Filed 8/8/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

LAOSD ASBESTOS CASES

DELGADINA ALFARO,

Plaintiff and Respondent,

v.

COLGATE-PALMOLIVE COMPANY,

Defendant and Appellant.

 B281022

 (Los Angeles County

Super. Ct. No. BC583520/ 

JCCP4674)

APPEAL from an order of the Superior Court of 

Los Angeles County, John Kralik, Judge. Reversed and 

remanded.

Foley & Mansfield, Gary D. Sharp, Keith M. Ameele, Louis 

C. Klein, Peter M. Mularczyk and Margaret I. Johnson for 

Defendant and Appellant.

The Lanier Law Firm and Mark A. Linder for Plaintiff and 

Respondent.
2

INTRODUCTION

This is the second appeal arising out of a lawsuit by 

plaintiff Elizabeth Alfaro,1 in which she alleged that she 

developed mesothelioma as a result of exposure to asbestos 

contained in talcum powder products. Her claims for negligence 

and strict product liability proceeded to trial against two 

defendants, including appellant Colgate-Palmolive Company 

(Colgate), a talcum powder manufacturer. The jury found for 

Colgate on the issue of exposure. We previously affirmed that 

judgment on appeal. 

Colgate now appeals the trial court’s order granting 

Alfaro’s motion to tax costs. Colgate argues it was entitled to 

costs as the prevailing party under Code of Civil Procedure 

section 1032,2 as well as expert witness fees after Alfaro rejected 

an offer to compromise under section 998. The court denied the 

entirety of Colgate’s request for over $300,000 in costs, finding 

that Alfaro had no ability to pay and that it would be unjust to 

impose a large cost award under the circumstances. Colgate 

contends the trial court lacked the authority to exercise its 

discretion in this manner and, further, that Alfaro failed to 

present sufficient evidence of an inability to pay. We agree that 

the trial court abused its discretion in denying all costs requested 

by Colgate and therefore reverse. The trial court also erred in 

failing to determine whether Colgate made its section 998 offer in 

1 Alfaro died on March 15, 2017, while her appeals were 

pending. On July 5, 2017, we granted plaintiff’s unopposed 

motion seeking to substitute her mother, Delgadina Alfaro, as her 

successor-in-interest in this action. 

2 All further code citations are to the Code of Civil 

Procedure unless otherwise indicated.
3

good faith. We therefore remand to allow the trial court to reach 

that issue in the first instance.

FACTUAL AND PROCEDURAL HISTORY

I. The Lawsuit 

Alfaro was diagnosed with mesothelioma in her lungs and 

abdomen in 2015, at age 38. She filed this action in May 2015, 

alleging causes of action for negligence and strict product liability 

against 14 defendants, including Colgate and talc supplier 

Imerys Talc America, Inc. (Imerys). She alleged that her 

mesothelioma was caused by exposure to asbestos contamination 

in talcum powder products she used as a child. Ultimately, 12 

defendants were dismissed prior to trial, leaving only Colgate and 

Imerys.

II. Offer to Compromise

Colgate moved for summary judgment in February 2016. 

On April 6, 2016, the day before the hearing on the motion, 

Colgate served an offer to compromise pursuant to section 998. 

Therein, Colgate offered to settle the dispute for a mutual waiver 

of costs in exchange for a dismissal of Alfaro’s claims. Alfaro did 

not accept the offer.

On April 15, 2016, the court issued a written ruling 

denying summary judgment. The court noted that it “shares 

[Colgate’s] concern about the potential layers of speculation 

involved in Plaintiff’s theory of liability.” However, the court 

concluded Colgate had failed to meet its initial burden and, 

further, that there were triable issues of fact precluding 

summary judgment. 
4

III. Trial, Verdict, and Appeal

The case proceeded to trial against Colgate and Imerys. 

After three weeks of trial and several days of deliberations, the 

jury voted nine to three on the first question of the special verdict 

form, finding that Alfaro was not exposed to asbestos from 

Colgate’s talcum powder. Accordingly, the court entered 

judgment for Colgate and Imerys in August 2016. 

