Reply To Hankins Opposition To Plaintiffs Motion To Tax Costs

Reply

Cal. Super. - 2nd Dist.October 31, 2018

Electronically FILED ~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 by Superior Court of California, County of Los Angeles on 07/14/2020 05:08 PM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk WALTER J. LACK, ESQ. (SBN 57550) BRIAN J. LEINBACH (SBN 161739) ENGSTROM, LIPSCOMB & LACK 10100 Santa Monica Blvd., 12" Floor Los Angeles, CA 90067 Tel.: (310) 552-3800 Fax: (310) 552-9434 Attorneys for Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT KRISTA LYNN TAYLOR and RODERICK Case No. 18STCV03133 TAYLOR, (Assigned to Hon. Michael Paul Linfield, Dept. 34) Plaintiffs, PLAINTIFFS’ REPLY TO DEFENDANT Vv. LISA HANKIN’S OPPOSITION TO MOTION TAX COSTS LISA HANKIN, an individual; and DOES 1 through 20, inclusive, Date: June 26, 2020 Time: 8:30 a.m. Defendant. Dept.: 34 Complaint Filed: ~~ October 31, 2018 AND RELATED CROSS-ACTIONS. Trial Date: October 26, 2020 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Plaintiffs, KRISTA LYNN TAYLOR and RODERICK TAYLOR (“Plaintiffs”), hereby submits the following Reply Memorandum of Points and Authorities in support of their Motion for an order striking certain costs claimed by Defendant, LISA HANKIN, in her Memorandum of Costs, pursuant to California Rules of Court, Rule 3.1700(b) and California Code of Civil Procedure §§ 998 and 1033.5. nn nn nn nn 441971 1 PLAINTIFFS’ REPLY TO DEFENDANT LISA HANKIN’S OPPOSITION TO MOTION TAX COSTS ~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 Dated: July 14, 2020 441971 PLAINTIFFS’ REPLY TO DEFENDANT LISA HANKIN’S OPPOSITION TO MOTION TAX COSTS Respectfully submitted, ENGSTROM, LIPSCOMB & LACK By: /s/ Brian J. Leinbach 2 WALTER J. LACK BRIAN J. LEINBACH Attorneys for Plaintiffs, KRISTA LYNN TAYLOR and RODERICK TAYLOR ~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 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant LISA HANKIN (“Defendant”), in outrageous fashion, seeks $15,014.42, in costs from Plaintiffs, KRISTA LYNN TAYLOR and RODERICK TAYLOR (“Plaintiffs”). Specifically, Defendant seeks $10,587.50 in deposition costs, $1,116.08 in service of process costs, $717.80 in unspecified models, enlargements, and photocopies of exhibits, $433.79 for electronic filing or service of documents through an electronic filing service provider, and $454.25 for delivery of mandatory courtesy copies to the Court. Defendant’s claimed costs are excessive, unreasonable, and unlawful. Plaintiffs recognize that Defendant may be entitled to be reimbursed for their reasonable costs, in the discretion of the Court, such as filing fees and jury fees, but Defendant’s current request is simply excessive and unreasonable. As such, Plaintiff seeks to tax specific items in the Memorandum of Costs as outlined below. IL. DEFENDANT’S CLAIMED COSTS ARE NEITHER REASONABLE IN AMOUNT NOR REASONABLY NECESSARY TO THE CONDUCT OF THE LITIGATION Before a Court awards any costs to a prevailing party pursuant to §1033.5, the Court has a duty to determine whether a particular item of cost is reasonable in need and amount (Thon v. Thompson (1994) 29 Cal. App.4th 1546, 1548). Costs “merely convenient or beneficial to its preparation” are disallowed (See, California Code of Civil Procedure §1033.5(c)(2); see also, Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129). Furthermore, because the right to costs is governed strictly by statute, a Court has no discretion to award costs which are not specifically authorized pursuant to statute (Ladas v. California State Auto Assoc. (1993) 19 Cal.App.4th 761, 774). As such, in order to be a recoverable cost pursuant to California Code of Civil Procedure §1033.5(c)(2) & (3), the cost must be: reasonable in amount; and reasonably necessary to the conduct of the litigation. Each disputed amount of cost will be addressed in turn. A brief history lesson regarding this case is helpful. Defendant leased a champion Hunter Jumper horse from Plaintiff, LISA TAYLOR, for the term of one year. Ultimately, Defendant brought a Motion for Summary Judgement at the eleventh hour which was granted by this Court approximately 10 days before trial. The basis of the Motion was the assertion that