California Cases November 15, 2022: Kirk v. Jelly Belly Candy Co.

Case Description

1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Stanislaus County Super. Ct. No. 2017125, John D. Freeland, Judge. Affirmed with directions.

Taylor Anderson, Paul A. Buckley and Christopher R. Mordy for Defendant and Appellant.

Dreyer Babich Buccola Wood Campora, Christopher W. Wood and Kelsey J. Fischer for Plaintiffs and Respondents.

SEGAL, J.

2

INTRODUCTION

Sandra Kirk sued Jelly Belly Candy Company for injuries she suffered when a car owned by, and covered in advertising for, Jelly Belly hit her car. After a nonjury trial the court awarded Kirk and her husband $3,762,331 in damages and $322,812 in costs. Jelly Belly argues the trial court erred in (1) refusing to allow Jelly Belly to withdraw an admission, (2) allowing treating physicians Kirk did not designate as retained expert witnesses to testify about causation and damages, and (3) allowing Kirk to recover as costs certain expert witness and other fees. With the exception of some of the costs the trial court awarded Kirk, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A . Kirk Sues Jelly Belly

In February 2014 Lois Coffey was driving a German two-door, rear-engine economy car fully wrapped in advertising for Jelly Belly. Coffey was driving from a gas station to a grocery store when she turned left in front of and collided with a car driven by Kirk, with Kirk's teenage granddaughter in the passenger seat. In September 2015 Kirk and her granddaughter sued Coffey and Jelly Belly for personal injuries they suffered in the accident, alleging Coffey was negligent and was the agent or employee of Jelly Belly at the time of the accident. Kirk's husband brought a cause of action for loss of consortium.

3

In February 2016, in response to a request for admission, Jelly Belly admitted Coffey was acting in the course and scope of her employment at the time of the accident. In June 2018, however, Jelly Belly filed a motion to withdraw that admission, arguing that Jelly Belly's former attorney made a mistake and that Coffey testified at her deposition in October 2016 she was running a personal errand when the accident occurred. The trial court denied the motion.

B. The Trial Court Rules Kirk's Treating Physicians May Not Testify as Expert Witnesses

In September 2019 the parties exchanged expert witness information. Kirk listed 16 medical providers as potential expert witnesses but did not include any of them in counsel's expert witness declaration for retained experts. (See Code Civ. Proc., § 2034.260, subd. (c).) Before trial Jelly Belly filed a motion in limine to exclude expert opinion testimony by three of Kirk's treating physicians: Dr. Justin Paquette, a neurosurgeon, Dr. Vinay Reddy, a pain management specialist, and Dr. Tyler Smith, an orthopedic spine surgeon. Each of these treating physicians had testified in his deposition he had reviewed comprehensive medical records and deposition transcripts in order to give opinions on causation and damages. Jelly Belly argued that, by giving the three treating physicians Kirk's medical records and deposition transcripts in the case, Kirk had transformed the three treating physicians into retained experts. But because Kirk did not designate them as retained expert witnesses, Jelly Belly contended, the court should exclude their expert testimony. The trial court granted the motion, ruling that

4

Dr. Paquette, Dr. Reddy, and Dr. Smith could testify as percipient witnesses but not as experts and that they could not give any opinion testimony regarding causation based on their review of the medical records or deposition transcripts provided by Kirk's counsel.

C. The Case Goes to Trial

Jelly Belly admitted liability, and the 10-day court trial focused on causation and damages. Kirk claimed the accident caused her to suffer three herniated discs that required surgery and ongoing medical treatment, while Jelly Belly claimed the accident exacerbated Kirk's preexisting neck pain and caused soft tissue injuries that resolved within a few months of the accident.

1. Kirk Testifies About Her Injuries and Treatment

Kirk testified that, although she had experienced neck pain prior to the accident, it did not limit her physical activities. She also testified she had no neck pain for two and a half years before the 2014 collision. Kirk's medical records showed that, although Kirk visited and communicated with her primary care physicians multiple times between March 2012 and January 2014, she did not complain of neck pain during that time.

Kirk testified about the injuries she suffered in the February 2014 accident. The airbags deployed after the accident, and Kirk temporarily lost consciousness. She said that when she awoke she had pain shooting through her neck, arms, and leg and that she called her husband, who picked her up and drove her to the emergency room at Kaiser Permanente Modesto Medical Center. According to Kirk's husband, Kirk told hospital

5

personnel her neck, arm, and shoulders hurt. An emergency room physician examined Kirk and gave her an injection for pain.

