Filed 7/20/26 Memarzadeh v. Gutierrez CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
MAHER MEMARZADEH,
Plaintiff and Appellant, A171108, A172072
v.
FRANCISCO ARTURO GUTIERREZ, (City and County of San Francisco
Super. Ct. No. CGC-21-596413)
Defendant and Respondent.
Maher Memarzadeh sued Francisco Arturo Gutierrez for legal
malpractice. For two years, Gutierrez unsuccessfully tried to video record
Memarzadeh’s deposition. (Code Civ. Proc., § 2025.330, subd. (c);
undesignated statutory references are to this code.) Despite multiple court
orders and escalating sanctions, Memarzadeh failed to appear for a recorded
deposition. In the end, the trial court granted Gutierrez’s motion for
terminating sanctions and awarded costs. On appeal, Memarzadeh contends
the court abused its discretion. We disagree and affirm.
BACKGROUND
This discovery dispute traversed a long and winding road.1 In June
2022, the parties’ counsel agreed Memarzadeh would be deposed on August 3.
1 We include only those facts and procedural history necessary to our
analysis of the issues. (People v. Garcia (2002) 97 Cal.App.4th 847, 851.)
1
Gutierrez served a notice of deposition indicating he intended to video record
the deposition and might use the recording at trial. Memarzadeh’s counsel
responded that his client objected to being videotaped “on grounds of invasion
of privacy” and proposed that the deposition be “recorded stenographically.”
Gutierrez noted the Code of Civil Procedure permits video recording of
depositions and asked for the basis of any privacy objections. Memarzadeh’s
counsel did not reply.
Because Memarzadeh failed to serve timely discovery responses in July
2022, Gutierrez served a notice continuing the deposition to December 5.
Again, the notice indicated Gutierrez intended to video record the deposition.
Shortly after, Memarzadeh emailed Gutierrez’s attorney objecting to video
recording and argued doing so would require his consent. He also said he
was “afflicted by a medical condition that prohibits [him] from travel” and
asked that “any discovery including deposition” be “informally postponed
until at least late February 2023” and only be recorded stenographically. He
also indicated he intended to substitute in new counsel. Gutierrez’s counsel
sent him a link to the December deposition so he could appear remotely
rather than travel, but he responded the same day reiterating his “privacy
considerations.”
On December 2, 2022, Memarzadeh — now representing himself —
filed an ex parte application opposing the video recording of the December 5
deposition. He again argued that he had not consented to the recording and
that it would infringe on his “constitutional right to privacy.” He also
objected to using Zoom, arguing it would “expose [him] to unnecessary harm
and injury” since the company might obtain and disseminate his private
information because he used the platform. The trial court denied the
application.
2
Memarzadeh called into the December 5, 2022 deposition. He stayed
on the call for seconds, disconnected, and then called back — this pattern
repeated for approximately one hour. He could not be sworn in, and
Gutierrez’s counsel took a certificate of nonappearance.
On December 23, 2022, Gutierrez filed a motion to compel an in-person
videotaped deposition. Before it was heard, Memarzadeh hired a new
attorney who agreed to make his client available for a deposition via Zoom on
February 27, 2023, and the parties agreed to continue the hearing on the
motion. The notice of continuance indicated the deposition would be video
recorded.
Days after the trial court continued the hearing, Memarzadeh switched
attorneys again. The new attorney said he had a conflict on the previously
agreed-to deposition date but did not respond to requests for a new date.
Accordingly, Gutierrez’s counsel sent a Zoom link for the February 27
deposition. In response, Memarzadeh’s counsel objected to the deposition
notice, citing his client’s “right of privacy” and the fact that his client was
“still recovering from a medical condition which impairs his ability to attend
a Zoom deposition without accommodations being made.” Gutierrez’s counsel
appeared at the deposition; Memarzadeh and his attorney did not.
On March 22, 2023, Memarzadeh opposed Gutierrez’s motion to compel
an in-person videotaped deposition. He argued that “a videotape of his
deposition would impair his future job prospects due to the potential that a
background check could unearth it.” And he indicated he was suffering from
a “temporary medical condition,” which meant he could not “travel by plane
or take any long extensive car trips,” and that he “suffers from nausea if
required to stare at a screen or documents for any extended period of time.”
