Opposition

Cal. Super. - 6th Dist.February 22, 2017

~N O N n n BR W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 17CV306607 Santa Clara - Civil Kevin J. Price (SBN 180093) kprice@mvjllp.com Jaclyn Carney (SBN 286448) jcarney @mvjllp.com MOKRI VANIS & JONES LLP 4100 Newport Place Drive, Suite 840 Newport Beach, CA 92660 T: (949) 226-7040 F: (949) 226-7150 Attorneys for Defendant/Cross-Complainant/ Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/20/2020 12:39 PM Reviewed By: R. Nguyen Case #17CV306607 Envelope: 4356839 Cross-Defendant TRIPPE MANUFACTURING CO. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA, DOWNTOWN THE DENTISTS INSURANCE COMPANY, Plaintiff, Vv. BELKIN INTERNATIONAL, INC.; JEFF JACINTO dba SEALIFE AQUARIUM MAINTENANCE; SEA LIFE PROFESSIONAL AQUARIUM SERVICES; AND DOES 1 through 25, Inclusive, Defendants. AND CONSOLIDATED ACTIONS. CASE NO. 17CV306607 [Lead Case] [Consolidated with Case Nos. 17CV310737, 17CV316575, 18CV321892 and 18CV321902] Assigned to Hon. Mary E. Arand - Dept. 9 OPPOSITION OF DEFENDANT/CROSS- COMPLAINANT/CROSS-DEFENDANT TRIPPE MANUFACTURING CO. TO ANCIENT MARINER’S MOTION TO TAX OR STRIKE TRIPPE’S MEMORANDUM OF COSTS [Filed concurrently with Declaration of Kevin J. Price] Date: June 2, 2020 Time: 9:00 a.m. Dept: 6 Complaint Filed: May 19, 2017 Trial Date: None Defendant/Cross-Complainant/Cross-Defendant TRIPPE MANUFACTURING CO. (“Trippe”) hereby submits the following Opposition to the Motion to Tax or Strike Trippe’s Memorandum of Costs filed by ANCIENT MARINER, INC. TRIPPE MANUFACTURING CO.’S OPPOSITION TO ANCIENT MARINER’S MOTION TO TAX OR STRIKE COSTS . Nguyen ~N O N n n BR W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 MEMORANDUM OF POINTS AND AUTHORITIES I. “ANCIENT MARINER, INC.” IS A SUSPENDED CORPORATION AND IS NOT A PARTY TO THIS ACTION As an initial matter, the Moving Party is not a Cross-Complainant in this action. Ancient Mariner, Inc. is a California Corporation that was dissolved in 2012, five years before this action was filed. (Declaration of Kevin J. Price, Paragraph 2, and Exhibit 1 thereto) Further, Ancient Mariner, Inc. did not file a Cross-Complaint against TRIPPE MANUFACTURING CO, INC. (“Trippe”), and costs have not been ordered against this entity. Cross-Complainant “Ancient Mariner, a former sole proprietorship as a fictitious business name of Diane Getsinger” (hereafter “Ancient Mariner”) is the party against whom costs have been ordered and are sought herein. (Declaration of Kevin J. Price, Paragraphs 3, 4, Exhibit 2 thereto) Ancient Mariner’s Fictitious Business Name (FBN) Statement was filed on May 4, 2017 and expires on May 4, 2022, and this sole proprietorship is presently in good standing, according to the Santa Clara County Clerk-Recorder. (Declaration of Kevin J. Price, Paragraph 3, Exhibit 2.) Ancient Mariner Answered the Cross-Complaint using an “Erroneously Sued As” designation, and filed three Cross-Complaints against Trippe using its correct sole- proprietorship name. (Declaration of Kevin J. Price, Paragraph 4, Exhibit 3.) II. JUDGMENT HAS BEEN ENTERED IN FAVOR OF TRIPPE, AGAINST ANCIENT MARINER, AND TRIPPE IS ENTITLED TO RECOVERY OF ITS COSTS OF SUIT Ancient Mariner, as a Cross-Complainant, has already been ordered by this Court to pay costs incurred by TRIPPE MANUFACTURING CO, INC. (“Trippe”). In his ruling on Trippe’s Motion for Summary Judgment on January 16, 2020, Judge Zayner ordered that “Judgment shall be entered in favor of Trippe and against Plaintiffs and Cross-Complainants forthwith. TRIPPE is to recover its costs of suit according to proof.” (Declaration of Kevin J. 2 OPPOSITION OF TRIPPE MANUFACTURING CO.’S TO MOTION TO STRIKE OR TAX COSTS ~N O N n n BR W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 Price, Paragraph 5, Exhibit 4) Judge Zayner’s order is not limited to Ancient Mariner’s Cross-Complaint(s) against Trippe, or to Trippe’s Cross-Complaint against Ancient Mariner. As between all issues involving Trippe and its opposing parties in this consolidated action, Judgment has been entered in favor of Trippe. Cross-actions between Trippe and other parties, Ancient Mariner included, have been adjudicated in Trippe’s favor. Ancient Mariner has not been “blindsided” by this ruling. The Proposed Order to Trippe’s Motion for Summary Judgment was filed with this Court on September 30, 2019 and served on all parties. Ancient Mariner had months to review the order, contemplate its response