Four days after the accident, Kirk visited her primary care physician, Dr. Paul Rose. Kirk told Dr. Rose she was experiencing a lot of pain in her neck, shoulders, arms, and legs, and he prescribed physical therapy. Kirk went to physical therapy for two months; after she was discharged, she still had burning pain in her neck. Kirk's family members testified that before the accident Kirk was energetic and active, but that after the accident Kirk tired easily, did not want to do the activities she previously enjoyed, and was constantly seeking relief from pain.

In October 2014 Kirk returned to Dr. Rose and told him "nothing was helping." Dr. Rose referred her to a physiatrist who recommended injections, but Kirk did not trust the doctor and "did not feel safe" getting injections from him.

Kirk's chiropractor referred her to Dr. Paquette. When Kirk first saw Dr. Paquette in May 2015, she complained of neck pain and weakness, spasm, numbness, and pain in her right arm and hand. A November 2014 MRI showed herniated discs at C4-C5, C5-C6, and C6-C7, with marked stenosis and compression of the exiting nerve roots. Dr. Paquette testified the MRI findings correlated with Kirk's subjective complaints and his objective findings from his examination. Because it had been a year and a half since the injury, Dr. Paquette concluded Kirk would require treatment. When Kirk returned in August 2015, she said her symptoms were worsening.

After Dr. Paquette gave Kirk epidural and facet joint injections in January 2016, Kirk reported "substantial

6

improvement in her symptoms," and the improvement lasted for a few months. But by June 2016 Kirk's pain returned.

In February 2017 Dr. Paquette referred Kirk to Dr. Reddy, a physiatrist, for pain management. Based on Kirk's clinical symptoms, an MRI, and a nerve conduction study, Dr. Reddy concluded Kirk's cervical discs were causing compression of the nerve roots and the spinal cord. Dr. Reddy believed that epidural steroid injections might reduce the inflammation around the nerve roots for three to six months, but that Kirk would need surgery to address the spinal cord compression.

Kirk had surgery in March 2017, with Dr. Paquette performing a C4-C7 anterior and posterior cervical fusion. Kirk experienced an improvement in symptoms after the surgery. Kirk continued to receive injections from Dr. Reddy.

Dr. Reddy opined that Kirk's herniated disc occurred at the time of the 2014 accident and that the injuries to Kirk's discs, facet joints, and spinal cord were related to the accident. Dr. Paquette agreed Kirk's symptoms, the MRI findings, and the objective findings on physical examination were directly related to the 2014 accident. Dr. Smith, who saw Kirk in July 2018, testified Kirk will likely need additional surgery at C3-C4 or C7-T1, or both, in five to 10 years.

2. Jelly Belly Presents Evidence of Kirk's Medical History and Treatment

Jelly Belly presented evidence Kirk suffered from chronic neck pain before the 2014 accident. Kirk first experienced pain in her neck after a car accident in 2003, when an X-ray showed "mild degenerative changes" in her cervical spine. Kirk complained of neck pain in July 2005 and again in early 2007, when she was

7

diagnosed with cervical degenerative joint disease. In November 2007 Kirk reported "chronic neck pain, flaring more than one month." A cervical spine X-ray showed degenerative disc disease with moderate disc space narrowing at C5-C6 and C6-C7. Kirk complained of neck and back pain several times in 2008, and a cervical spine X-ray showed multilevel degenerative changes and advanced cervical spondylosis. Kirk returned to her doctor in November 2010 and said the neck pain she had experienced "intermittently for many years" was "worse in the past few months." Kirk's doctor attributed the pain to "extensive cervical spondylosis." X-rays in November 2010 showed "disk space narrowing and marginal spurring at C4-5, C5-6, and C6-7."

Jelly Belly also presented evidence that, although Kirk testified she was "in excruciating pain" when she arrived at the hospital, hospital records reflected her pain level was zero out of 10 when she arrived and three out of 10 after she received an injection for pain. The hospital records also showed Kirk reported "[b]oth arms and shoulder are tight and jittery but she has no focal pain." On examination Kirk had bilateral paraspinal discomfort, but no cuts or bruises from the accident. She had full range of motion in her neck, no midline tenderness, and no radicular symptoms, which led the emergency room physician to conclude it was unlikely Kirk had a cervical spine injury.

When Kirk visited Dr. Rose four days after the accident, she had moderate pain in both shoulders, soreness in her neck, and low back pain, but no bony tenderness or radiculopathy. Dr. Rose diagnosed Kirk with a strain of the neck, lumbar spine, and chest wall muscles.

Kirk did not report any neck pain to Dr. Rose or any other medical provider between May 2014 and September 2014. On

8

October 8, 2014, Kirk went to Kaiser for an annual physical exam. Kirk reported she still was experiencing "some pains" from the accident but was "getting better." A few weeks later, Kirk reported she continued to have pain in her neck, shoulders, and leg and asked Dr. Rose for a referral to a chiropractor.

