MotionMotionCal. Super. - 6th Dist.November 4, 2013G E R A G O S & G E R A G O S , A P C H i s T O R I C E N G I N E C O . N O . 2 8 6 4 4 S O U T H F I G U E R O A S T R E E T L O S A N G E L E S , C A L I F O R N I A 9 0 0 1 7 - 3 4 1 1 © 0 0 N N O O n n M W N N = N N N N D N D N N N N N N F R FF ) m m e m e m e m p m C 0 N I O N L t A W N R O V W N O D n N W N RR , O o GERAGOS & GERAGOS A PROFESSIONAL CORPORATION LAWYERS HISTORIC ENGINE CO. NO. 28 644 SOUTH FIGUEROA STREET LOS ANGELES, CALIFORNIA 90017-3411 TELEPHONE (213) 625-3900 FACSIMILE (213) 232-3255 GERAGOS@GERAGOS.COM BEN J. MEISELAS SBN 277412 ZACK V. MULJAT SBN 304531 NOAH GELDBERG SBN 311722 SOUTHERN INSTITUTE OF MEDICAL & LEGAL AFFAIRS FRANCOIS M. BLAUDEAU ODEH ISSIS 2224 1st Avenue North Birmingham, AL 35203 (205) 547-5527 - telephone (205) 547-5526 - facsimile SBN 7318-A87M (Pro Hac Vice) SBN 4785-S83P (Pro Hac Vice) SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA LISA ANDERSON,an individual; and GREGORY ANDERSON, an individual Plaintiffs, VS. INTUITIVE SURGICAL, INC, a Delaware corporation; and DOES 1 through 100, inclusive, Defendants. CASE NO.: 2013-1-CV-255586 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO TAX COSTS SOUGHT BY DEFENDANT INTUITIVE SURGICAL, INC.; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF ZACK V. MULJAT IN SUPPORT THEREOF; [PROPOSED] ORDER Date: TBD Time: TBD Dept.: 1 [Court’s Jurisdiction to Grant New Trial Expires on July 3, 2017 (C.C.P. § 660)] o1- PLAINTIFFS’ MOTION TO TAX COSTS G E R A G O S & (G ER AG OS , A P C H i s T O R I C E N G I N E C O . N O . 2 8 6 4 4 S O U T H F I G U E R O A S T R E E T L O S A N G E L E S , C A L I F O R N I A 9 0 0 1 7 - 3 4 1 1 © 0 0 N N O O n n A W N N N N N N N D N N N N R FR , m m m m p m e m e m © J L t A W N R O O V N O O O A W N OR , O o TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on a date and time prior to the expiration of this Court’s jurisdiction on July 3, 2017, in Department 1 of the Superior Court of California for the County of Santa Clara, located at 191 North First Street, San Jose, CA 95113, Plaintiffs Lisa Anderson and Gregory Anderson will move this Court to tax the costs sought by Defendant Intuitive Surgical, Inc. This Motion is made pursuant to sections 685.070 and 1033.5 of the California Code of Civil Procedure and Rule 3.1700 of the California Rules of Court on groundsthat (1) Defendant should not recover for excessive and unreasonable costs for delivery of court filings and documentsto this Court; (2) Defendant should not recover excessive and unreasonable costs for depositions, and is not entitled to recover costs for unnecessary depositions; (3) Defendant is not entitled to recover expert witness fees for experts not designated by the Court, and Defendant should not recover excessive and unreasonable costs for witness fees; and (4) Defendantis not entitled to recover unnecessary costs for subpoenaed records. This Motion is based upon this Notice of Motion, the accompanying Memorandum of Points and Authorities, the Declaration of Zack V. Muljat in support thereof, the pleadings, records, and files in this action, such matters of which the Court may take judicial notice, and such further evidence and argument as may be presented by Plaintiffs at or before the hearing on this Motion. GERAGOS & GERAGOS, APC SOUTHERN INSTITUTE OF MEDICAL & LEGAL AFFAIRS - = By:SZ raneanBLAUDEAU 7ODEH ISSIS ZACK V. MULJAT NOAH GELDBERG Attorneys for Plaintiffs DATED: May 30, 2017 5D = PLAINTIFFS’ MOTION TO TAX COSTS G E R A G O S & G E R A G O S , A P C H I S T O R I C E N G I N E C O . N O . 