to the Motion for Summary Judgment, and, if it chose to do so, either oppose the Motion, file a non-opposition, or remain silent. It could have negotiated a waiver of costs in exchange for a non-opposition to the Motion (as did other parties). The very day that the Motion for Summary Judgment was granted, Trippe served a notice of ruling which set forth the Court’s order, including the award of costs. Ancient Mariner did not move for reconsideration or timely challenge the order of costs in any manner. All of the costs incurred by Trippe in this matter relate to the Plaintiffs’ claims of Negligence and Product Liability, and Cross-Complainants claims that are derivative therefrom. Cross-Complainants contend, via their pleadings, that if they and Trippe were found liable to Plaintiffs under theories of Negligence and/or Product Liability, then the damages should be apportioned to Trippe according to the relatives degrees of fault of the Defendants/Cross-Defendants. However none of the claims raised by Plaintiffs are unique to any one Plaintiff. Instead, all claims related to the same fire, and all depend upon the same questions of causation and damages. None of the claims on the Cross-Complaints could be adjudicated without first adjudicating the Plaintiffs’ claims, and therefore a joint-and-several award of costs is appropriate. Acosta v. SI Corp (2005) 129 Cal. App.4th 1370, 1376. 111 111 3 OPPOSITION OF TRIPPE MANUFACTURING CO.’S TO MOTION TO STRIKE OR TAX COSTS ~N O N n n BR W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 III. TRIPPE’S MEMORANDUM OF COSTS Trippe concedes that there are errors on its Memorandum of Costs. Trippe did not serve an Offer of Compromise under Code of Civil Procedure Section 998, and therefore it is not entitled to recovery of Expert Witness Fees. Trippe therefore withdraws its request for Expert Witness Fees in the amount of $17,644.24. Moreover, transportation and lodging costs for Mediation are not specifically recoverable under the Code of Civil Procedure, and therefore Trippe withdraws its claim for $1,157.51 in this regard (even though its air travel was also for the purposes of deposing Plaintiff Ned Nix, DDS, which occurred on the day prior). Trippe apologizes for these errors, and any inconvenience that may have been caused to the Court or other Parties. Trippe maintains its claim for costs in the remaining amount of $20,932.80. Such costs should be awarded jointly and severally against Ancient Mariner, Plaintiff Dr. Ned Nix, and Plaintiff Dr. John Wilkinson, the latter two of which have not challenged the Memorandum of Costs’. IV. ANCIENT MARINER’S BURDEN OF PROOF By filing a Memorandum of Costs, Trippe meets its initial burden of proof that the costs are justified and recoverable. Ancient Mariner, as the moving party, bears the burden of proving that the claimed costs were not reasonable or necessary. Ladas v. California State Auto. Ass'n (1993)19 Cal. App.4th 761, 774-776 a. Deposition Costs Deposition Costs, including transcription and travel, are recoverable if reasonable and necessary. The claims against Trippe (whether by Plaintiffs or by Cross-Complainants) centered on whether or not Trippe’s product caused the fire in question, and if so, what damages resulted. Counsel for Trippe is located in Southern California (as are counsel for moving party Ancient Mariner and Plaintiff Shawn Taheri) necessitating air travel for attendance. ! All other parties have negotiated resolution of the costs issues. 4 OPPOSITION OF TRIPPE MANUFACTURING CO.’S TO MOTION TO STRIKE OR TAX COSTS ~N O N n n BR W N Trippe claims costs associated with seven (7) depositions. The necessity of the following depositions are outlined below: e John Wilkinson, DDS: Plaintiff, vols. 1 and 2. Dr. Wilkinson testified regarding the damages he claimed in this litigation, and through his testimony, was eliminated as a witness on causation. e Shawn Taheri, DDS: Subrogor of Plaintiff TDIC, Cross-Defendant and owner of dental office where the fire occurred, owner of aquarium equipment purported to have caused the fire. Dr. Taheri hired Ancient Mariner and Jeff Jacinto to maintain aquarium equipment alleged to have caused the fire. He was a critical witness on 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 causation; questioning on damages was deferred at the first session of his deposition. e Jeff Jacinto, Sealife Aquarium Maintenance: Defendant, Cross-Complainant. Mr. Jacinto maintained