Filed 10/13/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ANDREA VARGAS et al.,

Plaintiffs and Appellants,

v.

YOLANDA GALLIZZI,

Defendant and 

Respondent.

 B317540

 (Los Angeles County

 Super. Ct. No. BC638423)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Graciela L. Freixes, Judge. Affirmed in 

part, reversed in part and remanded with directions.

Pimentel Law and Gabriel J. Pimentel for Plaintiffs and 

Appellants.

Law Offices of Cleidin Z. Atanous, Cleidin Z. Atanous; 

Raffalow, Bretoi & Adams and Brian Dewey for Defendant and 

Respondent. 

________________________________
2

In 2014 Andrea Vargas and her adult daughter, Ana 

Garcia, sued Yolanda Gallizzi for personal injuries related to an 

automobile accident in which Gallizzi’s car rear-ended Vargas’s 

car. A jury trial resulted in a judgment in favor of Vargas for 

past noneconomic damages only, and Vargas and Garcia 

appealed. We held the trial court had erred in granting Gallizzi’s 

motions for nonsuit on certain claims and had erred in failing to 

instruct the jury on loss of use damages. We remanded for retrial 

on the amount of Garcia’s past and future noneconomic damages 

and Vargas’s loss of use damages and future noneconomic 

damages. We affirmed the jury’s award of past noneconomic 

damages to Vargas. (See Vargas v. Gallizzi (Aug. 19, 2019, 

B287583) [nonpub. opn.].) 

After trial on remand a jury awarded Vargas and Garcia a 

total of $15,125 in damages. Vargas and Garcia moved for 

attorney fees and costs pursuant to Code of Civil Procedure 

section 2033.4201 on the ground Gallizzi had unreasonably 

denied several requests for admission regarding, primarily, the 

status of certain medical records as business records within the 

meaning of Evidence Code section 1271. The trial court denied 

the motion and awarded costs to Gallizzi pursuant to Code of 

Civil Procedure section 998. 

Vargas and Garcia appeal the trial court’s denial of their

motion for fees and costs and the award of costs to Gallizzi. We 

affirm the award of costs to Gallizzi, reverse the denial of Vargas 

and Garcia’s motion for fees and costs and remand for further 

proceedings.

1 Statutory references are to this code unless otherwise 

stated.
3

FACTUAL AND PROCEDURAL BACKGROUND

1. The Requests for Admission Regarding Medical Records

During the first trial in 2017 Vargas and Garcia sought to 

introduce certain medical records into evidence.2 The trial court 

sustained Gallizzi’s objection to the records based on hearsay, 

foundation and authenticity grounds. Specifically, the court 

found the custodian declarations submitted with the records 

failed to contain sufficient information to establish the records 

were subject to the business records exception to the hearsay 

rule. (See Evid. Code, §§ 1271, 1560-1562.) In addition, Vargas 

and Garcia’s counsel failed to have the custodians of records 

deliver the records directly to the clerk of the court in a sealed 

inner envelope to be opened by the court in the presence of the 

parties. (See Evid. Code, § 1560, subds. (c) & (d).)

In August 2019, in preparation for the second trial, Vargas 

and Garcia’s counsel requested by email that Gallizzi’s counsel 

stipulate to the “authenticity of medical records as well as that 

they are business records.” Having received no response to the 

email, in October 2019 Vargas and Garcia served requests for 

admission on Gallizzi requesting she admit that the medical 

records were genuine and were “business records within the 

meaning of California Evidence Code § 1271.” Gallizzi served 

responses in which she admitted the genuineness of the medical 

records but denied they were business records.

2 The documents at issue consist of, for both Vargas and 

Garcia, records from: Azusa Covina Health Services, Citrus 

Valley Medical Center and Schaefer Ambulance Service; and, for 

Vargas only, records from: Cedars Sinai Medical Group, South 

Lake Medical Center and Discovery Radiology Physicians.
4

After receiving the responses, counsel for Vargas and 

Garcia issued new document subpoenas to the healthcare 

providers for the relevant medical records, this time with 

custodian declarations containing more detailed information to 

establish the business records hearsay exception within the 

meaning of Evidence Code section 1271. The healthcare 

providers produced documents and custodian declarations in 

response to those subpoenas between January and August 2020. 