2 8 6 4 4 S O U T H F I G U E R O A S T R E E T L O s A N G E L E S , C A L I F O R N I A 9 0 0 1 7 - 3 4 1 1 O O 0 0 9 O O N n BM A W O N E e IN D D N D N N N N N N N m m e m p e p m p a © I A R A W N D R O V O N O N E WL W N R , O o I INTRODUCTION Defendant Intuitive Surgical, Inc.’s Memorandum of Costs seeks items of costs to which Defendant is not entitled. Specifically, the Memorandum of Costs improperly demands reimbursement for the following items: - Costs Incurred in Delivering Court Filings and Documents to Court o These costs are not a specified recoverable cost. They are also unreasonable and unnecessary because delivery could have been achieved at significantly less expense. - Deposition Costs o Pursuantto section 1033.5 of the California Code of Civil Procedure, costs for unnecessary depositions are not recoverable. Further the costs Defendant seeks in this case are unreasonable. - Witness Fees o Pursuant to section 1033.5 of the California Code of Civil Procedure and | section 68093 of the California Government Code, witness fees are limited to $35 per day plus $0.20 per mile in travel expenses, and only fees of expert witnesses ordered by the Court are recoverable. The witness costs Defendant seeks in this case are unreasonable, as they would amount to approximately 200 days of ordinary witness testimony, and are not attributable to expert witnesses ordered by the court. - Costs for Subpoenaed Records in this Case o Pursuant to section 1033.5 of the California Code of Civil Procedure, Defendants costs for subpoenaed records are unreasonable and unnecessary. II. ARGUMENT California law recognizes three types of litigation costs: (1) allowable; (2) disallowable; and (3) discretionary. (Code Civ. Proc., § 1033.5, subds. (a), (b), (c)(4)). For allowable and discretionary costs to be recoverable, they must also be both "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its -3. PLAINTIFFS’ MOTION TO TAX COSTS G E R A G O S & G E R A G O S , A P C H i s T O R I C E N G I N E C O . N o . 2 8 6 4 4 S O U T H F I G U E R O A S T R E E T L O S A N G E L E S , C A L I F O R N I A 9 0 0 1 7 - 3 4 1 1 O O 0 0 9 O O N n M N W O N IN D N N N N N N N N ) F m m e e n p a e m © N X R A L W N D R S V L N O R A W O R N ~~ , o o preparation" and "reasonable in amount." (Code Civ. Proc., § 1033.5, subd. ©((2)-(3).) If specifically allowable under section 1033.5, the party challenging the costs has the burden of showing that the costs sought are not reasonable or necessary. However, if the costs not specifically allowable are objected to, then the burden of proof lies with the requesting party to demonstrate that the costs were necessary and reasonable. (Ladas v. Cal. State Automobile Assn. (1993) 19 Cal.App.4th 761, 774.) Whether a cost is reasonable is a question of fact. (Lubetzky v. Friedman ( 1991) 228 Cal.App.3d 35, 39.) Plaintiffs respectfully request that the court tax Defendant’s costs as set forth below. A. Defendant’s Request for “Fling and Motion Fees” is Unreasonable and Excessive Because It Only Paid Two Filing Fees-Line 1. Plaintiffs object to $1,436.90 of the $2,371.90 Defendant seeks for filing and motion fees in Line 1 of its Memorandum of Costs. Filing and motion fees are recoverable when they are both reasonable and necessary. (Code Civ. Proc., § 1033.5, subd. (c)(2), (3); Pevko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 244-45 (trial court erred in failing to consider the reasonableness and necessity of a filing fee when granting recovery)). Of the $2,371.90 claimed by Defendant, only $935.00 corresponds to actual filing fees charged by the Santa Clara County Superior Court-$435.00 for Defendant’s Answer and $500.00 for Defendant’s Motion for Summary Judgment. Defendant’s other filings in this matter, mostly Case Management Statements filed jointly with Plaintiffs, require no fee for filing. (Muljat Decl., [P 4.) Thus, for those documents where the court does not charge a filing fee, Defendant is notentitled to be reimbursed. Defendant offers no explanation or documentation for the $1,436.90 over and above the necessary filing fees it incurred in this matter, which is particularly troubling considering that Santa Clara County Superior Court’s Complex Division permitted free online document filing for the vast majority of the time during which this case was pending. (Muljat Decl., |P 5.) Nevertheless, Defendant has offered no evidence demonstrating how or why these extra costs are permitted under Code of Civil Procedure section 1033.5. Therefore, Plaintiffs request that the Courttax $1,436.90 of Defendant’s $2,371.90 in requested filing fees. 4. PLAINTIFFS’ MOTION TO TAX COSTS G E R A G O S & G E R A G O S , A P C H i s T O R I C E N G I N E C O . N O . 