United States District Court,

E.D. California.

TYESHINA SYKES, an individual, and JLS, by and through her guardian ad litem TYESHINA SYKES, an individual, Plaintiffs,

v.

DONALD JAMES SHEA, an individual; KUNKEL TRUCK LINES, INC., a South Dakota Corporation; and DOES 1-30; Defendants.

DONALD JAMES SHEA, an individual and KUNKEL TRUCK LINES, INC., a South Dakota Corporation, Counter-Claimants,

v.

TYESHINA SYKES, an individual, and Does 1-10, Counter-Defendants.

CIV. NO. 2:16-02851 WBS GGH

|

10/31/2017

 

 

MEMORANDUM AND ORDER RE: DEFENDANTS’ MOTION TO AMEND, MOTION TO BIFURCATE, AND MOTION FOR SUMMARY JUDGMENT

*1 Tyeshina Sykes (“Sykes”) initiated this action on behalf of herself and J.S., a minor, against defendants Donald James Shea (“Shea”) and Kunkel Trucking, Inc. (“Kunkel”) alleging negligence based personal injury claims related to a motor vehicle collision involving a truck driven by Shea and owned by Kunkel. Before the court are: (1) defendants’ Motion to Amend Answer (Docket No. 20)1 ; (2) defendants’ partial Motion for Summary Judgment (Docket No. 22); and (3) defendants’ Motion to Bifurcate (Docket No. 21).

 

 

1. Background

On May 11, 2015, Sykes was driving a Toyota Avalon on Highway 5 when her vehicle hit a pothole, causing her lights to go out and engine to stop running. (Decl. of Lauren Horwitz in Supp. of Pls.’ Opp’n to Defs.’ Partial Mot. for Summ. J. (“Horwitz Decl.”) ¶ 2 (Docket No. 28-1).) Sykes’ sister and child, J.S., were in the car at the time. (Id.) Sykes parked her vehicle on the side of the road and exited the vehicle. (Id.) Sykes’ vehicle was then struck by a truck operated by Shea. (Id.) The complaint alleges that plaintiffs sustained personal injuries after defendants’ vehicle struck Sykes’ parked vehicle. (Compl. ¶ 20 (Docket No. 1-1).)

 

At the time of the incident, Sykes owned the Toyota Avalon she was driving. (Decl. of J. Stephanie Krmpotic in Supp. of Defs.’ Mot. for Partial Summ. J. (“Krmpotic Decl.”), Ex. A, Sykes’ Interrog. Resp. No 13 (Docket No. 22-2).) During Sykes’ deposition, although Sykes claimed she had insurance for the car at the time of the accident, she conceded that she did not know the time period covered through her supposed policy. (Krmpotic Decl., Ex. B, Sykes’ Dep. 87.) Additionally, she could not remember when she last paid any premiums for her insurance, and she was uncertain whether she kept a certificate of insurance in her car. (Id.) She also could not remember her insurance limits, how much she paid for the insurance policy, or whether she had any documents indicating that she had insurance. (Id.) Sykes later admitted that she did not have an insurance policy in effect at the time of the collision. (Pls.’ Opp’n to Defs.’ Mot. to Bifurcate 3 (Docket No. 30).)

 

Sykes assigned a cash deposit of $35,000 with the Department of Motor Vehicles (“DMV”) after the collision. (Id.) On January 21, 2016, Sykes received a letter from the DMV that it had received and accepted her deposit. (Decl. of Tyeshina Sykes in Supp. of Pls.’ Opp’n to Defs.’ Mot. for Summ. J., Ex. 3 (Docket No. 28-2).)

 

On October 31, 2016, plaintiffs commenced this action in the Superior Court of California, County of Sacramento. The complaint identified one cause of action against all defendants for general negligence and alleged loss of income and earning capacity, past and future medical expenses, and general (non-pecuniary) damages for injuries to both plaintiffs. (Compl. ¶¶ 21-23.) The action was removed to federal court on December 2, 2016. (Docket No. 1.)

 

*2 II. Partial Motion for Summary Judgment A partial motion for summary judgment is governed by

 

the same standard as a motion for summary judgment. See Fed. R. Civ. P. 56. Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the party opposing the motion and draw all justifiable inferences in its favor. Matsushita, 475 U.S. at 587. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge…ruling on a motion for summary judgment.” Anderson, 477 U.S. at 255.

