NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

HOLLENHORST, J.

I. INTRODUCTION

Plaintiffs Miguel Cuevas (Miguel) and his mother, Mireya Cuevas (Mireya), appeal from judgment in their action for personal injury and property damage against defendants Melissa Pucci (Melissa) and her mother, Margaret Pucci (Margaret).1 The Cuevases contend: (1) the trial court erred in denying their motion for new trial on the grounds of juror misconduct and trial irregularities; (2) insufficient evidence was introduced to prove either that Miguel was not wearing his seat belt or what his injuries would have been if he had been wearing his seat belt; and (3) the trial court erred in denying in their entirety their motions to tax costs. We find the trial court erred in awarding duplicate costs to Melissa and Margaret and in awarding certain specific costs. We therefore reverse the cost awards and remand the matter for further proceedings.

II. FACTS AND PROCEDURAL BACKGROUND

In the early morning of June 3, 2006, Melissa, driving a Ford Focus, started to make a right turn onto Bluff Street from River Road in Norco but changed her mind and instead made a U-turn, pulling back onto River Road in front of the GMC Sierra pickup truck Miguel was driving. Miguel's pickup "T-boned"2 the side of Melissa's car.

The Cuevases filed a complaint against the Puccis, alleging personal injuries and property damage; however, the Cuevases dismissed their claims against Margaret before trial, and Melissa admitted liability. Thus, the issues at trial were limited to causation, damages, and comparative negligence based on whether Miguel had been wearing his seatbelt.

At trial, Miguel testified that in the collision, his chest and neck went forward; his airbag deployed and hit his chest, and his knees hit the dashboard. He felt pain in his chest, back, neck, shoulder, and knee. However, he declined transport to the hospital because he wanted to go home to tell Mireya about the accident. He complained to Mireya of left shoulder and chest pain, and Mireya took him to the hospital.

Miguel testified he told the emergency room doctor that he had pain in his chest, back, neck, shoulder, and left knee. At the hospital, Mireya observed red marks from the seatbelt strap across Miguel's chest. X-rays were taken, he was given a prescription for Motrin, and he was released with instructions to ice his neck, knee, and shoulder. He did not recall anyone at the emergency room asking whether he had been wearing a seatbelt. Mireya likewise did not hear the emergency room doctor ask Miguel about seatbelt use.

In the next few days, Miguel experienced swelling and sharp pains. Nine days after the accident, he began treatment with Dr. Jose Ponce, a chiropractor. Miguel testified that he had received Dr. Ponce's name from the emergency room doctor, and Dr. Ponce had referred Miguel to his attorney. However, Dr. Ponce testified that an attorney had referred Miguel to him, and Dr. Ponce undertook Miguel's case on a lien. Miguel filled out a form for Dr. Ponce, in which Miguel did not list his neck among his complaints. Dr. Ponce observed bruising on Miguel's chest consistent with an injury from a seatbelt. The doctor diagnosed sprains and strains and expected to treat Miguel two or three times per week for about four weeks and then reassess his condition. However, Miguel did not return for treatment for three weeks, after which Dr. Ponce treated Miguel two or three times a week until mid-November 2006. Dr. Ponce ordered an MRI of Miguel's cervical and lumbar spine, because Miguel was experiencing pain, weakness, muscle spasms, and decreased range of motion.

Miguel testified that he was currently suffering daily low back pain and neck pain when he looked down. He reported difficulty in standing for a long period, and he had been able to sleep for only about two hours a night since the accident because his severe pain awakened him.

On August 10, 2006, Miguel visited Dr. Rahman at the Orthopedic Sports Spine Medical Group, an orthopedic doctor to whom Dr. Ponce had referred him. Dr. Rahman recommended medication and stretching only, and Miguel wanted to get another opinion. Dr. Rahman did not testify at trial.

On June 14, 2007, at the recommendation of his attorney, Miguel visited Dr. Gil Tepper, who testified as an expert witness for Miguel at trial. Dr. Tepper testified the emergency room records showed that Miguel had complained of pain in his chest, midback, and right knee; the records did not show that he then complained of neck pain, low back pain, or pain in the left knee.