2 8 6 4 4 S O U T H F I G U E R O A S T R E E T L O S A N G E L E S , C A L I F O R N I A 9 0 0 1 7 - 3 4 1 1 O O 0 0 N N O O U n A N W N I D N N N N N N N N | ) , l m e e e m e m p s © X A L A W N D R , S V N A W O R om , o o B. Defendant’s Deposition Costs Are Unreasonable and Stem from Unnecessary Depositions-Line 4. Defendants seek $9,703.20 in deposition costs in Line 4 of its Memorandum of Costs, again without providing any documentation or itemization regarding what specific charges that figure represents. Without even basic information aboutthese costs, and for the reasons set out below, Plaintiffs request that the Court refuse to award any of the requested $9,703.20 to Defendant. As an initial matter, Defendant’s depositions of Ms. Anderson’s doctors were unnecessary. Seven depositions were taken in this action-five of which were with Plaintiff Lisa Anderson’s treating doctors-prior to Defendant filing a motion for summary judgment solely premised on a statute of limitations defense. (Muljat Decl., |P 6.) Even considering the serious factual issues surrounding the accrual date for Plaintiffs’ claims, these depositions were completely unnecessary to support Defendants’ argument that Plaintiffs failed to file their complaint on time. As such, the costs of these unnecessary depositions should not be awarded to Defendant. (See Howard v. American Nat. Fire Ins. Co. (2010) 187 Cal.App.4th 498, 541 (noting that it may be appropriate to reduce an award of deposition costs against a party where that party “demonstrate[s] that the issues involved in the depositions were separable” from the dispositive issues regarding that party).) Moreover, five of the seven depositions taken in this matter were unnecessarily videotaped. (Muljat Decl., P 7.) Like all other allowable costs, the cost of videotaping a deposition is only permissible if it is both are reasonable and necessary. (Code Civ. Proc., § 1033.5.) It is generally recognized that videotaping a deposition is only necessary when the witness being deposed is ill, infirm, or is otherwise unable to attend trial. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2012) JP 8:659, p. 93.) Plaintiffs seek costs for video recording five depositions in this matter, where Plaintiffs’ counsel is unaware of any indication that the videotaped witnesses were ill or otherwise unable to attend trial. (Muljat Decl., |P 8.) As such, Defendant should not recover any costs related to deposition videotaping. -5- PLAINTIFFS’ MOTION TO TAX COSTS G E R A G O S & G E R A G O S , A P C H i s T O R I C E N G I N E C O . N o . 2 8 6 4 4 S O U T H F I G U E R O A S T R E E T L O S A N G E L E S , C A L I F O R N I A 9 0 0 1 7 - 3 4 1 1 O O 0 0 9 O N n n A W N I D N N N N N N O N N D | , | m e p n p n p n p m © N a L R A W D R O 0 N O R A W O N , O S Finally, to the extent that Defendant’s $9,703.20 in deposition costs includes travel expenses for overstaffed depositions (at which more than one defense attorney was present), and exorbitant meal or travel expenses, the Court should refuse to award costs to cover these unnecessary charges. (Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1549.) Without any documentation or itemization regarding Defendant’s deposition costs, however, Plaintiffs are unaware of what Defendant is asking to be reimbursed for. As such, the Court should tax all of Defendant’s $9,703.20 in requested deposition fees. C. Defendant’s Witness Fees Are Unreasonable-Line 8. Defendant has claimed witness costs in the amount of $7,000 in Line 8 of its Memorandum of Costs, a sum which is wholly unreasonable and unwarranted by law. Section 1033.5 of the California Code of Civil Procedure specifies which witness costs are recoverable by a prevailing party. It provides that the following witness fees are recoverable: (1) “Ordinary witness fees pursuant to Section 68093 of the Government Code,” and (2) “Fees of expert witnesses ordered by the court.” (Code Civ. Proc. § 1033.5(a)(7)- (8).) Further, section 68093 of the Government Code provides that witness fees amount to $35.00 per day plus $0.20 per mile traveled. (Cal. Gov’t Code § 68093.) Asjudicial decisions in this state have made clear, “[rJecoverable costs generally do not include the fees of expert witnesses not ordered by the court.” (Kahn v. The Dewey Group (2015) 