3291 provides further financial benefits to a personal
injury plaintiff that satisfies these requirements by requiring an
award of prejudgment interest “calculated from the date of the
plaintiff’s first offer pursuant to Section 998 . . . which is
exceeded by the judgment.” (Civ. Code, § 3291.)
“The clear policy behind section 998 is to encourage the
settlement of lawsuits before trial. [Citations.] It does so ‘by
providing a strong financial disincentive to a party . . . who fails
to achieve a better result than that party could have achieved by
accepting his or her opponent’s settlement offer.’ ” (Madrigal,
supra, 17 Cal.5th at p. 603.) While the policy of section 998 is
clear, the statute itself is often opaque on how to address the
various complexities that arise with its application. Courts have
therefore relied on contract law to assist in their application of
section 998 to questions where the statute is silent. “When the
7
language of section 998 does not provide a definitive answer for a
particular application of its terms, courts may consult and apply
general contract law principles . . . [and] [a] general contract law
principle may be found controlling if the policy of encouraging
settlements is ‘best promoted’ thereby.” (Martinez, supra, 56
Cal.4th at p. 1020, quoting T.M. Cobb Co., Inc. v Superior Court
(1984) 36 Cal.3d 273, 281 (T.M. Cobb).)
One of the questions that courts have had to answer
without guidance from the plain language of the statute is how to
treat successive section 998 offers when not all offers are
exceeded by the judgment. The Courts of Appeal in both
Distefano v. Hall (1968) 263 Cal.App.2d 380 (Distefano) and
Wilson v. Wal-Mart Stores, Inc. (1999) 72 Cal.App.4th 382
(Wilson) answered this question by applying general contract
principles to hold that a later offer generally extinguishes earlier
section 998 offers, and it is the later offer that must be compared
against the judgment. In Distefano, the defendants’ first offer of
compromise 3 was rejected, the plaintiff won at trial but the
judgment was reversed upon appeal; prior to retrial, defendants
made a second offer which was also rejected. (Distefano, at
pp. 382–383.) The plaintiff’s ultimate recovery was more than
the defendants’ second offer but less than the first. (Id. at
p. 384.) The Distefano court held that, to give the full effect to
the legislative goal of encouraging settlement, it was necessary to
allow the parties to reevaluate their respective positions and
here, “where a case has been tried, appealed and reversed for
3 Distefano applied section 997, the precursor statute to section
998, which is identical to section 998 in all respects meaningful to
this discussion. (Distefano, supra, 263 Cal.App.2d at p. 384.)
8
retrial . . . an offer of compromise made before the second trial
pursuant to section [998] should clearly supersede that made
before the first trial.” (Id. at p. 385.)
In Wilson, supra, 72 Cal.App.4th at p. 387, the court
considered whether a plaintiff was entitled to the benefits of
section 998 where she made two offers that were not accepted by
the defendant and she received a judgment at trial that exceeded
her first offer but was less than her second. While the plaintiff
argued that she was entitled to expert costs under section 998
because her recovery exceeded her first offer, the court disagreed.
(Wilson, at p. 388.) The court reasoned that “the legislative
purpose of section 998 is generally better served by a bright line
rule in which the parties know that any judgment will be
measured against a single valid statutory offer—i.e., the
statutory offer most recently rejected—regardless of offers made
earlier in the litigation.” (Id. at p. 391.)
While the California Supreme Court has not explicitly
affirmed the last offer rule from Wilson and Distefano, it has
discussed their holdings with approval. In Martinez, supra, 56
Cal.4th at p. 1023, the Supreme Court acknowledged that “under
the so-called ‘last offer rule’ applied in Wilson and Distefano,
when a party makes successive unrevoked and unaccepted
section 998 offers, the last such offer is the only operative offer
with respect to the statutory benefits and burdens.” The court
further assumed “the propriety of applying the last offer rule
where, as in Distefano and Wilson, an offeree obtains a judgment
or award less favorable than a first section 998 offer but more
favorable than the later offer.” (Id. at p. 1026.) The court
nonetheless declined to apply the last offer rule in Martinez,
reasoning that the policy goals underlying section 998 were not
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served under the different facts of that specific case, where
“plaintiff serve[d] two unaccepted and unrevoked statutory offers,
and the defendant fail[ed] to obtain a judgment more favorable
than either offer.” (Ibid.) Instead, in such cases, Martinez directs
the trial court to determine recoverable section 998 costs from the
date of the first offer, while allowing the court the discretion to
decline to award costs where gamesmanship appears. (Id. at
p. 1027.) Thus, even though it was not applied on the specific
facts of that case, Martinez did not “reject” the last offer rule from
Distefano and Wilson where there are multiple offers and the
final judgment falls between them, contrary to Meehan’s
argument.
