Reply In Support of Motion To Tax Costs

Reply

Cal. Super. - 2nd Dist.March 12, 2019

Electronically FILED & 1 2 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Superior Court of California, County of Los Angeles on 07/17/2020 03:17 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Wong,Deputy Clerk Talin V. Yacoubian (State Bar No. 169439) Stewart J. Powell (State Bar No. 175226) YACOUBIAN & POWELL LLP 725 South Figueroa St. Suite 1750 Los Angeles, California 90017 Telephone: (213) 955-7145 Facsimile: (213) 955-7146 Attorneys for Plaintiff OS PACIFIC, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES -- NORTH CENTRAL DISTRICT GLENDALE COURTHOUSE OS PACIFIC, LLC, a Florida limited liability ) CASE NO.: 19GDCV00317 company; Plaintiff, Vs. T-C TRIO APARTMENTS, LLC, a Delaware limited liability company; TRIO PASADENA, LLC, a California liability company; and DOES 1 through 30, inclusive Defendants. TRIO PASADENA, LLC, a California limited liability company, Plaintiff, Vs. OS PACIFIC, LLC, a Florida limited liability company; and DOES 1 through 10, inclusive Defendants. N t N m Nu N u ww w t S w wm N s u s un t “ u s “ o t “ w a “ s t “ u s t “ u a “ m t “ m t “ u r “ o t “e ug t “ m t Consolidated Case No. 19GDCV00326 [Assigned to the Hon. Curtis A. Kin] [Dept. E, Glendale Courthouse] PLAINTIFF OS PACIFIC, LLC’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO TAX COSTS Hearing Date: July 24, 2020 Time: 8:30 a.m. Dept.: E RESERVATION ID: 821261432876 Trial: Completed Complaint Filed: March 12, 2019 Consolidated Action filed: March 14, 2019 Plaintiff OS PACIFIC, LLC (hereinafter “Plaintiff” or “OS Pacific”) respectfully submits its Reply Brief in support of Plaintiff's Motion to Tax Costs sought by Defendant TRIO PASADENA, LLC (hereinafter “Defendant” or “Trio Pasadena”) (“Motion to Tax Costs”). I PLAINTIFF OS PACIFIC, LLC’S REPLY IN SUPPORT OF MOTION TO TAX COSTS 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 Plaintiff OS Pacific brought its Motion to Tax Costs because the costs claimed by Defendant Trio Pasadena are unjustified, excessive and are not authorized by Code of Civil Procedure section 1033.5 et. seq. While Trio Pasadena maintains otherwise, it reduced its request only by $1,305.21. Trio Pasadena’s request for costs in the amount of $31,169.68 continues to remain unreasonable, excessive and without authority. Trio Pasadena cannot recover $1,704.87 in filing and process service fees because those fees were incurred by Trio Pasadena in two unrelated matters, Trio Pasadena, LLC v. OS Pacific. LLC, LASC Case No. 18PDUD02282 and Trio Pasadena, LLC v. OS Pacific, LLC, LASC Case No. 19PDUD00017 (collectively, the “Unrelated Actions”) which were voluntarily dismissed by Trio Pasadena prior to the initiation of the within matter. Trio Pasadena is not entitled to filing and process services fees which were incurred in connection with filing and service of Trio Pasadena’s Motion for Summary Judgment and Motion to Compel Deposition of OS Pacific’s PMQ and related Ex Parte Application which were denied by this Court, and thus were unnecessary, as well as $154.05 in electronic filing fees. In addition, $4,008.21 for research fees, postage, mileage, power point presentation and telephone calls are excluded by Code of Civil Procedure section 1033.5(b)(3). Trio Pasadena also cannot recover $10,088.00 in costs relating to court reporter services because those were not authorized by statute and thus are excluded by Code of Civil Procedure section 1033.5(b)(11). With respect to the sum of $11,035.00 related to Trio Pasadena’s expert and witness fees, the newly provided supporting documentation produced by Trio Pasadena in its Opposition (Exh. “3” to Decl. of Greg Martin at § 31) confirms that the fees sought by Trio Pasadena’s expert, Richard Moss, were excessive. Trio Pasadena’s expert and witness costs should be no more than $8,085.00. 