Not Reported in Cal.Rptr.3d, 2004 WL 334514 (Cal.App. 2 Dist.)
Not Officially Published
(Cal. Rules of Court, Rules 976, 977)
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Court of Appeal, Second District, Division 3, California.
Roger K. LIGHT et al., Plaintiffs and Appellants,
AT & T WIRELESS SERVICES, INC., Defendant and Respondent.
Feb. 24, 2004.
APPEAL from a judgment of the Superior Court of Los Angeles County, Lois A. Smaltz, Judge. Affirmed.
*1 Plaintiffs and appellants, Roger K. Light, Ph.D. (Dr. Light), his wife, Lori M. Zaremski, Ph.D. (Dr. Zaremski), and their two minor children, E. Light and T. Light (collectively plaintiffs), sued defendant and respondent, AT & T Wireless Services, Inc. (defendant), for defamation, invasion of privacy, negligence and intentional infliction of emotional distress. [FN1] Plaintiffs alleged that after defendant released Dr. Light's name and address as associated with a fraudulently opened cellular phone account to the alleged victim of the identity theft, the City of Hawthorne Police applied for, and executed a search warrant to search the Light's home for evidence of an alleged identity theft crime purportedly involving Dr. Light. After searching the Light's home, the Hawthorne police found no evidence of Dr. Light's involvement in any criminal activity, and closed the case.
FN1. Plaintiffs also sued the City of Hawthorne (the City) and Hawthorne Detective Neil Connor (Detective Connor) for alleged civil rights violations. Neither the City nor Detective Connor are parties to this appeal. The trial court granted the City and Detective Connor's motion for summary judgment. On appeal, in Light v. City of Hawthorne (May 30, 2003, B151713 [nonpub. opn.] ), review denied on August 13, 2003, we affirmed the judgment, but reversed the trial court's order denying plaintiffs' motion for leave to amend to allege causes of action for use of excessive force and for failure to train (Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658), based upon the use of excessive force. On our own motion, we take judicial notice of our opinion and the briefs filed in that case. (Evid.Code, § 452, subd. (a).)
Plaintiffs appeal from the trial court's judgment granting defendant's motion for summary judgment. Plaintiffs also appeal the trial court's award of costs to defendant. We affirm.
With regard to defamation, defendant established that it is entitled to the common interest privilege set forth in Civil Code section 47, subdivision (c), quoted below. In addition, defendant is not liable for invasion of privacy because the alleged victim of identity theft or the police would have inevitably discovered the information released by defendant. As to the negligence cause of action, even if defendant was negligent in releasing Dr. Light's name and address to the alleged victim of identity theft, plaintiffs cannot establish that defendant's release of the information was the proximate cause of plaintiffs' injuries. Additionally, defendant's release of that information was privileged pursuant to the official reports privilege set forth in section 47, subdivision (b). Finally, as to the intentional infliction of emotional distress claim, plaintiffs have failed to show that defendant's conduct was so extreme as to exceed the boundaries usually tolerated in a civilized community. The trial court, therefore, did not err by granting defendant's motion for summary judgment.
For the most part, the facts on appeal are undisputed. In performing our de novo review, we view the evidence in a light favorable to plaintiffs as the losing parties and we liberally construe their evidentiary submission. We strictly scrutinize defendant's showing, and resolve any evidentiary doubts or ambiguities in plaintiffs' favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
In this case, a non-party named Susan Slaughter (Slaughter) learned that someone had used her social security number in an attempt to obtain cellular phone service at Airtouch, Pacific Bell and AT & T. The record indicates that defendant opened two accounts in Slaughter's name, which we shall designate as the "Slaughter One" and "Slaughter Two" accounts for ease of reference.
*2 On April 27, 1999, defendant opened and closed the Slaughter One account. Then, on May 6, 1999, a notation was placed in the computer file of the Slaughter Two account indicating that defendant had concluded that the Slaughter One account was a fraudulent account. [FN2]
FN2. The May 6, 1999 computer notation stated: "Dianna/FD ... Acct is linked to SUBFRD acct 35681253 [Slaughter One Account] ... Will can both lines on acct.... Do not REI lines No exceptions DEF SUBFRD."
At all relevant times, Dr. Light and Dr. Zaremski were customers of defendant. On May 11, 1999, Dr. Light received a billing statement from defendant addressed to Slaughter at his residence.
The next day, May 12, 1999, Dr. Light contacted defendant and spoke with customer care representative Michael Frazier (Frazier). Dr. Light identified himself as an AT & T customer and expressed his concerns that the billing statement in Slaughter's name had arrived at, and was addressed to, the Light family residence. Frazier told Dr. Light to return the billing statement to the postal carrier for delivery to defendant, and to note on the envelope that no one named Slaughter lived at his address. [FN3]
FN3. Frazier made a computer notation of the May 12, 1999 conversation with Dr. Light in the computer file for the Slaughter One account: "A Roger Light clled, states billing address on this acct. is 'his', but no one named Susan Slaughter resides there/nor does he know anyone by that name!?! No prev. notes on this acct. Acct appears to be a 'never install.' Mr. Light will redirect bill to postman citing 'party not residing @ that address."
Having been the victim of past credit fraud, Dr. Light expressed his concerns to Frazier that he was uncomfortable with Frazier's advice to just return the billing statement. Frazier told Dr. Light not to worry about it and that he (Frazier) would take care of it. In response to Dr. Light's repeated concerns, Frazier told Dr. Light that defendant would investigate the matter and someone would call Dr. Light back.
One or two days later, one of defendant's female employees left a message for the Lights stating that the Slaughter One account was a mistake resulting from a " 'partially completed application' " for a cell phone. The employee again told the Lights not to worry about the Slaughter One account.
