Opposition ObjectionsCal. Super. - 6th Dist.July 17, 2018Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/4/2020 2:52 PM Reviewed By: J. Viramontes Case #18CV331754 Envelope: 4307194 10 ll 12 13 l4 15 l6 17 18 l9 20 21 22 23 24 25 26 27 28 Robert M. Ehrenreich, State Bar No. 125543 Attorney at Law Mailing Address: P.O. Box 2326 Santa Fe, NM 87504 Tel: (310) 450-1 159 Fax: (3 10) 450-1 147 Physical Address: 15332 Antioch Street, N. 148 Pacific Palisades, CA 90272 Tel: (310) 450-1 159 Fax: (310) 450-1 147 Attorney for PlaintifiTHOMAS SUSKO, M.D. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA THOMAS SUSKO, M.D., Plaintiff, ‘ vs. UNITED MEDICAL INSTRUMENTS INC., a California corporation and DOES 1 through 50, inclusive, Defendants. VVVVVVVVVVVVVVV CASE NO.: 18CV33 1 754 Limited Civil Case - Demand Exceeds $10,000 Complaint Filed: July I 7, 2018 Assigned: Hon. Mary E. Arand- Dept. 9 PLAINTIFF’S OPPOSITION TO MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ROBERT M. EHRENREICH DATE: May 19, 2020 TIME: 9:00 a.m. DEPT.: 19 Judge: Hon. Socrates P. Manoukian TO ALL PARTIES AND TO THEIR ATTORNEY’S OF RECORD: COMES NOW PlaintiffTHOMAS SUSKO, M.D. (“SUSKO”) and opposes the Motion to Tax Costs filed by Defendant UNITED MEDICAL INSTRUMENTS, INC. (“UMI”) on the following grounds: Susko.0pp.MTC l OPP. TO MOTION TO TAX COSTS... 10 ll 12 l3 l4 15 l6 l7 18 19 20 21 22 23 24 25 26 27 28 (1) Attorney and witness travel expenses to attend an out oftown trial and Court ordered Mandatory Settlement Conference are awardable costs within the Court’s discretion; (2) Courtcall appearance fees for Court ordered hearings are awardable costs within the Court’s discretion, and (3) The invoice for the Court Reporter fees at trial is attached as Exhibit 1 to the Declaration of Robert M. Ehrenreich. This opposition is based on the attached Memorandum of Points and Authorities, the Declaration of Robert M. Ehrenreich, the Court records and files and on such further evidence WKERT'M.EWICH Attorney for PlaintiffTHOMAS SUSKO, M.D. that is offered and allowed at the time of the hearing. Dated: May 1, 2020 By: Susko.0pp.MTC 2 OPP. TO MOTION TO TAX COSTS. .. 10 ll 12 l3 l4 15 l6 l7 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. SUMMARY OF FACTS. This case involved an indefensible claim for breach of contract over the payment of retrofitting costs for the installation of an MRI machine purchased by SUSKO from the Defendant. The Defendant promised to pay for the retrofitting costs in two installments in exchange for SUSKO agreeing to pay a higher price for the machine. The Defendant paid the first installment and refused to pay the second installment. SUSKO lives and works in Santa Monica, California and the equipment was installed in Santa Monica. SUSKO was forced to litigate the claim in the Defendant’s backyard based on a Santa Clara County forum selection clause in the Defendant’s contract. The trial lasted one day and the Court ruled from the bench in favor ofSUSKO and against the Defendant after a five-minute recess. The Court expressly noted that the entire defense was based on a “hindsight argument.” II. SUMMARY OF ISSUES. SUSKO filed a Memorandum of Costs seeking, among other things, payment for travel expenses to and from the trial and court ordered Mandatory Settlement Conference. SUSKO also requested payment of Courtcall fees for Court ordgred conferences and Court Reporter fees for the trial. The Defendant seeks to tax the travel expenses and Courtcall fees on the grounds that they are not specifically authorized by Code ofCivil Procedure §1033.5. The Defendant also seeks to tax the Court Reporter fees on the grounds that SUSKO failed to attach the supporting invoice. The Defendant’s arguments are wrong. The travel expenses and Courtcall fees are awardable, in the Court’s discretion, based on Code ofCivil Procedure §1033.5 (c) (2) and (4) and the holdings in Doe v. L.A. County Department ofChildren & Family Services (2019) 37 Cal. App. 5‘“ 675 and Gibson v. Bobrofl (1996) 49 Cal. App. 4th 1202. Moreover, the legislature’s failure to include a specific cost in Susko.0pp.MTC 3 OPP. TO MOTION TO TAX COSTS. .. 