Jelly Belly called Dr. Barakos, a neuroradiologist, as an expert witness on the issue of causation. Dr. Barakos testified that, based on his review of Kirk's X-rays and MRIs, Kirk did not have a disc herniation, but rather a disc bulge due to chronic, longstanding bony spurring. Dr. Barakos opined that in November 2014 Kirk did not require surgical intervention.

Dr. Barakos testified that a patient who suffered the injuries Kirk claimed she suffered (a three-level disc rupture and a torn posterior longitudinal ligament) would be in so much pain that the patient typically would have to be on bed rest for weeks or months, which Kirk was not. Dr. Barakos concluded Kirk's pain was not caused by the 2014 accident but rather by longstanding degenerative changes in her cervical spine. Jelly Belly also called an expert in accident reconstruction and biomechanics, who opined the accident did not generate enough force to damage Kirk's cervical spine.

D. The Trial Court Rules for Kirk

The court found the 2014 accident was a substantial factor in causing Kirk's cervical disc herniations and other injuries. The court found it significant that Kirk was asymptomatic for two years before the accident, but that she was never pain-free after the accident, even with injections. The court relied on Dr. Paquette's testimony that, although it is not typical, a patient

9

with a three-level herniation can have full range of motion of the cervical spine.

The court found Dr. Reddy's testimony "particularly compelling." Dr. Reddy reviewed Kirk's records from Kaiser before he saw Kirk, and at the first examination, Dr. Reddy "felt Kirk was a surgical candidate based on her presentation and her MRI." Dr. Reddy testified that Kirk's MRI findings correlated to her pain complaints; that the MRI showed a herniation causing impingement on the C5 nerve root, which causes shoulder pain; and that Kirk had complained of shoulder pain since the accident. Dr. Reddy opined Kirk's herniated disc, facet injuries, and myelopathy were caused by the accident.

The court discounted Dr. Barakos's testimony Kirk's injuries were not caused by the accident because Dr. Barakos was a radiologist, not a spine surgeon or physiatrist who examined or treated patients with pain. The court rejected the opinions of Jelly Belly's biomechanics expert because she admitted the crash studies on which she relied did not include a person of Kirk's age with degenerative cervical arthritis. The court further found the accident was a substantial factor in causing Kirk to need future surgery.

Relying on the testimony of Dr. Paquette, Dr. Reddy, and Dr. Smith, the court awarded Kirk $595,883 in past medical expenses. Relying on the testimony of Kirk's expert witnesses, a certified life planner and a certified public accountant, the court awarded Kirk $1,786,448 in future medical expenses. The court also awarded Kirk $625,000 in past noneconomic damages, $200,000 in future noneconomic damages associated with a future surgery, and $475,000 in other future noneconomic damages. The court awarded Kirk's husband $40,000 for past

10

and $40,000 for future loss of consortium. The court entered judgment for Kirk for $3,682,331 and for Kirk's husband for $80,000.

Kirk filed a memorandum of costs under section 1033.5 seeking $351,320 in costs, including $297,739 in expert witness fees under section 998. Jelly Belly filed a motion to tax costs, including the expert witness fees. The trial court granted the motion in part and ordered Jelly Belly to pay $322,812 in costs. The court denied Jelly Belly's motion for a new trial. Jelly Belly timely appealed from the judgment.

DISCUSSION

A. The Court Did Not Abuse Its Discretion in Denying Jelly Belly's Motion To Withdraw Its Admission

Before trial Jelly Belly admitted in response to a request for admission that Coffey was acting in the course and scope of her employment at the time of the accident. Later, after Jelly Belly changed attorneys, it filed a motion under section 2033.300 to withdraw this admission. Jelly Belly argued that its former attorney made a mistake of law and that Jelly Belly discovered the mistake when Coffey testified at her deposition she was running a personal errand in the Jelly Belly car when the accident occurred. The trial court denied Jelly Belly's motion, ruling Jelly Belly "failed to establish that its former counsel made a mistake of law which would constitute grounds for relief" under section 2033.300. Jelly Belly argues the trial court erred in denying the motion to withdraw the admission.

11

1. Applicable Law and Standard of Review

A court may permit a party to withdraw an admission "only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits." (§ 2033.300, subd. (b).) The "trial court's discretion to deny a motion under the statute is limited to circumstances where it is clear that the mistake, inadvertence, or neglect was inexcusable, or where it is clear that the withdrawal or amendment would substantially prejudice the party who obtained the admission in maintaining that party's action or defense on the merits." ( New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420-1421.)