Alfaro appealed, arguing that the trial court erred in 

excluding testimony from one of her experts regarding her 

exposure to asbestos. We affirmed the judgment in a prior 

unpublished opinion, Alfaro v. Imerys Talc America Inc. (Aug. 25, 

2017, B277284) (nonpub. opn.).

IV. Costs

Colgate filed a memorandum of costs in August 2016, 

requesting a total of $311,543.86 in costs, as follows: $2,385 for 

filing and motion fees; $150 for jury fees; $33,668.49 in deposition 

costs; $115,610.06 in expert witness fees pursuant to section 998; 

$12,133 for models, blowups, and photocopies of exhibits; $7,046 

for court reporter fees; and $140,551.31 in trial travel and lodging 

costs. -

Alfaro filed a motion to tax Colgate’s costs, arguing that for 

all of the costs requested, Colgate failed to show that the costs 

were reasonable and necessary and failed to provide proof of the 

costs. Alfaro also argued that Colgate’s request for expert 

witness fees was based on a “token” bad faith offer to compromise 

under section 998. 

Colgate opposed, attaching receipts and invoices in support 

of the costs it claimed. Colgate argued that the items sought 

were properly recoverable, reasonably necessary and reasonable 
5

in amount. Colgate withdrew $380.41 in travel expenses, stating 

those costs were asserted in error. 

Alfaro filed a reply. In light of the receipts submitted by 

Colgate, she withdrew her motion with respect to jury fees and 

court reporter fees. She also withdrew her objections to 

particular items, based on the documentation provided by 

Colgate. 

The court issued a minute order continuing the hearing on 

Alfaro’s motion to tax costs. The court stated it was “concerned 

that an award of costs against Ms. Alfaro under the facts of this 

case will violate fundamental principles of due process of law.” 

The court directed the parties to be prepared to address this issue 

at the hearing. 

At the hearing in October 2016, the court indicated it felt 

imposing a large cost award in some cases represented a 

“problem with the way justice was being imposed . . . a problem of 

due process.” The court further stated that a plaintiff like Alfaro 

“doesn’t have fair notice of what the penalty [for bringing a 

lawsuit] will be. The penalty is, in view of her assets, extremely 

out of proportion to her means.” The court believed that Alfaro, 

“as far as I know, and I think it’s highly likely, has no money. . . . 

I think it’s admitted she has very little life left. And so I think 

that the state’s purposes for its statute are just not served here in 

any meaningful way. . . . She’s being punished totally out of 

proportion to the act that she committed, which was to bring this 

case without being sure of the science. But she herself has no 

way of understanding that science.” In addition, the court noted 

it did not know the extent of Alfaro’s assets, “but through the 

testimony I got a pretty good idea of what her life is and where 
6

it’s going.” The court allowed the parties to submit supplemental 

briefing on this issue.

Colgate filed a supplemental opposition, arguing that 

Alfaro had never objected on the basis of due process. Colgate 

further asserted that there was no due process violation and that 

the court lacked the authority to deny costs based on plaintiff’s 

ability to pay. 

In her supplemental brief, Alfaro stated that she “lacks the 

resources with which to pay even a modest amount of Colgate’s 

costs.” Specifically, she noted her terminal condition and the 

parties’ stipulation that her medical expenses totaled $320,000 at 

the time of trial. She also pointed to evidence that she was 

disabled and unemployed. Prior to her diagnosis, Alfaro “worked 

hourly jobs in retail on a part-time basis.” Alfaro also stated that 

she and her family had “modest means,” and did not “have any 

assets with which to pay” hundreds of thousands of dollars in 

costs. She cited to evidence that her mother lived with Alfaro’s 

aunt and her brother was “staying” with Alfaro in Los Angeles. 

The court took the matter under submission. In December 

2016, it issued a statement of decision granting Alfaro’s motion to 

tax costs and denying all costs requested by Colgate.3 The court 

found, based on the evidence at trial, that Alfaro was unemployed 

and unlikely to return to work, there were no other possible 

sources of asbestos exposure, and that she did not recover from 

any of the other defendants in the case. The court also credited 

Alfaro’s evidence “showing that she had no means to pay any 

award of costs, and that she faces prohibitive medical expenses in 

connection with her illnesses.” 