On June 4, 1999, Slaughter contacted defendant after learning that someone had been using her social security number to obtain cellular phone service. Slaughter spoke with Christina Schuck (Schuck), who was then a fraud analyst. Slaughter told Schuck that she did not open the Slaughter One Account. Schuck told Slaughter that an account had been opened on April 27, 1999, using Slaughter's social security number. Schuck also told Slaughter that the address used to obtain phone service was 4931 West 31st Street, Hawthorne, with a telephone number of (310) 675-5571. Schuck also gave Slaughter the name of Roger Light. [FN4]
FN4. These facts are based upon the computer notations of Slaughter's June 4, 1999 conversation with Schuck, placed in the Slaughter One account: "Christina/FD2 cust cld and said that she did not open this acct.... This is a sub fraud acct ... I will SF the acct for sub fraud credits.... This is a definite sub fraud.... There was another acct that was sub fraud under Ms. Slaughter's SS# ." These facts are also based upon Slaughter's report to Detective Connor of her conversation with Schuck. During their depositions, neither Schuck nor Slaughter could recall this conversation. Defendant AT & T has offered no evidence that Slaughter could have learned about Dr. Light and his address from any other source. Pursuant to our standard of review to resolve any ambiguities in favor of plaintiffs and because defendant appears to concede for purposes of summary judgment that Slaughter learned about Dr. Light and his address from Schuck, we accept, as the trial court did below, that it is an undisputed
fact for purposes of defendant's summary judgment motion that Slaughter learned of Dr. Light and his address from Shuck at AT & T.
On June 7, 1999, Slaughter again called defendant and spoke to Sharon Roquemore (Roquemore), also a fraud analyst. Slaughter told Roquemore that she was going to the police that day. Roquemore told her that company policy prohibited her from releasing any information without a subpoena. [FN5]
FN5. Roquemore made a computer notation of the June 7, 1999 conversation with Slaughter in the computer file of the Slaughter One account: "Victim of sub-fraud cld and req info on how this acct was set up in her name.... She indicated that she is going to the police dept tdy and file a report.... I explained to her that I cant release this info.... Since she is filing with the police then they would have to file a subpoena of records.... Will send a[n] ARF to (victim) at her addr which is differ [e]nt the acct addr...."
On June 7, 1999, Slaughter contacted Detective Connor at the Hawthorne Police Department. Slaughter informed Detective Connor that someone without her consent had used her social security number to obtain telephone service. Slaughter told Connor she wanted the perpetrator prosecuted.
Specifically, Slaughter told Connor that in May of 1999 she had received correspondence from Airtouch Cellular for new phone service, which she had not requested, but which had been added to her existing contract with Airtouch Cellular. Slaughter told Connor that after receiving the Airtouch Cellular confirmation letters, she called Airtouch and was advised that someone using her social security number had opened new phone service. Airtouch cancelled the new service after Slaughter reported the fraudulent use of her social security number. Detective Connor booked into evidence the confirmation letters from Airtouch, which were addressed to Slaughter apparently at her home address, and did not refer to Dr. Light or his address.
*3 Slaughter also told Connor she had contacted the "Trans Union Credit Service," which advised Slaughter there were two inquires on her social security number; one on March 4, 1999 by Pacific Bell and another on April 27, 1999 by defendant. Slaughter explained to Connor she then contacted Pacific Bell and was informed no phone service had been obtained using her social security number.
Slaughter told Detective Connor she had called defendant and was informed that on April 27, 1999, someone had obtained phone service using her social security number. She also told Detective Connor someone named Christina at defendant's corporate security office gave her, Slaughter, the following name, address and phone number, which were used on the application to obtain phone service based on Slaughter's social security number: 4931 West 131st Street, Hawthorne, California, (310) 675-5571, Roger K. Light.
Detective Connor then prepared a search warrant affidavit summarizing Slaughter's information and investigation. [FN6] It was undisputed that "[t]he information provided to Detective Connor by Susan Morrison Slaughter ... led him to conclude that 'maybe' fraudulent phone services were being obtained and 'maybe' sent to 4931 West 131st Street, the Light Family Residence."
FN6. In his search warrant affidavit, Detective Connor wrote: "[Slaughter] said she contacted AT & T wireless who advised her that service was obtained using her Social Security Number on April 27th 1999. She said that she then was put in contact with a Christina, with AT & T corporate security who gave her the following information used to get the phone service. The address used was 4931 West 131st Street, Hawthorne, with a telephone number of 310-675-5571. Slaughter also got the name of Roger K. Light, from Christina."
Detective Connor submitted the documents to an attorney from the Los Angeles County District Attorney's Office, who wrote on the affidavit: " '[R]eviewed for legal sufficiency only.' " On June 9, 1999, Detective Connor presented the warrant application to a municipal court judge, who issued a warrant to search the Light's home for evidence of identity theft.
On the morning of June 10, 1999 before 9:00 a.m., Detective Connor and other police officers executed the search warrant at the Light home. After conducting the search, the police officers did not find any evidence that Dr. Light was involved in the commission of the alleged fraud. The police then left the scene and closed the case.
A. The Complaint
On June 7, 2000, plaintiffs filed suit against defendant, alleging four causes of action: (1) defamation; (2) invasion of privacy; (3) negligence; and (4) intentional infliction of emotional distress. With respect to the defamation claim, plaintiffs alleged Schuck's statements to Slaughter constituted defamatory statements because the statements suggested that plaintiffs had been involved in criminal activity. Additionally, plaintiffs alleged that Slaughter's republication of the defamatory statements to Detective Connor caused plaintiffs emotional pain and suffering.
As for the invasion of privacy claim, plaintiffs alleged that defendant invaded their privacy when Shuck informed Slaughter that the Light family address was used to obtain the AT & T account, and that Dr. Light's name was connected with the Slaughter account. Plaintiffs also alleged that defendant violated Public Utilities Code section 2891. [FN7]
FN7. In pertinent part, Public Utilities Code section 2891 provides: "(a) No telephone or telegraph corporation shall make available to any other person or corporation, without first obtaining the residential subscriber's consent, in writing, any of the following information: [¶] ... [¶] (4) Demographic information about individual residential subscribers, or aggregate information from which individual identities and characteristics have not been removed."
As for the negligence claim, plaintiffs alleged that defendant owed plaintiffs a duty of care to (1) maintain the confidentiality of Dr. Light's personal information; (2) inform Slaughter that the Light family was not involved in any criminal activity; and (3) assist Dr. Light in connection with his May 12, 1999 attempt to obtain advice from AT & T to correct the situation. Finally, with respect to the intentional infliction of emotional distress claim, plaintiffs alleged that AT & T, the City of Hawthorne and Detective Connor "acted knowingly, intentionally, and willfully, to cause plaintiffs to suffer sever emotional distress."
*4 Plaintiffs sought punitive damages with respect to the defamation, invasion of privacy claims and intentional infliction of emotional distress causes of action.
