Filed 8/28/24 NEWest Construction Co. v. City of Carlsbad CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

NEWEST CONSTRUCTION 

COMPANY, INC.,

Plaintiff and Appellant,

v.

CITY OF CARLSBAD,

Defendant and Respondent.

 D083799, D083939

 (Super. Ct. No. 37-2020-

00046237-CU-BC-NC)

CONSOLIDATED APPEALS from an order and judgment of the 

Superior Court of San Diego County, Robert Dahlquist, Judge. Affirmed.

Monteleone & McCrory, Patrick J. Duffy, and Martha Eager for 

Plaintiff and Appellant. 

Procopio, Cory, Hargreaves & Savitch, Laurence R. Phillips, and 

Mike Nolan for Defendant and Respondent.

MEMORANDUM OPINION

NEWest Construction Company, Inc. (NEWest) appeals from an order 

and judgment awarding costs and expert witness fees to the City of Carlsbad 

(City). We find no error and affirm.
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The underlying dispute relates to a public works construction contract 

between the City and NEWest. After NEWest sued the City in 2021, the City 

filed an answer with affirmative defenses, including one for offset. (See Code 

Civ. Proc., § 431.70.)1 In 2022, the City made a section 998 offer to resolve 

the dispute for $200,000. NEWest did not accept or respond to the City’s 

offer. After a jury trial in 2023, the jury returned a verdict in NEWest’s favor

in the amount of $279,821.34, but awarded an offset to the City in the 

amount of $230,378.00, for a net recovery to NEWest of $49,443.34—

considerably less than the City’s $200,000 section 998 offer. 

Before entry of judgment, the City filed a memorandum of costs seeking 

costs and expert witness fees under section 998. NEWest filed a motion to 

strike or tax the costs and an addendum with additional arguments. The 

City opposed the motion. After a hearing, the court awarded costs and 

section 998 expert witness fees to the City totaling $393,109.40. It then 

entered judgment for the City. NEWest appealed both the costs order and 

judgment, and we have consolidated the two appeals.

NEWest challenges the costs award on six grounds. We find none to be

persuasive.

First, NEWest contends that the City’s memorandum of costs was 

premature because no judgment had been entered yet. But “the premature 

filing of a memorandum of costs is treated as ‘a mere irregularity at best’ that 

does not constitute reversible error absent a showing of prejudice. 

[Citations.] Rather, courts treat prematurely filed cost bills as being timely 

filed.” (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 

1 Unless otherwise stated, all further statutory references are to the 

Code of Civil Procedure.
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880.) Because NEWest failed to demonstrate any prejudice, the trial court 

properly treated the costs bill as being timely filed.

Second, NEWest argues that expert witness fees under section 998 may 

not be sought or awarded by way of a memorandum of costs. The law is to 

the contrary. Section 998 “fees may be claimed in a cost bill; there is no rule 

requiring a noticed motion.” (Jonkey v. Carignan Construction Co. (2006) 139 

Cal.App.4th 20, 27.)

Third, NEWest argues that the trial court abused its discretion by 

finding that the City’s expert witness fees were reasonable. According to 

NEWest, the trial court “ignored the evidence presented to it” demonstrating 

that the fees for the City’s expert, ACEC Consultants, Inc. (ACEC), were 

excessive because ACEC purportedly charged “more than 120 hours to cutand-paste information from one exhibit to another and/or insert colored 

arrows onto preexisting exhibits.” 

Nothing in the record demonstrates that the trial court “ignored” 

ACEC’s evidence. A trial court is “not required to mention every arguably 

pertinent item of evidence before it, let alone explain in minute detail its view 

of each item.” (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 

Cal.App.4th 547, 565 [appellant’s claim that trial court “disregarded” 

evidence was not supported by court’s “failure to refer [to it] in its statement 

of decision”].) Absent an affirmative showing to the contrary, we must 

presume that the court considered all the evidence and properly applied the 

law. (See, e.g., Jones v. Solgen Construction, LLC (2024) 99 Cal.App.5th 

1178, 1192; McDermott Will & Emery LLP v. Superior Court (2017) 10 

Cal.App.5th 1083, 1103; Evid. Code, § 664.) 