In May 2020 Vargas and Garcia’s counsel again sent an 

email to Gallizzi’s counsel suggesting they “discuss reaching a 

stipulation re: authenticity of the subpoenaed medical records as 

well as a stipulation that they are business records.” After 

Gallizzi’s counsel responded he was unwilling to stipulate to 

“admissibility of medical records,” Vargas and Garcia’s counsel 

followed up several times in August and September 2020, 

clarifying he sought a stipulation not to admissibility but only 

that the records qualified as business records. 

With no stipulation reached, in September 2020 Vargas 

and Garcia’s counsel served another set of requests for admission 

on Gallizzi requesting she admit the genuineness of the 

subpoenaed medical records and that the records were business 

records. After initially responding she lacked sufficient 

information to admit or deny the requests, in February 2021 

Gallizzi served responses denying the requests for admission.

In April 2021 Vargas and Garcia’s counsel served 

subpoenas on the healthcare providers directing them to produce 

documents and appear at trial. In June 2021 Vargas and 

Garcia’s counsel served additional subpoenas on the healthcare 

providers ordering them to produce the medical records to the 

court pursuant to the procedures set forth in Evidence Code 
5

section 1560, along with a declaration establishing the 

requirements of the business records exception to the hearsay 

rule. 

2. The Requests for Admission Regarding the Timeline of 

Treatment

In October 2020 Vargas and Garcia served a total 

of 117 requests for admission regarding their medical treatment 

after the accident. Each request sought an admission from 

Gallizzi that Vargas or Garcia had visited a particular medical 

provider on a certain date and complained of various injuries or 

ailments at that time. Gallizzi denied each request. 

3. The Requests for Admission Regarding Causation

Also in October 2020 Garcia served two requests on Gallizzi 

seeking admission that the accident had caused “at least some” 

physical and emotional harm to Garcia. Gallizzi denied both 

requests.

4. The Trial and Verdict

In July 2021 the parties filed a proposed joint exhibit list 

stating Vargas and Garcia intended to offer approximately 

30 sets of medical records into evidence (most of which were less 

than 20 pages each). For each proposed exhibit Gallizzi indicated 

she would stipulate to authenticity but intended to object on 

hearsay grounds.

During pretrial conferences on July 27 and July 30, 2021 

the court heard argument regarding the parties’ motions 

in limine. No reporter’s transcripts for these hearings have been 

provided on appeal, but it appears the admissibility of medical 

records was argued because the minute order for July 30, 2021 

states, “The Court rules that any sealed subpoena records 
6

received will be considered as business records. The admissibility 

of said records is deferred to the time of trial.” 

The issue was revisited during trial when Vargas and 

Garcia’s counsel indicated he would use some of the medical 

records to refresh Vargas’s recollection during her testimony. 

Gallizzi’s counsel objected that Vargas could not authenticate the 

documents and the records contained hearsay. The court 

responded, “I’ve deemed them not hearsay with regards to 

authentication and foundation because they were provided . . . as 

part of the subpoenaed records.” Ultimately the medical records 

proffered by Garcia and Vargas were admitted into evidence at 

trial except for approximately 10 pages the court ruled contained 

hearsay within hearsay. 

After hearing five days of testimony, the jury returned a 

verdict for Vargas and Garcia. The jury awarded Vargas $9,125 

in loss of use damages and nothing in future noneconomic 

damages. Garcia was awarded $6,000 in past noneconomic 

damages and nothing in future noneconomic damages. Judgment 

was entered on August 17, 2021 against Gallizzi for a total of 

$15,125 in damages, plus costs to be determined. 

5. Postjudgment Motions

On August 26, 2021 Gallizzi filed a memorandum of costs 

seeking an award of more than $30,000 in section 998 postsettlement-offer costs. Vargas and Garcia moved to strike or tax 

costs, arguing some of Gallizzi’s costs were incurred prior to the 

section 998 offer and other costs were unreasonable.

