Memorandum Points and Authorities

Cal. Super. - 6th Dist.March 9, 2015

\DOONONUI-PUJNH NNNNNNNNNHr-AHr-dp-Aj-Ip-np-An-An-n OOVONM-PUJNl-‘OKOOONONM-PWNHO JAMES L. PAGANO, ESQ. (Cal. State Bar No. 098185) ‘1'», IAN A. KAss, ESQ. (Cal. State Bar No. 184480) E: g g g: m PAGANO & KASS, APC ‘ * L 96 North Third Street, Suite 525 San Jose, California 951 12 Telephone: (408) 999-5678 Facsimile: (408) 999-5684 Attorneys for Defendant, Pagano & Kass, PC IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY 0F SANTA CLARA DAVID MARKEVITCH, an individual, Case No. 1-15-CV-277789 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 0F v. MOTION T0 STRIKE AND/OR TAX COSTS PAGANO & KASS, PC, a Professional Corporation, and DOES 1 through 50, Date: December 2, 2016 inclusive, Time: 9:00 a.m. Dept: 4 Defendants. Judge: Hon. Derek Woodhouse / COMES NOW, Defendant, Pagano & Kass, PC (“P&K”), and, as and for a memorandum of points and authorities in support of its motion to strike the “Memorandum of Costs” filed by Plaintiff, David Markevitch (“Plaintiff”), in the above-captioned matter, and to tax the costs that are set forth in the same, P&K submits the following: I. INTRODUCTION/STATEMENT OF FACTS Following a trial of the above-titled case, on August 25, 2016, the jury returned a verdict in favor of Plaintiff. However, as of the date this Motion is necessarily filed, no judgment has been entered, and no determination of the prevailing party has been made. Thus, no determination has been made regarding a right to costs for a prevailing party. Scheduled for a hearing on October 28, 2016 are P&K’s motion for a judgment in its favor notwithstanding the verdict and for a new trial, including regarding both liability and damages. As a result of these motions, P&K believes the Court should enter a judgment in its favor or, MEMORANDUM 0F POINTS AND AUTHORITIES 1N SUPPORT 0F MOTION To STRIKE AND/OR TAX COSTS 1 d ,7 -\ V ‘1 h _ J=?ibli'ur'fiL- AWN \OOONQKII 10 11 12 13 14 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 alternatively, to order a new trial. In the event that the Court determines otherwise, and it finds Plaintiff to be the prevailing party, the Court should deny Plaintiff any cost recovery to the extent that, based upon the grounds raised by P&K in its motion for a new trial, Plaintiff‘s award ends up less than $25,000.00. (Code of Civil Procedure (“CCP”) §1033(a).) Should the Court, nevertheless, exercise its discretion to award Plaintiff costs in this Case, the Court should tax the sums that Plaintiff seeks to recover through his Memorandum 0f Costs, including for filing and delivery services, postage, copying and scanning, travel (mileage, parking, food, and lodging) unrelated to depositions, trial transcripts, Court Call services, and for unsuccessful efforts to serve a subpoena, all in the sum of $3,094.38, since such costs are either precluded under CCP §1033.5(b) or Plaintiff has not, and cannot, meet his burden ofdemonstrating that the expenses were necessary for the litigation under CCP §1033.5(c). II. ARGUMENTS A. T0 THE EXTENT THAT PLAINTIFF’S RECOVERY, EXCLUSIVE OF INTEREST, DOES NOT EXCEED $25,000.00, THE COURT SHOULD DENY PLAINTIFF ANY COSTS. The Court should deny Plaintiff costs to the extent that, based upon the gounds raised by P&K in its motion for a new trial, the judgment, exclusive of interest and costs, ends up less than $25,000.00. In this regard, in an unlimited civil case such as this, the Court has discretion to entirely deny costs where thejudgment is $25,000.00 or less and, thus, could have been rendered in a limited civil case. (CCP §1033(a); Dorman v. DWLC Corp. (1995) 35 Ca1.App.4th 1808, 1815; see also Steele v. Jensen Instrument C0. (1997) 59 Ca1.App.4th 326, 330-33 1 .) Moreover, in determining whether to award any part of the costs incurred by the prevailing party in such a case, the Court may consider such matters as the