B. Defendant's Offer to Compromise
Approximately two months prior to the initial trial date, on March 9, 2001, defendant served plaintiffs with a Code of Civil Procedure section 988 (hereinafter section 998) offer to compromise in the amount of $4,000, plus a waiver of costs. Plaintiffs rejected the offer.
C. Defendant's First Motion for Summary Judgment
On March 19, 2001, defendant filed a motion for summary judgment as to all four of plaintiffs' causes of action. Defendant asserted that Schuck's statements to Slaughter were true, not defamatory.
Defendant also asserted the statements were privileged pursuant to the common interest privilege in Civil Code section 47, subdivision (c), quoted below in the Discussion. Defendant asserted that plaintiffs' related claims were barred because the defamation claim failed. Lastly, defendant argued there was no evidence to support a claim for punitive damages.
D. The Trial Court's First Ruling
On May 11, 2001, the trial court entered an order denying defendant's motion for summary judgment in its entirety. The trial court determined there were triable issues of material fact as to whether defendant knew or should have known that its representatives were not properly documenting defendant's records for purposes of investigating instances of identity theft, and whether defendant's disclosure of plaintiffs' information to Slaughter constituted a breach of a duty of plaintiffs. [FN8]
FN8. In the written order, the trial court found: (1) "That AT & T knew, or should have known, that its representatives[ ] could not properly place notations of customer inquiries in its computer database so to properly investigate instances of identi[t]y theft." (2) "That AT & T knew, or should have known that its representatives were not properly documenting AT & T records for purposes of investigating allegations of identity theft." (3) "Triable issues of fact exist as to whether the conduct of AT & T in disclosing plaintiffs' private information to Slaughter and failure to warn Dr. Light that Slaughter was intending to go to the police constituted a breach of duty to all plaintiffs." (4) "Triable issues of fact exist as to whether the conduct of AT & T in disclosing plaintiffs' private information to Slaughter and failing to warn Dr. Light that Slaughter was intending to go to the police ... constituted extreme and outrageous behavior as to all plaintiffs." (5) "Triable issues of fact exist as to whether the conduct of AT & T in disclosing plaintiffs' private information to Slaughter and failing to warn Dr. Light that Slaughter was intending to go to the police rose to the level of oppressive, malicious, or fraudulent conduct which would support an award of punitive damages."
As for the defamation claim, after oral argument, the trial court explained that "under the circumstances which [are] set out here, ... the reasonable inference would be that Roger Light was a participant in a scheme to defraud or commit some kind of fraud with respect to the telephone." The trial court remarked that there was sufficient evidence of a reasonable inference based upon Schuck's statements to Slaughter that Dr. Light had been involved in a crime for the case to go to the trier of fact to determine whether AT & T's statements had been defamatory. [FN9]
FN9. The trial court commented: "The defamation was information communicated that put these people, the plaintiffs, in a light where a person could reasonably conclude the phone company is saying these people must have committed a crime."
The trial court also determined there were triable issues of material fact as to whether defendant was entitled to the common interest privilege set forth in Civil Code section 47, subdivision (c). The trial court explained that there was a triable issue of material fact as to whether defendant had a reasonable belief in the truth of the communication between Schuck and Slaughter, which the trial court noted could reasonably have been interpreted to mean that Dr. Light was involved in criminal activity. [FN10]
FN10. During oral argument, the trial court overruled defendant's objections to plaintiffs' evidence submitted in opposition to defendant's motion for summary judgment.
E. Defendant's Petition for a Writ of Mandate
On May 11, 2001, defendant filed in this court a petition for a writ of mandate, seeking an order directing the trial court to grant the motion for summary judgment. Defendant claimed plaintiffs' defamation claim failed because plaintiffs had neither pled nor proved any actual statement by AT & T was false or defamatory. Defendant also argued that plaintiffs could not rely upon "defamation by innuendo or implication" because the statements by Schuck to Slaughter were true and did not fairly imply that the Light family was engaged in any wrongdoing. Finally, defendants asserted that all of plaintiffs' other causes of action were based solely upon the defamation claim and were therefore subject to the same defenses such as the common interest privilege (Civ.Code, § 47, subd. (c)), and official reports privilege (id., subd. (b)).
F. The Court of Appeal's Palma Notice
*5 On July 11, 2001, this court, pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, notified the parties that it intended to issue a peremptory writ of mandate in the first instance, directing the respondent court to vacate its order and to grant defendant's motion for summary judgment. This court explained that following review of the petition and the record, the action was without merit. The evidence was not sufficient to show that defendant had made any false or defamatory statements. In addition, this court determined that the common interest and official reports privileges (Civ.Code, § 47, subds.(b) & (c)), as well as the inevitable discovery doctrine, provided defendant with a defense to plaintiffs' defamation claim. This court also concluded as a matter of law that defendant did not have duty to warn or inform plaintiffs that Slaughter intended to make a police report. Finally, this court concluded there was no evidence supporting an inference of malice or despicable conduct and thus punitive damages were not warranted.
G. Plaintiffs' Opposition to Defendant's Petition for a Writ of Mandate
In their opposition, plaintiffs pointed out that defendant had cited deposition testimony in support of its petition which was not before the trial court as part of the original summary judgment motion. Among other issues, plaintiffs also asserted that there were triable issues of material fact as to whether the statements from Schuck to Slaughter were defamatory and whether defendant was entitled to the protection of the common interest privilege. Plaintiffs asserted there was a triable issue of material fact as to whether defendant had a reasonable belief in the truth of its defamatory statements. Plaintiffs also asserted that defendant had no right to the official reporting privilege (Civ.Code, § 47, subd. (b)), because defendant did not make the crime report; rather, citizen Slaughter made such report.
H. This Court's Second Order Following Plaintiffs' Opposition to Defendant's Writ Petition
After reviewing plaintiffs' opposition to defendant's petition for a writ of mandate, on October 17, 2001, this court concluded that the tentative conclusions expressed in the Palma notice, that the action had no merit, was based in part upon deposition testimony which had not been submitted to the trial court on defendant's original motion for summary judgment. Because of this procedural defect, we denied without prejudice defendant's petition for a writ of mandate and expressly granted defendant the right to file a new and different motion for summary judgment or summary adjudication.