240 Cal.App.4th 227, 237.) In this case, the court has notitself designated any expert witnesses or ordered the payment of any expert witness fees, and thus Defendantis not entitled to recover any expert witness fees. The entire $7,000.00 sum that Defendant claims must therefore be attributable to ordinary witness fees. Given the $35.00 day rate prescribed by statute, this amounts to approximately 200 days of witness retention, a number that is clearly unreasonable, and notreflective of the amount of witness testimony given in this case. Though it is true that depositions of multiple medical professionals were taken in this case, all of these doctors were deposed in their capacity as percipient witnesses rather than expert witnesses, so an expert compensation rate does not apply. Even if it did, however, as -6- PLAINTIFFS’ MOTION TO TAX COSTS G E R A G O S & G E R A G O S , A P C H i s T O R I C E N G I N E Co O. N o . 2 8 6 4 4 S O U T H F I G U E R O A S T R E E T L O S A N G E L E S , C A L I F O R N I A 9 0 0 1 7 - 3 4 1 1 O O 0 0 J O O n n A N W N E e I D N N N N N N N N m m m e e m e e p m © N I A R A W R O V O N O N EA E W N ~~ , O S noted above, Defendant would not be entitled to recover expert fees in this case. Thus, Defendant attempts to claim ordinary witness fees equating to roughly 200 days’ worth of witness testimony. The sum Defendant requests is clearly unreasonable given the fact that just seven depositions were taken, with some of these lasting approximately one hour or less. (See Muljat Decl., P 9.) Further, all medical professionals deposed in this case were deposed at or near their own offices, so travel expenses were minimal. (Muljat Decl., P 10.) As noted above, however, without any documentation or itemization from Defendant, Plaintiffs cannot determine whatfractional amount of witness fees may be permissibly recovered as costs. As such, Plaintiffs request that the Court tax the entirety of Defendant’s unreasonable $7,000.00 request for witness fees. D. Defendant’s Subpoenaed Records Expenses Are Unnecessary-Line 13. Defendant requests $4,400.20 in expenses for subpoenaed records in Line 13 of its Memorandum of Costs. Defendant makes no effort to specify whattypes of records caused it to incur this cost, but assuming that they are records pertaining to Plaintiffs’ medical treatment and damages, these costs could easily have been avoided by simply requesting these documents from Plaintiffs via the discovery process. Indeed, Plaintiffs produced many pages of Plaintiff Lisa Anderson’s medical records throughout discovery, and Defendant has made no showing as to why it needed to incur $4,400.20 in personally procuring additional, and potentially duplicative, records. (See Muljat Decl., |P 11.) To the extent that Defendant required additional documents related to Plaintiffs’ claims, it could have obtained these by serving additional discovery requests on Plaintiffs rather than resorting to subpoenaing these records. The subpoenaed records costs that Defendant claims are accordingly unnecessary, and should not be awarded to Defendant. III. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court tax $22,540.30 of Defendant’s $23,475.30 in requested costs. 1 1 7 - PLAINTIFFS’ MOTION TO TAX COSTS G E R A G O S & G E R A G O S , A P C H I S T O R I C E N G I N E C O . N O . 2 8 6 4 4 S O U T H F I G U E R O A S T R E E T L O S A N G E L E S , C A L I F O R N I A 9 0 0 1 7 - 3 4 1 1 O O 0 0 u N O O n A W N I D N N N N D N N N | ) , m e e m p e © 2 A L R A WL W R O V O N O D E W N ~~ , © DATED: May 30, 2017 By GERAGOS & GERAGOS, APC SOUTHERN INSTITUTE OF MEDICAL & LEGAL AFFAIRS az pe. -8- J. MEISELAS- RANCOIS M. BLAUDEAU ODEH ISSIS ZACK V. MULJAT NOAH GELDBERG Attorneys for Plaintiffs PLAINTIFFS’ MOTION TO TAX COSTS G E R A G O S & G E R A G O S , A P C H i s T O R I C E N G I N E C O . N O . 2 8 4 4 S O U T H F I G U E R O A S T R E E T 6 L O S A N G E L E S , C A L I F O R N I A 9 0 0 1 7 - 3 4 1 1 O O 0 O N O O n n A W N I D N N N N N N N N m l , m e b p e m p a © N A R A W R O L V N O O N E W O R o m o o DECLARATION OF ZACK V. MULJAT I, Zack V. Muljat, declare as follows: 1. I am an attorney-at-law duly licensed to practice before all of the courts in the State of California. I am an attorney at Geragos & Geragos, APC,attorneys of record herein for Plaintiffs Lisa Anderson and Gregory Anderson. 