Dr. Tepper had MRIs done on Miguel's neck, back, shoulder, and knee and performed arthroscopic surgery on Miguel's left knee in October 2007. On October 23, Miguel had an injection to his spine. Dr. Tepper described Miguel, who is six feet three or four inches tall, as "morbidly obese," weighing about 330 to 350 pounds. Dr. Tepper testified that excessive weight puts additional stress on the spine and the disks, but he disagreed that all of Miguel's injuries could have been caused by obesity. In his opinion, the problems were more likely from trauma because the higher levels of the lumbar spine were "pristine." Dr. Tepper testified that a 2008 MRI showed Miguel had a herniated disk in his neck at C6-7 with radiculopathy. In the doctor's opinion, the injury had been caused by the accident, because such an injury can occur from deceleration, such disease is uncommon in young persons, and degenerative disease would be more likely to appear first at C5-6. Dr. Tepper testified that Miguel would likely need lumbar spine surgery or cervical spine surgery within five years. The doctor also recommended lap-band weight loss surgery.

Dr. David Mortensen, a chiropractor, testified as an expert witness for the Puccis. Dr. Mortensen testified that Miguel's treatment should have begun promptly during the acute phase right after the accident, and Dr. Mortensen would have expected the treatment to involve 12 to 20 visits. Dr. Mortensen testified that Dr. Ponce continued to treat Miguel after there was any indication the treatment was helping, and the treatment Dr. Ponce provided was excessive.

Dr. Keith Liberman, an orthopedic surgeon, testified for the Puccis. In his opinion, Miguel had not sustained a disk injury to his neck or low back or an injury to the left knee in the accident, and Miguel's left knee surgery was not related to the accident. Dr. Liberman noted that the emergency room records referred only to Miguel's right knee.

Dr. Liberman also testified that Miguel had not suffered a low back disk injury from the accident, but had suffered only soft tissue injuries, including strains and sprains to tendons, muscles, or ligaments. If a person with soft tissue injuries receives treatment, the injuries will usually resolve within two or three months. To support his opinion that the accident had not caused low back disk injury, Dr. Liberman noted first that there was no indication of an acute traumatic injury, and there was no accumulation of fluid in Miguel's lower back. Second, even the first MRI, taken a few weeks after the accident, showed degenerative changes, which indicated Miguel had a process that had been developing for months or years, likely as a result of everyday activities. Third, annular fissuring, which was shown in a July 2007 MRI, is a sign of degenerative disk disease, and the report of that MRI noted mild degeneration. Finally, the MRI reports showed that the injured disk in Miguel's back was getting smaller, and it had been described as a bulge or protrusion, not a herniated disk.

Dr. Liberman further testified that in his opinion, Miguel did not suffer an injury to a disk in his neck from the accident. If such an injury had occurred, Dr. Liberman would have expected to see collection of fluid around the disk, and the MRI did not show any evidence of injury to the ligaments. Changes to Miguel's neck were seen in the first MRI, which indicated they had been present before the accident. In Dr. Liberman's opinion, Miguel did not need surgery because there was no evidence the MRI findings were related to Miguel's current symptoms, and the disk bulges had shrunk over time. Dr. Liberman believed Miguel's symptoms would be relieved by losing weight and getting in shape.

The jury entered a special verdict finding that Melissa's negligence had been a substantial factor in causing harm to Miguel. The jury found that Miguel's total damages were $27,679.70. The verdict form instructed, "Do not reduce the damages based on the fault, if any, of Miguel Cuevas." The jury also awarded $8,000 for future medical expenses and $10,000 for past noneconomic loss for a total of $45,679.70. The jury next found that Miguel and Melissa had each been 50 percent negligent and that Miguel's negligence had been a substantial factor in causing his harm.

Miguel brought a motion for new trial on the grounds of irregularity in the proceedings, juror misconduct, and insufficiency of the evidence. Following additional briefing and a hearing, the trial court denied the motion.

Additional facts are set forth in the discussion of the issues to which they pertain.

III. DISCUSSION

A. Denial of Motion for New Trial

The Cuevases contend the trial court erred in denying Miguel's motion for new trial on the grounds of juror misconduct and trial irregularities. Specifically, they contend (1) the trial court improperly sustained objections to juror declarations; (2) unrebutted evidence established that prejudicial juror misconduct occurred; and (3) irregularities occurred at trial.

1. Standard of Review

In reviewing an order denying a new trial, we review the entire record and make an independent determination as to whether errors complained of were prejudicial. (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 818.)

2. Additional Factual Background

After trial, Juror C.N., the jury foreperson, provided a declaration that included the following statements:

The Puccis' counsel objected to the declaration on the ground of hearsay. Following additional briefing and argument, the trial court sustained the objections to the declaration. With respect to Juror C.N.'s statement about Juror Joe R.'s remarks, the trial court stated, "It did not require any expertise to look at the projection and see that the image was placed in the projector backwards since it was clear to one and all that the identification marking on the image was reversed and was illegible . . . ." The trial court also noted that to the extent Juror Joe R. was giving a reason for not believing the witness, the declaration was inadmissible under People v. Duran (1996) 50 Cal.App.4th 103, 112-113.) Finally, the trial court observed that even if there had been misconduct, it would not justify setting aside the jury's unanimous verdict.