reasonableness 0f Plaintiff’s assessment ofhis chances to recover more than $25,000.00, the amount ofthe actual recovery (i.e., how close t0 $25,000.00), and the amount of fees and costs reasonably incurred by Plaintiff. (See Dorman v. DWLC Corp, supra, 35 Ca1.App.4th at p. 1816; Greenberg v. Pacific Tel. & Tel. C0. (1979) 97 Cal.App.3d 102, 108.) / / / MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE AND/OR TAX COSTS 2 \DOONONU‘I-hbJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In this Case, P&K brought a motion to reclassify the case as a limited jurisdiction case, the success of which motion would have restricted discovery, including depositions, and, with a clear limitation of damages in place, would have been a disincentive to law and motion matters and, in fact, would have likely led to an early settlement. (See “Declaration ofIan A. Kass, Esq., in Support of Motion to Strike and/or Tax Costs” (“Kass Decl.”), fl 2, 3.) Not only did Plaintiff oppose that motion, but, he refilsed to acknowledge the extremely limited value ofhis claims in view ofthe fees P&K collected that pertained to the first 12 months ofthe attorney-client relationship between Louis Morin and the firm, i.e., from June/July 2009 through June/July 2010, resulting in, at best for Plaintiff, a recovery of between $7,200 and $12,100. For these reasons, to the extent the damages recovery for Plaintiff is less than $25,000.00, P&K submits that the Court should deny an award of costs for Plaintiff. B. THE COURT SHOULD TAX SPECIFIC COSTS CLAIMED BY PLAINTIFF THAT ARE NOT PERMITTED OR, FOR THOSE COSTS THAT MAY BE ALLOWED UNDER CCP §1033.5(c), FOR WHICH HE HAS FAILED TO MEET HIS BURDEN OF DEMONSTRATING THEY WERE NECESSARY T0 THE LITIGATION, RATHER THAN MERELY CONVENIENT. Although a verified memorandum of costs may be prima facie evidence regarding the incurrence of costs that are valid on their face, where the reason for, or the necessity of, a cost that is set forth in the Memorandum is challenged, the burden shifts to the party claiming the cost to demonstrate its validity, reasonableness, and necessity. (Nelson v. Anderson (1 999) 72 Cal.App.4th 111, 13 1-132.) In this case, Plaintiff, through his Memorandum of Costs, as clarified through his Cost Journal and the receipts he submits in support thereof (Exhibit “K” to “Declaration of Kevin R. Allen, Esq., in Support ofPlaintiffDavid Markevitch’s Motion for (1) Attorneys’ Fees and costs, (2) Prejudgment Interest, and (3) Issuance of Judgment” (hereafier as “Exh. ‘K’”), Exh. “JN-l” to “Request for the Court to Judicially Notice Pleadings on File in the Case in Support of Motion to Strike And/or Tax Costs”), has sought recovery of a number of costs that are expressly notpermitted under CCP §1033.5(b) or for which he fails to explain the necessity of incurring the cost and/or otherwise fails to meet his burden of proof to otherwise justify the cost. /// /// MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE AND/OR TAX COSTS 3 \OOONONUl-bwwp- NNNNNNNNN-‘D-It-d-In-Ap-np-AHHH WNQM$WN-‘O\OOONC\MAUJNHO l. The Court Should Tax the Costs Plaintiff Seeks for Service/Delivery Charges to the Court as Well as for Postage and Federal Express Charges. In Exh. “K,” Plaintiff identifies $ 1 ,3 14.35 in costs, mostly charged by a company known as OneLegal, to deliver documents to the Court for filing. While Plaintiff appears to have included these charges in section 1 of his Memorandum of Costs, i.e., “Filing and motion fees,” Exh. “K” makes clear these were not court imposed filing fees, but were fees charged by OneLegal to copy documents and deliver them to the Court for filing. (See id. , at pp. COSTSOOOI , 0002, 0004, 0005, 0007, 0009, 0018, 0020, 0021, 0024, 0031, 0033, 0035.) These expenses claimed by Plaintiff include the following: Date (per Expense Description (per Exh. “K”) Expense Amount to Exh. “K”) Amount be Taxed Claimed 3/10/1 5 Cost for one legal t0 file the complaint. Paid via $492.95 $57.95] AMEX CC w last four 2013. 