On September 8, 2021 Vargas and Garcia moved for an 

award of more than $350,000 in attorney fees and costs pursuant 

to section 2033.420 based on Gallizzi’s failure to admit the 

requests for admission regarding the medical records, timeline of 
7

treatment, and causation.3 The motion argued Gallizzi had no 

reasonable ground to deny the requests for admission based on 

the information available to her at the time. In opposition 

Gallizzi argued Vargas and Garcia were not entitled to an award 

pursuant to section 2033.420 because they had not proved at trial 

any of the issues raised in the requests for admission. In 

particular, Gallizzi argued she had stipulated to the “foundation 

of all medical records at issue” and, therefore, there was no 

entitlement to costs under section 2033.420. Other than 

two sentences disparaging opposing counsel’s abilities, Gallizzi’s 

opposition did not challenge the amount or calculation of the fees 

or costs sought. 

At a hearing on October 5, 2021 the court denied Vargas 

and Garcia’s motion for fees and costs. The court noted Gallizzi 

had filed a “scant opposition, which does not separately or 

specifically address the numerous requests for admissions that 

are the subject of plaintiffs’ motion, nor does defendant address 

the basis for her denials.” However, regarding the requests to 

3 Vargas and Garcia also filed a memorandum of costs 

seeking more than $15,000 in costs as the prevailing parties 

pursuant to section 1032. The trial court declined to award these 

costs. While Vargas and Garcia state in their opening brief that 

they have appealed the “Order granting Defendant’s motion to 

strike/tax costs,” the brief fails to address this argument in any 

substantive way. As such, the challenge to that ruling is 

forfeited. (See Golden Door Properties, LLC v. Superior Court 

(2020) 53 Cal.App.5th 733, 786 [issues not supported in a party’s 

opening brief with legal analysis and citation to authority are 

forfeited]; Benach v. County of Los Angeles (2007) 

149 Cal.App.4th 836, 852 [appellant forfeits issue not raised or 

supported by substantive argument].)
8

admit the medical records were business records, the court found,

because it had ruled the records were business records “before 

trial was commenced, as defined in CCP 581,”4 Vargas and 

Garcia had not been “required to prove, and did not prove, the 

authenticity of the records at trial, but only prepared to do so.” 

After hearing argument from Vargas and Garcia’s counsel, the 

court reiterated, “Defense counsel had indicated that he was 

stipulating to authenticity. There was no proof that was required 

at trial that these were business records. Defense counsel didn’t 

dispute that fact at all during the trial. . . . You were not 

required to prove that the medical records were business records. 

I found that to be the case before we ever called a jury in here.” 

Because it found Vargas and Garcia had not proved the business 

records exception during trial, the court ruled costs should not be 

awarded pursuant to section 2033.420 on that issue.

Turning to costs based on the refusal to admit the accident 

caused at least some harm to Vargas and Garcia, the trial court 

found Gallizzi’s denials were unreasonable given the information 

she had at the time. Nevertheless the court declined to award 

costs because it found the trial would not “have been shortened or 

expedited had defendant admitted these requests.” The court 

explained that, because the issue before the jury was the amount 

of noneconomic damages to be awarded, Vargas’s and Garcia’s 

testimony had focused on their emotional experiences. 

Accordingly, an admission of some physical injury would not have 

changed the amount of time spent on their testimony. 

4 Section 581, subdivision (a), provides, “As used in this 

section: [¶] . . . [¶] (6) ‘Trial.’ A trial shall be deemed to actually 

commence at the beginning of the opening statement or 

argument of any party or his or her counsel . . . .”
9

The court also denied costs based on Gallizzi’s failure to 

admit the details regarding Vargas’s and Garcia’s healthcare 

visits and complaints. The court found the matters sought in the 

requests were not proved at trial.

Finally, the court affirmed in part the motion to tax 

Gallizzi’s costs, striking costs that had been incurred prior to the 

section 998 offer and costs for certain court reporter fees. The 

court found the remaining expert fees and court reporter fees 

were reasonable and costs were warranted pursuant to 

section 998.

The court entered a judgment for costs on January 5, 2022, 

which stated the court had denied all claims of costs and 

attorneys fees by Vargas and Garcia and awarded $28,547.66 in 

costs to Gallizzi.