Juror A.K. also provided a declaration4 stating that (1) Juror Brian S. had said, "`I'm not giving to plaintiff anything'"; (2) two jurors had stated that Miguel had injured his back playing football; and (3) Juror Joe R. had stated that "most doctors do not read the films, but rely on the technicians to interpret the films," and the MRI film was wrong because it was reversed by the projector. With respect to the first statement in the declaration of Juror A.K., the trial court noted that Juror Brian S. had in fact voted to award damages to Miguel, albeit in a far lesser amount than Miguel requested. With respect to the second statement, the trial court observed that evidence of reasons given by a jury for his or her vote is inadmissible. With respect to the third statement, the trial court held that it was inadmissible hearsay and repeated the explanation the court had given with regard to the similar statement in Juror C.N.'s declaration.

3. Juror Misconduct

Evidence Code section 11505 makes inadmissible evidence "concerning the mental processes by which [the verdict] was determined." However, evidence of statements jurors made during deliberations is not hearsay when offered to show that such statements were made. "[J]urors may testify to `overt acts'—that is, such statements, conduct, conditions, or events as are `open to sight, hearing, and the other senses and thus subject to corroboration'—but may not testify to `the subjective reasoning processes of the individual juror. . . .' [Citation.] [¶] Among the overt acts that are admissible and to which jurors are competent to testify are statements. [Evidence Code] [s]ection 1150, subdivision (a), expressly allows proof of `statements made . . . either within or without the jury room . . . .'" (In re Stankewitz (1985) 40 Cal.3d 391, 398 (Stankewitz ).) The Stankewitz court continued, "Although this evidence may be received, it must be admitted with caution. Statements have a greater tendency than nonverbal acts to implicate the reasoning processes of jurors—e.g., what the juror making the statement meant and what the juror hearing it understood. They are therefore more apt to be misused by counsel in an effort to improperly open such processes to scrutiny. But no such misuse is threatened when . . . the very making of the statement sought to be admitted would itself constitute misconduct. Such an act is as much an objective fact as a juror's reading of a novel during the taking of testimony [citation], or a juror's consultation with an outside attorney for advice on the law applicable to the case [citation]." (Id. at p. 398, fn. omitted.)

The Cuevases contend the trial court erred in sustaining hearsay objections to the juror declarations. Despite finding certain statements in the declaration of Juror C.N. to be hearsay, the trial court nonetheless addressed the similar declarations in the declaration of Juror A.K. on their merits. We will therefore turn directly to the merits.

The Cuevases contend that both Jurors C.N. and A.K. stated in their declarations that Juror Joe R. had communicated extraneous expertise on the interpretation of MRI films, and such communication was misconduct. As the trial court noted, however, it was obvious to everyone that the MRI image had been placed in the projector backwards.6

With respect to Juror Joe R.'s statement that because Dr. Tepper did not point out the reversal, his testimony was not to be believed, we agree with the trial court that such statement was inadmissible as an explanation of a juror's thought process. (Evid. Code, § 1150; People v. Duran, supra, 50 Cal.App.4th at pp. 112-113.)

With respect to Juror C.N.'s declaration that one juror had stated he would not give Miguel anything, we note, as did the trial court, that all 12 jurors voted to award damages to Miguel, albeit in a lesser amount than he requested.

With respect to the declarations of Jurors A.K. and C.N. that two jurors had stated Miguel probably injured his back playing football, we note the record does contain some indication Miguel had played football, although he denied to Dr. Tepper that he had injured himself doing so. The issue of the causation of Miguel's injuries was hotly contested at trial; Miguel's experts attributed his injuries to the accident, while the Puccis' experts attributed the injuries to everyday activities and his weight. In this context, the jurors could properly discuss whether Miguel was credible in his denial of a sports injury as well as in other aspects of his testimony, such as whether his left knee injury resulted from the accident or whether he was wearing a seatbelt. Thus, we find no misconduct.