3 The court also denied the costs requested by Imerys, 

totaling over $300,000. Imerys is not a party to this appeal.
7

The court concluded it had the “inherent power to remit 

costs whenever to do so would be in the interests of justice or 

where to do so would infringe upon the right to seek redress of 

grievances,” citing Martin v. Superior Court (1917) 176 Cal. 289 

(Martin). The court noted that section 1033.5 required allowable 

costs to be “reasonable in amount,” and concluded that “such 

language requiring ‘reasonableness’ permits the discretion 

necessary to decline to award costs in a case such as this.” The 

court further explained its view that an award of costs against 

Alfaro would effect “an inhumane and indecent result.” It 

continued, finding that Alfaro “is a seriously ill young woman 

caught in the middle of a hotly contested scientific debate and a 

contested investigation of events that occurred decades ago. The 

parties conducting this debate and investigation are wellfinanced interest groups that have a vested financial interest in 

the outcome which far exceeds Ms. Alfaro’s interest. . . . Her 

‘choice’ of whether to proceed cannot be truly independent, and it 

is profoundly unfair to punish her. If it were the unsuccessful 

attorneys or corporate interests who were to be punished based 

on the outcome, there might be some rationality to the state’s 

costs scheme, but in this particular case it operates arbitrarily.” 

In light of this conclusion, the court did not reach the issue 

whether Colgate’s section 998 offer was made in good faith. The 

court noted, however, that “there is a very substantial issue” on 

this point and that Colgate’s offer “made no attempt to 

compromise this issue based upon the probabilities of an adverse 

outcome or take into account the huge additional litigation 

expenses that [Colgate would] incur in any event.” 
8

Colgate timely appealed from the trial court’s order.4

DISCUSSION

Colgate contends the trial court erred in granting Alfaro’s 

motion to tax all of Colgate’s costs. Specifically, Colgate argues 

the trial court improperly considered evidence of Alfaro’s 

financial situation in declining to award any of the costs incurred 

by Colgate as the prevailing party in the litigation. In addition, 

Colgate asserts the court abused its discretion by failing to assess 

whether its offer to compromise was made in good faith, instead 

denying Colgate’s request for expert witness fees based on 

Alfaro’s inability to pay. We agree with Colgate’s contentions and 

reverse.

I. Costs Claimed Pursuant to Sections 1032 and 1033.5

Section 1032, subdivision (b) provides: “Except as 

otherwise expressly provided by statute, a prevailing party is 

entitled as a matter of right to recover costs in any action or 

proceeding.” Section 1033.5 sets forth which items are allowable 

as costs and which are not. To be allowable, costs must be 

“reasonable in amount” and “reasonably necessary to the conduct 

of the litigation rather than merely convenient or beneficial to its 

preparation.” (§ 1033.5, subd. (c)(2)-(3).) Section 1033.5 

specifically allows for many of the categories claimed by Colgate: 

filing, motion, and jury fees; certain deposition costs; the cost of 

models, blowups, and photocopies of exhibits if “reasonably 

helpful to aid the trier of fact”; and court reporter fees. (§ 1033.5, 

subd. (a).) 

4 Colgate concurrently filed a petition for writ of mandate 

on the same issue. We denied that petition, as it challenged an 

appealable postjudgment order. (§ 904.1, subd. (a)(2).)
9

Generally, we review a trial court’s order taxing costs for 

an abuse of discretion. (Posey v. State of California (1986) 180 

Cal.App.3d 836, 852.) Absent a showing of abuse of discretion, 

the trial court’s allowance or disallowance of costs will not be 

disturbed on appeal. (Ibid.) However, whether a trial court may 

consider a party’s ability to pay in awarding costs under the 

statute is a question of law, which we review de novo. (See 

Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 52.)