DISCUSSION

1. The Trial Court Erred by Denying Vargas and Garcia’s 

Motion for Expenses Pursuant to Section 2033.420

a. Governing law and standard of review

During pretrial discovery a party may serve a written 

request that another party “admit the genuineness of specified 

documents, or the truth of specified matters of fact, opinion 

relating to fact, or application of law to fact.” (§ 2033.010.) Such 

requests “‘are primarily aimed at setting at rest a triable issue so 

that it will not have to be tried. Thus, such requests, in a most 

definite manner, are aimed at expediting the trial. For this 

reason, the fact that the request is for the admission of a 

controversial matter, or one involving complex facts, or calls for 

an opinion, is of no moment. If the litigant is able to make the 

admission, the time for making it is during discovery procedures, 

and not at the trial.’” (Bloxham v. Saldinger (2014) 
10

228 Cal.App.4th 729, 752; accord, Orange County Water Dist. v. 

The Arnold Engineering Co. (2018) 31 Cal.App.5th 96, 115 

[“‘[r]equests for admission are not restricted to facts or 

documents, but apply to conclusions, opinions, and even legal 

questions. [Citations.] Thus, requests for admission serve to 

narrow discovery, eliminate undisputed issues, and shift the cost 

of proving certain matters’”].)

If a party denies a request for admission that is later 

proved, section 2033.420, subdivision (a), provides for an award of 

costs of proof: “If a party fails to admit the genuineness of any 

document or the truth of any matter when requested to do so 

under this chapter, and if the party requesting that admission 

thereafter proves the genuineness of that document or the truth 

of that matter, the party requesting the admission may move the 

court for an order requiring the party to whom the request was 

directed to pay the reasonable expenses incurred in making that 

proof, including reasonable attorney’s fees.” Subdivision (b) 

provides, “The court shall make this order unless it finds any of 

the following: [¶] (1) An objection to the request was sustained or 

a response to it was waived under [Code of Civil Procedure] 

Section 2033.290. [¶] (2) The admission sought was of no 

substantial importance. [¶] (3) The party failing to make the 

admission had reasonable ground to believe that that party 

would prevail on the matter. [¶] (4) There was other good reason 

for the failure to admit.” An award of expenses pursuant to 

section 2033.420 “is not a penalty. Instead, it is designed to 

reimburse reasonable expenses incurred by a party in proving the 

truth of the requested admission.” (Brooks v. American 

Broadcasting Co. (1986) 179 Cal.App.3d 500, 509.)
11

“‘The determination of whether “there were no good reasons 

for the denial,” whether the requested admission was “of 

substantial importance,” and the amount of expenses to be 

awarded, if any, are all within the sound discretion of the trial 

court.’” (Bloxham v. Saldinger, supra, 228 Cal.App.4th at p. 753.) 

“By contrast, if the trial court exercises its discretion and 

determines that the requirements of the statute exist, reasonable 

expenses must be awarded.” (Brooks v. American Broadcasting 

Co., supra, 179 Cal.App.3d at p. 508.) “On appeal, the trial 

court’s decision will not be reversed unless the appellant 

demonstrates that the lower court abused its discretion.” (Id. at 

p. 509.) An abuse of discretion is shown if the trial court based 

its decision on an incorrect legal standard or if the court’s factual 

findings are not supported by substantial evidence. (See Costco 

Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.)

b. Vargas and Garcia are entitled to recover expenses 

incurred in proving the medical records were 

business records

As discussed, the trial court ruled an award of expenses 

regarding the medical records was not warranted because Garcia 

and Vargas had not proved the records were business records 

within the meaning of Evidence Code section 1271.5 The court’s 

5 The business records exception to the hearsay rule requires 

a showing that (1) the writing was made in the regular course of 

business; (2) the writing was made at or near the time of the act, 

condition or event; (3) the custodian or other qualified witness 

testifies to its identity and mode of preparation; and (4) the 

sources of information and mode, method and time of preparation 

indicate trustworthiness. (Evid. Code, § 1271; see

Conservatorship of S.A. (2018) 25 Cal.App.5th 438, 447.) These 
12

reasoning was twofold: First, the hearsay exception had not been 

proved “at trial”; second, Gallizzi had stipulated to the records’ 

authenticity and did not dispute their status as business records 

at trial. Neither finding supported the denial of expenses.