I. Defendant's Second Motion for Summary Judgment
On November 13, 2001, defendant filed a second motion for summary judgment as to all of plaintiffs' causes of action, asserting the same grounds as in the first motion for summary judgment: (1) the statements from Schuck to Slaughter were not defamatory; (2) the statements were privileged under the common interest privilege (Civ.Code, § 47, subd. (c)); (3) the statements were privileged under the official reporting privilege (id., subd. (b)); (4) because the statements were true or otherwise privileged, plaintiffs' causes of action for invasion of privacy, negligence and intentional infliction of emotional distress also failed; (5) plaintiffs could not recover damages because the search was lawful; (6) defendant's conduct was not outrageous as a matter of law; (7) plaintiffs Dr. Zaremski and the minor children had no standing in this matter; and (8) there was no evidence supporting a punitive damages claim.
J. The Trial Court Grants Defendant's Motion for Summary Judgment
*6 Over plaintiffs' opposition, the trial court, relying upon the analysis in this court's Palma notice, granted defendant's motion for summary judgment as to all of plaintiffs' causes of action against defendant and entered judgment accordingly. The trial court found the statements from Schuck to Slaughter were not defamatory and, otherwise, defendant owed no duties to plaintiff. The trial court did not rule on defendant's evidentiary objections.
After prevailing in the second motion for summary judgment, defendant filed a memorandum of costs in the amount of $36,139.42, including $24,114.50 in expert witness fees. Plaintiffs filed a motion to tax. The trial court denied plaintiffs' motion to tax costs, except for three charges totaling $1,042.33. The trial court found that defendant's section 998 offer was reasonable and in good faith and awarded defendant costs in the amount of $35,097.09. [FN11]
FN11. In awarding defendant's costs, the trial court explained: "The issue is whether the 998 offer was reasonable.... [¶] The facts in this case are extremely distressing.... [¶] Perhaps just the distressing nature of the incident ... influenced some of the court's earlier decisions and rulings to be in favor of the plaintiff.... The Court of Appeal was quite clear as to what the law is and what the rules were with respect to being able to assert this kind of a claim." "So in considering whether an offer of $4,000 plus a waiver of costs was reasonable, the first part of March, two months before that initial trial setting, I cannot say that that was an unreasonable offer in respect to what the potential jury verdict would be based upon the law that applies in this case. And based upon the level at which the plaintiffs themselves set the legal issues related to the extent of their claims for emotional distress, which was all of the damage in this case, the court cannot say it was unreasonable to incur that to prove, [sic ] even expecting to prove that there would be a defense verdict. It was necessary to incur expenses of the experts to defend against the plaintiffs' claims."
Plaintiffs filed a timely notice of appeal from the judgment and the order awarding costs.
Plaintiffs contend the trial court by: (1) determining that defendant owed no duty of care to plaintiffs with respect to the release of information to Slaughter; (2) determining the statements made by Schuck to Slaughter were not defamatory; (3) determining that defendant was entitled to invoke the common interest privilege set forth in Civil Code section 47, subdivision (c); (4) determining there was no evidence of malice, fraud or oppression to support plaintiffs' claim for punitive damages; (5) denying plaintiffs' motions to compel witness depositions; [FN12] and (6) awarding costs to defendant.
FN12. With regard to the discovery issues, in plaintiffs' opening brief, plaintiffs frankly concede that they did not seek a Code of Civil Procedure section 437c, subdivision (h) continuance from the trial court to conduct additional discovery. The issue is therefore waived on appeal. (Lloyd Design Corp. v. Mercedes-Benz of North America, Inc. (1998) 66 Cal.App.4th 716, 726.)
STANDARD OF REVIEW
This court reviews de novo a trial court's grant of summary judgment. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 698-699.) "Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (Code Civ. Proc., § 437c, subd. (a).) Summary judgment is properly granted if no question of fact exists and the pleadings raise issues that may be decided as a matter of law. (Sanchez v. Swinerton & Walberg Co . (1996) 47 Cal.App.4th 1461, 1464.)
The California Supreme Court in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 explained: "[I]n moving for summary judgment, a 'defendant ... has met' his 'burden of showing that a cause of action has no merit if' he 'has shown that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." (Id. at p. 849, citing Code Civ. Proc., § 437c, subd. (o)(1).)
Plaintiffs claim that Schuck's statements to Slaughter constituted defamation by innuendo and that the statements were not privileged. Accordingly, plaintiffs claim the trial court erred by granting summary judgment on this cause of action.
*7 We disagree and conclude the statements at issue were not defamatory. In addition, the statements were privileged pursuant to the common interest privilege and the official reports privilege.
1. The Statements Were Not Defamatory
The statements about which plaintiffs complain were Schuck's statements to Slaughter indicating that the Light family address was the address on the Slaughter One account and that Dr. Light's name was somehow connected to that account. Those statements were true. Truth is a complete defense to a defamation claim. (Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 540.)
On this record, defendant released accurate and truthful factual information to the victim of identity theft. Defendant did not charge plaintiffs with a crime. In fact, Slaughter testified that no one from defendant told her that the Lights were involved in any fraud or other criminal activity, and that no one at defendant said anything to give her that impression.
Plaintiffs, however, claim that Schuck's statements to Slaughter constituted defamation by innuendo. We disagree.
In Forsher v. Bugliosi (1980) 26 Cal.3d 792, the California Supreme Court explained the test for determining whether a plaintiff had stated a cause of action for defamation by innuendo, stating: "[T]he test ... is whether by reasonable implication a defamatory meaning may be found in the communication." (Id. at p. 806.)
One year later, in Okun v. Superior Court (1981) 29 Cal.3d 442, the California Supreme Court explained that: " 'it is not the purpose of an innuendo to "beget an action", and the meaning of the language complained of may not be enlarged or extended thereby.... In other words, it is the office of the innuendo to merely explain or interpret, without enlarging, the alleged libelous publication.' " (Id. at p. 450.)
Guided by these tests, we conclude that Schuck's statements to Slaughter were not reasonably capable of a defamatory meaning. According to Slaughter's deposition testimony, defendant, via Schuck's statements to Slaughter, did not infer or imply that Dr. Light had been involved in the alleged identity theft.
Moreover, plaintiffs' argument that Schuck's statements to Slaughter constituted defamation by innuendo are belied by plaintiffs' own judicial admissions in their lawsuit against the City of Hawthorne and Detective Connor. There, plaintiffs asserted that Schuck's statements to Slaughter were ambiguous and would not have led a reasonable police officer to conclude that Dr. Light was engaged in any criminal activity.