10 ll 12 13 l4 15 l6 l7 18 19 20 21 22 23 24 25 26 27 28 subsection (a) does not imply that the cost is unrecoverable. Instead, the legislature specifically identified unrecoverable costs in subsection (b) and gave the Court discretion to decide all others. (Southern California Sunbelt Developers, Inc. v. Banyan Limited Partnership (2017) 8 Cal. App. 5‘“ 910.) Further, section 1033.5 does not require a party to attach supporting invoices. Notwithstanding, the Court Reportef’s invoice for the trial is attached as Exhibit 1 to the Declaration of Robert M. Ehrenreich and is in the amount of $2,049, or $$1 ,449 more than the amount requested in the Memorandum. SUSKO now seeks the filll $2,049 in his award of costs. III. LAW AND ARGUMENT. A. The Court’s has the Discretion to Award Costs that are Reasonably Necessarv to the Condgct of the Litigation. Code ofCivil Procedure § 1033.5 (c) authorizes the Court to award costs that are not specifically mentioned in the section if they are reasonably necessary to the conduct of the litigation. Subsection (4) states: “Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” Whether or not a cost is reasonably necessary to the litigation is a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Lubetzky v. Friedman (1991) 228 Cal. App. 3d 35, 39.) B. flue Cogrt’s Discretion to Awfl Costs i_s not Limited bv Sgbsection (a) g the Defendant Contends. The legislative purpose of section 1033.5 and the Court’s discretion to award costs was discussed in detail in Southern California-Sunbelt Developers, Inc. v. Banyan Limited Partnership (2017) 8 Cal. App. 5th 910, 931. It is axiomatic that the right to recover costs is purely statutory, and, in the absence of an authorizing statute, no costs can be recovered by either party.” [Citations.]’ ‘This general rule is subject to numerous exceptions, including thosefound in . . . section I032, subdivision (b), which provides that unless otherwise statutorily prohibited, the Susko.Opp.MTC 4 OPP. TO MOTION TO TAX COSTS... 10 ll 12 13 l4 15 l6 17 18 l9 20 21 22 23 24 25 26 27 28 prevailingparty is entitled t0 recover “costs. ” The primary statutory provision with respect t0 the types of expenses that may or may not be included in a cost award under section 1032 is found in section 1033.5 of that code.’ [Citation.]” (Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 597 [3 Cal. Rptr. 3d 593] (Baker- H0ey).) [S]ection 1033.5, enacted in 1986, codified existing case law and set forth the items of costs which may or may not be recoverable in a civil. action. [Citation.]’ An item not specifically allowable under subdivision (a) norprohibited under subdivision (b) may nevertheless be recoverable in the discretion 0fthe court if ‘reasonably necessary to the conduct 0fthe litigation rather titan merely convenient or beneficial t0 its preparation. ’ [Citation.]” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 773-774 [23 Cal. Rptr. 2d 810].) The court's discretionary authority t0 award an item, not expressly listed orprohibited, is defined in section I033.5, subdivision (c) (4). This provision provides: “Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.” [Emphasis added] The Southern California Sunbelt court went on to hold that the only costs excluded by section 1033.5 were the costs listed in subsection (b). In the Gibson case, the appellate court considered defendants' contention the trial court exceeded its discretionary powers in awarding costs for mediation because these costs are not statutorily authorized and were not reasonably necessary to the conduct of the litigation. (Gibson, supra, 49 Cal.App.4th at p. 1207.) The appellate court disagreed, stating, “Section 1033.5, subdivision (c)(4), authorizes the trial court to exercise its discretion to award costs for items not specifically allowed nor prohibited under subdivisions (a) and (b), so long as they are ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’ Susko.0pp.MTC 5 OPP. TO MOTION TO TAX COSTS. .. 10 ll 12 13 14 15 l6 17 18 l9 20 21 22 23 24 25 26 27 28 [Citations.]” (Ibid) It noted an award of costs for mediation expenses “is not statutorily proscribed” or specifically allowed. (Ibid.) “Nevertheless, defendants argue that, because the mediation statutory scheme does not expressly provide those expenses may be awarded as costs, as is the case with respect to arbitration (§ 1141 .21), the Legislature must have determined such expenses cannot be awarded as costs. We do not agree. Had the Legislature intended to exclude mediation expensesfrom items allowable as costs, it would have been a simple matter to have listed them in section 1033.5, subdivision (b), as an item which could not be awarded. In light ofthe general authority to award as costs ‘[i]tems not mentioned in this section .. . in the court's discretion ’ (§ 1033.5, subd. (c) (4)), it isfar more reasonable to conclude that, ifthe Legislature meant to exclude mediation expenses as costs, it would have done so explicitly in subdivision (b). We conclude the legislation does notforeclose an award 0fmediation expenses as costs. ” (Gibson, supra, 49 Cal.App.4th at pp. 1207-1208.) C. Attornev and Witness Travel Expenses to Afljgd an Out-of-Town Trial are Reasonably Necessarv t0 the Coma of Litigation and Are Awardg_bl_e Ms, Attorney and witness travel expenses, including meals and lodging, to attend an out- of-town trial, were deemed necessary to the conduct of the litigation and were awarded in Doe v. L.A. County Departmefit ofChildren & Family Services (2019) 37 Cal. App. 5th 675, 695 - 696. Meal expenses incurred by an attorney while attending out-of-town depositions, on the one hand, have been held to be recoverable. (Howard v. American National Fire Ins. C0. (2010) 187 Cal. App. 4th 498, 541 [Although the incurring ofmeal expenses may be merely convenient to an attorney attending a local deposition, meal expenses may be reasonably necessary where an out-of-state attorney must travel to the deposition]; Susko.0pp.MTC 6 OPP. TO MOTION TO TAX COSTS. .. 10 ll 12 l3 l4 15 16 17 18 l9 20 21 22 23 24 25 26 27 28 Gorman v. Tassajara Dev. Corp. (2009) 178 Cal. App. 4‘“ 44, 72 [distinguishing local meal expenses from meal expenses incurred while travelling]. In this case, the meal expenses at issue were incurred during trial, which was located approximately 90 milesfrom defense counsel ’s office in Oxnard. Accordingly, there was n0 abuse 0f discretion. [Emphasis added.] Doe also challenged the courts allowance of travel expenses incurred by a Sacramento-based legal assistant who Doe asserts was not reasonably necessary to the litigation and who could have been replaced by a local legal assistant . . . Once again, wefind the trial court acted within its discretion in concluding herpresence at trial was reasonably necessary t0 conduct the litigation and allowing her meals and lodging expenses. [Emphasis added.] SUSKO’s seeks costs similar to those awarded in Doe. SUSKO has requested the award of travel expenses incurred by him and his attorney to attend an out-of-town trial. These costs include airfare, transportation, lodging and meals. D. Mediation Expenses are Reasonably Necessagx