3/19/15 ONE LEGAL fee for service of complaint and $14.95 $14.95 summons. 4/21/15 One legal filing fee for stip and [proposed] order $66.70 $46.702 continue 4/24/ 15 One legal filing fee for opposition to demurrer. $64.1 5 $64.15 6/10/15 One legal filing fee for opp to motion to reclassify. $90.45 $90.45 7/6/15 One legal - Cost to file CMCS. Sale no. 00268025 $45.95 $45.95 8/27/1 5 FEDEX office shipping costs and envelope for $12.75 $12.75 suppl. discovery responses 10/1/1 5 Cost for one legal filing of CMC statement. $45.95 . $45.95 10/23/15 ONE LEGAL - Advanced jury fees ($150) plus $199.85 $49.853 convenience fee ‘ In the event that the Court, ultimately, finds Plaintiff to be the “prevailing party” in this suit, a proposition with which P&K takes considerable issue (see discussion at pp. 1222-221), P&K does not ask the Court to tax the filing fee for the Complaint (part of the expense identified in Exh. “K” for 3/10/15). (Id., p. COSTSOOOI.) 2 1n the event that the Court, ultimately, finds Plaintiff to be the “prevailing party” in this suit, a proposition with which P&K takes considerable issue (see discussion at pp. 1:22-2zl), P&K does not ask the Court to tax the filing fee for the stipulation (part ofthe expense identified in Exh. “K” for 4/21/15). (Id., p. COSTSOOO4.) 3 In the event that the Court, ultimately, finds Plaintiffto be the “prevailing party” in this suit, a proposition with which P&K takes considerable issue (see discussion at pp. 1:22-2:1), P&K does not ask the Court to tax the jury deposit (part of the expense identified in Exh. “K” for 10/23/15). (Id., p. COSTSOO20.) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE AND/OR TA? COSTS AWN \OOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Date (per Expense Description (per Exh. “K”) Expense Amount to Exh. “K”) Amount be Taxed Claimed 12/29/15 filing fee and ONE LEGAL convenience fee for $45.95 $45.95 ADR status statement. 2/9/16 USPS postage to mail Opp to MSj to OPC. $22.95 $22.95 2/9/16 ONE LEGAL filing fee for OPP TO MSJ. Order $340.15 $340.15 No. 101 14749 7/7/16 Costs for filing opp to MJOP. Paid via CC $83.40 $83.40 8/10/16 Cost to file P MSC statement, POS $67.90 $67.90 8/19/16 Cost to file pretrial docs via one legal $309.10 $309.10 8/19/16 USPS: Cost to serve pretrial briefs, motions in $16.20 $16.20 limine. Paid Via AMEX Total $1,314.35 Initially, a review 0fthe receipts pertaining to these costs reveal that these expenses include copying costs, which are expressly not allowed under CCP §1033.5(b)(3). (See Exh. “K,” pp. COSTSOOO4, 0005, 0007, 0024, 003 1, 0033, 0035.) Likewise, delivery fees, including for postage and overnight delivery (See Exh. “K,” pp. COSTSOOOl 5, 0023, 0036) are not allowed. (See Ripley v. Pappadopoulos (1994) 23 Ca1.App.4th 1616, 1627-1628, Federal Express and postage charges are expressly disallowed as costs under CCP §1033.5(b).) Moreover, even if the court delivery charges were permitted under CCP §1033.5(c), they would be allowed only upon a showing by Plaintiff that they were necessary to the litigation. (Id., the burden is upon the party claiming the costs to demonstrate the charges were reasonable and necessary to be permitted under CCP §1033.5(c). [Nelson v. Anderson (1 999) 72 Ca1.App.4th 1 1 1 , 132.]) However, the courts have found court delivery and messenger charges “to be of doubtful necessity and unreasonable on their face, when compared to the probable cost of alternatives such as mail, Federal Express, or personal filing . . . .” (Nelson v. Anderson, supra, 72 Ca1.App.4th at p. 132.) P&K submits that it was unnecessary for Plaintiff to incur the costs to OneLegal when he could have caused the documents to have been filed through mail or overnight delivery, non- recoverable expenses. Instead, Plaintiff‘s counsel’s choice to use a service to file documents with the Court should be found one of convenience, and expenses borne of convenience rather than MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE AND/OR TAX COSTS 5 \OOONONUI-PWNH NNNNNNNNNHb-‘b-‘HWHr-dh‘p-dp-A OONQKfl-BWN’HOQOONQMAWNF-‘O necessity are not allowed under CCP §1033.5(c). (Id.) It follows that the Court should tax the costs sought for filing/delivery of documents in the sum of$1,314.35. 