Other panels of this district have relied on this last offer
rule as the starting point for resolving more nuanced questions in
the application of section 998. In Palmer v. Schindler Elevator
Corp. (2003) 108 Cal.App.4th 154, 157–158, the court considered
whether plaintiff’s second section 998 offer, made less than 30
days after the first and which was found to be invalid,
extinguished plaintiff’s first offer. In concluding that the second
offer, even though invalid, superseded the first, the court
recognized the last offer rule as an accepted principle in the
application of section 998, stating that “California law . . .
provides that a prior settlement offer is extinguished by a
subsequent settlement offer to the same party.” (Id. at p. 157.)
The Palmer court further expressed its holding as “adopt[ing] the
bright-line rule . . . : A later offer under section 998 extinguishes
any earlier offers, regardless of the validity of the offers.” (Id. at
p. 158.) In One Star, Inc. v. STAAR Surgical Co. (2009) 179
Cal.App.4th 1082, 1091, another panel considered the “effect of a
withdrawn section 998 settlement offer on earlier offers,” to
10
determine which, if any, section 998 offer controlled where a later
offer was withdrawn within the statutory 30-day period. The
court again relied on the correctness of the last offer rule, and
stated its holding as follows: “The rule we adopt here is . . . a
party’s last section 998 offer is effective unless expressly revoked;
if the last offer is revoked, the prior offer is the relevant offer for
purposes of section 998[ ].” (Id. at pp. 1094–1095.) 4
We again adopt this rule and hold that where a plaintiff
makes multiple valid and unrevoked section 998 offers, and their
award is less favorable than their final offer, it is this last offer
that controls for purposes of determining any entitlement to
section 998 benefits. As prior courts have reasoned, the reliance
on general contract principles under such circumstances
advances the purpose of section 998 by encouraging settlement
4 Meehan argues that the recent California Supreme Court
decision in Gorobets v. Jaguar Land Rover North America, LLC
(2026) 20 Cal.5th 501, altered this analysis. We disagree. In
Gorobets, “[t]he sole question presented . . . is whether a
settlement offer that permits an offeree to choose between two
distinct sets of settlement terms as a form of acceptance can
qualify as a valid offer for cost-shifting purposes under section
998.” (Id. at p. 516.) It did not seek to upend the last offer rule,
and, in fact, implicitly continued to endorse this rule when it
addressed the argument that “simultaneous 998 offers are
categorically too uncertain because, when ‘offers [are] made at
the same time, a court cannot rely on the timing of the offers to
dictate which is the operative one.’ ” (Id. at p. 552.) It held that
“an offer that permits an offeree to accept by selecting between
two discrete alternatives is best understood as a single offer for
section 998 purposes,” thus providing a framework for courts to
continue to apply the last offer rule while still acknowledging the
viability of simultaneous 998 offers. (Ibid.)
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while avoiding gamesmanship. It provides the parties with the
flexibility to adjust their offers as facts develop and the certainty
of knowing which offer will control, both of which the courts have
recognized increase the likelihood and frequency of offers, and
the “more offers that are made, the more likely the chance for
settlement.” (T.M. Cobb, supra, 36 Cal.3d at p. 281.)
In this case, Meehan submitted multiple section 998 offers,
none of which was accepted by defendants. Her recovery
exceeded her first offers but fell short of her last section 998 offer,
which was double those that preceded it. This is precisely the
scenario contemplated by the court in Wilson when it reasoned
that the last offer rule would limit mischief and encourage
settlement—specifically by avoiding a situation where a “plaintiff
might be encouraged to maintain a higher settlement demand on
the eve of trial and refuse to settle a case that should otherwise
be settled if the plaintiff finds comfort in the knowledge that,
even if plaintiff receives an award less than his or her last
demand, plaintiff might still enjoy the cost reimbursement
benefits of section 998 so long as the award exceeded a lower
demand made by the plaintiff sometime during the course of the
litigation.” (Wilson, supra, 72 Cal.App.4th at p. 391.) In
considering whether this rule would advance the underlying goal
of saving court resources by avoiding trial, the Wilson court
further noted that “[o]n the eve of trial [plaintiff] was unwilling
to save the parties and the trial court the cost of trial for
anything less than [her higher offer], yet she now asks to be
reimbursed ‘998’ costs as if she would have been willing to do so
for [her lower offer]. While we do not suggest impropriety, such
fictions tend to undermine respect for our system of justice.”