2. There Was No Mistake

The trial court did not abuse its discretion in ruling there was no mistake because it was clear Coffey was acting in the course and scope of her employment when the accident occurred. An "'employee's conduct is within the scope of his or her employment if (1) the act performed was either required or incident to his duties or (2) the employee's misconduct could be reasonably foreseen by the employer in any event. [Citation.] In this test, foreseeability means that in the context of the

12

particular enterprise, an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among the costs of the employer's business.'" ( Marez v. Lyft, Inc. (2020) 48 Cal.App.5th 569, 577; see Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 94-95.)

Through its "Jelly Belly on Tour" program, Jelly Belly paid Coffey and her husband to promote Jelly Belly's products by traveling across the United States in a motor home and a car covered with Jelly Belly's logo and images of its jellybeans. Jelly Belly provided the motor home and the car and paid for Coffey's expenses, including food, groceries, and gas. On the day of the accident, Coffey took the motor home to a repair shop. She drove the car to a gas station to get gas and was on the way to a grocery store when the collision occurred. Fueling and driving the Jelly Belly-branded car was part of Coffey's duties. As stated, Coffey's job was to drive the car and the motor home, with the Jelly Belly advertising, in public. Because her job was to advertise Jelly Belly products while driving the car and the motor home, Coffey was essentially always on duty and in the course and scope of her employment whenever she drove either vehicle, whether she was driving to a store that sold Jelly Belly products, driving around town displaying the advertising, or running errands. And it was certainly foreseeable to Jelly Belly that the driver of either vehicle might cause an accident.

Jelly Belly argues Coffey's testimony she was running a "personal errand" created a "colorable and reasonable argument" Coffey was not engaged in work-related activities at the time of the accident. Jelly Belly quotes Halliburton Energy Services, Inc. v. Department of Transportation , supra , 220 Cal.App.4th 87,

13

where the court stated: "For example, when the employee leaves the employer's premises on a lunch break, to get lunch or run a personal errand, and the employee is not engaged in any errand or task for the employer, the employee is not acting within the scope of his or her employment." ( Id . at p. 95.) Coffey, however, was not that kind of employee. Unlike an employee who works at her "employer's premises" and is off duty when she leaves the office or factory to run a personal errand, Coffey was always at work when she was in the Jelly Belly car. Any time Coffey was driving the car in public, she was advertising for Jelly Belly and engaged in work-related activities. The Jelly Belly car essentially was her employer's "premises." There was no mistake, and trial court did not err in denying Jelly Belly's motion to withdraw its admission.

B. The Trial Court Did Not Abuse Its Discretion in Allowing Kirk's Treating Physicians To Testify About Causation and Damages

Jelly Belly contends the trial court erred in permitting Kirk's treating physicians, Dr. Paquette, Dr. Reddy, and Dr. Smith, to testify about causation and damages because Kirk did not comply with the Code of Civil Procedure in designating them as retained expert witnesses. Kirk did not properly designate these three doctors as retained expert witnesses, but the court did not abuse its discretion in allowing them to testify as treating physicians on causation and damages.

1. Applicable Law and Standard of Review

"A party must identify its expert witnesses before trial in response to a demand for exchange of expert witness information

14

under Code of Civil Procedure section 2034.210. This requirement applies to both retained and nonretained experts." ( Ochoa v. Dorado (2014) 228 Cal.App.4th 120, 139; see §§ 2034.210, subd. (a), 2034.260, subd. (b)(1).) For an expert witness who "has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action," the "'exchange shall also include or be accompanied by an expert witness declaration.'" ( Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 34 ( Schreiber ); see §§ 2034.210, subd. (b), 2034.260, subd. (c); Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606, 638.) Failure "to submit an expert witness declaration that fully complies with the content requirements of" section 2034.260, subdivision (c), may result in exclusion of the expert opinion. ( Bonds v. Roy (1999) 20 Cal.4th 140, 149; see § 2034.300; Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1445.)

A treating physician, however, is generally not a retained expert requiring an expert witness declaration. ( Schreiber , supra , 22 Cal.4th at p. 36.) "A treating physician is not consulted for litigation purposes, but rather learns of the plaintiff's injuries and medical history because of the underlying physician-patient relationship." ( Ibid .) "A treating physician is a percipient expert, but that does not mean that his testimony is limited to only personal observations. Rather, like any other expert, he may provide both fact and opinion testimony." ( Ochoa v. Dorado , supra , 228 Cal.App.4th at p. 139; see Schreiber , at p. 35; Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, 245.) A treating physician "may testify as to any opinions formed on the basis of facts independently acquired and informed by his training, skill, and experience. This may well include opinions regarding

15

causation . . . because such issues are inherent in a physician's work." ( Schreiber , at p. 39; see Kalaba v. Gray (2002) 95 Cal.App.4th 1416, 1422.)