2. The Court Should Tax the Costs Plaintiff Seeks for Copying and Scanning. In Exh. “K,” Plaintiff identifies $ 1 84.31 in costs for copying documents, including through scanning, as follows: Date (per Expense Description (per Exh. “K”) Expense Amount to Exh. “K”) Amount be Taxed Claimed 3/3 1/15 Cost for scanning D's draft discovery into PDF. $159.40 $159.40 8/26/15 Cost to print out copies of suppl discovery $24.91 $24.91 Total $184.31 Because costs for copying are expressly not allowed under CCP §1033.5(b)(3), the Court should tax these costs. 3. The Court Should Tax the Costs Plaintiff Seeks for Local Travel Unrelated t0 the Taking of Depositions. In Exh. “K,” Plaintiffidentifies $8 1 7.77 in costs for his counsel’s mileage between his office in Walnut Creek and the courthouse, parking near the courthouse, food and drinks consumed during trial breaks, and hotel lodging during trial, including the following: Date (per Expense Description (per Exh. “K”) Expense Amount to Exh. “K”) Amount be Taxed Claimed 6/23/ 15 Mileage to/from hearing for Defs motion t0 $29.42 $29.42 reclassify case as limited. 7/29/ 15 Mileage to/from client's depo at OPC'S office. $108.00 $52.50“ 2/23/16 Parking for MSJ hearing. Paid via KRA Visa $7.00 $7.00 2/23/16 Mileage to/from Lafayette and San Jose for MSJ $58.83 $58.83 hearing. 4 P&K challenges the expense as the sum reflects mileage that far exceeds the round trip distance between the office of Plaintiff’s counsel in Walnut Creek and the location of the deposition in San Jose. (See Kass Decl., 1[5.) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE AND/OR TAX COSTS 6 \OOOVQUI-PUJNH NNNNNNNNN-‘HD-‘b-‘r-‘v-‘t-It-t-‘p-A OONONUI-PUJNflooooflom-PWNt-‘O Date (per Expense Description (per Exh. “K”) Expense Amount to Exh. “K”) Amount be Taxed Claimed 8/17/16 Mileage to/from office to court for MSC. $58.83 $58.83 8/17/16 CITY OF SAN JOSE: Parking for MSC. Paid via $13.00 $13.00 KRA CC 8/22/16 Chevron: costs for snack, drinks for during trial. $7.02 $7.02 8/22/16 San Pedro Square Market: For meal/beverages for $18.00 $18.00 client meeting after first day 0f trial. Paid AMEX CC 1007. 8/22/1 6 Freshly Baked Eatery: For lunch meeting with VJ $1 5.74 $15.74 Chetty, client first day of trial. 8/22/16 AREPA & MAS: Meal with client to prepare for $34.98 $34.98 next day of trial. Paid by Allen VISA 8/22/16 CITY OF SAN JOSE: Parking for day one of trial. $20.00 $20.00 Paid via KRA CC 8/22/16 Mileage from office to court for trial. $29.42 $29.42 8/23/1 6 COURT CAFE: Coffee/water for trial. Paid via $5.00 $5.00 KRA Visa 8/23/16 AREPA & MAS: Meal with client to prepare for $14.66 $14.66 next day of trial. Paid by Allen VISA 8/23/16 CITY OF SAN JOSE: Parking for day two of trial. $14.00 $14.00 Paid via KRA CC 8/24/16 Mileage from court to office (trial). $29.42 $29.42 8/25/16 OLLA CUCINA: Meal with client. Paid Via KRA $30.45 $30.45 AMEX ($36.45 with tip). 