 

Defendants move for partial summary judgment pursuant to Federal Rule of Civil Procedure Rule 56(a) on Sykes’ claim for non-economic damages. Defendants argue that because Sykes’ claim arises out of the operation or use of a motor vehicle which Sykes owned, and the vehicle was not insured as required by California Civil Code § 3333.4(a)(2), she is barred from receiving non-economic damages. In the alternative, defendants argue Sykes should not be able to recover non-economic damages because Sykes was the operator of a vehicle involved in an accident and she cannot establish her financial responsibility pursuant to California Civil Code § 3333.4(a)(3).

 

In relevant part, California Civil Code § 3333.4 states:

(a) In any action to recover damages arising out of the operation or use of a motor vehicle, a person shall not recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages if any of the following applies:

(2) The injured person was the owner of a vehicle involved in the accident and the vehicle was not insured as required by the financial responsibility laws of this state.

(3) The injured person was the operator of a vehicle involved in the accident and the operator can not establish his or her financial responsibility as required by the financial responsibility laws of this state.

 

 

Cal. Civ. Code § 3333.4(a)(2)-(3).

1. Operation and Use of Vehicle

Although Sykes was not in her vehicle when the accident occurred, she was nevertheless required to possess automobile insurance or otherwise establish her financial responsibility in order to comply with Civil Code § 3333.4(a). See Harris v. Lammers, 84 Cal. App. 4th 1072 (1st Dist. 2000) (holding that § 3333.4(a) applied to case in which plaintiff was struck in parking lot while standing outside her vehicle because action was one “arising out of the use of a motor vehicle.”) The Harris court determined that although plaintiff was not in her vehicle when she was injured, she was still obligated to possess automobile insurance in order to recover non-economic damages.

 

*3 Plaintiff seeks to distinguish Harris on the ground that plaintiff in that case had been handing supplies to her children seated inside the car, and it was the act of loading the vehicle that constituted use of the car. However, the Harris court explained that plaintiff had used her “car to transport her children and supplies and the accident arose out of and flowed from that use. Plaintiff was in the parking lot where the accident occurred precisely because she was using the car to transport her children and supplies.” Id. at 1077. Accordingly, the fact that Sykes was not loading or unloading her car is irrelevant. Sykes had been using her car to transport her child and herself. As in Harris, Sykes had driven her uninsured vehicle to the location where the accident occurred, and thus was on the side of the highway precisely because she was using the car for transportation. Accordingly, plaintiff’s attempt to differentiate Harris on this ground fails. The fact that Sykes was not physically in contact with the car does not mean that she was not using it.

 

Plaintiff further attempts to distinguish Harris by arguing that Sykes had left her car for approximately fifteen to twenty minutes before the accident occurred, and thus too much time had elapsed for Sykes’ actions to constitute use of the car. However, in Harris length of time was not discussed, and there is no case law indicating that fifteen minutes is too great a period of time. Sykes may have been outside of her parked vehicle for twenty minutes before she was struck by it after defendants’ vehicle collided with her vehicle, but that fact is not sufficient to distinguish the case at hand from Harris.

 

Accordingly, Sykes’ claim is one that arises out of the operation of a motor vehicle. Therefore, § 3333.4 applies, which bars Sykes from asserting a claim for non-economic damages if she lacked insurance at the time of the incident or cannot otherwise establish her financial responsibility pursuant to § 3333.4(a)(3).

 

 

1. Insurance and Financial Responsibility

The California Vehicle Code sets forth four methods by which one may establish compliance with the financial responsibility laws. Three of the methods require the person have insurance or a bond at the time of the accident. (See Cal. Veh. Code § 16054.) The fourth method provides that financial responsibility may be established by depositing cash with the DMV. (See Cal. Veh. Code § 16054.2)2

 

It is undisputed that, at the time of the accident, Sykes had no form of financial responsibility in effect. Sykes concedes that she did not possess insurance at the time, and she did not deposit money with the DMV until after the accident. (Pls.’ Opp’n to Defs.’ Mot. to Bifurcate 3.) However, Sykes argues that her post-accident cash deposits with the DMV make her “financially responsible” and thus eligible to recover non-economic damages. (Pls.’ Opp’n to Defs.’ Mot. for Summ. J. 10 (Docket No. 28).)