In her motion to tax costs, Alfaro initially challenged all of 

the costs as unsupported and unnecessary. She then withdrew 

her objection to certain items based on supporting documentation 

provided by Colgate. After the court raised the issue sua sponte, 

Alfaro argued that the court could consider her inability to pay as 

part of its assessment of the reasonableness of the costs. Colgate 

countered that the court could not consider the losing party’s 

ability to pay, citing Nelson v. Anderson (1999) 72 Cal.App.4th 

111 (Nelson).

We find Nelson instructive. Nelson and Anderson were the 

cofounders and sole shareholders in a corporation engaged in a 

business that eventually failed. (Nelson, supra, 72 Cal. App.4th 

at p. 117.) Nelson and two other plaintiffs sued Anderson and 

the corporation’s law firm. The two other plaintiffs settled with 

the law firm before trial; the jury returned a verdict in favor of 

the law firm and against Nelson. (Id. at p. 122.) The law firm 

claimed costs of $278,000, but the trial court, upon Nelson’s 

motion to tax, disallowed all but $25,000. (Id. at p. 128.) The 

court disallowed two-thirds of the firm’s pretrial costs, reasoning 

that the firm had waived the right to recover from the two 

settling plaintiffs and it would be unfair to permit the law firm to 

collect them from Nelson. (Ibid.) The court also agreed with 
10

Nelson “that it would be unfair to assess all [the firm’s] costs 

against her, ‘[g]iven the disproportionate resources available to 

Nelson.’” (Ibid.)

The appellate court found that none of the bases used by 

the trial court to reduce the allowable costs were authorized 

under the statute. Absent statutory authority, “the court has no 

discretion to deny costs to the prevailing party.” (Nelson, supra, 

72 Cal. App.4th at p. 129, citing Crib Retaining Walls, Inc. v. 

NBS/Lowry, Inc. (1996) 47 Cal.App.4th 886, 890.) To that end, 

“‘[a] court should be cautious in engrafting exceptions onto the 

clear language of . . . section 1032.’ [Citation.]” Nor should it 

‘“read into the statute allowing costs a restriction which has not 

been placed there.”’ (Nelson, supra, 72 Cal. App.4th at p. 129.)

The court then examined whether the trial court could 

consider Nelson’s “more limited resources” to support reducing a 

cost award section 1032. Nelson argued it could, relying on 

Santantonio v. Westinghouse Broadcasting Co. (1994) 25 

Cal.App.4th 102 (Santantonio), a case awarding costs on an offer 

to compromise under section 998.5 The Nelson court 

acknowledged that “section 998 gives the trial court discretion to 

consider a party’s ability to pay costs, when considering costs 

recoverable under that section.” (Nelson, supra, 72 Cal. App.4th 

at p. 129, citing Santantonio, supra, 25 Cal.App.4th 102.) 

However, the appellate court disagreed that a court had the same 

discretion under section 1032: “[t]here is no language in section 

998 which would transfer the discretion of that section to a 

5 As we discuss further in Section II, post, a prevailing 

party who has made a valid pretrial offer to compromise 

pursuant to section 998 is eligible for specified costs, so long as 

the offer was reasonable and made in good faith.
11

motion to tax costs recoverable by the prevailing party under 

sections 1032 and 1033.5, and unrelated to section 998.” (Nelson, 

supra, 72 Cal.App.4th at p. 129; see also Heller v. Pillsbury 

Madison & Sutro (1996) 50 Cal.App.4th 1367, 1397 [rejecting 

losing party’s contention that the trial court abused its discretion 

in not considering the parties’ respective financial positions in 

awarding costs pursuant to section 1032].)

Alfaro cites no authority, and we are aware of none, holding 

that the language of section 1033.5 allowing costs that are 

“reasonable in amount” and “reasonably necessary to the conduct 

of the litigation” also confers authority for the court to analyze 

whether costs are reasonable based on the losing party’s ability to 

pay. Instead, the cases analyzing costs under the applicable 

statutes focus on whether certain claimed costs were reasonable 

or necessary. (See, e.g., Thon v. Thompson (1994) 29 Cal.App.4th 

1546, 1549 [deducting the difference between chartered private 

plane and commercial flight to attend depositions].) 