Nevertheless, he offered to appear at a deposition on March 28 in his
3
attorney’s San Francisco office. His opposition and declaration did not
provide any medical documentation. After a hearing, the trial court granted
Gutierrez’s motion to compel an in-person videotaped deposition at his
attorney’s office no later than May 2, 2023, with some guidance about what to
do if Memarzadeh provided evidence he could not travel.
After Memarzadeh provided a declaration stating he could not travel
any sooner than June 1, 2023 due to health issues, Gutierrez served a notice
continuing the deposition to June 2. As before, and consistent with the trial
court’s order, the notice stated the deposition would be video recorded. About
a week before the deposition, Memarzadeh’s counsel asked for it to be a
“written deposition” due to his client’s “ ‘syncopal episodes,’ ” — i.e., fainting.
Gutierrez’s counsel declined. Memarzadeh failed to appear at the deposition.
In June 2023, Gutierrez filed his first motion for terminating sanctions.
The trial court set it for hearing on July 10. His counsel’s declaration
described at length her efforts to obtain a video recorded deposition and
Memarzadeh’s obstructive behavior, including his failure to appear at three
noticed depositions. In opposition, Memarzadeh argued that he suffers from
“Syncopal Episodes,” which “are triggered by a videotape recording,” and
“requests a reasonable accommodation.” He noted his willingness to “take a
written deposition” or “sit for a deposition so long as it is not videotaped.” He
attached declarations of physicians, which did not contain any diagnosis but
averred “the episodes of syncope have occurred under stressful situations
related to the presence of a camera” and his “condition causes him additional
unusual and extreme stress well beyond what is reasonable during video
recordings.” The declarations did not indicate whether the physicians were
simply relaying what he had told them about alleged triggers. He also
argued that terminating sanctions were unwarranted absent evidence that a
4
lesser sanction would not produce compliance. Gutierrez’s reply noted the
declarations’ lack of a diagnosis and the absence of an explanation about the
failure to sit for a deposition before the alleged syncopal incidents.
On July 3, 2023 — one week before the hearing on Gutierrez’s first
motion for terminating sanctions — Memarzadeh’s counsel filed an ex parte
motion to continue the hearing, citing a breakdown in the attorney-client
relationship and his motion to be relieved as counsel. Gutierrez opposed the
request, but the trial court reset the hearing to July 28. On July 14,
Memarzadeh’s counsel filed a second ex parte motion to further continue the
hearing, again citing a breakdown in his relationship with his client.
Gutierrez opposed the second request, lamenting “Plaintiff’s dilatory tactics
and games.” (Italics & boldface omitted.) The court continued the hearing to
August 31.
On July 26, 2023, Memarzadeh — again representing himself — moved
for a protective order against an oral deposition and seeking an order that his
deposition be taken by written examination. He argued a video recorded
deposition would trigger various symptoms, including syncopal episodes, and
attached various declarations of physicians and other medical records. As
before, the declarations described his symptoms and indicated he should not
“sit for an oral deposition,” but they did not contain a diagnosis regarding his
syncope and suggested that they based their statement that video recording
triggered his symptoms based solely on his report. Finally, he asserted a
video recorded deposition would only promote Gutierrez’s arguments if he
“were appealing to a race-driven jury to emphasize [Memarzadeh’s] facial
aesthetics and color.” In his accompanying declaration, he averred a video
recorded deposition would allow Gutierrez to “arbitrarily define and racially
express [Memarzadeh’s] personal characteristics, [his] character, [his]
5
general reputation, and [his] mode of living,” and “could interfere with the
hiring process.” Gutierrez opposed the motion.
On August 29, 2023 — after a hearing in front of a temporary judge —
the trial court accepted the temporary judge’s report and recommendation,
denied the motion for a protective order and written deposition, and ordered
Memarzadeh to appear for an in-person video recorded deposition on
September 15. The report recounted the lengthy history of the discovery
dispute and Memarzadeh’s evidence, concluding he “hasn’t established that
he should be deposed via written questions rather than orally.” The report
noted that Memarzadeh’s evidence did not contain a “definitive diagnosis”
and indicated Memarzadeh was “being further evaluated for syncopal issues.”