The finding Vargas and Garcia had not proved the business 

records exception “at trial,” while perhaps literally correct, was 

an improper ground for the denial of an expense award. Code of 

Civil Procedure section 2033.420, subdivision (a), provides 

expenses shall be awarded if the party requesting the admission 

“thereafter proves the genuineness of that document or the truth 

of that matter.” The statute contains no requirement the proof be 

made “at trial” (nor is it apparent the technical definition of the 

commencement of trial found in section 581 would be applicable 

in this context). Here, during a pretrial hearing the court ruled

the medical records would be considered business records. That 

ruling necessarily meant the court had determined the 

documents satisfied the requirements of Evidence Code 

section 1271, including that the sources of information and modes 

of preparation indicated trustworthiness. By providing evidence 

sufficient for the court to make these findings, Vargas and Garcia 

proved the matter. Accordingly, they met the threshold for 

reimbursement of expenses incurred following Gallizzi’s denials.

The trial court additionally erred by finding Vargas and 

Garcia were precluded from receiving cost-of-proof expenses 

because Gallizzi had not disputed the medical records’ status as 

business records at trial. Given the pretrial ruling on that issue, 

of course, Gallizzi could reasonably have concluded that 

continuing to contest the business records designation would 

requirements may be satisfied by affidavit or declaration. (Evid. 

Code, §§ 1561 & 1562; see also Conservatorship of S.A., at p. 447.) 
13

have been futile. And nothing in the record supports the court’s 

apparent belief that Gallizzi had stipulated to the business 

records designation. As the trial court observed, in the joint

exhibit list Gallizzi had stipulated only to the authenticity of the 

records, which is a separate requirement for admissibility. That

stipulation was simply an agreement that the medical records 

identified by Vargas and Garcia were in fact the medical records 

described.6 The record is devoid of any basis to find Gallizzi also 

stipulated to the additional facts necessary to find the records 

were business records under Evidence Code section 1271. 

To the contrary, although Gallizzi specifically asserted 

hearsay objections to each of the medical records listed on the 

joint exhibit list, at trial she made double hearsay objections to 

only a few pages of the medical records. No general hearsay 

objections were made to the medical records. In this context, the 

only reasonable conclusion is that the hearsay objections on the 

joint exhibit list were directed to the overarching business 

records designation, objections that were effectively overruled at 

the pretrial hearing. Indeed, such a pretrial ruling would have 

been unnecessary if the parties had been in agreement on the 

issue. 

Having found Vargas and Garcia proved the medical 

records were business records, section 2033.420 required

expenses be awarded unless one of the exceptions had been 

established. Gallizzi attempts to support the trial court’s ruling 

by contending an award was unwarranted because she had a 

6 Authentication of a writing, pursuant to Evidence Code 

section 1400, requires “introduction of evidence sufficient to 

sustain a finding that it is the writing that the proponent of the 

evidence claims it is.”
14

reasonable ground to believe she would prevail on the issue. 

(See § 2033.420, subd. (b)(3).) Even if not forfeited for not having 

been raised in the trial court (see Sea & Sage Audubon Society,

Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417 [issues not raised 

in trial court cannot be raised for the first time on appeal]), the 

argument lacks merit.7

Gallizzi does not actually contend she had a reasonable 

basis to believe Vargas and Garcia could not prove the medical 

records were business records. Instead, she argues that, because 

Vargas and Garcia did not properly subpoena the records and 

declarations for the first trial resulting in their exclusion, she had 

a reasonable belief the records would be excluded on the same 

grounds at the second trial. However, a hope that opposing 

counsel will make a mistake does not constitute a reasonable 

basis to believe a party will prevail on the merits of an issue. “To 

justify denial of a request [for admission], a party must have a 

‘reasonable ground’ to believe he would prevail on the issue.”

(Grace v. Mansourian (2015) 240 Cal.App.4th 523, 532; accord, 

Brooks v. American Broadcasting Co., supra, 179 Cal.App.3d at 

p. 511 [denying party must have “a reasonably entertained good 

faith belief that the party would prevail on the issue at trial”].) 