Further, the cases relied upon by Alfaro and the trial court 

are distinguishable. Several concern the court’s authority to 

protect an indigent plaintiff’s right of access to the court by 

waiving fees and costs. (See Martin v. Superior Court, supra, 176 

Cal. 289 [discussing court’s inherent power to waive court fees 

and costs]; Sutter County v. Superior Court for Sutter County

(1966) 244 Cal.App.2d 770, 775 [court’s authority to exempt 

indigent plaintiff from compliance with the statutory provision 

for a cost bond in lawsuits against public entities].) Others, such 

as Garcia v. Santana (2009) 174 Cal.App.4th 464, 477 (Garcia), 

allow a court to consider an ability to pay as part of the lodestar 

determination for a reasonable attorney fee award. In Garcia, 

the court considered the language of former Civil Code section 
12

1354, subdivision (c), part of the Davis–Stirling Common Interest 

Development Act, providing: “‘In an action to enforce the 

governing [homeowner’s association] documents, the prevailing 

party shall be awarded reasonable attorney’s fees and costs.’” 

(Garcia, supra, at p. 469.) The court concluded, “[i]n determining 

the amount of fees to be awarded to the prevailing party where 

the statute, as here, requires that the fee be reasonable, the trial 

court must therefore consider the other circumstances in the case 

in performing the lodestar analysis. Those other circumstances 

will include, as appropriate, the financial circumstances of the 

losing party and the impact of the award on that party.” (Id. at 

pp. 476–477.) We note that the Garcia court cited to section 998 

as another statute allowing consideration of the economic 

circumstances of the parties, but did not reference sections 1032 

or 1033.5, the statutes at issue here. (Id. at p. 476.) We are not 

persuaded that the statutory language of the latter statutes 

permits the same interpretation, nor that the imposition of 

reasonable, enumerated costs as a matter of right threatens 

litigants’ right of access to our courts. (See also Perez v. County of 

Santa Clara (2003) 111 Cal.App.4th 671, 680–681 [“‘Whereas the 

magnitude and unpredictability of attorney’s fees would deter 

parties with meritorious claims from litigation, the costs of suit in 

the traditional sense are predictable, and, compared to the costs 

of attorneys’ fees, small.’”].)

We conclude that Colgate is entitled to its allowable costs 

under sections 1032 and 1033.5. Alfaro has conceded that certain 

items are allowable; thus, Colgate is entitled to recover them as a 

matter of right. With respect to the remaining items, the trial 

court did not consider Alfaro’s challenges to specific costs or 

assess which costs were reasonable in amount and reasonably 
13

necessary to the litigation. We therefore remand to allow the 

trial court to make that determination in the first instance. 

II. Expert Fees Claimed Pursuant to Section 998

Colgate also sought recovery of its expert witness fees 

pursuant to section 998. “Under section 1033.5, subdivision 

(b)(1), . . . parties may not recover expert witness fees as costs 

‘except when expressly authorized by law.’ Such express 

authorization exists” under section 998. (First Nationwide Bank 

v. Mountain Cascade, Inc. (2000) 77 Cal.App.4th 871, 875-876.) 

Section 998 authorizes a prevailing party to recover its 

costs from a losing party who rejected a reasonable, good faith 

offer to compromise. (Nelson, supra, 72 Cal.App.4th at p. 134; 

§ 998, subd. (c)(1).) Good faith requires the offer be “realistically 

reasonable under the circumstances of the particular case,” and 

carry with it a reasonable prospect of acceptance. (Wear v. 

Calderon (1981) 121 Cal.App.3d 818, 821.) Further, recoverable 

costs must have been “actually incurred and reasonably 

necessary” to the preparation of the case. (§ 998, subd. (c)(1).) 

Whether a section 998 offer was reasonable and made in 

good faith is left to the sound discretion of the trial court. 