(Ibid.) Meehan here, on the eve of trial, refused to settle for less
12
than $2,000,000, yet seeks reimbursement as though she had
been willing to do so for $1,000,000. Like the Wilson court, we
are similarly “reluctant to endorse” such a fiction. (Ibid.)
The last offer rule was properly applied in this case, and
required that the court evaluate Meehan’s entitlement to the
benefits of section 998 with reference to her final offer of
$2,000,000. Meehan’s recovery of $1,062,500 plus her allowable
costs did not exceed her $2,000,000 offer—even had the court not
stricken certain costs—and therefore defendants did not “fail to
obtain a more favorable judgment” at trial. The trial court did
not err in applying the last offer rule to find that Meehan was not
entitled to expert witness fees pursuant to section 998,
subdivision (d).
Meehan also argues that her entitlement to prejudgment
interest under Civil Code section 3291 should not be controlled by
the last offer rule. Meehan relies primarily on the language of
this section, as follows: “If the plaintiff makes an offer pursuant
to Section 998 of the Code of Civil Procedure which the defendant
does not accept prior to trial or within 30 days, whichever occurs
first, and the plaintiff obtains a more favorable judgment, the
judgment shall bear interest at the legal rate of 10 percent per
annum calculated from the date of the plaintiff's first offer
pursuant to Section 998 of the Code of Civil Procedure which is
exceeded by the judgment, and interest shall accrue until the
satisfaction of judgment.” (Civ. Code, § 3291, italics added.)
Meehan asks us to focus on the “first offer” language, which she
contends requires that the court award prejudgment interest
under this section whenever the plaintiff makes an offer that is
exceeded by their judgment at trial, irrespective of whether later
offers are also exceeded by the judgment.
13
The Third Appellate District in Wilson rejected the
argument presented by Meehan, and we agree with its reasoning.
The court in Wilson considered whether to award prejudgment
interest under Civil Code section 3291 to the plaintiff where her
judgment exceeded her first, but not her last, section 998
settlement offer. (Wilson, supra, 72 Cal.App.4th at p. 393.) It
held that “[b]ecause Wilson failed to satisfy the prerequisite to
the application of section 3291—in that she did not obtain a more
favorable judgment than her compromise offer of $249,000—she
is not entitled to recover prejudgment interest.” (Ibid.) It also
examined the impact of the alternative rule—i.e., applying the
benefits triggered by satisfying the prerequisites of section 998
whenever the plaintiff makes any unaccepted offer that is less
than their post-trial recovery. It found that “[w]hile a rule such
as that arguably might promote settlement in some cases, its
potential for mischief, or at least confusion, is apparent.” (Id. at
p. 391.)
The First Appellate District also acknowledged the
applicability of the last offer rule and the reasoning of Wilson to
the application of Civil Code 3291 in cases such as Meehan’s in
Ray v. Goodman (2006) 142 Cal.App.4th 83 (Ray). In laying out
the applicable legal principles, the court rhetorically asked and
answered the precise questions posed here:
“(1) Does a second section 998 offer from a plaintiff
revoke an earlier such offer from the same plaintiff
for purposes of that statute? (Answer: yes, per
[Wilson, Distefano, and T.M. Cobb].) (2) If that
[second] offer is more than the ensuing judgment, but
the ensuing judgment is less than the first section
998 offer, is the plaintiff entitled to prejudgment
interest? (No, per Wilson, because the first offer was
revoked by the second, and the ‘prerequisite’ for the
14
triggering of section 998 is thus not met because the
ensuing judgment was less than the then-operative
second settlement offer made by the plaintiff.)” (Id.
at p. 91.)
Like Martinez, the court in Ray declined to apply this rule
to the case before it because it involved two offers that were both
exceeded by the judgment, “thus clearly triggering prejudgment
interest under section 3291.” (Ray, supra, 142 Cal.App.4th at
p. 91.) Meehan’s case, however, falls squarely within the facts
presented by Wilson, and there is no cause to deviate.