7 Gallizzi also argues for the first time on appeal—in one 

paragraph with no citations to the record or legal authority—that 

the designation of the medical records as business records was 

not substantially important to the case (see § 2033.420, 

subd. (b)(2)) because portions of the records were excluded due to 

hearsay within hearsay and the jury did not find the records “to 

be meaningful or persuasive.” This argument has been forfeited. 

(See Sea & Sage Audubon Society, Inc. v. Planning Com., supra,

34 Cal.3d at p. 417; Golden Door Properties, LLC v. Superior 

Court, supra, 53 Cal.App.5th at p. 786.)
15

The denial “must be grounded in the evidence; it cannot be based 

merely on ‘hope or a roll of the dice.’” (Orange County Water Dist. 

v. The Arnold Engineering Co., supra, 31 Cal.App.5th at p. 116.) 

Gallizzi argues she should not be “required to excuse 

[Vargas and Garcia] of their obligation to lay a proper 

foundation” for the medical records “merely because they 

boisterously asserted they would do so on their second bite of the 

apple.” We agree “a defendant ‘cannot be forced to admit [a] fact 

prior to trial despite its obvious truth. [Citation.]’ [Citation.] 

But the failure to do so comes with consequences, exposure to a 

costs of proof award.” (Grace v. Mansourian, supra,

240 Cal.App.4th at p. 532.) Gallizzi had no reasonably held good 

faith belief she could prevail on the merits of the business records 

issue. Her denial rested solely on the potential for opposing 

counsel’s procedural error. Accordingly, Vargas and Garcia were 

entitled to recover the reasonable expenses incurred in proving 

the medical records were business records. (Cf. Wimberly v. 

Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 638 [defendant’s 

reliance on inadmissible testimony and hope plaintiff would not 

object at trial did not provide a reasonable basis to deny requests 

for admission].)

c. Any error in failing to award expenses based on the 

timeline of treatment denials was harmless

As discussed, Vargas and Garcia requested that Gallizzi 

admit they had received treatment from various healthcare 

professionals on specific dates and had complained of certain 

ailments during those visits. Gallizzi denied each request. The 

court denied Vargas and Garcia’s motion for expenses incurred to 

prove these matters because it found the motion did not establish 
16

each of the requested admissions had actually been proved at 

trial.

Vargas and Garcia contend the proof of each visit was 

contained in the medical records admitted at trial, which they 

concede were the same records covered by their business records

exception requests. Accordingly, we need not consider whether 

this denial of expenses was an abuse of discretion because, even if 

the court had awarded expenses, they would be the same as, or 

substantially overlap with, the expenses awarded for failure to 

admit the business records exception. 

d. The trial court did not abuse its discretion by denying 

expenses for the denial of requests regarding causation

We agree with the trial court it was unreasonable of 

Gallizzi to deny she had caused “some injury” to Garcia. The 

record contains substantial evidence that at the time of the 

requests for admission, Gallizzi knew at least some injury had 

been caused by the accident. This evidence included photographs 

of the damaged vehicle and records of medical treatment at the 

scene of the accident. However, as the trial court correctly found, 

Gallizzi conceded at trial that at least some harm was caused by 

the accident. During his opening statement Gallizzi’s counsel 

told the jury that Gallizzi conceded Vargas and Garcia were 

injured by the accident.8 In addition, Gallizzi’s expert testified at 

trial that Garcia suffered sprains of the neck and back as a result 

of the accident. 

8 Gallizzi’s counsel stated: “I believe these ladies were 

injured. . . . Plaintiff was taken to the hospital by ambulance. 

She was treated at the hospital with what we believe, we will tell 

you, was appropriate care. . . . You will never hear me or any 

witness from my side say that was not reasonable.” 
17

Garcia argues, notwithstanding Gallizzi’s concession, she

should be reimbursed for the evidence presented at trial proving 

her injuries. It is true Garcia presented considerable evidence at 

trial regarding her injuries. However, this evidence was 

presented not to show some injury had occurred, but the extent of 

her injuries. Even if Gallizzi had admitted the requests for 

admission, Garcia would have needed to present the same 

evidence to assist the jury in determining a proper damages 

award. Given Gallizzi’s concession, we cannot say Garcia 

incurred any costs to prove “some injury” occurred. 