And it concluded that, if he “cannot participate in the preparation for a trial
on a case that he filed, he must file a motion to stay the entire case or dismiss
it. He can’t avoid sitting for a deposition. It’s his allegations that are the
cornerstone of this lawsuit. Presumably he’s planning to testify and be
present at trial.” On August 29, Gutierrez filed a supplemental declaration
in support of his first motion for terminating sanctions. It advised the trial
court that another judge had denied Memarzadeh’s motion for a protective
order and ordered him to appear for a deposition on September 15.
On August 31, 2023, a temporary judge heard Gutierrez’s motion for
terminating sanctions and indicated it would likely recommend denying the
motion. It noted such a sanction should be issued only after employing an
incremental approach of escalating lesser sanctions. It also noted the trial
court recently ordered Memarzadeh to appear for a video recorded deposition
and warned him that “if you continue to insist and disobey this August 28th
Court order, then — I’m sorry, but then I may have to take that into
consideration and recommend terminating sanctions.”
6
On September 5, 2023, Memarzadeh filed objections to, and an ex parte
motion for relief from, the two trial court orders that he appear for an in-
person video recorded deposition. He reiterated arguments about his health
and concerns that the video recording “would be accessible to the public” and
would “negatively impact” his chances of “academic employment” and
“academic freedom.” He also argued again that Gutierrez was not entitled to
video record the deposition without his consent. Gutierrez’s opposition noted
the long effort to depose Memarzadeh, his shifting and conflicting reasons for
not being video recorded, and the fact that his arguments had previously
been considered and rejected by the court. The trial court denied
Memarzadeh’s motions on September 13.
On September 15, 2023, Memarzadeh failed to appear for the court-
ordered deposition. He filed a declaration averring his absence was due to
his health and because he was more than 75 miles from the deposition’s
location.
On September 29, 2023, the temporary judge who heard the motion for
terminating sanction issued his report and recommended that the trial court
deny the motion. He also indicated that, while Memarzadeh’s “non-
compliance with the court order is not in dispute,” Gutierrez had not
requested lesser sanctions nor shown they would be ineffective. On
November 16, the trial court adopted the recommendation.
On December 1, 2023, Gutierrez filed a second motion for terminating
sanctions, or — in the alternative — issue, evidentiary, or monetary
sanctions. Memarzadeh’s opposition repeated his earlier arguments — in the
main, that video recording his deposition required his consent and that his
health prevented it.
7
On February 2, 2024, a temporary judge issued its report and
recommendation for Gutierrez’s second motion for terminating sanctions. It
recommended denying the request for terminating sanctions but issuing
monetary sanctions of $3,595.50 and contingent evidentiary sanctions should
Memarzadeh fail to give his deposition. Specifically, it recommended that he
be precluded from providing any testimony at trial if he failed to appear for a
deposition by a date certain. The report recounted the lengthy but ultimately
unsuccessful efforts to obtain his deposition. It also indicated that, while it
was “extremely hesitant to discredit medical records,” “the rationale for
[Memarzadeh’s] resistance to videotaping has shifted in ways that make the
situation not entirely believable.” And the report noted that, although the
submitted medical records indicated that the stress of a video recorded
deposition could trigger symptoms, they did not “explain why having a
videorecording will be any more stressful than a deposition already is — to
say nothing of how stressful live testimony in front of a jury might be, or that
they are based on actual experiences of videotaping.” “Absent that sort of
clear medical explanation, and considering that the Court has now
consistently rejected requests to be excused from videotaping because of
medical reasons,” he should be ordered to comply with prior orders requiring
a video recorded deposition. The report noted that a video recording could
preserve Memarzadeh’s testimony for trial if testifying ultimately proved too
stressful, provide a basis — if symptoms arose — for the court to reconsider
its orders, and that medical personnel and breaks could be provided. On
February 22, the court adopted the report and recommendation. Gutierrez
noticed a deposition for March 14.
On March 4, 2024, Memarzadeh — once more represented by
counsel — sought ex parte relief from the trial court’s order on Memarzadeh’s
8
second motion for sanctions and requested an order shortening time for a
motion for reconsideration. As before, the application relied on
Memarzadeh’s health and the written statements of his doctors. The court
set the matter for March 18 and stayed the deposition until March 19.
Gutierrez opposed the request.
On March 18, 2024, a temporary judge heard Memarzadeh’s motion for
reconsideration. It observed that video recording the deposition was “critical”
and a “huge deal,” since his credibility was key and the video could be used
for impeachment. It also rejected his contention that there was no difference
between a video recording and a transcript as “nonsense.” His counsel
argued Memarzadeh’s health concerns about “knowing he’s being videotaped”
were such that he simply “won’t do it.”