Meehan asserts that the defendants unreasonably refused
to settle and unnecessarily increased the costs of litigation; she
claims that such behavior should not be rewarded by allowing
them to avoid the burdens that come with the failure to exceed a
section 998 offer at trial. Defendants, for their part, dispute this
characterization and have provided their own gloss on the years
of litigation that preceded the judgment in this case. Regardless,
even if Meehan’s account was accurate, the general policy goal of
encouraging settlement does not allow the court to award the
statutory benefits of section 998 and Civil Code section 3291
simply where a particular application would benefit the party
more willing to compromise. Rather, it is appropriate to reject an
application where it “injects uncertainty into the section 998
process [or] [i]f a proposed rule would encourage gamesmanship
or spawn disputes over the operation of section 998.” (Martinez,
supra, 56 Cal.4th at p. 1021.) Allowing a personal injury plaintiff
to recover prejudgment interest where plaintiff’s final offer failed
to satisfy the prerequisites of section 998, but any prior offer
managed to meet those requirements, would undoubtedly create
opportunity for new forms of mischief, an outcome that courts
have repeatedly tried to avoid. We also decline to encourage the
15
potential for shenanigans and conclude that the trial court did
not err in striking Meehan’s prejudgment interest from her
memorandum of costs.
Code of Civil Procedure Section 1033.5
Meehan’s brief also argues that the trial court “erred in
denying costs that were reasonably and necessarily incurred”
under section 1033.5. She specifically identifies the trial
technician costs of $175,409.75 and references her Day in the Life
video as the improperly excluded costs. Meehan’s contention
appears to be that the trial court denied these costs based on the
“flawed legal premise” that her last offer was the operative
section 998 offer and thus “never exercised its discretion under
the correct legal standard.” A plaintiff’s entitlement to the
benefits of section 998 and Civil Code section 3291 is not a
prerequisite to recover costs under section 1033.5. The trial
court’s order unambiguously reflects that the trial court denied
these additional costs for reasons completely unrelated to
whether Meehan’s section 998 offer was exceeded by the
judgment.
“[A]ny award of costs—whether categorically recoverable
under section 1033.5, subdivision (a) or allowable in the court’s
discretion under section 1033.5(c)(4)—must meet the
requirements of subdivision (c)(2) and (3).” (Segal v. ASICS
America Corp. (2022) 12 Cal.5th 651, 667 (Segal).) Subdivision
(c)(2) and (c)(3), respectively, require that the costs be
“reasonably necessary to the conduct of the litigation rather than
merely convenient or beneficial to its preparation” and
“reasonable in amount.” (§ 1033.5, subd. (c)(2), (3).) “Where costs
are not expressly allowed by the statute, the burden is on the
party claiming the costs to show that the charges were
16
reasonable and necessary.” (Foothill-De Anza Community College
Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.)
The costs that Meehan claims were improperly stricken
were for a trial technician to assist with “in-court exhibit
presentation and management” and a Day in the Life video that
was not admitted at trial. The trial court correctly stated that
both items were neither expressly allowed as costs under section
1033.5, subdivision (a), nor expressly prohibited under
subdivision (b). While these costs could have been granted under
the court’s discretion under section 1033.5, subdivision (c), it was
incumbent upon Meehan to meet her burden to substantiate
these costs as “reasonably necessary to the conduct of the
litigation” and “reasonable in amount.” (§ 1033.5, subd. (c)(2), (3);
Segal, supra, 12 Cal.5th at p. 667.) Although Meehan states that
she “submitted detailed documentation showing the purpose and
amount of each expense,” the record is devoid of such evidence.
As the trial court observed, there were no invoices provided to
allow it to determine the reasonableness of the $175,409.75 cost
of the trial technician, nor was there any declaration provided to
explain the necessity of the unused Day in the Life video. We
therefore cannot find that the trial court abused its discretion in
striking those costs when Meehan failed to meet her evidentiary
burden required for the court to exercise its discretion to grant
the costs sought.
17
DISPOSITION
The order is affirmed. Respondents are awarded their costs
on appeal.
CERTIFIED FOR PUBLICATION IN THE OFFICIAL
REPORTS
OCHOA, J. *
We concur:
ADAMS, P. J.
HANASONO, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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