the aquarium equipment, including that alleged to have caused the fire. He was a critical witness on causation. e Fred Getsinger, Ancient Mariner: Defendant, Cross-Complainant, owner of Ancient Mariner. Mr. Getsinger maintained the aquarium equipment, including that purported to have caused the fire. He was a critical witness on causation. e (Captain David Lavern Parker, third-party witness: Captain Parker of the San Jose Fire Department testified as to observations at the fire scene on the day at the fire. He was a critical witness on causation. e Ned Nix, DDS, Plaintiff: Dr. Nix testified regarding the damages he claimed in this litigation, and through his testimony, was eliminated as a witness on causation. These depositions were reasonable and necessary as each bore directly on the cause of the fire, the involvement of any product claimed to be manufactured by Trippe, and damages claimed against all Defendants, including Ancient Mariner. The number of depositions (seven) is reasonable given the complexity of the case (five Plaintiffs, three Defendants, approximately $8 million in claimed damages, five individual cases consolidated into a single action with 5 OPPOSITION OF TRIPPE MANUFACTURING CO.’S TO MOTION TO STRIKE OR TAX COSTS ~N O N n n BR W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 dozens of cross-actions.). Consolidation of the five individual Superior Court cases into a single action saved considerable costs, resulting in a relatively modest costs bill which would have been much higher if it were necessary to defend each of the five lawsuits individually. b. Witness Fees Trippe has withdrawn its claimed fees for Expert Witnesses, as outlined above. c. Filing and Motion Fees Ancient Mariner does not individually contest any of the filing and motion fees claimed by Trippe. Filings are essential in any case, and thus inherently “reasonable and necessary.” d. Electronic Filing and Service of Process Electronic Filing and Service is mandated by Santa Clara County Court General Rule 6(B)(1). Costs associated therewith were not discretionary as to any party, and therefore 2 inherently “reasonable and necessary.” Ancient Mariner provides no authority for the proposition that it should only be responsible for costs directly related to Ancient Mariner’s actions in this lawsuit. e. Models, Enlargements and Photocopies of Exhibits These costs and expenses are specifically allowed under the Code of Civil Procedure, and were reasonably necessary as incidental to depositions and inspections of evidence (i.e. discovery) required to defend Trippe in this litigation. f. Other Ancient Mariner essentially argues that the “other” costs should be stricken in bulk because they relate to Plaintiffs’ product liability claims and not Ancient Mariner’s counter- claims. It provides no further specificity as to any particular claimed cost. However each of Ancient Mariner’s three Cross-Complaints stated causes of action for 1. Indemnity, 2. Apportionment of Fault, 3. Declaratory Relief, and 4. Contribution (collectively “Contribution” claims), all of which are derivative of Plaintiffs’ claims for Negligence and 6 OPPOSITION OF TRIPPE MANUFACTURING CO.’S TO MOTION TO STRIKE OR TAX COSTS ~N O N n n BR W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 Product Liability. In other words, Ancient Mariner claimed that if it were found liable to Plaintiffs, then it would be entitled to Contribution from Trippe. Thus, in defending against Ancient Mariner’s Cross-Complaint, Trippe would necessarily have to defend against Plaintiffs’ Negligence and Product Liability claims. There is no authority that would permit Ancient Mariner to parse away its derivative Contribution claims from Plaintiffs’ claims; all of the direct and Contribution claims are inextricably linked and must necessarily have been addressed together. Trippe has voluntarily withdrawn its Mediation travel and lodging costs, as stated above. V. CONCLUSION Trippe’s claimed costs in the amount of Ancient Mariner’s Motion to Tax and/or Strike are modest at $20,932.80 (as voluntarily reduced by Trippe) when compared with the complexity of the case and the amount at issue. The claimed costs are far less than they would have been if the five lawsuits had not been consolidated into a single action. Ancient Mariner has not met its burden of proof that any cost was unreasonable or unnecessary to Trippe’s defense in this action. Ancient Mariner admits (as it