2. By virtue of my involvement in this case as the attorney of record, I have personal knowledge ofthe facts set forth herein and if called upon as a witness, I could and would competently testify hereto. Bs I make this declaration in support of Plaintiffs’ Motion to Tax Costs Sought by Defendant Intuitive Surgical, Inc. 4, Of the $2,371.90 claimed by Defendant Intuitive Surgical, Inc. for filing and motion costs, only $935.00 corresponds to actual filing fees charged by the Santa Clara County Superior Court-$435.00 for Defendant’s Answer and $500.00 for Defendant’s Motion for Summary Judgment. Defendant’s other filings in this matter, mostly Case Management Statements filed jointly with Plaintiffs, require no fee for filing. 5. The Santa Clara County Superior Court’s Complex Division permitted free online document filing for the vast majority of the time during which this case was pending. 6. Seven depositions were taken in this action-five of which were with Plaintiff Lisa Anderson’s treating doctors-prior to Defendantfiling a motion for summary judgment solely premised on a statute of limitations defense. 7. Five of the seven depositions taken in this matter were videotaped. 8. I am unaware of any indication that the videotaped witnesses in this action were ill or otherwise unable to attend trial. a; Seven depositions were taken in this case, and most were relatively brief. The deposition of Mark Saleh, MD, for example,lasted approximately forty-six minutes. 10. All medical professionals deposed in this case were deposed in Fremont, California, at or near their offices. 11. Plaintiffs complied with Defendant’s discovery requests, and produced -1- DECLARATION OF ZACK V. MULJAT G E R A G O S & G E R A G O S , A P C H i s T O R I C E N G I N E C O . N O . 2 8 6 4 4 S O U T H F I G U E R O A S T R E E T L O S A N G E L E S , C A L I F O R N I A 9 0 0 1 7 - 3 4 1 1 O O 0 9 O O n h A W N IN D N N N N N N N N m m e m e s p m e m © N A R E W I N D R S 0 N O R E W O R - ~ O o numerous pages of Plaintiff Lisa Anderson’s medical records in response to these requests. I declare under penalty of perjury under the laws of California that the foregoing is true and correct to the best of my knowledge. Executed on this 30th day of May, 2017, at Los Angeles, California. _2. DECLARATION OF ZACK V. MULJAT ZACK V. MULJAT G E R A G O S & G E R A G O S , A P C H i s T o r I C E N G I N E C O . N O . 2 8 6 4 4 S O U T H F I G U E R O A S T R E E T L O S A N G E L E S , C A L I F O R N I A 9 0 0 1 7 - 3 4 1 1 O O 0 N I O O U n B p W N N D N D O N N D N N N N D R m e e e m e m m m p m c L N N a L n A L N R O V O N O O N A N W O N , oO o PROOF OF SERVICE BY MAIL STATE OF CALIFORNIA, 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 644 South Figueroa Street, Los Angeles, California 90017-3411. On May 30, 2017, I served the foregoing document(s) described as PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO TAX COSTS SOUGHT BY DEFENDANT INTUITIVE SURGICAL, INC.; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF ZACK V. MULJAT IN SUPPORT THEREOF; [PROPOSED] ORDER onthe interested parties in this action addressed as follows: Allen J. Ruby, Esq. Attorneys for Defendant SKADDEN, ARPS, SLATE, MEAGHER & Intuitive Surgical, Inc. FLOM LLP 525 University Avenue, Suite 1100 Palo Alto, California 94301 Caroline Van Ness, Esq. Lisa M. Gilford, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 300 S. Grand Avenue, Los Angeles, CA 90071 Said service was made by placing true copies thereof enclosed in (a) sealed envelope(s) addressed as stated above AND, By United States Mail: Said service was made by placing true copies thereof enclosed in (a) sealed eavelope(s) addressed as stated above AND,placing the envelope for collection and mailing on the date and at our business address following our ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondenceis placed for collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. Executed May 30, 2017 at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. EF GABY PRECIADO PROOF OF SERVICE