4. Irregularities at Trial

The Cuevases next challenge the trial court's denial of their motion for new trial on the grounds of irregularities in the proceedings and of misconduct of the Puccis' counsel, including: (1) the trial court's denial of the Cuevases' motion in limine to exclude evidence that Miguel had drunk a beer hours before the accident; (2) the introduction of evidence and argument that Miguel had driven negligently by speeding, failing to wear glasses, talking, and playing the radio; (3) misstatements about the testimony of Dr. Ponce; (4) the exclusion of Miguel's consistent interrogatory responses that demonstrated a claim of back injury; (5) the introduction of prejudicial surveillance tapes that showed Miguel smoking; (6) deducting twice for comparative fault; and (7) questioning Miguel about privileged materials. Despite this laundry list of alleged irregularities, plaintiffs provide argument and discussion about only one: the admission of evidence that Miguel had drunk a beer. We will therefore limit our discussion to that issue and will deem the additional contentions forfeited. (See, e.g., Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007 [argument on appeal was forfeited when the parties failed "to make a coherent argument or cite any authority to support their contention"].)

Miguel contends it was error to permit evidence and argument that he had drunk a beer more than four hours before the accident. Melissa admitted liability, and Miguel's blood alcohol level tested at 0.00 percent. Thus, we agree the evidence was not relevant to any disputed issue and had no tendency to establish Miguel's ability to hear, see, or recall the events. We agree that the evidence of alcohol consumption should have been excluded when there was no foundational showing that Miguel was under the influence at the time of the accident. (See, e.g., Linde v. Emmick (1936) 16 Cal.App.2d 676, 683.)

Nonetheless, reversal is not required unless erroneous admission of evidence resulted in a miscarriage of justice. (Evid. Code, § 353; Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 692.) Here, based on our independent review of the entire record (Iwekaogwu v. City of Los Angeles, supra, 75 Cal.App.4th at p. 818), we find the error in admitting such evidence was not prejudicial. Among other things, significant evidence indicated that Miguel sought to recover for medical treatment to his left knee when he reported injury only to his right knee immediately after the accident. Moreover, it simply defies common sense to speculate that any reasonable jury would have limited or denied personal injury damages on the basis that a 19-year-old consumed a single beer hours before the accident, particularly in light of the negative blood alcohol test and Melissa's concession of liability.

B. Sufficiency of Evidence

The Cuevases contend insufficient evidence was introduced to prove either that Miguel was not wearing his seat belt or what his injuries would have been if he had been wearing a seatbelt. A defendant in a personal injury case arising from an automobile accident who asserts that the plaintiff was comparatively at fault in failing to wear a seatbelt bears the burden of proving both that the plaintiff was negligent in failing to wear a seatbelt and what the consequences to the plaintiff would have been if the seatbelt had been worn. (Franklin v. Gibson (1982) 138 Cal.App.3d 340, 344.) Miguel challenges the sufficiency of the evidence to support both prongs of the defense.

1. Standard of Review

When we review a challenge to the sufficiency of the evidence to support a finding of the trier of fact, "we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.]" (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630.) "It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment." (Id. at pp. 630-631.) "In short, even if the judgment of the trial court is against the weight of the evidence, we are bound to uphold it so long as the record is free from prejudicial error and the judgment is supported by evidence which is `substantial,' that is, of `"ponderable legal significance,"' `"reasonable in nature, credible, and of solid value . . . ."' [Citations.]" (Id. at p. 631.)

2. Additional Background

Miguel testified he had been wearing a seatbelt; it was his custom to wear a seatbelt; and, if he had not been wearing his seatbelt, an alarm would have sounded until the seatbelt was fastened. Mireya and Dr. Ponce testified to seeing a bruise across Miguel's chest from the seatbelt. Miguel's passenger testified he had been wearing a seatbelt. The officer who responded to the scene of the accident testified Miguel had said he had been wearing his seatbelt.

However, Dr. Kitcha Ranch, the emergency room physician who examined Miguel after the accident, testified, "I asked [Miguel] the question whether he was the driver and whether he had a seatbelt," and "[h]e said that he was the driver but there was no seat belt." In addition, Dr. Tepper read two entries from the emergency room records that stated Miguel did not have a seat belt.

Dr. Terrence Honikman testified as an accident reconstruction engineer and biomechanical expert for Melissa. He testified that the "delta-v" or deceleration speed of Miguel's pickup due to the accident, was 16 miles per hour, and "in a collision of 16 miles per hour delta-v, with proper restraint, there would not have been injuries," other than cuts and bruising from the airbag. He specifically testified with a "high degree of probability" that Miguel would not have sustained the claimed injuries to his neck, low back, and knee if he had been wearing a seat belt properly. When asked if he had an opinion as to whether Miguel was properly restrained by a seat belt system, he responded, without objection, "The evidence supports an opinion of lack of restraint." He later agreed with the statement that "if he was wearing a seat belt, it wasn't restraining him effectively." He explained that Miguel's size and girth might have interfered with the effectiveness of a seat belt, or that Miguel might have been wearing the belt too high on his belly. He stated his opinion that "To a high degree of engineering probability, there would have been no injuries if the occupant had been properly restrained."