2. The Trial Court Did Not Abuse Its Discretion in 

Awarding Costs to Gallizzi Pursuant to Section 998

Section 998, subdivision (c)(1), provides: “If an offer made 

by a defendant is not accepted 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.” In addition, if a 

plaintiff’s recovery is less than the defendant’s offer, the court in 

its discretion “may require the plaintiff to pay a reasonable sum 

to cover postoffer costs of the services of expert witnesses, . . . 

actually incurred and reasonably necessary in either, or both, 

preparation for trial or arbitration, or during trial or arbitration, 

of the case by the defendant.” (§ 998, subd. (c)(1); see Sviridov v. 

City of San Diego (2017) 14 Cal.App.5th 514, 520 [“[s]ection 998 

is itself an exception to section 1032’s provision that only a 

prevailing party is entitled to costs. [Citation.] It makes an 

award of ordinary costs mandatory against a plaintiff who did not 

accept a statutory offer to compromise and failed to obtain a more 
18

favorable judgment. It also gives the court discretion to award 

reasonable expert witness costs”].)9

Section 1033.5 provides that “[a]llowable costs shall be 

reasonably necessary to the conduct of the litigation rather than 

merely convenient or beneficial to its preparation . . . [¶] . . . [and] 

shall be reasonable in amount.” (§ 1033.5, subd. (c)(2) & (3).) “If 

items on a memorandum of costs appear to be proper charges on 

their face, those items are prima facie evidence that the costs, 

expenses, and services are proper and necessarily incurred. 

[Citations.] The burden then shifts to the objecting party to show 

them to be unnecessary or unreasonable.” (Doe v. Los Angeles 

County Dept. of Children & Family Services (2019) 

37 Cal.App.5th 675, 693.) The trial court has broad discretion to 

determine what costs were reasonably necessary to the conduct of 

the litigation and whether they were reasonable in amount.

(Howard v. American National Fire Ins. Co. (2010) 

187 Cal.App.4th 498, 541.) We review the trial court’s 

determination that costs were reasonable in amount and

reasonably necessary to the litigation for an abuse of discretion. 

(Berkeley Cement, Inc. v. Regents of University of California

(2019) 30 Cal.App.5th 1133, 1139, 1140.)

Gallizzi’s memorandum of costs included $12,000 for expert 

witness fees that the trial court declined to strike. Vargas and 

Garcia argue the amount was unreasonable because the expert’s 

designation stated his hourly fee for trial testimony was $6,000 

9 In July 2021 Gallizzi served offers to compromise on Garcia 

and Vargas for $30,000 and $15,000, respectively. Vargas and 

Garcia do not contend their recovery was greater than Gallizzi’s 

pretrial offers to compromise, nor do they contend no award of 

costs was proper.
19

for up to four hours and he testified for fewer than four hours. 

However, as the trial court observed, the expert designation 

stated, “This expert’s daily fee for providing trial testimony is 

$6,000.00 / up to four hours.” Because the expert testified over 

the course of two days, the court found it appropriate that he

charged a total of $12,000 for his trial testimony. This award 

was well within the trial court’s discretion.

Finally, Vargas and Garcia argue that approximately 

$5,000 of the court reporter fees awarded were for nonallowable 

real-time transcription costs and the reporter’s daily rate was not

reasonable in amount. During the hearing on the award of costs, 

the trial court stated it had reviewed the invoices attached to 

Gallizzi’s memorandum of costs and found the real-time 

transcription fees and the reporter’s rates were appropriate and 

reasonable. Vargas and Garcia have not cited any authority for 

the proposition that real-time transcription fees are not allowable 

when deemed appropriate by the trial court. Nor have they given 

any basis for their argument the reporter’s daily rate of $1,390 

should have been reduced to $375. The trial court acted within 

its discretion in allowing recovery of these costs.
20

DISPOSITION

The judgment for costs is reversed. The order awarding 

costs of $28,547.66 to Gallizzi is affirmed. The order denying 

Vargas and Garcia’s motion for expenses pursuant to 

section 2033.420 is reversed. The case is remanded for the trial 

court to determine the amount to which Vargas and Garcia are 

entitled for proving the medical records were business records. 

The parties are to bear their own costs on appeal. 

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.