What "distinguishes the treating physician from a retained expert is not the content of the testimony, but the context in which he became familiar with the plaintiff's injuries that were ultimately the subject of litigation, and which form the factual basis for the medical opinion." ( Schreiber , supra , 22 Cal.4th at pp. 35-36.) To the extent "a treating physician became familiar with services provided to the plaintiff or other facts for the purpose of forming and expressing an opinion in anticipation of litigation or in preparation for trial, however, he or she acts as a retained expert," and an expert witness declaration is required. ( Ochoa v. Dorado , supra , 228 Cal.App.4th at p. 140; see Schreiber , at p. 39.) In some cases, a treating physician may become a retained expert, such as where counsel supplies the physician with "additional information and ask[s] him to testify at trial to opinions formed on the basis of that additional information." ( Belfiore-Braman v. Rotenberg , supra , 25 Cal.App.5th at p. 245; see Dozier v. Shapiro (2011) 199 Cal.App.4th 1509, 1521.) We review the trial court's ruling on the admissibility of expert testimony for abuse of discretion. (See Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 ["[e]xcept to the extent the trial court bases its ruling on a conclusion of law (which we review de novo), we review its ruling excluding or admitting expert testimony for abuse of discretion"]; Belfiore-Braman , at p. 246 [abuse of discretion standard applies to a ruling excluding medical opinion testimony].)

16

2. The Trial Court Acted Within Its Discretion in Limiting the Treating Physicians' Testimony

As discussed, in her expert witness disclosure Kirk listed Dr. Paquette, Dr. Reddy, and Dr. Smith as potential expert witnesses but did not provide the expert witness declaration required for retained experts. (See § 2034.260, subd. (c).) Jelly Belly filed a motion in limine to preclude the three physicians from giving expert testimony. The trial court agreed with Jelly Belly that "the three doctors were provided information by counsel that they did not have or they did not obtain independently through the treatment of Mrs. Kirk. As such, a declaration is required." Citing Schreiber , supra , 22 Cal.4th 31 and Ochoa v. Dorado , supra , 228 Cal.App.4th 120, the trial court ruled that the three doctors could testify about their opinions regarding causation "because such issues are inherent in a physician's work," but that they could not base their opinions on the medical records and deposition transcripts counsel for Kirk gave them.

There is no question Kirk's expert witness disclosure, which did not list Dr. Paquette, Dr. Reddy, or Dr. Smith as retained experts or include a declaration for them, did not comply with section 2034.210, subdivision (b), and section 2034.260, subdivision (c). Contrary to Kirk's assertions, the defect in her expert witness disclosure was not a mere "slight deficiency," nor did her disclosure provide "all of the information required by" section 2034.260, subdivision (c). And there was no doubt Kirk retained the physicians as experts. By the time Kirk served her expert witness disclosure in September 2019, Dr. Reddy had billed Kirk's lawyers to review medical records and deposition transcripts they had sent him, and Dr. Paquette had testified at

17

his deposition Kirk's attorneys were paying him to review records and deposition testimony in the case. (See Dozier v. Shapiro , supra , 199 Cal.App.4th at p. 1521 ["counsel transformed [a treating physician] into a retained expert by giving him additional information and asking him to testify at trial to opinions formed on the basis of that additional information"].) Because counsel for Kirk did not state the three physicians were retained experts or make the required disclosures, the trial court correctly granted Jelly Belly's motion in limine to limit their testimony.

Kirk argues, however, that the trial court properly limited the testimony of Dr. Paquette, Dr. Reddy, and Dr. Smith to opinions based on information the doctors received through their treatment of Kirk and that the three doctors expressed opinions based solely on that treatment. Dr. Reddy testified he reviewed Kirk's pre-accident medical records from Kaiser, which allowed him to testify Kirk's condition in 2017 was related to the 2014 accident and not her preexisting cervical issues. It was undisputed that Kirk's lawyers provided Dr. Reddy with Kirk's Kaiser records and paid him to review them just before Dr. Reddy's deposition in May 2019. And although Dr. Reddy testified he reviewed the Kaiser records when he treated Kirk in 2017, there was no evidence of that in Dr. Reddy's chart notes. Jelly Belly objected to Dr. Reddy's testimony, arguing that, under the court's ruling on the motion in limine, the court should not allow Dr. Reddy to opine based on his review of the Kaiser records because he reviewed them as a retained expert, not as a treating physician. The trial court overruled that objection, accepting Dr. Reddy's testimony he reviewed Kirk's Kaiser records in the course of his treatment before he received them

18

from counsel for Kirk. Similarly, when Dr. Paquette testified he believed the accident caused Kirk's injuries, counsel for Jelly Belly objected, arguing that Kirk's lawyers had provided Dr. Paquette with extensive materials he had not seen as a treating physician and that Dr. Paquette could not "parse it out." The trial court overruled the objection.