(Nelson, supra, 72 Cal.App.4th at p. 134.) “Similarly, the decision 

to award expert witness fees, and the determination of whether 

these fees were reasonably necessary, are issues left to the 

discretion of the trial court.” (Adams v. Ford Motor Co. (2011) 

199 Cal.App.4th 1475, 1484.) “The trial court, having heard the 

entire case and observed the expert witnesses’ testimony, is in a 

far better position than an appellate court to exercise this 

discretion and determine what fees were reasonably necessary.” 

(Id. at pp. 1484, 1488.) Thus, an appellate court ordinarily 

should reverse the trial court’s determination only if it finds “in 
14

light of all the evidence viewed most favorably in support of the 

trial court, no judge could have reasonably reached a similar 

result.” (Id. at p. 1484.) Alternatively, an appellate court may 

reverse the denial of statutorily authorized fees where the trial 

court failed to exercise its discretion to determine whether the 

requested fees were reasonable. (See Garcia, supra, 174 

Cal.App.4th at p. 477 [“a trial court’s failure to exercise discretion 

is ‘itself an abuse of discretion’”].)

Here, there is no dispute that Alfaro failed to obtain a more 

favorable result at trial than the offer to compromise. However, 

the court expressly declined to reach the issue whether Colgate’s 

section 998 offer was made in good faith, nor did it make any 

findings as to whether that offer was reasonable, or whether the 

requested expert witness fees were reasonably necessary to the 

litigation.

In contrast to the restrictions in section 1032, courts have 

interpreted the discretionary authority in section 998 to allow the 

consideration of a party’s ability to pay when determining the 

appropriate recovery under that statute. (See Nelson, supra, 72 

Cal.App.4th at p. 129; Santantonio, supra, 25 Cal.App.4th at p. 

125, fn. 7 [“Section 998 . . . permits the trial court, via exercise of 

discretion, to consider a party’s ability to pay costs.”]; see also 

Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1561–

1562 [“If the goal of . . . section 998 is to encourage fair and 

reasonable settlements--and not settlements at any cost--trial 

courts in exercising their discretion must ensure the incentives to 

settle are balanced between the two parties. Otherwise less 

affluent parties will be pressured into accepting unreasonable 

offers just to avoid the risk of a financial penalty they can’t 

afford.”].) Alfaro thus argues that the trial court properly 
15

exercised its discretion in refusing to award any expert witness 

fees based on her inability to pay. 

We disagree. Colgate was entitled to seek recovery of its 

postoffer expert witness fees pursuant to section 998. In order to 

properly exercise its discretion regarding what amount, if any, it 

was reasonable for Alfaro to pay, the court was required to 

consider all of the relevant factors. Thus, the court could 

consider Alfaro’s financial circumstances, but it also should have 

assessed whether the offer to compromise was reasonable and 

made in good faith, and if so, whether the fees requested by 

Colgate were incurred and reasonably necessary to the litigation. 

Here, the trial court expressly declined to make these findings 

and therefore failed to properly evaluate whether any award was 

appropriate under section 998.

We also note that while there was some evidence in the 

record regarding Alfaro’s limited income and her mounting 

medical expenses, there was insufficient evidence from which the 

trial court could have found she lacked the ability to pay any cost 

award. (See Villanueva v. City of Colton (2008) 160 Cal. App.4th 

1188, 1204 [plaintiff must provide evidence of inability to pay, 

such as “a declaration setting forth his gross income, his net 

income, his monthly expenses, his assets, or any other 

information which . . . would lend support to his position”].) 

Indeed, the trial court made several statements to that effect 

during oral argument, noting that while it seemed Alfaro had 

limited finances, the court did not actually know the full extent of 

her assets or income.

We therefore remand to allow the trial court to exercise its 

discretion in determining whether Colgate’s section 998 offer was 

made reasonably and in good faith; and if so, the amount of any 
16

reasonably necessary expert witness fees. To the extent the 

record contains sufficient evidence supporting a finding of 

Alfaro’s inability to pay, the court is within its discretion to 

consider that factor as well. 

DISPOSITION

Reversed and remanded. Colgate is awarded its costs on 

appeal. 

CERTIFIED FOR PUBLICATION

COLLINS, J.

We concur:

MANELLA, Acting P.J.

MICON, J.*

*Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.