2 PLAINTIFF OS PACIFIC, LLC’S REPLY IN SUPPORT OF MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 2.2 23 24 25 26 27 28 Accordingly, and as discussed below, OS Pacific respectfully requests that the Court tax Trio Pasadena’s costs by $18,905.13 and award Trio Pasadena no more than $13,569.76 in costs which are appropriate within statutory framework. II. ARGUMENT A. TRIO PASADENA’S REQUEST FOR COSTS IN THE AMOUNT OF $31,169.68 IS UNREASONABLE AND EXCESSIVE In its Opposition, Trio Pasadena fails to address the reasonableness of its costs. While, as a prevailing party in the instant matter, Trio Pasadena is entitled to recover costs, the costs are restricted to those that are both reasonable in amount and reasonably necessary to the conduct of the litigation. (Code Civ. Proc., §§ 1033.5(c)(2), (3).) Further, costs “merely convenient or beneficial” to the preparation of a case are disallowed. (Code Civ. Proc., § 1033.5(c)(2); see Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Here, OS Pacific timely objected to the reasonableness of these costs, as such, the burden shifts to the party claiming them as costs.” (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 774.) Trio Pasadena has failed to meet its burden showing the reasonableness of its costs, and the bulk of the costs claimed by Trio Pasadena are not recoverable. 1. Unreasonable and Unnecessary Costs Must be Taxed i. Trio Pasadena Is Not Entitled to Recover Costs in the Matters Not Related to the Within Action With the exception of claiming that it is a prevailing party in the matter, Trio Pasadena fails to establish the grounds to recover filing fees and messenger fees in the Unrelated Actions that it voluntarily dismissed’. (Opposition, 2:1-2.) Indeed, pursuant to Code of Civil Procedure section 1032(a)(4) a “prevailing party” encompasses a defendant in whose favor a dismissal is entered. (Code Civ. Proc. § 1032(a)(4).) The voluntary dismissal of a complaint is a “dismissal” within the meaning of that statute. (County of Santa Barbara v. David R. (1988) 200 Cal. App. ' Trio Pasadena, LI.C v. OS Pacific, LLC, LASC Case No. 18PDUD02282 was dismissed on 12/26/2018. Trio Pasadena, LLC v. OS Pacific, LLC, LASC Case No. 19PDUDO00017 was dismissed on 03/12/2019. 3 PLAINTIFF OS PACIFIC, LLC'S REPLY IN SUPPORT OF MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3d 98.) Thus, when Trio Pasadena voluntarily dismissed the Unrelated Actions, it was not the prevailing party pursuant to Section 1032(a)(4), and is therefore not entitled to costs as to those actions. Similarly, as set forth in Civil Code section 1717(b)(2), “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.” (Civ. Code § 1717(b)(2).) Thus, because Trio Pasadena voluntarily dismissed the Unrelated Actions, it was not the prevailing party pursuant to Section 1717, and is not entitled to recover costs, including filing fees in the sum of $480 in connection with the first appearance fees in those actions. Moreover, “Because the right to costs is governed strictly by statute (Hogan v. Ingold (1952) 38 Cal.2d 802, 814) a court has no discretion to award costs not statutorily authorized.” (Ladas v. California State Auto. Assn. (1993) 19 Cal. App.4th 761, 774.) In addition to its filing fees, Trio Pasadena also seeks to recover service of process fees incurred in connection with its pre-litigation costs ($125.00 for service of 30 Day Notice to Perform Covenant on 5/9/2018; $90 for service of process of 10-Day Notice to Pay Rent on 6/1/2018; $90 for service of process of 10-Day Notice to Pay Rent on 6/14/2018; $90 for service of 10-Day Notice on 12/27/2018), as well as $160.00 for the service of Summons and Complaint in the matter Trio Pasadena, LLC v. OS Pacific, LLC, LASC Case No. 18PDUD02282 which was dismissed on 12/26/2018. “[M]essenger fees are not expressly authorized by statute, but may be allowed in the discretion of the court.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.) OS Pacific contends that Trio Pasadena is not entitled to these costs because they are not statutorily authorized and, as set forth above, it was not the prevailing party in the Unrelated Actions because they were voluntarily dismissed. The case Stokus v. Marsh (1990) 217 Cal.App.3d 647 cited by Trio Pasadena in support of its entitlement to fees arising from the Unrelated Actions is distinguishable on the facts. (Opposition, 2:24-3:9.) First, that case was primarily about the award of costs in an amount which exceeded the $25,000 jurisdictional limit of that court, which is not an issue in the instant matter. Moreover, while the case involved three unlawful detainers cases, there were procedural 4 PLAINTIFF OS PACIFIC, LLC’S REPLY IN SUPPORT OF MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 issues which make the case distinguishable and inapplicable. Stokus was extensively litigated prior to dismissal. More importantly, Drybread v. Chipain Chiropractic Corp. (2007) 151 Cal.App.4th 1063, decided seventeen years after Stokus, clarifies that section 1717, subdivision (b)(2) precludes an award of attorney fees and costs where the unlawful detainer action is voluntarily dismissed. (Id. at 1069.) ii. Trio Pasadena’s Request for Costs in Unrelated Actions is Untimely Additionally, contrary to Trio Pasadena’s contention that it is entitled to the costs for the Unrelated Actions as a matter of right, Trio Pasadena was required to file a memorandum of costs “within 15 days after service of the written notice of entry of dismissal.” California Rules of Court, Rule No. 3.1700 provides that “[a] prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (CRC 3.1700.) The time limit laid out in CRC 3.1700 is mandatory, and failure to timely file and serve a cost bill can result in a waiver of costs.” (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal. App.3d 924, 929; Sanabria v. Embrey (2001) 92 Cal. App. 4th 422 , 426.) Here, Trio Pasadena voluntarily dismissed its complaint in Trio Pasadena, LLC v. OS Pacific, LLC, LASC Case No. 18PDUD02282 on December 26, 2018. Trio Pasadena voluntarily dismissed its complaint in Trio Pasadena, LLC v. OS Pacific, LLC, LASC Case No. 19PDUDO00017 on March 12, 2019. Thus, the memorandum of costs, filed March 20, 2020, is untimely as to the Unrelated Actions, and Trio Pasadena waived entitlement to these costs. iti. Trio Pasadena Is Not Entitled to Recover Costs Not Reasonably Necessary to the Conduct of the Litigation Even if a cost is potentially allowable under section 1033.5, it is not automatically recoverable in whatever amount a prevailing party demands. Costs otherwise allowable as a matter of right may be disallowed if the court determines they were not reasonably necessary, 5 PLAINTIFF OS PACIFIC, LLC’S REPLY IN SUPPORT OF MOTION TO TAX COSTS w ND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and the court has power to reduce the amount of any cost item to an amount that is reasonable. (See Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal. App.4th 238, 245 [finding that “the intent and effect of section 1033.5, subdivision (c)(2) is to authorize a trial court to disallow recovery of costs, including filing fees, when it determines the costs were incurred unnecessarily”].) Trio Pasadena seeks to recover $620 in filing fees and $154.05 in electronic filing fees for its Motion for Summary Judgment; Ex Parte application in connection with the Motion for Summary Judgment; and Motion to Compel PMQ Deposition as well as process fees in the amount of $49.87 for delivery of courtesy copy of Reply in support of Motion to Compel PMQ Deposition. The Court should reduce these costs claimed by Trio Pasadena (even those allowable by right) because this Court has previously denied those motions, and thus the costs were not reasonably necessary to the litigation. (Code Civ. Proc., § 1033.5, subd. (c)(2)-(3); see Charton v. Harkey (2016) 247 Cal. App.4th 730, 743.) Based on the foregoing, Trio Pasadena’s filing and process service fees must be taxed by $1,858.92. 2. Trio Pasadena’s Expert Witness Fees Are Excessive Costs for expert fees are ordinarily not allowable under section 1033.5. (Code Civ. Proc., § Section 1033.5(b)(1).) Trio Pasadena’s costs memorandum provided only a single line entry listing an amount for expert Richard Moss, with no detailed backup or other support. OS Pacific was therefore unable to address the reasonableness of these fees in its Motion, and Trio Pasadena now has the burden to justify them. (See Jones v. Dumrichob (1998) 63 Cal. App.4th 1258, 1266-1268 [once objected to, the party claiming expert fees must “produce|[] sufficient documentation” enabling the “determin[ation of] the necessity” of expert fees]; see also Levy v. Toyota Motor Sales (1992) 4 Cal. App.4th 807, 816 [affirming taxation of costs where claiming party “offered no substantiation of the challenged” raised in motion to tax].) In support of its Opposition, Trio Pasadena presents invoices from its expert, but the reasonableness of the requested amount remains far from justified in that it seeks to recover fees in the sum of $2,600 for attending trial session on October 7, 2019 where Richard Moss did not 6 PLAINTIFF OS PACIFIC, LLCS REPLY IN SUPPORT OF MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 testify and was not called as a witness and $350 in fees incurred by Richard Moss for meeting with Radford Management and conference call with Gelb Enterprises, which is again not justified. Accordingly, OS Pacific respectfully requests that Trio Pasadena’s expert fees be taxed in the amount of $2,950.00. 