Plaintiffs also claim that defendant gave out incomplete information to Slaughter and did not tell her that Dr. Light had previously contacted defendant to report the receipt of the billing statement in Slaughter's name at his address. Even if this proposition were true, it does not alter the fact that the information Schuck gave to Slaughter was true and did not constitute defamation by innuendo.
*8 In conclusion, defendant did not make any defamatory statements about plaintiffs.
2. Common Interest Privilege
The common interest privilege is set forth in Civil Code section 47 which provides in pertinent part: "A privileged publication or broadcast is one made: [¶] ... [¶] (c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information."
In Lundquist v. Reusser (1994) 7 Cal.4th 1193, the California Supreme Court explained: "Under the 'common interest privilege' ... a defendant who makes a statement to others on a matter of common interest is immunized from liability for defamation so long as the statement is made 'without malice.' " (Id. at p. 1196; see also Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 727.)
The common interest privilege protects statements directed to others who have " 'a potential interest in the subject matter ... well beyond general or idle curiosity.' " (Brown v. Kelly Broadcasting Co., supra, 48 Cal.3d at p. 737.) Defining whether parties share a common interest, the Court of Appeal in Institute of Athletic Motivation v. University of Illinois (1980) 114 Cal.App.3d 1, explained: " ' "The word 'interest' as used in the cases, is not used in any technical sense. It is used in the broadest popular sense, as when we say that a man is 'interested' in knowing a fact--not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news." "So long as the interest is of so tangible a nature that for the common convenience and welfare of society, it is expedient to protect it, it will come within the rule." ' " (Id. at p. 11.) [FN13]
FN13. The Court of Appeal in Institute of Athletic Motivation v. University of Illinois, supra, 114 Cal.App.3d 1, further explained: "The lesson we deduce from these cases is that the scope of the privilege under [Civil Code] section 47, subdivision [ (c) ] is not capable of precise or categorical definition, and that its application in a particular case depends upon an evaluation of the competing interests which defamation law and the privilege are designed to serve. The Restatement Second of Torts (§ 595), seeking to formulate a general rule, suggests that an occasion is conditionally privileged 'if the circumstances induce a correct or reasonable belief that (a) there is information that affects a sufficiently important interest of the recipient or a third person, and (b) the recipient ... is a person to whom its publication is otherwise within the generally accepted standards of decent conduct.' In addition, the
Restatement suggests a privilege exists 'if the circumstances lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that there is information that another sharing the common interest is entitled to know.' (§ 596.)" (Id. at p. 11.)
Finally, in Rancho La Costa, Inc. v. Superior Court (1980) 106 Cal.App.3d 646, the court explained that parties acting to protect a pecuniary or proprietary interest share a common interest for purposes of applying the common interest privilege. (Id. at p. 665.)
In this case, defendant and Slaughter shared a common pecuniary interest of a tangible nature in the wrongfully obtained cellular phone account and each could suffer injury arising from such an account. Their interests in the wrongfully obtained cellular phone account, in the words of the Brown court, went " 'well beyond general or idle curiosity.' " (Brown v. v. Kelly Broadcasting Co ., supra, 48 Cal.3d at p. 737.)
Plaintiffs argue, however, that by the time Slaughter contacted defendant, Slaughter and defendant did not share a common interest. Plaintiffs assert that, by this point in time, defendant had no reason to be interested in the fraudulent account because the Slaughter One account had been closed by the time Slaughter called defendant. Additionally, before Slaughter's call to Shuck, the record indicates that defendant had closed the Slaughter One account because of "buyer's remorse," which is apparently unrelated to fraud. Finally, plaintiffs point out that defendant proffered as an undisputed fact that it was "irrelevant" to defendant who committed the identity theft and the only issue relevant to defendant was determining whether the account should be closed and written off. [FN14]
FN14. In its Undisputed Fact No. 6, defendant stated: "The identity of the person who committed the theft of Slaughter's identity was 'irrelevant' to [defendant] because [defendant] only needs to determine whether to close and write off charges on a fraudulently-opened account. Issues beyond determining whether an account should be closed and written off are 'irrelevant' to [defendant's] business purpose in talking to Slaughter and other identity theft victims."
*9 For all these reasons, plaintiffs assert that defendant did not share a common interest with Slaughter in ascertaining the identify of the individual responsible for opening the Slaughter One account.
This technical argument is contrary to the understanding of the definition of "common interest," which is to be interpreted in the "broadest popular sense." (Institute of Athletic Motivation v. University of Illinois, supra, 114 Cal.App.3d at p. 11.) There is no question that defendant shared a common interest in the wrongfully obtained cellular phone account at issue in this case. The fact that defendant had closed the account and written off any charges related to the purported fraud before Slaughter contacted Schuck does not alter the analysis that both parties shared a common pecuniary interest in the fraudulently obtained cellular phone account.
In addition, plaintiffs claim there is a triable issue of material fact as to whether defendant acted with malice. (Lundquist v. Reusser, supra, 7 Cal.4th at p. 1196.) In Lundquist, the California Supreme court defined malice: " ' "The malice necessary to defeat a qualified privilege is 'actual malice' which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights...." ' " (Id. at pp. 1213-1214, italics omitted.) Malice, however, requires more than mere negligence. (Bierbower v. FHP, Inc. (1999) 70 Cal.App.4th 1, 9 ["[M]aliciousness cannot be derived from negligence. Malice entails more than sloppiness."] )
Plaintiffs do not assert that Schuck's statements to Slaughter were motivated by hatred or ill will towards the plaintiff. Instead, plaintiffs assert that AT & T had a lack of reasonable belief in the truth of its alleged innuendo defamatory statements and therefore acted with reckless disregard of plaintiffs' rights. In support of this argument, plaintiffs assert, based upon defendant's internal computer records and Dr. Light's May 12, 1999 call to customer care representative Frazier, that defendant knew or should have known that Dr. Light and his family were not the perpetrators of the fraudulent activity. Therefore, according to plaintiffs, defendant did not have a reasonable basis to imply to Slaughter that Light family was somehow involved in the identity theft.
We disagree with this analysis. At most, defendant failed to advise Slaughter that Dr. Light had telephoned about the Slaughter One account and advised defendant that the billing statement for the Slaughter One account should not have been sent to the Light family residence. This is insufficient to show malice. (See Bierbower v.. FHP, Inc., supra, 70 Cal.App.4th at p. 9.)
Schuck's statements to Slaughter were therefore privileged pursuant to the common interest privilege.
3. Official Reports Privilege
*10 Moreover, Schuck's communication to Slaughter is protected by the privilege for reports made by citizens to police regarding potential criminal activity. Civil Code section 47 provides in pertinent part: "A privileged publication or broadcast is one made: [¶] ... [¶] (b) ... (3) in any other official proceeding authorized by law." This privilege is absolute and cannot be defeated even on a showing of malice. (Williams v. Taylor (1982) 129 Cal.App.3d 745, 753-754; Passman v. Torkan (1995) 34 Cal.App.4th 607, 619.)
Plaintiffs' claims are based upon Slaughter's report to the Hawthorne police that fraudulent accounts had been opened using her social security number. Plaintiffs' alleged injuries arose from a search, conducted pursuant to a valid search warrant. (Light v. City of Hawthorne, supra, B151713, at pp. 22-23.) The warrant was based not only upon Slaughter's report, but also upon Detective Connor's investigation. In this situation, the Hawthorne police would have discovered the same information about the Light family residence and Dr. Light's name being associated with the Slaughter One account if Slaughter had only reported that an account using her social security number had been opened with defendant. This is analogous to the inevitable discovery doctrine in a criminal context. (Nix v. Williams (1984) 467 U.S. 431.) [FN15]
FN15. Because we find that Detective Connor and the Hawthorne Police would have inevitably discovered the information linking the Light family address and Dr. Light's name to the Slaughter One account, we conclude that defendant is not liable for any alleged invasion of privacy.
The trial court did not err by granting defendant's motion for summary judgment as to plaintiffs' claim for defamation.
Plaintiffs offer a number of theories to support a cause of action for negligence: (1) defendant negligently failed to warn him that Slaughter was going to the police after negligently implicating plaintiffs as involved in criminal activity; (2) defendant negligently released confidential customer information to Slaughter; (3) defendant negligently gave out incomplete information to Slaughter; [FN16] (4) defendant acted negligently by implicating Dr. Light and the Light family in a crime when defendant knew or should have known that Lights were not involved; (5) defendant negligently failed to properly document its records which caused it to link plaintiffs to the fraudulent criminal activity; and (6) defendant negligently failed to aid plaintiffs when Detective Connor telephoned defendant during the execution of the search warrant.
FN16. In this regard, Slaughter testified as follows: "Q. [D]o you recall ever hearing that Roger Light called about the billing address on this account being his but that no one named Susan Slaughter resided there? [¶] A. No. [¶] Q. Do you recall ever being told that Mr. Light would redirect the bill back to AT & T? [¶] A. No. [¶] Q. If you had been told that information at that time, do you believe you would have communicated that information to the police when you filed your report? [¶] ... [¶][A.]
We conclude that the trial court properly granted defendant's motion for summary judgment as to the negligence cause of action. In Saelzler v. Advanced Group 400, supra, 25 Cal.4th 763, the Supreme Court reiterated the well-established elements of a cause of action for negligence. To prevail on cause of action for negligence, plaintiffs must show that defendant owed them a duty of care, defendant breached the duty of care, and that the breach was the proximate or legal cause of plaintiffs' injuries. (Id. at p. 767.) As explained by the Saelzler court, "[a] mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant." (Id. at pp. 775-776, italics omitted.) "In other words, plaintiff must show some substantial link or nexus between omission and injury." (Id. at p. 778.)
*11 Pursuant to the doctrine of inevitable discovery and the official reporting privilege, plaintiffs cannot establish that Schuck's statements to Slaughter proximately caused plaintiffs' injuries, or, in the words of the Saelzler court, were a "substantial link" causing plaintiffs' alleged injuries. (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 778.) In other words, the Hawthorne police would have inevitably discovered the information linking Dr. Light and his family's address to the Slaughter One account regardless of the fact that Schuck released the information to Slaughter. In these circumstances, we cannot say that Schuck's statements to Slaughter proximately caused the police to obtain a search warrant and enter the Light home.
In addition, because Schuck's statements to Slaughter were privileged pursuant to the official reporting privilege (Civ.Code, § 47, subd. (b)), defendant is not liable for any tort based upon the communication, other than malicious prosecution. (Devis v. Bank of America (1998) 65 Cal.App.4th 1002, 1007.)
In Devis, a bank mistakenly accused the plaintiff of committing forgery. The bank called the police, who arrested plaintiff and held him for 72 hours in jail. The plaintiff sued for slander, false imprisonment, and negligence in conducting the investigation, which led to the report to the police. (Devis v. Bank of America, supra, 65 Cal.App.4th at p. 1006.) The trial court granted summary judgment for the defendant bank. In affirming the judgment, the Court of Appeal explained: "We know of no case which directly holds that the immunity which protects against tort actions based on erroneous reports to the police extends to a claim of negligence in the investigation which leads to such a report. However, based on the strong public policy behind the privilege, we do not hesitate to so hold. The privilege must extend to actions based on negligent investigation, for if it did not, the privilege for reports to the police would be eviscerated. [¶] ... [¶] In sum, if an individual could be sued for negligently performing the acts which lead to a report to the police, the policy of assuring 'utmost freedom of communication between citizens and public authorities whose responsibility it is to investigate and remedy wrongdoing' would be seriously compromised." (Id. at p. 1009, italics in original.)
Plaintiffs respond, however, that defendant did not make a police report and should not benefit from the official reporting privilege. In this case, this is a distinction without a difference. Even if defendant's employee, Schuck, had not told Slaughter about the Light family address and Dr. Light, the police inevitably would have discovered this information. In such a case, defendant would have eventually reported to the police that the Light family address and Dr. Light were associated with the Slaughter One account.
The case of Devis v. Bank of America, supra, 65 Cal.App.4th 1002 disposes of all of plaintiffs' negligence theories except one--defendant's alleged negligent failure to assist Dr. Light while the Hawthorne police were executing the search warrant. In Devis, the court noted that the official reporting privilege did not relieve the bank of attempting to secure Devis's release after the bank learned that Devis had not committed forgery. The court approved the rule set forth in section 322 of the Restatement Second of Torts: " 'If an actor knows or has reason to know that by his conduct, whether tortuous or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.' " (65 Cal.App.4th at p. 1010.) Nonetheless, because it was undisputed in Devis that the bank could not have secured the plaintiff's release any earlier, the Court of Appeal affirmed the trial court's grant of summary judgment on this issue.
*12 Likewise in the this case, the evidence shows that when Dr. Light and Detective Connor called defendant during the execution of the search warrant, defendant could not assist them because their computers were not working properly. Therefore, it appears there was nothing that defendant could have done to shorten the duration of the search.
In any event, taking judicial notice of our opinion in Light v. City of Hawthorne, supra, B151713, we held that it was objectively reasonable for the police to seize and detain Dr. Light and his daughters. Therefore, we must conclude that because plaintiffs did not suffer a compensable injury by being detained in their home, defendant is not liable for allegedly negligently prolonging the search by failing to assist Dr. Light while the police were executing the search warrant.
Finally, plaintiffs also argue that defendant owed them a duty to warn them that Slaughter was going to the police. However, plaintiffs have provided no authority indicating the existence of a duty to inform plaintiffs a third person might make a report to the police.
The trial court did not err by granting defendant's motion for summary judgment as to plaintiffs' cause of action for negligence.
C. Intentional Infliction of Emotional Distress or Negligence
In Christensen v. Superior Court (1991) 54 Cal.3d 868, the Supreme Court identified the elements a plaintiff must show to state a cause of action for intentional infliction of emotional distress: " ' "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct...." Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community .' [Citation.] The defendant must have engaged in 'conduct intended to inflict injury or engaged in with the realization that injury will result.' [Citation.] [¶] It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware" (Id. at p. 903.)
On this record, taken in the light most favorable to plaintiffs, the evidence indicates that AT & T released information that Dr. Light's name and his family's address were associated with the fraudulent Slaughter One account. Plaintiffs have presented no authority that AT & T's release of this information amounted to conduct so extreme as to exceed all bounds of that usually tolerated in a civilized community.
Moreover, the police and Slaughter would have inevitably discovered that Dr. Light's name and address were associated with the Slaughter One account. As such, the facts of this case do not give rise to a tort for intentional infliction of emotional distress.
D. Award of Costs
*13 The trial court awarded defendants costs in the amount of $35,097 .09. Plaintiffs' first contention is that the trial court erred by awarding any costs because it erred by granting summary judgment in favor of defendant. We reject this argument. As explained, above, the trial court did not err by granting summary judgment in defendant's favor.
Plaintiffs' second argument is that if this court determines that the trial court did not err by granting summary judgment in favor of defendant, of the costs awarded, the trial court abused its discretion by awarding $24,114.50 in expert witness fees to defendant, as well as other costs itemized below. Plaintiffs claim that defendant's section 998 offer to compromise in the amount of $4,000 was not reasonable nor in good faith, and, therefore, defendant is not entitled to expert witness fees. Plaintiffs assert that the value of the case at the time that defendant made its section 998 offer far exceeded the amount offered. We conclude the trial court did not abuse its discretion.
We review for abuse of discretion the trial courts award of costs. (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 700.) Moreover, "[i]t is the general rule that where a party shows a prima facie entitlement to costs, the burden is on an objector to prove the costs should be disallowed." (Ibid.)
Section 998 provides in pertinent part: "(b) Not less than 10 days prior to commencement of trial or arbitration ... of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. [¶] ... [¶] (c)(1) 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 not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer. In addition, in any action or proceeding ..., the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant."
Only good faith and reasonable settlement offers qualify as valid offers pursuant to section 998. (Colbaugh v. Hartline (1994) 29 Cal.App.4th 1516, 1527-1528.) In Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d 692, the Court of Appeal explained: "Where, as here, the offeror obtains a judgment more favorable than its offer, the judgment constitutes prima facie evidence showing the offer was reasonable and the offeror is eligible for costs as specified in section 998. The burden is therefore properly on plaintiff, as offeree, to prove otherwise." (195 Cal.App.3d at p. 700.)
*14 To evaluate a section 998 offer, the trial court first examines whether the amount offered was a reasonable prediction of what defendant would have to pay plaintiff, if anything, after trial, discounted for the plaintiff's early receipt of money, "all premised upon information that was known or reasonably should have been known to the defendant." (Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d at p. 699, italics in original .) [FN17] The trial court must then inquire whether the information was known or reasonably should have been known to the plaintiff, to assure that the plaintiff had a basis for knowing whether to accept the offer. (Ibid.) [FN18] Moreover, trial courts are permitted to assess reasonableness in light of the final judgment. (Id. at p. 700 ["The trial court was entitled to infer unreasonableness from the jury verdict."] )
FN17. On this point, the Elrod court explained: "It goes without saying that a defendant is not expected to predict the exact amount of his
exposure. If an experienced attorney or judge, standing in defendant's shoes, would place the prediction within a range of reasonably possible results, the prediction is reasonable." (Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d at p. 699.)
FN18. On this point, the Elrod court emphasized: "However, we emphasize the reasonableness of defendant's offer does not depend on information actually known to plaintiff but rather on information that was known or reasonably should have been known. The latter standard is an objective one: would a reasonable person have discovered the information? A contrary conclusion would make defendant's good faith incongruously depend on plaintiff's subjective knowledge and would reward plaintiffs who are dilatory in pursuing discovery. Thus, if a defendant makes a low offer shortly before trial based upon potent evidence likely to insulate defendant from liability, and if the evidence was reasonably available to plaintiff, defendant's offer may qualify as a valid section 998 offer even though plaintiff did not in fact know of the information because he failed to investigate or pursue discovery." (Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d at p. 700, italics in original.)
In this case, plaintiffs claim that defendant's settlement offer was not reasonable and that it was made in bad faith. Specifically, plaintiffs assert that the offer was extremely low and did not reasonably relate to defendant's potential exposure at trial. Plaintiffs also assert that at the time of defendant's section 988 offer to compromise, defendant had withheld material documents which would have shown that defendant faced potential liability for the invasion of the Light home by the Hawthorne police. [FN19]
FN19. On this discovery issue, the trial court commented: "[U]ltimately[,] the Court of Appeal said all of that was irrelevant. There were no records in there that showed anything. So your arguments about having to be in here every week on an ex parte in order to get documents produced are not supported by what ultimately was produced and the Court of Appeal's analysis on what was relevant and what was not."