 

The “requirement of financial responsibility” referenced in § 3333.4 “is found in Vehicle Code section 16020, and defined by Vehicle Code section 16021.” Goodson v. Perfect Fit Enterprises, Inc., 67 Cal. App. 4th 508, 512 (2d Dist. 1998). Section 16020 provides that “all drivers and all owners of a motor vehicle shall at all times be able to establish financial responsibility pursuant to Section 16021, and shall at all times carry in the vehicle evidence of the form of financial responsibility in effect for the vehicle.” Among the forms of financial responsibility that must be “in effect” at “all times” is any cash deposit with the DMV. See Cal. Veh. Code § 16021(d); see also Figueroa v. United States, Civ. No. 15-555 JFW ASX, 2015 WL 11438605, at *3 (C.D. Cal. Dec. 9, 2015) (rejecting plaintiffs’ contention that their cash deposits with the DMV two years after the accident made them financially responsible). Accordingly, the financial responsibility referenced in § 3333.4 is “a responsibility concurrent with vehicle ownership or operation.” Goodson, 67 Cal. App. 4th at 515; see Ruttenberg v. Dep’t of Motor Vehicles, 194 Cal. App. 3d 1277, 1285 (1st Dist. 1987) (“The financial responsibility law is intended to provide a guarantee that every driver will be financially responsible before he begins driving.”).

 

*4 Sykes argues that the cash deposit does not need to be in effect at the time of the accident. She contends that the cash-deposit statute does not include a timing requirement like the other methods set forth in the Vehicle Code, thereby indicating that the California Legislature intended there to be a difference in meaning. However, California courts have determined that:

The Legislature declared that drivers of automobiles in the state shall be financially capable of providing monetary protection to those suffering injury to their person or property by reason of the use of such vehicle regardless of fault of the drivers and such capability shall be deemed as a concurrent responsibility of such motor vehicle operation.

 

(Id.) (citations omitted). The Ruttenberg court further clarified that “the intent of the Legislature in passing the act is unambiguous.” (Id.) Accordingly, plaintiff’s contention that the cash deposit does not need to be made prior to the collision is unpersuasive.

 

Because Sykes was not insured as required by the California financial responsibility laws at the time of the collision and her deposits with the DMV after the accident do not render her “financially responsible,” she cannot establish that she was compliant with section § 3333.4 at the time of the accident. Accordingly, she is precluded from recovering non-economic damages and the court must grant defendants’ partial motion for summary judgment.

 

 

III. Motion to Bifurcate

Defendants submitted this motion only in the event that their partial motion for summary judgment was denied. Because the court will grant defendants’ partial motion for summary judgment, their motion to bifurcate is now moot.

 

IT IS THEREFORE ORDERED that defendants’ partial motion for summary judgment be, and the same hereby is, GRANTED. Plaintiff Tyeshina Sykes may not recover damages for non-economic losses to compensate for her pain, suffering, inconvenience, physical impairment, disfigurement, or other nonpecuniary damages in this action;

 

IT IS FURTHER ORDERED that defendants’ motion to bifurcate be, and the same hereby is, DENIED as moot; and

 

IT IS FURTHER ORDERED that defendants’ motion to amend answer be, and the same hereby is, GRANTED. Dated: October 31, 2017

 

All Citations

Slip Copy, 2017 WL 4923327

 

 

Footnotes

1

Plaintiffs do not oppose defendants’ Motion to Amend Answer. Accordingly, the motion is granted and will not be discussed in this memorandum.

2

Section 16054.2(a) states that “evidence may also be established by any of the following: By depositing with the department cash in the amount specified in Section 16056.” Section 16056(a) requires that the deposited amount be at least $35,000.00.

 

 

Court of Appeals of Arizona,

Division 1.

JESUS R. FRANCO RODRIGUEZ, Plaintiff/Appellee,

v.

NELS A. WISE, et al., Defendants/Appellants.