Ironically, it is NEWest that has ignored the contrary evidence 

supporting the trial court’s order. In response to NEWest’s argument about 
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ACEC’s fees below, the City submitted a declaration from ACEC’s president 

explaining that NEWest had “misinterpret[ed] the invoices to suggest nearly 

all of [his] time spent following [his] deposition related to summaries that 

were marked as exhibits at his deposition.” He explained that this was 

“false”; that he had only spent 11.25 hours to modify the deposition exhibits; 

and that “[t]he vast majority of the post-deposition work related to reviewing 

the files, deposition transcripts, and trial exhibits in order to prepare to 

testify and respond to [NEWest’s expert]’s opinions.” He further explained 

that he “engaged in multiple meetings with the City’s counsel to review 

relevant evidence and to prepare for [his] trial testimony” and he “prepared 

summaries of all [his] opinions, supporting evidence, and evaluations relating 

to other experts’ opinions . . . in the form of a power-point presentation that 

was edited and revised numerous times to ensure all relevant evidence was 

evaluated.” Finally, he noted that ACEC actually charged the City less than 

what NEWest’s corresponding expert charged for his work. This was ample 

support for the trial court’s implied finding that ACEC’s fees were 

reasonable—especially given the trial judge’s intimate familiarity with the 

issues and the expert testimony presented by both sides at trial.

Fourth, NEWest asserts that the City’s section 998 offer was invalid 

because, even if it had been accepted, the City could still have asserted its 

offset claims against NEWest by way of an affirmative complaint. In both the 

trial court and on appeal, the City responded to this contention by arguing it 

would have been precluded from bringing such an affirmative complaint 

because its claims against NEWest were compulsory cross-claims. (§ 426.30, 

subd. (a) [“Except as provided by statute, if a party against whom a complaint 

has been filed and served fails to allege in a cross-complaint any related 

cause of action which (at the time of serving his answer to the complaint) he 
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has against the plaintiff, such party may not thereafter or in any other action 

assert against the plaintiff the related cause of action not pleaded.”].) We 

presume the trial court accepted the City’s argument on this point. NEWest 

has made no contrary argument and cited no authorities in response—either 

in the trial court or on appeal. We therefore deem the issue forfeited. 

(Kaufman v. Goldman (2011) 195 Cal.App.4th 734, 743 [appellant bears 

burden of making coherent legal argument supported by authority].) We are 

not bound to develop NEWest’s arguments for it. (In re Marriage of Falcone 

& Fyke (2008) 164 Cal.App.4th 814, 830.)

Fifth, NEWest claims that the amount of the City’s $200,000 section 

998 offer was unreasonable under the circumstances and not made in good 

faith. This argument is forfeited because it was not made in the trial court. 

(Reid v. City of San Diego (2018) 24 Cal.App.5th 343, 357 (Reid).) In any 

event, the jury’s net award of approximately $50,000 is prima facie evidence 

that the City’s $200,000 offer was reasonable, and NEWest has failed to meet 

its burden of establishing an abuse of discretion. (Jones v. Dumrichob (1998) 

63 Cal.App.4th 1258, 1264 [“the trial result itself constitutes prima facie 

evidence that the offer was reasonable, and the burden of proving an abuse of 

discretion is on appellants, as offerees, to prove otherwise”].)

Sixth, NEWest asserts that the trial court’s award of $23,691.00 for 

court reporter costs was excessive. Once again, NEWest did not make this 

argument in the trial court. NEWest only argued that the requested court 

reporter fees were not recoverable and should be stricken in their entirety 

because the trial court did not order the parties to use a court reporter. (See 

§ 1033.5, subd. (a)(9) [allowing costs of “[t]ranscripts of court proceedings 

ordered by the court”].) NEWest’s separate claim of excessiveness is 

therefore forfeited. (Reid, supra, 24 Cal.App.5th at p. 357.) Moreover, the 
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costs sought by the City were not for transcripts, but for court reporter 

services, which are separately recoverable and need not be ordered by the 

court. (§ 1033.5, subd. (a)(11) [allowing costs of “[c]ourt reporter fees as 

established by statute”]; Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 

58 [distinguishing between costs for transcripts ordered by the court and 

costs for court reporter fees, “an entirely different expense”].)

DISPOSITION

The judgment and costs order are affirmed. Respondent is entitled to 

recover its costs on appeal.

BUCHANAN, J.

WE CONCUR:

HUFFMAN, Acting P. J.

KELETY, J.