Based on this testimony, Jelly Belly argues that counsel for Kirk "poisoned the well" when they gave Dr. Paquette, Dr. Reddy, and Dr. Smith information and paid them to review it and that it was impossible for the physicians to separate what they learned from treating Kirk from what they learned as retained experts. We agree such a mental exercise might have been difficult, but not impossible. It is not too dissimilar from the task a trial court asks jurors to perform when the court instructs them to consider a piece of evidence for one purpose but not for another. (See People v. Yeoman (2003) 31 Cal.4th 93, 139 ["Jurors are routinely instructed to make similarly fine distinctions concerning the purposes for which evidence may be considered, and we ordinarily presume they are able to understand and follow such instructions."]; People v. Waidla (2000) 22 Cal.4th 690, 725 ["The presumption is that limiting instructions are followed by the jury."].) The three doctors said they could limit their opinions to those based on information they obtained during their treatment of Kirk, and not from the litigation and other materials they received from Kirk's attorneys. The trial court believed them, and we defer to that credibility determination. (See Orozco v. WPV San Jose, LLC (2019) 36 Cal.App.5th 375, 400 ["[a]s a reviewing court, we do not sit as a trier of fact nor do we assess the credibility of expert witnesses"]; In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 653 [it is for the court to assess the

19

credibility of all witnesses, including an expert witness].) The trial court did not abuse its discretion in permitting Dr. Paquette, Dr. Reddy, and Dr. Smith to testify about opinions they stated (and the trial court credited) were based only on facts they obtained as treating physicians.

C. The Trial Court Abused Its Discretion in Awarding Costs Associated with Kirk's Treating Physicians and Counsel for Kirk's Employee

1. Applicable Law and Standard of Review

A prevailing party is entitled to recover costs. (§ 1032, subd. (b).) Section 1033.5, subdivision (a), lists the costs a prevailing party is entitled to recover, and section 1033.5, subdivision (b), lists costs that are not recoverable. Costs neither permitted under section 1033.5, subdivision (a), nor prohibited under section 1033.5, subdivision (b), "may be allowed or denied in the court's discretion." (§ 1033.5, subd. (c)(4).) "Allowable costs must be 'reasonably necessary to the conduct of the litigation' and 'reasonable in amount'" and not "'merely

20

convenient or beneficial to its preparation.'" ( Doe v. Los Angeles County Dept. of Children &Family Service (2019) 37 Cal.App.5th 675, 693; see § 1033.5, subd. (c)(2).) "Costs are allowable if incurred, whether or not paid." (§ 1033.5, subd. (c)(1).)

Although expert witness fees are generally not recoverable under 1033.5, they may be recoverable under section 998. "If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award . . ., the court . . ., in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial . . ., or during trial . . ., of the case by the plaintiff, in addition to plaintiff's costs." (§ 998, subd. (d).) Expert witness fees are recoverable even if the expert does not testify, so long as the expert "aided in the preparation of the case for trial" and "is a potential witness." ( Evers v. Cornelson (1984) 163 Cal.App.3d 310, 317; see Michelson v. Camp (1999) 72 Cal.App.4th 955, 975.)

"In awarding costs, a trial 'court's first determination . . . is whether the statute expressly allows the particular item, and whether [the verified memorandum of costs] appears proper on its face. [Citation.] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable.'" ( Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 855; see Santantonio v. Westinghouse Broadcasting Co . (1994) 25 Cal.App.4th 102, 121.)

21

"'Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.'" ( Rozanova v. Uribe (2021) 68 Cal.App.5th 392, 399; see Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 990; Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) We also review the trial court's award of costs under section 998 for abuse of discretion. ( Bates v. Presbyterian Intercommunity Hospital, Inc. (2012) 204 Cal.App.4th 210, 221.) However, "because the right to costs is governed strictly by statute [citation] a court has no discretion to award costs not statutorily authorized." ( Ladas , at p. 774.) The proper interpretation of a statute authorizing the trial court to award costs is a question of law we review de novo. ( Vidrio v. Hernandez (2009) 172 Cal.App.4th 1443, 1452.)