there existed no term on the lease agreement 441971 3 PLAINTIFFS’ REPLY TO DEFENDANT LISA HANKIN’S OPPOSITION TO MOTION TAX COSTS ~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 that required to return the subject horse in the same condition as originally leased. The timing of Motion for Summary Judgement was entirely in the hands of Defendant which chose to litigate the entire case, including the claims for Negligent Damage to Property and Breach of Bailment, before filing the MSJ. Presumably, such a defense could have been brought by demurrer or at the onset of the case after perhaps the depositions of the signatories to the lease. Rather, Defendant chose to wait until all litigation was complete before filling the MSJ. By waiting until the last possible moment, Defendant incurred unnecessary deposition expenses and other trial related expenses for which she now requests reimbursement. For the reasons set forth below, the following expenses are not properly awarded pursuant to California Code of Civil Procedure §1033.5(c)(2) & (3). A. Category 4: Deposition Costs ($10,587.50) Defendant seeks $10,587.50 in deposition costs from Plaintiffs eleven depositions taken in this case. Of those 11 depositions, only the depositions of Plaintiff, KRISTA TAYLOR, the signatory on the subject contract, is relevant to the issues surrounding the contract such as interpretation or intent. The cost of that deposition is reported to be $2,079.20. Therefore, the remaining depositions were not reasonably necessary for the litigation, and highly excessive. $8,508.30 should be taxed from the deposition costs. The issue that was determinative of the MSJ was contract interpretation. The depositions listed below were did not relate to the subject lease. Rather, they pertained to the following: Deponent Fee Paid Date of Deposition Aerni, Maia, DVM $1.030.85 12/23/2019 (Deposition pertained to the health of the horse before and at the end of the lease.) Judy, Carter, DVM $1,060.70 11/4/2019 (Deposition pertained to the health of the horse at the end of the lease.) Karazissis, Jenny $753.55 2/17/2020 (Deposition pertained to conduct of employees of Defendant/Cross Defendant, FAR WEST FARMS and knowledge of the health of the horse.) Karazissis, Nick $ 687.50 2/13/2020 (Deposition pertained to conduct of employees of Defendant/Cross Defendant, FAR WEST FARMS and knowledge of the health of the horse.) Maroney, Leila-Ward $1,236.35 11/5/2019 (Deposition pertained to the negotiation of the lease and health of the horse before and at the end of the lease.) Smith, Christopher, DVM $819.20 2/5/2020 (Deposition pertained to the health of the horse before, during and at the end of the lease.) 441971 4 PLAINTIFFS’ REPLY TO DEFENDANT LISA HANKIN’S OPPOSITION TO MOTION TAX COSTS ~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 Taylor, Roderick & Ashley $1,759.75 12/5/2019 (Deposition pertained to the health of the horse before and at the end of the lease.) Thorpe, Joe $ 400.40 12/23/2019 (Deposition pertained to the negotiation of the lease, the health of the horse before and at the end of the lease and the conduct of Defendant and employees of FAR WEST FARMS.) Winn, Lisa $ 760.00 2/13/2020 (Deposition pertained to the negotiation of the lease, the health of the horse before and at the end of the lease.) None the depositions dealt with any issue concerning the interpretation of the terms of the subject lease. As such, the costs of said depositions are not recoverable cost pursuant to California Code of Civil Procedure §1033.5(c)(2) & (3). The depositions were not reasonably necessary to the conduct of the litigation. B. Category 5: Service of Process ($1,116.08) Defendant seeks the exorbitant amount of $1,116.08 in service of process costs. In Attachment 5(d) to its Memorandum of Costs, Defendant states that it paid $1,116.08 for “service of records-only deposition subpoenas and for production of the resulting records.” In her Opposition, Defendant provided the invoices relating to the service of subpoenas and subsequent records production. The subpoena was for the production of medical records which nothing whatsoever to do with contract interpretation. These records concern damages. Plaintiffs request that the