On March 19, 2024, the temporary judge issued his report and
recommendation on Memarzadeh’s ex parte. It recommended denying his
request to reconsider since he failed to “identify new or different facts,
circumstances, or law.” It noted he refused Gutierrez’s offer to use the
“recording function of Zoom rather than a distinct camera” because — in his
view — “the problem is not just the camera, but the awareness that there is a
recording of his statements.” It found his “alleged inability to sit for a
videorecorded deposition to be not credible.” (Italics added.) On April 9, the
trial court adopted the report and recommendation over Memarzadeh’s
objections.
Gutierrez again noticed Memarzadeh’s video recorded deposition, this
time on April 22, 2024. Memarzadeh’s counsel objected that he was
unavailable on that date, Gutierrez had no right to video record the
deposition, and doing so would put his client “at extreme risk of severe,
9
perhaps fatal, health risk.” Gutierrez continued the deposition to May 1, but
Memarzadeh did not appear.
On May 6, 2024, Gutierrez filed a third motion for terminating
sanctions. Memarzadeh — once more self-represented — opposed, continuing
to contend that Gutierrez was not entitled to video record the deposition and
that he could not comply because of his health. Gutierrez’s reply noted
Memarzadeh disobeyed various court orders requiring him to appear for a
video recorded deposition and continued to give different reasons for refusing
to comply. He argued that no sanction would cause Memarzadeh to comply
with the court’s orders.
On June 12, 2024 — after hearing the third motion — a discovery
referee issued a report and recommendation. The referee recommended
granting terminating sanctions and allowing Gutierrez to seek his costs. It
noted Memarzadeh’s “medical excuses for non-appearance have been rejected
by multiple judges,” he repeatedly disobeyed orders to appear for an “in-
person videotaped deposition,” and his “abuse of the discovery process has
resulted in escalating sanctions orders, both immediate monetary sanctions
and contingent issue sanctions.” Despite the many orders, his “refusal to
attend a video deposition is adamant. Sanctions have failed to change his
mind.” It also noted his reasons for failing to appear varied over time, from
privacy concerns, to worries that a recording could subject him to
employment discrimination, to insisting mutual consent was necessary for a
recording, to various health-based allegations. All rationales were without
merit and repeatedly rejected. It also agreed with prior findings that he “has
not demonstrated a health condition which precludes a video deposition.” It
thus concluded he had willfully engaged in discovery abuse and, given that
10
lesser sanctions had been employed and proven ineffective, terminating
sanctions were warranted.2
On June 24, 2024 — two years after the parties initially agreed to
Memarzadeh’s deposition — the trial court adopted the referee’s report and
recommendation and dismissed the complaint with prejudice. On July 11,
Gutierrez sought $44,080.88 in costs. Memarzadeh — again represented by
counsel — filed a motion to strike or tax costs. Gutierrez filed an opposition.
Ultimately, the trial court awarded $30,551.
DISCUSSION
Memarzadeh challenges the trial court’s discovery orders, issuance of
terminating sanctions, and award of costs. We address — and reject — each
argument.
I.
Memarzadeh first argues the trial court abused its discretion by
requiring a video recorded deposition. We disagree.
We review discovery orders for an abuse of discretion, including
protective orders. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186;
People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1552.) “The
appropriate test for abuse of discretion is whether the trial court exceeded the
bounds of reason.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) “Where
there is a basis for the trial court’s ruling and it is supported by the evidence,
a reviewing court will not substitute its opinion for that of the trial court.”
2 The discovery referee also noted that Memarzadeh previously had a
complaint dismissed in the Los Angeles Superior Court “for nearly identical
conduct — refusal to attend a videotaped deposition.” On our own motion, we
take judicial notice of the unpublished opinion in Memarzadeh v. Cohen
(Sept. 23, 2024, B327967, B329476, review den. Dec. 31, 2024, S287722),
which affirmed the issuance of terminating sanctions. (Evid. Code, § 452,
subd. (d).)
11
(Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612.) We also review
the court’s factual findings for substantial evidence and resolve any
evidentiary conflicts in favor of the ruling. (Morales v. City and County of
San Francisco (2025) 114 Cal.App.5th 43, 49.) If substantial evidence exists,
it is of no consequence that the court believing other evidence or drawing
other reasonable inferences might have reached a contrary conclusion.
(Picerne Construction Corp. v. Castellino Villas (2016) 244 Cal.App.4th 1201,
1209.)
The trial court did not abuse its discretion by requiring a video
recorded deposition. Video recorded depositions are explicitly allowed by
statute when requested. (§ 2025.330, subd. (c) [the “party noticing the
deposition” may “record the testimony by audio or video technology if the
notice of deposition stated an intention also to record the testimony by either
of those methods”].) Here, all of Gutierrez’s notices indicated his intent to
video record the deposition. Moreover, multiple judges found Memarzadeh to
be not credible. (Fininen v. Barlow (2006) 142 Cal.App.4th 185, 189–190 [we
defer to credibility determinations].) And various temporary judges
concluded video recorded depositions were critical — for example, doing so
could capture nonverbal conduct that may aid credibility determinations.
(See Myasnyankin v. Nationwide Mutual Ins. Co. (2024) 99 Cal.App.5th 283,
292.) Given the court’s concerns with Memarzadeh’s credibility and the
statutory basis for video recording depositions, the court did not abuse its
discretion by requiring him to participate. (Lipton v. Superior Court, supra,
48 Cal.App.4th at p. 1612.)
In arguing to the contrary, Memarzadeh contends the trial court’s
rulings violated California Rules of Court, rule 1.100 — concerning
accommodations for disabilities — and the Americans with Disabilities Act of
12
1990 (42 U.S.C. § 12101 et seq.). But he did not raise either contention below
and thereby forfeited them. (DiCola v. White Brothers Performance Products,
Inc. (2008) 158 Cal.App.4th 666, 676.) Relying on McKenna v. Beesley (2021)
67 Cal.App.5th 552, 571, fn. 19, he argues he nonetheless preserved the
argument for our review. But there, the respondents did not contend that
appellant forfeited the argument. (Ibid.) Here, Gutierrez does.
In any event, Memarzadeh’s arguments ignore the trial court’s factual
findings. It repeatedly concluded that he did “not demonstrate[] a health
condition which precludes a video deposition.” Substantial evidence supports
those findings. (Picerne Construction Corp. v. Castellino Villas, supra,
244 Cal.App.4th at pp. 1208–1209.) Various judicial officers correctly noted
his reasons for resisting the deposition varied over time — among them, from
privacy concerns, to worries that a recording could subject him to
employment discrimination, to insisting mutual consent was necessary for a
recording, to various health-based allegations. Contrary to his arguments, it
is of no consequence that the trial court believing other evidence or drawing
other reasonable inferences might have reached a contrary conclusion about
his health. (Id. at p. 1209.)
II.
Memarzadeh contends the trial court abused its discretion by ordering
terminating sanctions. We disagree.3
Section 2025.450, subdivision (d) “ ‘authorizes a trial court to impose’ ”
a “ ‘terminating sanction under’ ” section 2023.030 if a party “ ‘deponent “fails
to obey an order compelling attendance, testimony, and production.” ’ ”
(Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 701.) “ ‘Section
3 As Memarzadeh admits, given our conclusion we need not address his
claim that the trial court erred by sustaining Gutierrez’s demurrer.
13
2023.030 authorizes a trial court to impose’ ” “ ‘terminating sanctions against
“anyone engaging in conduct that is a misuse of the discovery process.” ’ ”
(Ibid.) “ ‘The discovery statutes evince an incremental approach to discovery
sanctions, starting with monetary sanctions and ending with the ultimate
sanction of termination.’ ” (Ibid.) “ ‘If a lesser sanction fails to curb misuse, a
greater sanction is warranted: continuing misuses of the discovery process
warrant incrementally harsher sanctions until the sanction is reached that
will curb the abuse.’ ” (Id. at pp. 701–702.) Although “ ‘ “[a] decision to order
terminating sanctions should not be made lightly,” ’ ” where “ ‘ “a violation is
willful, preceded by a history of abuse, and the evidence shows that less
severe sanctions would not produce compliance with the discovery rules, the
trial court is justified in imposing” ’ ” the sanction. (Id. at p. 702.)