2. Expert Witness Fees

Jelly Belly argues the trial court erred in awarding as costs expert witness fees under section 998 for Kirk's treating physicians, Dr. Paquette, Dr. Reddy, and Dr. Smith, and for Kirk's accident reconstruction and biomechanics experts. Jelly Belly is correct about the fees for the three physicians, but not the other two experts.

a. Dr. Paquette, Dr. Reddy, and Dr. Smith

The trial court awarded $84,165 in expert witness fees for Dr. Paquette, $113,175 for Dr. Reddy, and $37,400 for Dr. Smith. These fees, however, were not recoverable as costs because the three treating physicians testified as percipient witnesses, not as expert witnesses, within the meaning of section 998, subdivision

22

(d). They admittedly were not properly designated as retained experts, and as Jelly Belly correctly points out, Kirk can't have it both ways by maintaining the doctors were percipient witnesses for purposes of trial but expert witnesses for purposes of costs. Nor was time spent by Dr. Paquette, Dr. Reddy, and Dr. Smith reviewing medical records, deposition transcripts, and expert reports provided by Kirk's lawyers "reasonably necessary" for trial preparation or trial, as required by section 998, subdivision (d), because the three treating physicians were not allowed to give any opinions based on those materials.

Kirk sought unsuccessfully to recover fees for two other medical providers, Dr. Rose and a chiropractor, for reviewing records and meeting with Kirk's lawyers. Jelly Belly challenged those costs, arguing those costs were not recoverable. The trial court agreed, ruling Kirk had "not justified these costs as necessary to the conduct of the litigation." The court should have treated Dr. Paquette, Dr. Reddy, and Dr. Smith, who similarly testified as treating physicians, the same. The trial court erred in awarding expert witness costs for these three percipient witnesses.

b. Eric Rossetter and Sean Shimada

Jelly Belly contends the trial court erred in awarding $14,914 in expert witness fees for Eric Rossetter, Kirk's accident reconstruction expert, and $5,000 for Sean Shimada, Kirk's

23

biomechanics expert. Kirk designated Rossetter and Shimada as retained experts and provided expert witness declarations for them, but did not call either of them to testify at trial. Jelly Belly argues there is "no justification" for awarding Kirk the cost of either expert. Kirk argues that Rossetter's and Shimada's "work was necessary to this litigation due to the fact that Jelly Belly refused to admit liability" and that counsel for Kirk decided not to call the witnesses only after Jelly Belly and Coffey "admitted liability in the months leading up to trial."

Whether (and when) Jelly Belly admitted liability does not determine whether Rossetter's and Shimada's work was "reasonably necessary," as required by section 998, subdivision (d). Expert testimony by accident reconstruction and biomechanics experts in personal injury actions arising out of car accidents is relevant to causation and damages. Indeed, Jelly Belly called an accident reconstruction and biomechanics expert, who testified the forces on Kirk's body in the accident were "not sufficient to cause structural damage to the cervical spine." The trial court did not abuse its discretion in awarding the costs of Rossetter's and Shimada's expert witness fees. And, as discussed, costs of properly designated retained experts may be recoverable even if the experts ultimately do not testify at trial, which can occur for any number of reasons.

24

3. Remote Court Appearance Fees

Jelly Belly challenges $960 (.03 percent of the judgment) in costs for a remote telephonic court appearance service. According to counsel for Kirk's declaration and attached invoices, the remote appearance service charged $960 for 12 court appearances between January 2016 and June 2020. Jelly Belly argues remote appearance service fees are telephone charges, which are not recoverable under section 1033.5, subdivision (b)(3). Jelly Belly is incorrect. Such charges are for remote court appearances, not for using a telephone. (See Landwatch San Luis Obispo County v. Cambria Community Services District (2018) 25 Cal.App.5th 638, 646 [remote appearance service "is not a telephone charge"; it is "a means by which a party can make a court appearance without being physically present in court"].) Section 1033.5, subdivision (b)(3), does not prohibit the court from awarding such costs, and they are within the trial court's discretion under section 1033.5, subdivision (c)(4). Although Jelly Belly asserts the cost was unreasonable because Kirk's lawyers' office was "only a short car ride away from" the courthouse, that distance was approximately 75 miles. Again, a proper discretionary call by the trial court.

4. Court Filing Service Fees

Jelly Belly challenges the trial court's award of $141.80 (.004 percent of the judgment) in costs for a court filing service. Jelly Belly argues the service may have been convenient, but it was not reasonable because counsel for Kirk could have mailed documents to the court or filed them electronically. Jelly Belly cites no authority for the proposition that a cost is unreasonable because it is not the least expensive option. Court filing service

25

fees are similar to messenger service fees, which "may be recoverable in the trial court's discretion if 'reasonably necessary to the conduct of the litigation.'" ( Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30; see Benach v. County of Los Angeles , supra , 149 Cal.App.4th at pp. 857-858 [messenger fees were reasonably necessary to the conduct of the litigation, notwithstanding the existence of "less costly alternatives such as filing documents earlier and use of the postal service"]; Ladas v. California State Auto. Assn. , supra , 19 Cal.App.4th at p. 776 [counsel's declaration stating messenger charges were incurred for filing documents with the court, complying with document demands, and transporting exhibits to and from the courtroom supported the trial court's finding the charges were reasonably necessary].)