must) that deposition costs related to its principal Fred Getsinger are reasonable and necessary, and must therefore admit that all deposition costs (related to party and percipient witnesses) are reasonable and necessary. Filing fees, electronic filing and service costs are all mandated by the Rules of Court, as cited above. Trippe therefore requests that costs in the amount of $20,932.80 be awarded against Ancient Mariner, and Plaintiffs Nix and Wilkinson (who did not contest the Memorandum of Costs), jointly and severally, as reasonable and necessary in the successful defense of Trippe in 111 111 111 111 7 OPPOSITION OF TRIPPE MANUFACTURING CO.’S TO MOTION TO STRIKE OR TAX COSTS ~N O N n n BR W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 this high-value and complex action. Upon such a determination by this Court, Trippe will file a Request for Entry of Judgment corresponding to this Court’s ruling. Dated: May 20, 2020 MOKRI VANIS & JONES, LLP Kevin J. Price, Esq. Jaclyn Carney, Esq. Attorneys for Defendant/Cross- Complainant/Cross-Defendant TRIPPE MANUFACTURING CO. 8 OPPOSITION OF TRIPPE MANUFACTURING CO.’S TO MOTION TO STRIKE OR TAX COSTS AN nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE SUPERIOR COURT FOR THE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA CONSOLIDATED CASE NUMBER(S): 17CV306607, 17CV310737, CV316575; 18CV321892 and 18CV321902 CASE NAME: THE DENTISTS INSURANCE CO. v. BELKIN INTERNATIONAL, et al. and consolidated cases I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 4100 Newport Place Drive, Suite 840, Newport Beach, California 92660. On May 20, 2020, I served the foregoing document described as: OPPOSITION OF TRIPPE MANUFACTURING CO. TO ANCIENT MARINER, INC.’S MOTION TO TAX OR STRIKE TRIPPE’S MEMORANDUM OF COSTS in this action as follows: SEE ATTACHED SERVICE LIST [X] BY EMAIL SERVICE [XX] VIA ONE LEGAL: Pursuant to California Rules of Court, rule 2.251(b)(2), I caused the document(s) described above to be transmitted electronically via ONE LEGAL to the parties listed on the attached page. [X] STATE: I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on May 20, 2020 at Newport Beach, California. , / ¥ j % ~~ a f / Od E i AL Lat x _ LAL AA (Loar ( A he Sh Marianne Westerdoll 1- PROOF OF SERVICE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Garry J.D. Hubert Miriam P. Maxwell Law Offices of Hubert & Yasutake 1320 Willow Pass Road, Suite 590 Concord, CA 94520 Sean Moriarty Dennis F. Moriarty Cesari Werner And Moriarty 75 Southgate Avenue Daly City, CA 94015 Eric M. Schroeder, Esq. Amanda R. Stevens, Esq. Schroeder Loscotoff Stevens LLP 7410 Greenhaven Drive, Suite 200 Sacramento, CA 95831 Jeffrey A. Baruh Adelson, Hess & Kelly, APC 577 Salmar Avenue, Second Floor Campbell, California 95008 Richard B. Vaught RBYV Law Firm 14440 Big Basin Way, Suite 15 Saratoga, CA 95070 Steven A. Sobel, Esq. Sobel & Associates 3250 Grey Hawk Court Carlsbad, CA 92010 SERVICE LIST Attorneys for Plaintiff, STATE FARM GENERAL INSURANCE CO. Phone (925) 680-4266 Fax: (925) 680-4259 Email: ghubert@hy-litigators.com Attorneys for Defendant/Cross-Defendant, JEFF JACINTO dba SEALIFE AQUARIUM MAINTENANCE Phone (650) 991-5126 Fax: (650) 991-5134 dmoriarty @cwmlaw.com smoriarty @cwmlaw.com Attorneys for Plaintiff, CALIFORNIA CAPITAL INSURANCE CO. Phone: (916) 438-8300 Fax: (916) 438-8306 emschroeder @calsubro.com astevens @calsubro.com Attorneys for Plaintiff, JOHN WILKINSON, D.D.S. Phone: (408) 341-0234 Fax: (408) 341-0250 Email: jbaruh @ahklaw.com Attorneys for Plaintiff, NED L. NIX Phone: (408) 275-8523 richard @rbvlawfirm.com Attorneys for Defendant, ANCIENT MARINER, INC. Ph: (760) 795-0053 ssobel @sisinsure.com 3 PROOF OF SERVICE AN nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Daniel R. Watkins, Esq. (SBN 163571) Nicole A. Naleway (SBN 300701) Watkins & Letofsky, LLP 2900 S. Harbor Blvd., Suite 240 Santa Ana, CA 92704 Gary S. Spitzer, Esq. CRUSER, MITCHELL, NOVITZ, SANCHEZ, GASTON & ZIMET 800 Wilshire Blvd., Suite 1400 Los Angeles, CA 90017 Attorneys for Plaintiff, THE DENTISTS INSURANCE CO. Attorneys for Defendant/Cross-Defendant, SHAWN TAHERI, D.D.S.; SHAWN TAHERI, D.D.S., M.S., INC; DR. SHAWN TAHERI Office: (949) 476-9400 Fax: (949) 476-9407 dw@wl-1lp.com nnaleway @wl-1lp.com Associated Counsel for Defendants/Cross- Defendants FRED GETSINGER and DIANE GETSINGER dba ANCIENT MARINER Tel: (213) 689-8500 Fax: (213) 689-8501 gspitzer @cmlawfirm.com 3. PROOF OF SERVICE