Motion Order

Cal. Super. - 6th Dist.November 21, 2017

DEFENDANT’S MOTION TO TAX COST 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 X. Young Lai, #275396 Law Offices of X. Young Lai 28 N 1ST ST STE 540 San Jose, CA 95113 TEL: (408)228-3995 FAX: (866)610-9505 gagelegal@gmail.com Attorney for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA KYUNG Y. MIN, Plaintiff, vs. NICHOLAS ROMEO JOSEPH SIMARD, AMERCAN GOLF CORPORATION D.B.A. SUMMITPOINTE GOLF CLUB, DOES 1-10, Defendant Case No.: 17CV319439 NOTICE OF MOTION / MOTION FOR ORDER STRIKING AND/OR REDUCING COSTS OF DEFENDANT AMERICAN GOLF CORPORATION (TAXING COSTS) [C.R.C. Rule 3.1700(b)] Date: 7/23/2019 Time: 9:00 am Dept. 09 Judge: Hon. Arand TO ALL PARTIES AND TO THE ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that on the date and time set forth above, or as soon as the matter may be heard, in the above-entitled Court, pursuant to Code of Civil Procedure section 1033.5 and Cal Rules of Court, Rule 3.1700, et seq., plaintiff Kyung Y. Min, by and through his undersigned counsel, will and do hereby move this Court for orders for an order striking and/or reducing costs requested by Defendant American Golf Corporation. As grounds therefor, Movant will rely upon the memorandum of points and authorities and the accompanying declaration and exhibits filed contemporaneously herewith, and on the papers and records on file herein, and on such other oral and documentary evidence as may be presented at the hearing of this motion. Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/8/2019 2:48 PM Reviewed By: R. Burciaga Case #17CV319439 Envelope: 2859667 17CV319439 Santa Clara - Civil R. Burciaga DEFENDANT’S MOTION TO TAX COST 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: 5/8/2019 By:_____________________ X. Young Lai, Attorney for Defendant DEFENDANT’S MOTION TO TAX COST 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF FACTS AND PROCEDURAL HISTORY On April 10 2019, the Court entered a judgment. Defendant American Golf Course filed and served by regular mail his memorandum of costs (MC-010) on April 19, 2019. This motion ensured. II. STATEMENT OF THE LAW Code of Civil Procedure section 1033.5 subdivision (a) sets forth items that are allowable as costs, while subdivision (b) sets forth items that are not allowable as costs except when expressly authorized by law. Allowable costs under section 1033.5 must be “reasonably necessary to the conduct of this litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5, subd. (c)(2), (3).) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774, emphasis added.) III. DISCUSSION A. The Following Costs are either not Statutorily Authorized or Unreasonable. 1. Expert Witness fees of $6,722 Defendant’s expert witness fees are not recoverable. “The following items are not allowable as costs, except when expressly authorized by law: [¶] (1) Fees of experts not ordered by the court.” (Code Civ. Proc., § 1033.5 (b)(1).) Although theoretically, fees of expert witnesses could be recovered by way of a Rule 998 offer. (Code Civ. Proc., § 998 (c)(1)). Because the party requesting for expert witness fees “failed to support her memorandum of costs with a written offer to compromise,” “the award of expert witness fees must be reversed.” (Behr v. Redmond (2001) 193 Cal. App. 4th 517, 538.) Consequently, for this reason alone, the request for fees must be denied. DEFENDANT’S MOTION TO TAX COST 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moreover, Section 998 penalties are not allowed if the statutory offer is not realistic and reasonable under the circumstances at the time the offer is made. “In other words, the pretrial offer of settlement required under section 998 must be realistically reasonable in the circumstances of the particular case.” (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal. App. 3d 692, 696.) The Court reasoned that “Section 998 should be interpreted so as to effectuate its purpose of encouraging the settlement of lawsuits before trial. Section 998 achieves its aim by punishing a party who fails to accept a reasonable offer from the other party. An offeree cannot be expected to accept an unreasonable offer. Hence, any subsequent punishment of the offeree for nonacceptance does not further the purpose of section 998, because the offeree would not have acted differently at the time of the offer despite the threat of later punishment. In these circumstances, later punishment of the offeree merely provides a windfall to the offeror and does not encourage settlements.” (Id. at 698-99, emphasis added.). The