Response Reply

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

PLAINTIFF’S REPLY FOR 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 PLAINTIFF’S REPLY FOR MOTION FOR ORDER STRIKING AND/OR REDUCING COSTS FILED BY 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 Plaintiff, by and through his undersigned counsel, respectfully submits this Reply to Defendant’s Opposition to Motion for an Order Striking and/or Reducing Costs requested by Defendant. DATED: 7/16/2019 By:_____________________ X. Young Lai, Attorney for Plaintiff Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/16/2019 2:39 PM Reviewed By: R. Burciaga Case #17CV319439 Envelope: 3134326 17CV319439 Santa Clara - Civil R. Burciaga PLAINTIFF’S REPLY FOR 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 MEMORANDUM OF POINTS AND AUTHORITIES Defendant’s Expert’s Fees Should be Stricken Because Defendant Failed to Show the Reasonableness of the Fees. On a motion to tax, “[i]f 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.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (emphasis added).) Defendant cited to Melendrez v. Ameron Internat. Corp. (2015) 240 Cal.App.4th 632. “Where the defendant obtains a judgment more favorable than its offer, the judgment constitutes prima facie evidence showing the offer was reasonable …” (Ibid. at p. 647, emphasis added.)) “[W]hen a defendant perceives himself to be fault free and has concluded that he has a very significant likelihood of prevailing at trial, it is consistent with the legislative purpose of section 998 for the defendant to make a modest settlement offer.” (Ibid at p. 650, emphasis added.) Here, however, defendant did not obtain a more favorable result because of its zero amount offer. Consequently, the judgment did not constitute prima facie evidence showing the reasonableness. In addition, the zero amount cannot be considered modest. Lastly, Defendant lost the motion for summary judgment, and it was plain Defendant at least was liable on the respondeat superior theory. In other words, Defendant’s perception of fault free was unreasonable. Moreover, Section 998 (h) specifically prescribes that “[t]he costs for services of expert witnesses for trial under subdivisions (c) and (d) shall not exceed those specified in Section 68092.5 of the Government Code. Cal Gov Code § 68092.5 (c) provides in pertinent part (emphasis added): In addition to any other facts or evidence, the expert or the party designating the expert shall provide, and the court's determination as to the reasonableness of the fee shall be based upon, (1) proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation, (2) the total number of times the presently demanded fee has ever been charged and received by that expert, and (3) the frequency and regularity with which the presently demanded and any other fee has been charged and received by that expert within the two-year period preceding the hearing on the motion. The court may also consider (4) the ordinary and customary fees charged by similar experts for similar services within the relevant community, and (5) any other factors the court deems necessary or appropriate to make its determination. PLAINTIFF’S REPLY FOR 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, nowhere in Defendant’s memorandum, brief, or supporting affidavits proffer the proof of the criteria mandated by Cal Gov Code § 68092.5 (c). Accordingly, the expert witness fees should be stricken. CONCLUSION For the foregoing reasons, Plaintiff’s motion should be granted. Respectfully submitted. DATED: 7/16/2019 By:_____________________ X. Young Lai, Attorney for Plaintiff ----------------------------------------------------------------------------------------------------------------------------- --------------- PLAINTIFF’S REPLY FOR 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 7/16/2019, I caused the foregoing document(s) described as PLAINTIFF’S REPLY FOR MOTION TO TAX COSTS 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] . [X ] BY ELECTRONIC 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: 7/16/2019 LAW OFFICES OF X. YOUNG LAI By:____________________________ X. Young Lai, Attorney for Defendant ----------------------------------------------------------------------------------------------------------------------------- --------------- PLAINTIFF’S REPLY FOR 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