3. Costs Not Authorized by the Statute Must be Taxed i. Trio Pasadena Is Not Entitled to Recover Court Reporter Fees Trio Pasadena is not entitled to recover court reporter fees because 1033.5(a)(11) provides that such fees are recoverable “as established by statute.” In its Opposition, Trio Pasadena does not cite any statute independent of 1033.5(a)(11) that would authorize recovery of the reporter fees in this case. (Opposition, 6:18.) Thus, the reporter fees are not authorized by 1033.5(a)(11) and should not be recovered. Accordingly, Trio Pasadena cannot recover these costs and the court reporter fees should be taxed in the amount of $10,088.00. ii. Trio Pasadena Is Not Entitled to Recover Postage, Mileage and Telephone Costs While Trio Pasadena withdrew its request for postage in the amount of $1,010.06, mileage for $235.44 and conference call fees for $59.71 (Opposition, 7:21-22), there remain CourtCall fees of $188.00 and $40.00 research fees which are excluded by the statue and thus should be taxed. 4. “Convenient or Beneficial” Costs are Unreasonable and not Recoverable Finally, Trio Pasadena’s costs in the amount of $1,500 for 20 hours of on-site technician’s assistance in connection with its use of the courtroom equipment and $975.00 incurred for PowerPoint Design are both unreasonable and cannot be recovered. Contrary to Trio Pasadena’s contention, in the instant matter, the on-site technician’s assistance was not necessary but merely for convenience and those costs should be taxed. (Science Applications Internat. v. Superior Court (1995) 39 Cal.App.4th 1095, 1104-05.) Similarly, Trio Pasadena’s PowerPoint Design production was neither reasonable nor necessary to the conduct of the bench trial in this matter, and these costs must be taxed. (Great Western Bank v. Converse Consultants, Inc. (1997) 58 Cal. App. 4th 609, 615.) 7 PLAINTIFF OS PACIFIC, LLC’S REPLY IN SUPPORT OF MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The case Green v. County of Riverside (2015) 238 Cal. App.4th 1363, cited by Trio Pasadena (Opposition, 5:13-14.), is distinguishable chiefly because that case was a jury trial involving a civil rights and wrongful death action. In Green, electronic presentations and on-site technicians were reasonable because the issues involved multiple individuals and the use of force, and such issues required presentation in order to reconstruct events for the jurors. Conversely, the instant matter involved a bench trial for unlawful detainer and breach of contract claims for which the use of technology was not reasonably necessary to the conduct of the litigation but, rather, merely convenient or beneficial to Trio Pasadena’s trial. Therefore, the costs of $2,475 should be taxed. III. CONCLUSION Based on the foregoing, OS Pacific respectfully requests the Court to tax costs in the amount of $18,905.13 and award Trio Pasadena no more than $13,569.76 in costs which are more reasonable in the context of this matter and the applicable law. Dated: July 17, 2020 Respectfully submitted, Yacoubian & Powell LLP Talin V. Yadgibiy Attomeys for Ptamtiff OS PACIFIC, LLC 8 PLAINTIFF OS PACIFIC, LLC’S REPLY IN SUPPORT OF MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2d 28 PROOF OF SERVICE STATE OF CALIFORNIA ) ) $s. COUNTY OF LOS ANGELES ) I, Nara Kpryan, declare as follows: I am employed by Yacoubian & Powell LLP, 725 South Figueroa Street, Suite 1750, Los Angeles, California 90017. I am over the age of 18 years and not a party to the within action. On July 17, 2020, I served the foregoing document described as PLAINTIFF OS PACIFIC, LLC’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO TAX COSTS on the interested parties in this action by placing a true copy thereof in a sealed envelope addressed as follows: Gregg A. Martin, Esq. gmartin@hkemlaw.com Ann S. Lee, Esq. alee@hkemlaw.com Hamburg, Karic, Edwards & Martin, LLP 1900 Avenue of the Stars, Suite 1800 Los Angeles, CA 90067-2531 (Attorneys for Defendant Trio Pasadena, LLC) X (BY MAIL) as follows: I'am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation or postage meter date is more than one day after date of deposit for mailing in affidavit. X (BY ELECTRONIC SERVICE) I caused such document(s) to be delivered electronically to the email address(es) listed above. X (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed at Los Angeles, California on July 17, “N) Nara Kpryan