During argument to the jury, the Cuevases' counsel stated, "We know that [Miguel] is not negligent for the wreck. The only thing he could be negligent for would be the knee injury . . . if you decide that he wasn't wearing a seat belt, contrary to all of the independent evidence . . . ." During closing argument, he stated, "The seat belt, folks, is a toss up, at best." He then recounted evidence on both sides of the question. All 12 jurors voted to find Miguel 50 percent at fault.

The evidence of a single witness, if believed by the jury, is sufficient to support the jury's verdict. (See Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 630-631.) In determining whether substantial evidence exists, we do not evaluate the credibility of the witnesses. Here, the testimony about the emergency room records and the testimony of Dr. Ranch, which the jury apparently found credible, were sufficient to support the jury's finding that Miguel was not wearing his seatbelt, despite other evidence to the contrary.

Proof of the second prong of the seatbelt defense, i.e., the consequences of failing to wear a seatbelt, ordinarily requires expert testimony (Housley v. Godinez (1992) 4 Cal.App.4th 737, 743, 747) to provide "an evidentiary basis for the jury to assign a percentage of negligence to [the] plaintiff" (Lara v. Nevitt (2004) 123 Cal.App.4th 454, 459-460). Dr. Honikman's testimony, as set forth above, was sufficient to satisfy that prong.

We therefore conclude the evidence was sufficient to support the jury's apportionment of fault based on Miguel's failure to wear his seatbelt.

C. Double Deduction

The Cuevases next contend the jury deducted twice for Miguel's comparative fault.

1. Additional Background

After the jury was polled, the Cuevases' counsel asked the court to inquire whether the jurors "reduced the damages by any particular fault in their total damage award," explaining his concern that "they may have done it twice." The court asked the jury, "The first [question] is with regard to the 50 percent negligence by the plaintiff. Did you already deduct 50 percent from the award that you made of the 45,679?" The presiding juror started to respond, "What was deducted was the cost—." The court interposed, "You have given a total here of 45,679. Normally, when you say it's 50 percent contributory, the judge then will deduct 50 percent from it. Is that what you intended?" The presiding juror responded, "Yes, it is." The court then asked: "Considering the total damage of $45,679.70, did you reduce this amount because of a finding that the plaintiff did not wear his seat belt? We'll ask the presiding juror to answer, and if any juror disagrees with her, you may say so." The presiding juror responded, "Yes, it was."

In a sidebar exchange, plaintiffs' counsel stated: "[I]t appears that the jury made a deduction for the seat belt in arriving at the $45,000 and then they also assessed a 50 percent comparative fault. So that was what I feared had happened is they looked at the damages—the total damages and considered that in reducing for the seat belt, and then they also applied the 50 percent reduction. So I—at this point I would ask that the jury be reinstructed and sent back to arrive at the total figure without—without any reduction for seat belt damages and then apply the 50 percent to that total figure." Defense counsel stated that it appeared the jury foreperson had misunderstood the question. The trial court denied the motion to reinstruct.

2. Analysis

The Cuevases assert that the record establishes that the jury admitted deducting twice for comparative fault. Their assertion is based on their interpretation of an ambiguous question to the jury and an ambiguous response, as set forth above. Their trial attorney could have requested the trial court to further question the jury to clarify the issue, but failed to do so. (See, e.g., Silverhart v. Mt. Zion Hospital (1971) 20 Cal.App.3d 1022, 1029.) We indulge all reasonable inferences on appeal to uphold rather than overturn the jury's verdict and the judgment entered on it. (Ibid.) We therefore conclude the Cuevases' failure to pursue the issue at trial forfeited their claim on appeal.

D. Award of Costs

The Cuevases contend the trial court erred in denying their motions to tax costs in their entirety, because (1) although they dismissed all claims against Margaret before opening statements, the trial court awarded Margaret costs incurred during the trial against Melissa, (2) the trial court improperly awarded duplicate and identical costs to both Melissa and Margaret, and (3) numerous cost items should have been taxed.