to the Conduct of Litigation and Are Awardable Costs. Mediation expenses are awardable costs pursuant t0 Gibson v. Bobrofl(1996) 49 Cal. App. 4th 1202, 1209. Encouraging the parties to resolve lawsuits at the earliest time and before a costly and time-consuming trial, is a necessary part of litigation as conducted in this state. The award ofmediationfees is n0 less reasonably necessary to the conduct oflitigation, than the award 0farbitrator’sfees affirmed in the Boyd decision, which costs are also statutorily authorized by section 1141.21, subdivision (a) (iv). [Emphasis added.] Susko.0pp.MTC I 7 OPP. TO MOTION TO TAX COSTS. . . 10 11 12 l3 l4 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 SUSKO seeks the travel expenses incurred to attend a Mandatory Settlement Conference and the fees paid to Courtcall for mandatory appearances. SUSKO respectfully submits that there is no meaningfiJl distinction between the expenses incurred for mediation in the Gibson case find those incurred by him to attend the Mandatory Settlement Conference. Both mediation and MSC are intended to encourage the parties to resolve litigation at the earliest time and before a costly and time-consuming trial. IV. CONCLUSION. For all of the reasons stated herein, SUSKO respectfully requests that the Court award each and every cost identified in the Memorandum of Costs, including travel expenses incurred to attend the tn'al and MSC and that he be awarded the full amount of the Court Reporter fees in the amount of $2,049. Dated: May 1, 2020 Respectfillly B i By: flQOB’ER .EHRENREICH , Attome or PlaintiffTHOMAS SUSKO, M.D. Susko.Opp.MTC 8 OPP. TO MOTION TO TAX COSTS. . . DECLARATION OF R. EHRENREICH lO ll 12 l3 14 15 l6 l7 l8 19 20 21 22 23 24 25 26 27 28 DECLARATION OF ROBERT M. EHRENREICH I, Robert M. Ehrenreich, declare I am an attorney at law licensed to practice before all courts of the State of California and am the attorney of record for PlaintiffTHOMAS SUSKO, M.D. in Santa Clara Superior Court Case no. 18CV33 1 754. I have personal knowledge of the following facts and if called upon to testify to their truth and accuracy I could and would do so before a court of law. 1. Attached hereto as Exhibit 1 is a true and correct copy of the invoice from Talty Court Reporters, Inc. for $2,049 for the trial in case no. 18CV331754. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed this lst day ofMa 2020 at Santa Fe, New Mexico. Robert Memeich Susko.0pp.MTC 9 OPP. TO MOTION TO TAX COSTS. .. EXHIBIT 1 Talty Coun Repouters, Inc. 2131 The Alameda Suite D San Jose, CA 95126 Phone: 408-244-1900 Fax: 408-244-1374 Robert M. Ehrenreich Robert M. Ehrenreich, Attorney at Law 1514 17th Street, Suite 202 Santa Monica, CA 90404 ,INVOICE m1 Invoice No. Invoice Date Job Hm I {1 ‘ " 178260 2/26/2020 104465 Job Date Case No. 1/30/2020 18CV331754 Case Name Susko vs. United Medical Instruments, Inc. Payment'Termé L ‘ Due upon receipt ORIGINAL AND 1 CERTIFIED COPY OF TRANSCRIPT OF: Transcript of Proceedings 649.00 Full Day Per Diem 1.00 @ 1,400.00 1,400.00 TOTAL DUE >>> $2,049.00 Thank you; we appreciate your business! (-) PaymenG/Credits: 0.00 (+) Finance Charges/Debim: 0.00 (=) New Balance: $2,049.00 Tax ID: 94-2232944 Please detach bottom portion and return with payment. Job No. : 104465 BU ID : 1-TALTY Robert M. Ehrenreich Robert M. Ehrenreich, Attorney at Law 1514 17th Street, Suite 202 Santa Monica, CA 90404 Remit To: Talty Court Reporters, Inc. 2131 The Alameda Suite D San Jose, CA 95126 Case No. :18CV331754 Case Name :Susko vs. United Medical Instrumenm, Inc. Invoice Np. :178260 Invoice Date 22/26/2020 Total Due :$2,049.00 Cardholder's Name: Card Number: Exp. Date: Phone#: Billing Address: Zip: Card Security Code: Amount to Charge: Cardholder's Signature: Email:
