Court of Appeal Disagrees that FedEx Charge Allowable Under Costs Statute as “Postage” Charge Equivalent.
Many of the decisions we review are fairly technical, and the next one is no exception. It does show that 998 offer rejection decisions will be reviewed for abuse of discretion, but that costs decisions on legal entitlement will frequently draw de novo review except to the extent that “necessary/reasonable” determinations are involved.
Vigliotti v. Harkleroad, Case No. D055638 (4th Dist., Div. 1 Jan. 10, 2011) (unpublished) involved a “parking lot bump” personal injury action in which the defense won a jury verdict (even after an appeal sustaining the verdict). The defense moved to recover costs of $21,090.84, which was granted in full after the trial court denied plaintiff’s motion to tax costss. Following an appeal by plaintiff, the appellate court affirmed the costs award, except to strike $67.54 in FedEx expenses from the costs award.
Plaintiff appealed, but was rebuffed in the costs award challenges.
The main challenge was to the defense CCP § 998 pretrial offer of $3,501 as being a “bad faith” 998 offer. (Arno v. Helinet Corp., 130 Cal.App.4th 1019, 1024-1025 (2005).) Did not work. All of the challenges were rejected because the defense offer had to be evaluated based on evidence available at the time of the offer, which worked in the defense favor for purposes of showing no abuse of discretion. (Elrod v. Oregon Cummins Diesel, Inc.,, 195 Cal.App.3d 692, 699 (1987).)
The amount of expert witness fees were found to be reasonable; after all, credibility and fee amount challenges are hard to win on appeal.
That brings us to the one item that resulted in a slight (and, we mean, very slight) reversal. Plaintiff did challenge a FedEx costs charge of $67.54, which was meritorious. The Fourth District, Division 1 disagreed with Foothill-De Anza Community College Dist. v. Emerich, 158 Cal.App.4th 11 (2007) to the extent it held that a FedEx costs charge was not the equivalent of a “postage” charge not recoverable under Code of Civil Procedure section 1033.5(b)(3). With that exception, costs award affirmed in toto.