“ ‘We review the trial court’s order under the abuse of discretion
standard and resolve all evidentiary conflicts most favorably to the trial
court’s ruling.’ ” (Creed-21 v. City of Wildomar, supra, 18 Cal.App.5th
at p. 702.) “ ‘The question before us “ ‘is not whether the trial court should
have imposed a lesser sanction; rather, the question is whether the trial court
abused its discretion by imposing the sanction it chose.’ ” ’ ” (Ibid.) It “ ‘is
appellant’s burden to affirmatively demonstrate error.’ ” (Ibid.)
The trial court did not abuse its discretion by issuing terminating
sanctions. (Creed-21 v. City of Wildomar, supra, 18 Cal.App.5th at pp. 701–
702.) The record demonstrates that it gave Memarzadeh ample opportunity
to sit for a video recorded deposition and comply with its discovery orders, but
he refused. It waited two years after the parties initially agreed to his
deposition before terminating the proceedings. Meanwhile, Memarzadeh
failed to appear at several noticed depositions and defied multiple court
orders. Moreover, the court issued lesser monetary and evidentiary sanctions
14
before terminating sanctions, but both proved ineffective. The court also
warned Memarzadeh that terminating sanctions might issue if he continued
to flout the court’s orders. Thus, the record reveals multiple willful discovery
violations, incremental sanctions to encourage compliance, and evidence that
lesser sanctions had not and would not curb the abuse. On this record, the
court thus did not abuse its discretion by issuing terminating sanctions.
(Creed-21, at pp. 701–702.)
In arguing to the contrary, Memarzadeh contends he did not willfully
disobey trial court orders because he missed the depositions for medical
reasons. But the court repeatedly found otherwise and — as explained
above — substantial evidence supports that finding. (Picerne Construction
Corp. v. Castellino Villas, supra, 244 Cal.App.4th at pp. 1208–1209.) He
also — relying on Societe Internationale v. Rogers (1958) 357 U.S. 197 and
Gocolay v. New Mexico Federal Savings & Loan Assn. (10th Cir. 1992) 968
F.2d 1017 — contends terminating sanctions violated his due process rights.
But in Rogers, a party could not comply with a production order because
foreign laws prohibited it from doing so. (Rogers, at pp. 200–201, 211–212.)
Here, Memarzadeh does not claim that foreign laws are the problem. In
Gocolay, the party deponent had a “physician’s diagnosis” that “predated the
first deposition” attempt. (Gocolay, at p. 1021.) Here, the court found no
credible diagnosis, and Memarzadeh’s reliance on a health condition only
arose after other reasons failed to persuade the court.4
4 We deny Memarzadeh’s request to take judicial notice of the trial
court’s order filed in a different case — based on different evidence — as
irrelevant. (Evid. Code, § 452, subd. (d); Jordache Enterprises, Inc. v.
Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6; Lipton v.
Superior Court, supra, 48 Cal.App.4th at p. 1612.)
15
III.
Memarzadeh challenges the trial court’s costs award on multiple
grounds. We set forth additional background and address each claim.
After the trial court dismissed Memarzadeh’s case, Gutierrez sought
$44,080.88 in costs. Specifically, he sought $5,861.78 in filing and motion
fees, $3,179.55 in process server fees, $21,344 in witness fees, $3,847.50 in
court reporter fees, and $9,848.05 in “[o]ther” fees. Memarzadeh moved to
tax the costs. He argued that the filing and motion fees were — by his
calculations — inflated, the process server fees were unreasonable, Gutierrez
could not collect expert costs because he only made a “token” settlement offer,
the reporter fees improperly included transcript costs, and the “other” costs
were too vague to award. Gutierrez opposed and provided redacted invoices
to support his expenditures. At the hearing, Gutierrez explained that the
experts reviewed discovery and provided opinions on Memarzadeh’s claims
and reports in preparation for trial.
After the hearing, the trial court awarded $30,551 in costs. It taxed the
entirety of Gutierrez’s “other” costs and a portion of the filing fees but
awarded the remainder. As to Gutierrez’s expert costs, it concluded that he
made a valid settlement offer.
Memarzadeh first contends that the trial court erred by concluding that
the settlement offer was valid. We disagree.