1. Additional Factual Background

Although the complaint is not included in the record on appeal, it appears that Margaret, Melissa's mother, was named as a defendant on a negligent entrustment theory. Before opening statements, the Cuevases' attorney made an oral motion to dismiss her from the action, and the trial court granted the motion. It also appears that Miguel's mother, Mireya, was named as a plaintiff. Again, although the complaint is not included in the record on appeal, it appears that she made a claim for property damage but did not pursue that claim at trial.

On July 3, 2008, approximately a month before trial, the Puccis served an offer to Miguel only7 to settle his claims against them for $100,000 pursuant to Code of Civil Procedure section 998. Miguel rejected the offer, and the matter proceeded to trial. On August 27, 2008, just before opening statements at trial, the Cuevases moved to dismiss their claims against Margaret with prejudice.

Following trial, the Puccis served memoranda of costs. In response, the Cuevases moved to strike or tax costs. The trial court found that Margaret was a prevailing party because she had been dismissed and Melissa was a prevailing party because the amount awarded to Miguel was less than the $100,000 offer under Code of Civil Procedure section 998 and because her expert witness fees exceeded the net award to Miguel. The trial court denied the motions to tax costs, awarded Margaret $61,745 jointly against Mireya and Miguel, and also awarded Melissa $35,414 against Miguel and $26,331 against Mireya. Thus, under the trial court's orders, each defendant could collect the entire amount of costs incurred by both defendants.

2. Standard of Review

We apply an abuse of discretion standard to the trial court's determination that a litigant is the prevailing party and to the trial court's award of fees. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.) However, "`whether a cost item was reasonably necessary to the litigation presents a question of fact . . . .'" (Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 774.) The trial court has no discretion to award costs that are not statutorily authorized. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)

3. Analysis

a. Duplicate cost awards

It is indisputable that the trial court made a duplicate cost award: Margaret and Melissa were each separately awarded the same costs. The Puccis argue that the Cuevases did not raise the issue of duplicate awards in the trial court, and the issue should not be raised for the first time on appeal. However, in each opposition to the Puccis' memoranda of costs, the Cuevases stated, "It is further requested the court order there be only one payment of costs by plaintiffs and no double recovery for any cost." The issue was properly raised in the trial court.

Because the trial court awarded duplicate costs, the matter must be remanded. For the guidance of the trial court on remand, we also examine the Cuevases' challenges to specific cost items. The Puccis argue that the trial court should not be asked to "micromanage" an award of costs, but it is clear that in ruling on a motion to recover costs, the trial court has a duty to determine whether a disputed cost is reasonable both in need and in amount. (Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1380.)

b. Service of process

The Cuevases have challenged the amount of costs awarded for service of process. In their October 20, 2008, memorandum of costs, the Puccis requested $2,069 for service of process. In their December 9, 2008, opposition, the Cuevases objected to the amount claimed for service of process. Specifically, they objected to the service of process fees for their experts whom they had voluntarily produced in response to notices of deposition.

Margaret and Melissa each filed a separate memorandum of costs against the Cuevases on February 19, 2009, in which each requested $2,069 for service of process costs.8 Mireya moved to tax the entire sum because the invoices did not reflect what charges related to which witness, and some of the charges appeared to relate solely to Miguel's personal injury claim, not her property damage claim. Miguel moved to tax those costs in the amount of $1,178.50 as unnecessary and unreasonable as to a witness who was voluntarily produced and another witness who was withdrawn as an expert.

A verified cost bill is prima facie evidence that items listed were reasonable and necessary. However, when a proper objection is raised to those items, the burden of proof is upon the party claiming them as costs. (Wagner Farms, Inc. v. Modesto Irrigation Dist., supra, 145 Cal.App.4th at p. 774.) In Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132, the court held that the prevailing defendant's verified cost bill for service of subpoenas was insufficient to establish the necessity and reasonableness of the costs because the memorandum of costs did not state how the subpoenas were served. In contrast, another court upheld claims for costs for service of process when each item had been served by a registered process server and detailed in copies of proofs of service for each item claimed. (Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 506 (Citizens ).)

The Puccis' showing in this case is more like that found insufficient in Nelson v. Anderson. The Puccis do not argue that they made an adequate showing, but merely contend that in their motion to tax costs, the Cuevases did not explain their objections with sufficient clarity. We disagree. The Cuevases argued in the trial court that "None of the costs reflected on the invoices are allocated between witnesses that were served," and it appeared that the service of process costs claimed were in fact unrecoverable investigation fees. In addition, Mireya claimed that certain of the fees related solely to Miguel's personal injury claim, and Miguel claimed that service of process fees were unnecessary and unreasonable for a witness they produced and for a witness they withdrew.