8/25/16 COURT CAFE: Coffee/water for trial. Paid via $3.75 $3.75 KRA Visa 8/25/16 Comfort Inn: Lodging for 8/22-8/24 trial. $3 16.92 $316.92 8/25/16 Mileage from office to court for trial, and back. $58.83 $58.83 Total $817.77 Such costs, except when incurred relative to a depositionf are not permitted. (Ladas v. California State Auto. Assn. (1 993) 19 Cal.App.4th 761 , meal expenses are not allowed except for 5 Thus, in the event that the Court, ultimately, finds Plaintiff to be the “prevailing ” in this suit, a proposition with which P&K takes considerable issue (see discussion at pp. 1:22-22 1), P&K does not challenge the expenses Plaintiff seeks for 7/29/15 for mileage, except to the extent noted in footnote 4 herein, 7/29/15 for parking, and 1/21/16 for mileage. MEMORANDUM OF POINTS AND AUTHORITIES TN SUPPORT OF MOTION TO STRIKE AND/OR TAX COSTS 7 \OOONQUIAUJNH NNNNNNNNNt-It-In-I-Ap-np-AHHHH WNONM-PWNi-‘OKOWNONM-hwwh‘o jurors [id., p. 774]; local travel expenses are not allowed except for depositions [id., pp. 775-776].) Thus, these items are not recoverable, and the Court should tax them. 4. The Court Should Tax the Costs Plaintiff Seeks for a Transcript of the Trial. In Exh. “K,” Plaintiff identifies $195.00 in costs for the fee charged for an “expedited transcript of trial proceedings.” (Id., p. COSTSOOS4.) Date (per Expense Description (per Exh. “K”) Expense Amount to Exh. “K”) Amount be Taxed Claimed 8/25/16 HEATHER J. GORLEY: Court reporter fees for $195.00 $195.00 trial. Such costs are expressly excluded under CCP §1033(b)(5), to wit, “[t]ranscripts of court proceedings not ordered by the court.” The Court did not order the transcript for which Plaintiff seeks costs. The Court should tax this cost. 5. The Court Should Tax the Costs Plaintiff Seeks for Court Call Services. In Exh. “K,” Plaintiff identifies $490.00 in costs for Court Call services, as follows: Date (per Expense Description (per Exh. “K”) Expense Amount to Exh. “K”) Amount be Taxed Claimed 5/4/ 15 Court call appearance for Trial Setting Conference $86.00 $86.00 on May 7 10/1/15 Court call for CMC. $86.00 $86.00 1/1 1/16 Court call cost for ADR status conference on Jan $86.00 $86.00 14 3/2 1/ 1 6 Court call for trial setting conference $1 16.00 $1 16.00 7/20/16 Court call for MJOP hearing. $1 16.00 $1 16.00 Total $490.00 These costs are not allowed under CCP §1033.5(a), so they are permitted only if necessary to the litigation, rather than merely for convenience. (CCP §1033.5(c).) P&K submits that appearing at hearings through Court Call rather than in person is a convenience to Plaintiff s counsel, and was not necessary to the litigation. Thus, the expenses should not be allowed, and the Court should tax them. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE AND/OR TAX COSTS 8 \OOOQGUI-PUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. The Court Should Tax the Cost Plaintiff Seeks for the Attempt to Serve a Trial Subpoena. In Exh. “K,” Plaintiff identifies $92.95 in costs for the attempted service of a trial subpoena, as follows: Date (per Expense Description (per Exh. “K”) Expense Amount to Exh. “K”) Amount be Taxed Claimed 8/22/1 6 One legal attempted service of trial subpoena on $92.95 $92.95 Louis Morin. While CCP §1033.5(a)(4)(B) allows recovery of “. . . the amount actually incurred in effecting service, . . .” (id.), the cost Plaintiffseeks here did not result in the service ofthe subpoena, and does not, therefore, fall within the parameters of that subpart. To the extent Plaintiff seeks to, instead, recover the cost under CCP §1033.5(c), Plaintiff would have to establish that it was necessary to the litigation. (CCP §1033.5(c).) This he cannot do, as Plaintiff, apparently, did not effect service of the subpoena at all. And Plaintiff did not offer Mr. Morin’s testimony at trial. It follows that the expense Plaintiff incurred in an attempt to serve Mr. Morin with a subpoena was not necessary to the litigation. The court should, therefore, tax this cost. III. CONCLUSIONS For all of the foregoing reasons, P&K asks the Court to strike entirely Plaintiff s Memorandum of Costs. In the alternative, and only in the event that the Court denies P&K’s request to strike the Memorandum entirely, the Court should tax the costs in the sum of $3,094.38. Dated: October 20, 2016 PAGANO & KASS, APCfl aeM/wfl IAN AEKASS, Esq., AttorneYs for Defendant, Pagano & Kass, PC MEMORANDUM OF POINTS AND AUTHORITIES TN SUPPORT OF MOTION TO STRIKE AND/OR TAX COSTS 9