Section 998 provides that if a defendant makes a settlement offer
“which is rejected,” and “ ‘the plaintiff fails to obtain a more favorable
judgment or award,’ ” “the plaintiff . . . ‘shall pay the defendant’s costs from
the time of the offer,’ and may be required to pay some postoffer expert
witness costs.” (Madrigal v. Hyundai Motor America (2025) 17 Cal.5th 592,
602–603.) But the decision to award expert costs is discretionary, and a
16
“ ‘token or nominal offer’ ” may not satisfy the requirements of section 998.
(Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1026; Elrod v.
Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 697–698.) We
review a trial court’s costs award — and its ruling on the validity of a section
998 offer — for abuse of discretion. (State of California ex. rel. Rapier v.
Encino Hospital Medical Center (2022) 87 Cal.App.5th 811, 839; Elrod,
at p. 700.)
Memarzadeh’s arguments fail to persuade. (Elrod v. Oregon Cummins
Diesel, Inc., supra, 195 Cal.App.3d at p. 700 [where defendant “obtains a
judgment more favorable than its offer, the judgment constitutes prima facie
evidence” the offer was valid, and the burden is on plaintiff to demonstrate
otherwise].) He begins by contending that Gutierrez’s $40,000 offer was a
“token” one because he alleged $485,000 in damages, but he fails to support
those factual assertions with record citations and thereby forfeits them.
(Audish v. Macias (2024) 102 Cal.App.5th 740, 751.) Moreover, he does not
present any authority suggesting such an offer is invalid. (Ibid. [we may
disregard conclusory argument not supported by authority].) He also relies
on Licudine v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918 and
Najera v. Huerta (2011) 191 Cal.App.4th 872, 878–879 to argue the offer was
invalid because Gutierrez “made [it] . . . early in the litigation” when
Memarzadeh “had every reason to believe his lawsuit would be successful.”
But in Licudine and Najera, the court focused not only on the time the offer
was made, but the information and opportunity the offeree had to evaluate
the offer. (Licudine, at pp. 926–928; Najera, at pp. 878–879.) Memarzadeh
does not contend he had inadequate information here.
Next — relying on Michelson v. Camp (1999) 72 Cal.App.4th 955,
976 — Memarzadeh argues the trial court erred by awarding expert costs
17
because the invoices Gutierrez provided were redacted and did not state what
“services the experts provided.” But Gutierrez provided that information at
the hearing. The experts reviewed discovery and provided opinions on
Memarzadeh’s claims and reports in preparation for trial. Between the
invoices and the hearing, Gutierrez “explained” the hours the experts
expended and what they had done. (Id. at p. 976.) In any event, Camp
concerned Government Code section 68092.5’s limitation on expert witness
fees to reasonable and customary hourly rates. (Camp, at pp. 975–976.)
Here, the redacted billing statements alone provided the expert’s hourly rate
and hours they expended.
Next, Memarzadeh argues the trial court abused its discretion by
awarding expert costs because the award is “highly unjust.” Not so. The case
was delayed and ultimately dismissed because Memarzadeh abused the
discovery process for years. In the meantime, Gutierrez incurred the cost of
preparing for trial — including retaining experts. Memarzadeh fails to
demonstrate why awarding costs for experts in such circumstances
constitutes an abuse of discretion. (Bullock v. Phillip Morris USA, Inc. (2008)
159 Cal.App.4th 655, 685 [appellant must “affirmatively demonstrate error
through reasoned argument, citation to the appellate record, and discussion
of legal authority”].)
Finally, Memarzadeh contends that the trial court erred by awarding
“the other categories of costs” (capitalizations omitted) because Gutierrez did
not justify them We are unpersuaded. (Bullock v. Phillip Morris USA, Inc.,
supra, 159 Cal.App.4th at p. 685.) He begins by arguing the court double
counted Gutierrez’s initial filing fee, but he does not provide record citations
to support his claim and thereby forfeits it. (Audish v. Macias, supra,
102 Cal.App.5th at p. 751.) He also argues that the “service of process fees
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were not reasonable and necessary” (capitalizations omitted) and that “ ‘court
reporter fees’ should have been taxed as not reasonable or necessary”
(capitalizations omitted), but he fails to provide any authority supporting his
arguments and the claim thus fails. (Ibid.)
DISPOSITION
The judgment is affirmed. Gutierrez shall recover his costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1) & (2).)
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_________________________
RODRÍGUEZ, J.
WE CONCUR:
_________________________
TUCHER, P. J.
_________________________
PETROU, J.
A171108, A172072; Memarzadeh v. Gutierrez
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