One invoice on which the Puccis relied to support a large portion of their claim for service of process fees lists 10.1 for "HOURS OF INVESTIGATION" and contains the handwritten notation "Service of Process," with a list of witnesses' names. Another invoice from another company was for "Trial Prep Professional Service," again with a handwritten notation "Service of Process" and a list of witnesses' names. Those invoices fail to indicate the means by which process was served or to allocate the costs for any individual witness. Thus, the invoices and handwritten notation were insufficient to establish the necessity and reasonableness of the costs (Citizens, supra, 39 Cal.App.4th at p. 506) and the trial court erred in failing to tax those costs.

c. SanneTechConsulting Services

The Puccis requested $7,942 in costs for SanneTechConsulting Services. On appeal, the Cuevases point out that Christian Sanne, the apparent principal of SanneTechConsulting Services, appeared as an attorney for the Puccis at trial, and attorney fees are not recoverable costs. (Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1626.)

The Puccis argue that Sanne's involvement with the case was "as technical, computer-oriented assistant, and not primarily as an attorney, Appellants' efforts to so paint him, notwithstanding." However, it was not the Cuevases who "paint[ed]" him as an attorney. Rather, the Puccis' trial attorney, Jay McClaugherty, expressly represented to the trial court that Sanne was "an attorney with my firm" during discussions on motions in limine on August 27, 2008. Sanne acted as an attorney by arguing the admissibility of evidence and thereafter appeared as counsel for Pucci throughout the trial. The invoice for SanneTechConsulting included travel time to and from the trial court, as well as fees for attending the trial on August 25, 26 and 27, and September 2, 3 and 8.

We take judicial notice that Christian Sanne was on inactive status from February 1 through December 9, 2008, although he is currently a member of the bar. (The State Bar of California <http://members.calbar.ca.gov/search/member_ detail.aspx?x=103237> [as of July 28, 2011].) In our view, it was misconduct for McClaugherty to represent to the trial court that Sanne was an attorney when Sanne was on inactive status,9 and for Sanne to represent defendant at trial when he was on inactive status.10 The misconduct was compounded both when McClaugherty submitted invoices in the trial court for Sanne's time under the guise of technical support services11 and when McClaugherty represented on appeal that Sanne's involvement with the case was "as technical, computer-oriented assistant, and not primarily as an attorney."12 We conclude the award of the fees for SanneTechConsulting must be reversed in its entirety.

d. Allocation of costs between plaintiffs and awards to defendants

Although the complaint is not included in the record, the parties do not appear to dispute that Mireya brought only property damages claims, but did not present evidence at trial to support those claims, and Miguel brought only personal injury claims. The trial court nonetheless ordered Mireya to pay expert witness fees for witnesses' whose testimony related solely to Miguel's personal injury claims. In addition, Margaret was dismissed before opening statement, and the Cuevases contended below and contend on appeal that certain of the costs that were incurred after that time should have been taxed. The trial court awarded costs separately against Mireya and Miguel and to Melissa and Margaret, allowing each the entire amount of the costs, regardless of whose claims the costs related to, including by way of example, the costs of each defendant answering the complaint.

When a party claims a cost "which on its face does not appear to be proper or is for a disbursement the necessity for which is doubtful, and the item is properly challenged upon a motion to tax costs, the burden is on the claimant to establish the necessity for the disbursement." (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 699.) The claimant must further show "that the items charged were for matters necessarily relevant and material to the issues involved in the action. [Citations.]" (Ibid.) Thus, on remand, the trial court must determine which costs may appropriately be awarded to each defendant and against each plaintiff, without duplication.

IV. DISPOSITION

The awards of costs are reversed, and the matter is remanded for redetermination of costs. In all other respects, the judgment is affirmed. Parties to bear their own costs.

RAMIREZ, P.J., concur.

KING, J., Concurring and dissenting.

I concur with the result. I disagree, however, with the majority's conclusion that plaintiff forfeited his argument for appeal that the jury double deducted for his failure to wear a seat belt. Based on the record, plaintiff properly raised the issue before the trial court and preserved the issue for appeal. I believe, however, that the record does not unambiguously demonstrate that the jury in fact "double dipped" for plaintiff's failure to wear a seat belt.

I begin by noting that defendant admitted liability; the jury was instructed that there was no issue of plaintiff's comparative negligence other than that which may be related to his failure to wear a seat belt.