Moreover, plaintiffs contend that defendant's section 998 settlement was in bad faith because it was made two months before trial at a time when plaintiffs reasonably believed that defendant's first motion for summary judgment would be denied. Plaintiffs also assert that the trial court placed far too much emphasis upon this court's tentative order in response to defendant's petition for a writ of mandate.
Finally, plaintiffs assert that under the facts of the case, the award of costs was simply unfair because plaintiffs were completely innocent; plaintiffs could have done nothing more to prevent the incident they encountered; and defendant was responsible for initiating the sequence of events which led to the Hawthorne Police executing a search warrant on the Light family home. In this regard, plaintiffs explain that most of defendant's costs were incurred after the trial court denied defendant's first motion for summary judgment.
Despite plaintiffs' contentions and sympathetic arguments, we conclude the trial court did not abuse its discretion by awarding defendant its expert witness fees. In other words, the trial court did not abuse its discretion by concluding that defendant's section 998 offer was reasonable and made in good faith.
The circumstances known to both parties at the time of defendant's section 998 offer to compromise demonstrate that the trial court did not abuse its discretion. Defendant served its section 998 offer approximately two months before the initial trial date. At that time, plaintiffs either knew or should have known that their claims against defendant lacked merit or were barred by certain legal doctrines and principles. For example, defendant's statements to Slaughter were not defamatory. To the extent the statements were in any way defamatory, the statements were privileged pursuant to the common interest and official reporting privileges.
*15 Likewise, each of plaintiffs' remaining causes of action for negligence and intentional infliction of emotional distress lacked merit based upon the inevitable discovery doctrine and the official reporting privilege.
Plaintiffs also assert that the discovery provided by defendant well after it served its 998 offer to compromise in response to plaintiffs' motions to compel shows that there are triable issues of fact that defendant engaged in conduct for which it should have been found liable. We reject this argument as did the trial court. Having the benefit of being fully briefed about defendant's alleged discovery abuses, and the documents that defendant subsequently produced, none of this discovery changes the result in this case. In other words, even in light of this additional discovery interpreted most favorably for plaintiffs, their claims against defendant are nevertheless barred as a matter of law.
Plaintiffs also assert that the trial court abused its discretion by awarding certain specific costs. When the cost items are allowed by statute, the test for awarding such costs is whether the costs were "reasonably necessary" in the litigation. (Code Civ. Proc., § 1033.5, subd. (c)(2); [FN20] Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) We conclude the trial court did not abuse its discretion.
FN20. Code of Civil Procedure section 1033.5 (hereinafter section 1033.5) provides in pertinent part: "(a) The following items are
allowable as costs under Section 1032:[¶] (1) Filing, motion, and jury fees. [¶] ... [¶] (3) Taking, videotaping, and transcribing necessary depositions including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed, and travel expenses to attend depositions. [¶] (4) Service of process by a public officer, registered process server, or other means, ... [¶] (7) Ordinary witness fees pursuant to Section 68093 of the Government Code. [¶] (8) Fees of expert witnesses ordered by the court. [¶] ... [¶] (13) Any other item that is required to be awarded to the prevailing party pursuant to statute as an incident to prevailing in the action at trial or on appeal. [¶] ... [¶] (c) Any award of costs shall be subject to the following: [¶] (1) Costs are allowable if incurred, whether or not paid. [¶] (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. [¶] (3) Allowable costs shall be reasonable in amount. [¶] (4) Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion."
1. Deposition Costs
Plaintiffs assert the trial court abused its discretion by awarding deposition-related costs in the amount of $5,166.10.
Plaintiffs object to $1,303.03 in travel-related deposition expenses. Section 1033.5, subdivision (a)(3), expressly permits the award of travel costs to necessary depositions. Plaintiffs do not argue the depositions were not necessary. Instead, plaintiffs assert the travel expenses were not reasonable on the basis that defendant retained a San Diego based law firm to defend this litigation when defendant could have hired a local firm.
We reject this argument. Plaintiffs have provided no authority that a defendant must be limited to an award of those travel costs which would have been incurred had defendant retained a local law firm to represent it. While the location of defendant's law firm is a factor the trial court may consider, there is nothing per se unreasonable about retaining a San Diego based law firm to serve a client in the Los Angeles area. Moreover, the travel costs appear to be modest and reasonable.
Plaintiffs also object to the costs of videotaping Dr. Light's and Dr. Zaremski's depositions in the amount of $1,502. Section 1033 .5, subdivision (a)(3), expressly permits an award of costs for videotaping necessary depositions. Again, plaintiffs make no assertion that these depositions were not necessary.
Instead, without citation to any authority, plaintiffs assert that Drs. Light and Zaremski would have been available for trial, and, therefore, the decision to videotape their depositions was not reasonable. There may be myriad reasons why defense counsel may choose to videotape a deposition. Preserving testimony for trial is not the only reason. Moreover, plaintiffs failed to present any evidence that the videotaping costs were not reasonable. For instance, plaintiffs did not submit any evidence to the trial court indicating what constitutes a reasonable cost for video tapping a deposition in the Southern California area.
*16 Section 1033.5, subdivision (a)(3), also permits the award of certain deposition "taking" costs. Plaintiff also asserts that the trial court improperly awarded "taking" costs to defendant, when the depositions were actually taken by plaintiffs. Specifically, plaintiffs object to the "taking" costs for Samuel Black ($273.10), Neil Connor ($601.25), Michael Frazier ($233.40), Christina Schuck ($890.82) and Susan Slaughter ($332.50). In response to this objection before the trial court, by the declaration of its counsel, defendant notified the trial court that it had inadvertently listed these expenses in the "taking" column in its memorandum of costs rather than in the "transcribing" cost column in the memorandum of costs. The trial court impliedly resolved this dispute in favor of defendant by awarding the costs. We will not disturb this finding on appeal.
Moreover, section 1033.5, subdivision (a)(3), expressly permits the award of transcribing costs. Plaintiffs do not assert that the above-listed costs were not reasonable as transcribing costs.
2. Conference Room Costs
Plaintiffs claims the trial court abused its discretion by awarding defendant $600 for the use of a conference room for a deposition of an expert. Section 1033.5 does not specifically provide for an award of this cost item. However, subdivision (c)(4) of section 1033.5, quoted above, permits a trial court to award cost items not expressly listed in other subdivisions of sec
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