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. Pimente l 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, s ued 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 hel d 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 2033.420 1 on the ground Gallizzi had unreasonably denied several requests for admission regarding, primarily, the
status of certain medi cal 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 authentici ty grounds . Specifically

, the court
found the custodian declarations submitted with the records
fai led 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 rece ived 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.” Galliz zi 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: Azu sa Covina Health Services, Citrus Valley Medi cal 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 dec larations 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 recor ds 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,
clarif ying 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 a dmit 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 Code5 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 vi sited 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

s eeking 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 of fer 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 conference s 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 records6 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 fo r 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
d amages. 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 Au gust 26, 2021 Gallizzi filed a memorandum of costs seeking an award of more than $30,000 in section 998 post

settlement

- offer costs. Vargas and Garcia moved to strike or tax costs, arguing some of Gallizzi’s costs were incurred prior to the
section 998 of fer 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 me dical records, timeline of7 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 e ntitled to an award pursuant to section 2033.420 because they had not prove d 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

, theref ore , 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, r egarding the requests to

3 Vargas and Garcia also filed a memorandum of costs seeking more than $15,000 in cos ts 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 fail s to address this argument in any substantive way. As such, the challenge to that ruling is forfeited. (See Golden Door Properties

, LLC v. Super ior 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 ind icated 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 recor ds 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 prove d the business records exception during trial, the court ruled costs should not be awarded pursuant to section 20 33.420 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 prove d at trial. Finally, the court affirmed in part the motion to tax
Gallizzi’s costs , striking costs that had be en 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 cos ts 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 t o 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 n ot 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 conc lusions, 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 ’ ”].)
I f a party denies a request for admission that is later

prov ed, s ection 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
th ereafter 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

pro of, 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]
Se ction 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) 1 79 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 t he 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 Br oadcasting
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 co urt 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. 4 th 725, 733.)

b. Vargas and Garcia are entitled to recover expens es incurred in proving the medical records were business records
As discussed, the trial court ruled an award of expenses regarding the medical records w as not warranted because Garcia and Vargas had not prove d 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 wri ting 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.) These12 reasoning was twofold: First, the hearsay exception had not been

prove d “at trial ” ; second, Gallizzi had stipulated to the records’ authenticity and did not dispute their status as business records

at t rial. Neither finding supported the denial of expenses. The finding Vargas and Garcia had not prove d the business records exception “ at trial

, ” while perhaps literally correct, was an improper ground for the denial of an expense award

. Code of
Civil Proc edure s ection 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 t rial” ( 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
ruli ng 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 co urt 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 additional ly 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 busine ss 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 devo id of any basis to find Gallizzi also stipulated to the additional facts necessary to find the records

were business record s under Evidence Code section 1271. To the contrary, although Gallizzi specifically asserted hearsay objections to each of the me dical records listed on the joint exhibit list

, at trial she made double hearsay objections to only a few pages of the medical records

. N o general hearsay objections were made to the medical records. In this context, t he only reasonable conclusion is tha t the hearsay objection s 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 require d expenses be awarded unless one of the exceptions had been
established

. Gallizzi attempts to support the tria l 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 raise d in the trial court (see Sea & Sage Aud ubon 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 an d 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 th e 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 reque st [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 h ave “a reasonably entertained good faith belief that the party would prevail on the issue at trial” ]. )

7 Ga llizzi 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)) b ecause 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 Engi neering 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 o n 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.” ( Gra ce 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

. Acco rdingly, 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 an d 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 Ga llizzi
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 t o prove these matters because it found the motion did not establish16 each of the requested admissions had actually been prove d at trial. Vargas and Garcia contend the proof of each visit was contained in the medical records admitted at trial, which they

con cede were the same records covered by their business record s exception request s

. Accordingly, we need not consider whether
th is denial of expenses was an abuse of discretion because, even if the court had awarded expenses, they would be the same as

, or

su bstantially 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 unrea sonable 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 includ ed photog raphs of the damage d 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 c ounsel stated: “I believe these ladies were injured.

. . . P laintiff 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 argue s , notwithstandi ng 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 h ad 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. G iven Gallizzi’s concession, we cannot say Garcia incurred any costs to prove “some injury” occurred.
2. The Trial Court Did Not Abuse Its Discretion i n Awarding Costs to Gallizzi Pursuant to Section 998

Section 998, subd ivision (c)(1)

, provides: “ I f 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 t he 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 more18 favorable judgment. It also gives the court discretion to award reasonable expert witness costs”].) 9 Section 1033.5 pro vides 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 Ser vices (2019)
37 Cal.App.5th 675, 693.) T he trial court has broad discretion to determine what costs were reasonably necessary to the conduct of the litigation and w hether 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 th e 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, respecti vely. 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 exp ert’s daily fee for providing trial testimony is $6,000.00 / up to four hours.” B ecause 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 withi n 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 hearin g 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 a ny 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. T he tr ial 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.