A plaintiff's antecedent negligence in failing to wear a seat belt has received a somewhat confused legal treatment. On the one hand, it is viewed as an issue of comparative negligence. (Housley v. Godinez (1992) 4 Cal.App.4th 737.) Thus here, the jury was instructed that defendant claimed plaintiff was negligent for failing to wear his seat belt, and the jury was to determine what percentage of the total fault should be allocated to plaintiff for failing to wear his seat belt. And, as alluded to in defense counsel's closing argument, the jury should "then subtract the comparative negligence for not wearing the seat belt." Thus, based on our facts, it appears the jury's allotment of 50 percent responsibility to plaintiff was based on his failure to wear a seat belt.

On the other hand, and consistent with the law, the jury was also instructed in a less direct fashion that plaintiff's failure to wear a seat belt was a causation or apportionment of damages issue. As set forth in Franklin v. Gibson (1982) 138 Cal.App.3d 340, 343, in discussing McNeil v. Yellow Cab Co. (1978) 85 Cal.App.3d 116: "Significantly the court in a footnote then forecasted the issue of apportionment: `In the damage phase of the trial of this case expert evidence on this issue may be necessary to differentiate between injuries caused plaintiff by the collision and those caused him by the absence of visible seat belts.' [Citation.] [¶] . . . The circumstances of the individual cases will necessarily determine the answer to the question of apportionment." In line with this approach, defense counsel in his closing argument also discussed that defendant's negligence was not a substantial factor in bringing about plaintiff's injuries; rather, it was defendant's failure to wear a seat belt that was the cause of his injuries.

Thus, based on the jury instructions, as well as defense counsel's closing argument, the record clearly supports the notion that the jury may have "double dipped" as it relates to plaintiff's failure to wear a seat belt. In the first instance, the jury could determine that defendant's negligence did not cause certain injuries and thus not award compensation for those injuries; secondly, the jury could further reduce from the overall award by finding 50 percent comparative negligence on the part of plaintiff for failing to wear his seat belt. As such, the record supports plaintiff's counsel's concern at trial that the jury did in fact double deduct for plaintiff's failure to wear a seat belt.

The majority states that plaintiff forfeited the issue of a double deduction because the "trial attorney could have requested the trial court to further question the jury to clarify the issue, but failed to do so." (Maj. opn., ante, at p. 19.) I disagree. Counsel appropriately asked the court to inquire. After receiving answers from the jury foreperson that counsel interpreted as supportive of the notion that the jury did double dip, he asked the court to reinstruct the jury as to that issue. There is little else that could have been done to protect the record and preserve the issue for appeal.

The majority indicates that the jury foreperson's responses to the court's questions were ambiguous. I agree. However, it is very easy on appeal for judges to read and reread a colloquy in a reporter's transcript and cogitate on whether or not the record is as clear as we would like it. Upon such reflection, the judge's questions and the jury foreperson's answers were indeed ambiguous. It is obvious, however, that counsel felt that the answers given supported his notion that the jury had double deducted for plaintiff's failure to wear a seat belt. In light of this, he properly asked the court to reinstruct the jury. The issue was raised in a timely manner, which allowed the court to take corrective action. The issue has not been forfeited. (See Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 909.)

With this said, the record does not clearly establish that the jury did double deduct for plaintiff's failure to wear a seat belt. "`A judgment . . . of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.' [Citations.] The burden of demonstrating error rests on the appellant." (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631-632.) Any ambiguities in the record will be resolved in favor of the judgment. (Ward v. Ward (1940) 15 Cal.2d 234, 237.)

As already discussed, the record does contain some indication that the jury may have double deducted for plaintiff's failure to wear a seat belt. However, the jury foreperson's responses to the court's two questions were ambiguous and clearly do not establish that a double deduction was made. Furthermore, in looking at the special verdict rendered by the jury, it appears the jury in fact did not "double dip."

The first question, to which the jury responded "yes," dealt with whether defendant's negligence was a substantial factor in causing injury to plaintiff. The second question asked, "What are [plaintiff's] total damages? Do not reduce the damages based on the fault, if any, of [plaintiff]." From this, it clearly appears the jury was not to consider any negligence of plaintiff in arriving at its gross award. Furthermore, the question asked for plaintiff's total damages, not solely those damages to which defendant's conduct was a substantial factor in bringing about. (If the question had been framed asking for those damages caused by defendant's negligence, then arguably it would have brought into play the concept that the damages caused by plaintiff's failure to wear a seat belt were not causally related to the defendant's negligence, thus allowing the jury to deduct from the total damages and then deduct again by its finding of comparative negligence.)

I otherwise concur with the majority opinion.