Court tax the costs of $1,116.08, as these costs do nof relate to the determinative issue presented by the MSJ. B. Category 11: Models, Enlargements, and Photocopies of Exhibits ($717.80) Defendant states in Category 11 to its Memorandum of Costs that it paid $717.80 for Models, Enlargements, and Photocopies of Exhibits. Defendant claims that these costs were necessary as trial was to occur a week after the hearing on the MSJ. This is simply not true. Due to the Covid-19 pandemic, this Court continued the trial date of May 18, 2020 to October 26,2020 on April 1, 2020, six weeks before the hearing on the MSJ. Models, enlargements and photocopies of exhibits for trial were not necessary in preparation for trial. Further, no such demonstrative materials were ever utilized in this case including thej hearing on the MSJ. As such, the costs of these materials are not a recoverable cost pursuant to California Code of Civil Procedure §1033.5(c)(2) & (3). 1 441971 S PLAINTIFFS’ REPLY TO DEFENDANT LISA HANKIN’S OPPOSITION TO MOTION TAX COSTS ~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 C. Categories 14 and 16: Fees for Electronic Filing or Service and “Other” (Delivery of Mandatory Courtesy Copies to Court) Defendant states in Category 14 to its Memorandum of Costs that it paid $433.79 for Electronic Filing or Service, and in Category 16, $454.25 for “Other: Delivery of Mandatory Courtesy Copies to Court,” for a total of $888.04. No effort is made by Defendant to justify how those costs were related to the interpretation of the subject lease (determinative issue in the case) or how they relate to the MSJ. Again, the issue of whether the lease agreement contained a provision that the horse be returned at the end of the lease term in good health could and should have been brought at the time of demurrer or at the very early stages of the litigation. Defendant chose to wait until the eleventh hour to file her MSJ thereby incurring excessive costs. Those charges and cost are therefore unreasonable pursuant to California Code of Civil Procedure §1033.5 and should be stricken from the costs bill. IV. CONCLUSION For all of the foregoing reasons, Plaintiffs respectfully request that this Court exercise its discretion in an equitable manner and tax the above identified costs sought by Defendant, as set forth above. Dated: July 14, 2020 Respectfully submitted, ENGSTROM, LIPSCOMB & LACK By: /s/ Brian J. Leinbach WALTER J. LACK BRIAN J. LEINBACH Attorneys for Plaintiffs, KRISTA LYNN TAYLOR and RODERICK TAYLOR 441971 6 PLAINTIFFS’ REPLY TO DEFENDANT LISA HANKIN’S OPPOSITION TO MOTION TAX COSTS ~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 PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 10100 Santa Monica Boulevard, 12th Floor, Los Angeles, California 90067-4113. On July 14, 2020, I served the foregoing document described as PLAINTIFFS’ REPLY TO DEFENDANT LISA HANKIN’S OPPOSITION TO MOTION TAX COSTS on the interested party(ies) in this action as follows: Lisa J. Brown, Esq. Attorneys for Cross-Defendant, LISA WALLACE BROWN & SCHWARTZ HANKIN 215 North Marengo Avenue, Third Floor Pasadena, CA 91101-1504 Tel.: (626) 844-6777 Fax: (626) 795-0353 Email: ljbrown @wbslaw.com Roger M. Mansukhani, Esq. Attorneys for Cross-Defendant, KARAZISSIS Ian G. Williamson, Esq. BROTHERS, INC., dba FAR WEST FARMS; Jacqueline K. DuBois, Esq. NICK KARAZISSIS, CASSANDRA GORDON REES SCULLY MANSUKHANI, LLP KARAZISSIS, and LISA WINN 101 W. Broadway, Suite 2000 San Diego, CA 92101 Tel.: (619) 696-6700 Fax: (619) 696-7124 Email: rmansukhani @ grsm.com igwilliamson @ grsm.com jdubois @ grsm.com xX (BY ELECTRONIC TRANSFER) I caused all of the pages of the above-entitled documents to be sent to the recipients noted above via electronic transfer at the respective email addresses indicated on the attached service list. This document was transmitted by email and transmission reported without error. XxX STATE: I declare under penalty of perjury under the laws of the State of California that the above] is true and correct. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 14, 2020, at Los Angeles, California. /s/ Erin Stover ERIN STOVER 441971 7 PLAINTIFFS’ REPLY TO DEFENDANT LISA HANKIN’S OPPOSITION TO MOTION TAX COSTS