No. 1 CA-CV 16-0331

|

FILED 11-9-2017

Appeal from the Superior Court in Maricopa County

No. CV2013-016284

The Honorable Lori Horn Bustamante, Judge

AFFIRMED IN PART, REVERSED IN PART AND REMANDED

Attorneys and Law Firms

COUNSEL, Miller Pitt Feldman & McAnally PC, Phoenix, By Nathan J. Fidel, Jose de Jesus Rivera, Nathan B. Webb, Stanley G. Feldman, Counsel for Plaintiff/Appellee

Hill Hall & DeCiancio PLC, Phoenix, By Joel DeCiancio, Christopher Robbins, Counsel for Defendant/Appellant

Levenbaum Trachtenberg PLC, Phoenix, By Geoffrey M. Trachtenberg, Law Offices of Raymond J. Slomski, PC, Phoenix, By Adam A. Studnicki, Co-Counsel for Amicus Curiae

Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge James P. Beene and Judge Randall M. Howe joined.

 

 

MEMORANDUM DECISION

CATTANI, Judge:

*1 ¶1 This is an appeal following a plaintiff’s verdict in favor of Jesus Franco Rodriguez in a personal injury case. Nels and Dee Wise (collectively, “Wise”) challenge in particular the superior court’s imposition of sanctions against them under Arizona Revised Statutes (“A.R.S.”) § 12-349(A), and the court’s determination of costs under A.R.S. § 12-332(A). For reasons that follow, we reverse the superior court’s inclusion of certain investigative expenses under § 12-332 and remand to determine the nature of expenses awarded for messenger fees. In all other respects, we affirm.

 

 

FACTS AND PROCEDURAL BACKGROUND

¶2 Rodriguez brought a claim for negligence against Wise stemming from an automobile accident. After the accident, Rodriguez was transported by ambulance to the hospital, where he stayed overnight. In the weeks following the accident, Rodriguez received 24 chiropractic treatments for persistent pain. Three months after the accident, Rodriguez received a cranial CT scan to rule out head trauma. He incurred a total of over $44,000 in medical expenses, and his automobile had extensive damage and was not drivable.

 

¶3 Rodriguez disclosed his medical records and the witnesses who would testify that his medical treatment and bills were reasonable, necessary, and caused by the accident. Wise did not provide witnesses to contest these issues, and Rodriguez subsequently sent Wise discovery requests seeking admissions regarding those issues. Wise denied that the medical bills were reasonable and necessary, objecting on the basis that the requests “attempt[ ] to shift the burden of proof” and insisted that all treating physicians testify. Wise also refused to admit that the medical bills were kept in the course of regularly conducted business.

 

¶4 Rodriguez thereafter filed a motion for partial summary judgment and a motion to compel responses to his request for admissions. The superior court denied both motions, reasoning that Wise had the right to require Rodriguez to prove his case to a jury.

 

¶5 Rodriguez deposed six witnesses regarding their respective treatments and bills. During four of the depositions, Wise’s counsel did not ask whether the treatment or bills were reasonable or necessary, and in one deposition Wise’s counsel asked no questions at all. Only during the deposition regarding the CT scan did Wise’s counsel question the reasonableness, necessity, and reasons for the treatment.

 

¶6 Regarding the damage to Rodriguez’s truck, Wise’s counsel disclosed a repair estimate from Wise’s automobile insurance company. But Wise’s counsel refused to identify the appraiser for purposes of trial and would not stipulate to the amount of the appraisal. Only after being ordered by the court to either agree to a stipulated amount or provide the appraiser’s identity did counsel stipulate to the amount of property damage.

 

¶7 Ten days before trial, Wise admitted negligence but continued to deny the extent of causation and damages. However, during opening statements at trial, Wise’s counsel acknowledged that the “vast majority” of medical bills and treatment were related to the accident. At that point—and only after being pressed by the court—Wise’s counsel indicated that out of the over $44,000 of claimed medical expenses, only two treatments were contested: $275 for a physician’s consultation and $4,165 for the CT scan.

 

*2 ¶8 The jury returned a verdict in favor of Rodriguez for $100,000. Rodriguez then moved for sanctions under Arizona Rules of Civil Procedure 68(g) and A.R.S. § 12-341 because Wise had rejected an offer of judgment for $100,000, and as relevant here, for sanctions under A.R.S. § 12-349 because Wise “needlessly created unnecessary costs … and prolonged trial.” The superior court granted sanctions of $28,169.08 under Rule 68(g) and § 12-341, and $39,700 under (among other alternative grounds) § 12-349.