5. Models, Enlargements, and Photocopies of Exhibits

Kirk sought $5,750 in costs for models, enlargements, and photocopies of exhibits. In support of its memorandum of costs, Kirk provided an invoice from an entity called "Litigation Support" for two categories of work: (1) 10 hours of labelling exhibits, printing and assembling five exhibit binders for trial, and loading and testing exhibits and depositions in a software program for use at trial ($1,000); and (2) 47.5 hours of "Courtroom Trial Tech" by Jordan Sorensen ($4,750). In a declaration, counsel for Kirk stated Sorensen worked with counsel to create exhibits for trial and was responsible for presenting Kirk's digital exhibits to the court during trial. The trial court reduced the amount claimed by $320, the cost to prepare four of the five exhibit binders.

26

Jelly Belly objects to the remaining $5,430, contending that Sorensen was an employee of the law firm that represented Kirk and that counsel for Kirk "created an 'invoice' for their own employee and passed it off as evidence before the trial court." Once Jelly Belly submitted evidence Sorensen was an employee of the law firm representing Kirk, rather than a third-party vendor who submitted a genuine invoice, the burden shifted to Kirk to prove the cost claimed was allowable. (See Lowry v. Port San Luis Harbor Dist. (2020) 56 Cal.App.5th 211, 222; Ladas v. California State Auto. Assn. , supra , 19 Cal.App.4th at p. 774.)

Kirk did not meet that burden. Although Kirk argues she "is responsible for, and has paid, the litigation support costs for" Sorensen's time, she does not dispute Jelly Belly's assertion Sorensen was a fulltime employee of the law firm that represented her. A law firm generally pays a salaried employee regardless of whether the employee is working on a trial or performing other tasks. Section 1033.5, subdivision (c)(1), states that costs "are allowable if incurred." "To 'incur' a fee . . . is to 'become liable for it [citation], i.e., to become obligated to pay it." ( Trope v. Katz (1995) 11 Cal.4th 274, 280; see Pacific Shores Property Owners Assn. v. Department of Fish &Wildlife (2016) 244 Cal.App.4th 12, 62 ["[i]ncur means 'to become liable or subject to'"].) Kirk did not submit any evidence she or her lawyers became obligated to pay Sorensen any amount for his work on the trial that the law firm would not have paid him otherwise. Put another way, counsel for Kirk would have incurred the expense of Sorensen's time regardless of whether he worked on the case; his time was not recoverable as a cost for the same reason the time of attorneys and paralegals of the firm were not recoverable.

27

Kirk relies on Bender v. County of Los Angeles , supra , 217 Cal.App.4th 968, where the trial court awarded costs associated with using certain trial technology, including converting exhibits to computer formats, designing and producing electronic presentations, and having a technician in the courtroom to provide technical assistance. ( Id . at p. 990.) The court in Bender held the trial court acted within its discretion in allowing the prevailing party to recover those costs because the trial court "found the trial technology enhanced counsel's advocacy and was reasonably necessary to the conduct of the litigation." ( Id . at p. 991.) But there was no claim in Bender the prevailing party did not incur costs it was not already obligated to pay, such as the wages a law firm has to pay its employees.

Kirk also relies on El Dorado Meat Co. v. Yosemite Meat &Locker Service, Inc . (2007) 150 Cal.App.4th 612, where the court awarded as costs hourly billing for work to create a 37-page trial exhibit with charts and graphs that "summarized voluminous business records" in an unfair competition case. ( Id . at p. 615.) Much of the work was done by the party's accounting consultant, but some was for "time billed by nonattorney personnel at the law firm of [the defendant's] counsel for data entry from the business records." ( Ibid. ) Kirk argues that, if time billed by nonattorney law firm personnel was recoverable in El Dorado Meat Co. , the same should be true of time spent by Sorensen, who was her attorneys' "litigation support expert." It is not entirely clear from the opinion in El Dorado Meat Co . the "nonattorney personnel at the law firm" in that case were permanent, salaried employees, rather than staff hired to prepare for trial. But to the extent El Dorado Meat Co . suggests the time of a regularly salaried employee is recoverable under Section 1033.5, such a cost is not

28

"incurred" within the meaning of the statute; it is a cost the law firm is independently obligated to pay.

DISPOSITION

The judgment is affirmed with the exception of paragraph 6 regarding costs. The trial court is directed to reduce the costs awarded for Kirk's expert witness fees by $234,740 and to strike the $5,430 the court awarded for models, enlargements, and photocopies of exhibits. Kirk is to recover her costs on appeal.

We concur: PERLUSS, P. J., FEUER, J.