Court concluded that a token or nominal offer does not satisfy the requirement of CCP § 998, because there is no reasonable prospect that it will be accepted. ( Id.) The decisions in Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal. App. 3d 53, 63, and Wear v. Calderon (1981) 121 Cal. App. 3d 818, 820-21, have recognized a threshold requirement of “realism” or “good faith” for 998 offers. Pineda affirmed a rejection of a $2,500 defense offer in a $10 million wrongful death case, concluding that “the sole purchase of the offer was to make [the offeree] for the recovery of large expert witness fees at no real risk.” Pineda, at 63. Similarly, the Wear court reversed a Section 998 cost-shifting award following a defendant's offer of $1 in a personal injury case, reasoning that “[a] plaintiff may not reasonably be expected to accept a token or nominal offer from any defendant exposed to this magnitude of liability unless it is absolutely clear that no reasonable possibility exists that the defendant will be held liable. If that truly is the situation, then a plaintiff is likely to dismiss his action without any inducement whatsoever. But if there is some reasonable possibility, however slight, that a particular defendant will be held liable, there is practically no chance that a plaintiff will accept a token or nominal offer of settlement from that defendant in view of the current cost of preparing a case for trial.” (Wear, at 821, emphasis added). DEFENDANT’S MOTION TO TAX COST 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, AGC offered a token or nominal offer because AGC believed that they could win a motion for summary judgment. Subsequently to the section 998 offer, AGC made a motion for summary judgment November 13, 2019. The motion was denied in its entirety February 07, 2019. Under the circumstances, the offer was unreasonable and plaintiff was not reasonably expected to accept it. CONCLUSION For the foregoing reasons, Plaintiff’s motion should be granted. Respectfully submitted. DATED: 5/8/2019 By:_____________________ X. Young Lai, Attorney for Defendant ----------------------------------------------------------------------------------------------------------------------------- --------------- PLAINTIFF’S MOTION TO TAX COSTS 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA I am employed in the County of Santa Clara, State of California. I am over the age of 18 and not a party to the within action. My business address is 586 N. First Street, Suite 213 B, San Jose, CA 95112. On 5/8 /2019, I caused the foregoing document(s) described as DEFENDANT’S MOTION TO TAX COSTS FILED BY DEFENDANT NICHOLAS SIMARD on all interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addresses as stated on the attached service list: [ X ] BY MAIL - I deposited such envelope in the mail at San Jose, California. The envelope was mailed with postage thereon fully prepaid. I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under the practice I would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at San Jose, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one (1) day after date of deposit for mailing in affidavit. [ ] BY PERSONAL SERVICE - I caused such envelope to be delivered by a process server employed by [Name of process server] . [ ] BY ELETRONIC TRANSMISSION - I transmitted a PDF version of this document by electronic mail to the party(s) identified on the attached service list using the email address(es) indicated. [ ] BY OVERNIGHT DELIVERY - I deposited such envelope for collection and delivery by GSO with delivery fees paid or provided for in accordance with ordinary practices. I am readily familiar with the firm’s practice of collection and processing packages for overnight delivery by GSO for receipt on the same day in the ordinary course of business. [X ] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [ ] (Federal) I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. DATED: 5/8/2019 LAW OFFICES OF X. YOUNG LAI By:____________________________ X. Young Lai, Attorney for Defendant ----------------------------------------------------------------------------------------------------------------------------- --------------- PLAINTIFF’S MOTION TO TAX COSTS 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Carolyn L. Northrop Thomas M. Gray Dummit, Buchholz & Trapp 1661 Garden Highway Sacramento, CA 95833 Attorneys for Defendant American Golf Corporation Amy Carlson Carbone, Smith, & Koyama 1735 Technology Drive, Suite 500 San Jose, CA 95110-1390 Attorneys for Defendant Nicholas Romeo Joseph Simard