 

¶9 Wise timely appealed, and we have jurisdiction under A.R.S. § 12-2101(A)(1).

 

 

DISCUSSION

¶10 Wise argues that the superior court erred by imposing sanctions under § 12-349, and that the superior court erred by including expenses in the award under Rule 68(g) and § 12-341 that are not taxable costs under § 12-332. We address each argument in turn.

 

 

1. Sanctions Under A.R.S. § 12-349(A)(3).

¶11 We review application of § 12-349 de novo. Phx. Newspapers, Inc. v. Dep’t of Corr., 188 Ariz. 237, 244 (App. 1997). Under § 12-349(A)(3), if an attorney or party “unreasonably expands or delays the proceeding” the court must award reasonable attorney’s fees and expenses. The relevant question is whether “a party’s (or attorney’s) actions caused unreasonable delay and expansion of the proceedings.” Solimeno v. Yonan, 224 Ariz. 74, 82, ¶ 32 (App. 2010). To evaluate whether a discovery sanction was proper, we determine (1) whether the superior court had a proper basis for the sanction, and (2) if so, whether the amount was appropriate. See id. at 81–82, ¶¶ 28, 34. An assessment whether the costs requested are reasonable is “peculiarly within the discretion of a trial court, and will not be disturbed absent a showing of abuse of that discretion.” Id. at 82, ¶ 36.

 

¶12 Here, nearly all the treatment Rodriguez received was within 24 hours of the accident. Wise was given the medical records relating to the treatment, but nevertheless insisted (without indicating which issues were disputed) that testimony would be required from all treating physicians. The parties conducted six lengthy depositions, with Wise substantively cross-examining only one of the witnesses regarding Rodriguez’s bills and treatment. Wise’s counsel waited until opening statements at trial to narrow issues by conceding that only two of the six treatments and bills were contested.

 

¶13 Similarly, although Rodriguez was willing to stipulate to the property damage estimated by Wise’s own appraiser, Wise would not agree to do so. And refused to identify the appraiser so Rodriguez could subpoena him. Only when the court ordered Wise to stipulate or provide the appraiser’s identity did Wise agree to the amount of property damage.

 

¶14 Under these circumstances, there was a basis for sanctions under § 12-349(A)(3). Wise was entitled to deny Rodriguez’s requests for admissions and require Rodriguez to prove his case. But after receiving and reviewing the relevant medical records, Wise could have narrowed the scope of the issues to be addressed at trial and avoided significant costs by agreeing to forgo depositions that were apparently of little importance to him, as evidenced by the absence of meaningful cross-examination of the witnesses.

 

¶15 Wise argues the superior court abused its discretion because it is unfair to impose sanctions after trial when the court originally agreed that there was a basis to deny the requests for admissions. But the superior court’s pretrial ruling does not end the analysis regarding whether Wise unnecessarily increased the cost of the litigation. Even assuming the requests for admission were overbroad or that Wise otherwise had a legitimate basis for denying them, Wise could have admitted which issues were contested before insisting that witnesses be deposed or provide trial testimony. Thus, the fact that the court agreed Rodriguez had a legitimate basis to oppose the requests for admissions does not call into question its post-trial sanctions determination.

 

*3 ¶16 Because there was a basis for sanctions under § 12-349, we do not address other bases for sanctions considered by the superior court. See State v. Robinson, 153 Ariz. 191, 199 (1987) (holding that an appellate court may affirm on any basis supported by the record).

 

¶17 Sanctions awarded under § 12-349(A) may include “reasonable attorney fees, [and] expenses.” The superior court is given “wide latitude in assessing the amount” of sanctions. Fowler v. Great Am. Ins. Co., 124 Ariz. 111, 114 (App. 1979). Ultimately, sanctions should reflect the additional expenses caused by the sanctionable conduct. Taliaferro v. Taliaferro, 188 Ariz. 333, 341 (App. 1996).

 

¶18 Here, the superior court imposed sanctions for the expenses of proving that the medical bills and treatments were reasonable and necessary. The sanctionable conduct was Wise’s unjustified refusal to admit the reasonableness and necessity of the medical bills and treatment after having reviewed the medical records. Rodriguez was forced to prepare for and conduct six depositions regarding the medical bills and treatments, even though the depositions arguably did not further the resolution of any disputed issue. Thus, the amount of the sanctions imposed is properly related to Wise’s conduct.

 

¶19 Further, the superior court excluded from the computation expenses related to activities unrelated to Wise’s failure to narrow the issues—such as expenses associated with the motion for summary judgment, the disclosure and joint pretrial statement, and delivery of trial exhibits. Accordingly, the superior court did not abuse its discretion in determining the appropriate sanction amount.

 

 

332. Classification of Costs Under A.R.S. § 12-332.

¶20 Costs are defined by statute and include: “1. Fees of officers and witnesses. 2. Cost of taking depositions. 3. Compensation of referees. 4. Cost of certified copies of papers or records.” A.R.S. § 12-332(A)(1)–(4). Wise concedes Rodriguez is entitled to costs under § 12-341, and double costs under Rule 68(g). However, Wise argues the superior court erred by considering certain expenses as taxable costs.

 

¶21 We review de novo whether an expense is included within the definition of taxable cost under A.R.S. § 12-332(A) because it is a question of law. Reyes v. Frank’s Serv. & Trucking, LLC, 235 Ariz. 605, 608, ¶ 6 (App. 2014). However, a determination that a particular expense is factually within a category of taxable costs is reviewed for an abuse of discretion. Graville v. Dodge, 195 Ariz. 119, 130, ¶ 53 (App. 1999). Here, Wise challenges the inclusion of the following items as taxable costs: (1) videotaped depositions, (2) investigator expenses, (3) certain TurboCourt fees, and (4) messenger service fees.

 

¶22 Wise argues the videotaped depositions are not taxable “costs of taking depositions” because the intent was always that they be used at trial. But expenses related to videotaped depositions are “undeniably costs of taking depositions” under A.R.S. § 12-332(A)(2). Reyes, 235 Ariz. at 610–11, ¶ 20 (quotations omitted). Accordingly, the expenses for the videotaped depositions are taxable costs under § 12-332(A)(2).

 

¶23 Wise next argues that investigator expenses should not have been included. Although investigator expenses are not generally taxable costs, see A.R.S. § 12-332(A), here, some of the investigator expenses were attributable to locating already known witnesses for deposition. Thus, those expenses were essential for the witnesses to be “meaningfully deposed” and may be considered “ancillary deposition expenses.” See Reyes, 235 Ariz. at 610, ¶¶ 16–17 (holding that an interpreter fee was “a cost of taking the deposition” because the interpreter was required for the witness to be “meaningfully deposed”).

 

*4 ¶24 Investigator expenses to “interview” witnesses, however, are not ancillary deposition expenses. Unlike locating a witness, or interpreting for a witness, interviewing a witness prior to a deposition is not necessarily essential to a meaningful deposition. Thus, only the investigator expenses for locating witnesses for depositions are taxable costs under A.R.S. § 12-332(A)(2), and the superior court should not have considered the $202.90 expense for interviewing a witness as a taxable cost.

 

¶25 Wise also argues that because “various … fees are not associated with the date of any filing,” the superior court incorrectly found that some TurboCourt fees were “fees of officers.” But the TurboCourt fees correspond with filing dates, and as all parties acknowledge, filing fees are fees of officers and thus taxable under § 12-332(A)(1).

 

¶26 Finally, Wise argues the superior court erred by considering Rodriguez’s messenger expenses as taxable costs. Rodriguez listed several messenger expenses on the application for judgment but described many of them as investigation, filing, service of process, or subpoena fees. Messenger and delivery fees are not taxable costs under A.R.S. § 12-332. Ahwatukee Custom Estates Mgmt. Ass’n v. Bach, 193 Ariz. 401, 402, ¶ 6 (1999). Because the superior court did not specify which of the claimed messenger expenses were taxable costs, we remand for a determination of whether those expenses should be excluded as delivery fees as opposed to taxable fees of officers paid through the messenger service.

 

 

CONCLUSION

¶27 For the foregoing reasons, we affirm the superior court’s imposition of sanctions, but reverse the award of costs for interviewing a witness and remand to determine the nature of Rodriguez’s expenses denominated as messenger expenses. In an exercise of our discretion, we decline Rodriguez’s request for an award of attorney’s fees on appeal.