Jack Anderson vs. County of Orange

Opposition

Cal. Super. - 4th Dist.May 27, 2010

ee Le Na a N nt A W N N O N O N N N N N N O N EE em Em e m je p m em em 0 Jd NN Wh Ea W O N =m S e N N R W NN = Norman J. Watkins, Esq. [SBN No. 87327] Government Code § 6103 S. Frank Harrell, Esq. [SBN No.133437] LYNBERG & WATKINS ELECTRONICALLY FILED A Professional Corporation Superior Court of Califomia, 1100 Town & Country Rd, Suite 1450 sau af Kenge Orange, California 92868-5915 0810/2016 at 02:41:00 PM (714) 937-1010 Telephone Clerk of the Superior Court (714) 937-1003 Facsimile By & Clerk, Deputy Clerk Attorneys for Defendant COUNTY OF ORANGE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER JACK ANDERSON, JOHN DAVIS, BRIAN CASE NO: 30-2010-00376368 COSSAIRT, DEANA BERGQUIST, and ROBERT EASON, Assigned for All Purposes to the Honorable Frederick P. Aguirre - Dept. C-23 Plaintiffs, DEFENDANT’S OPPOSITION TO VS. PLAINTIFFS’ MOTION TO TAX COSTS COUNTY OF ORANGE, a public entity; Date: August 23, 2016 Time: 8:30 AM. Defendant. Dept.: C23 TO ALL PARTIES HEREIN AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: Defendant County of Orange hereby submits its Opposition to Plaintiffs’ Motion to Tax Costs. [11 111 111 1 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION TO TAX COSTS oOo 90 Nu aN n t RA W N N O N N N N N N N N em em Em e m e d em em md em 0 J A WN Ah W O N E S C Na N N R W N = MEMORANDUM OF POINTS AND AUTHORITIES L PRELIMINARY STATEMENT Defendant County of Orange prevailed at trial, and Judgment in favor of the County was entered on June 2, 2016. (See, Judgment, attached as Exhibit A to Plaintiffs’ Motion and Declaration of Joel Baruch in support). Pursuant to that Judgment, Plaintiffs Jack Anderson, John Davis, Brian Cossairt, Deana Bergquist, and Robert Eason took nothing by way of their operative Complaint, and Defendant, as the prevailing party, was awarded costs. (Id.) Defendant now seeks to recover its costs of litigation under California Code Civ. Proc. § 1032 et seq. On June 10, 2016, Defendant timely filed their Memorandum of Costs Summary and Worksheet pursuant to California Rules of Court, rule 3.1700. (See, Memorandum of Costs Summary and Worksheet, attached as Exhibit B to Plaintiffs’ Motion and Declaration of Joel Baruch in support). The costs can be summarized as follows: jury fees in the amount of $150; deposition costs in the amount of $16,042; service of process costs in the amount of $1,142; models, blowups, and photocopies of exhibits in the amount of $53,845; court reporter fees in the amount of $8,250; and other fees in the amount of $9,891. (Id.) Plaintiffs filed their Motion to Tax Costs on June 24, 2016. Plaintiffs’ Motion to Tax challenges only one aspect of Defendant’s cost bill-the $53,845 necessarily incurred for models, blowups, and photocopies of exhibits used at trial. Plaintiffs’ attempt to attack these costs is based on unsupported assertions and conclusory contentions, and should be rejected by this Court. Indeed, it was Plaintiffs and their attorneys who spent exorbitant time and resources attacking the County and its employees with demonstrably false accusations that were rejected by the Court. As the prevailing party in this litigation, Defendant is therefore entitled to recover their costs under the law. IL. DEFENDANT IS ENTITLED TO ITS COSTS OF LITIGATION AS A MATTER OF RIGHT. “The right to recover any of the costs of a civil action ‘is determined entirely by statute.” Charton v. Harkey, 247 Cal. App.4th 730, 737 (2016). “‘Section 1032 governs the award of costs of trial court litigation.”” Id. Under Code Civ. Proc. § 1032(b), a prevailing party is entitled to 2 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION TO TAX COSTS © 0 3 SN n t A W N = N O O N N N O N RN DN N N = Em em em p d em p m e d em e d 0 Jd A Wh E W O N m S 0 Na nN R W N = CO recover costs “as a matter of right.” Id. at 737; Bank of San Pedro v. Superior Court, 3 Cal. 4th 797, 803 (1992); Chavez v. City of L.A., 47 Cal. 4th 970, 973 (2010). “Prevailing party” includes a defendant as against those plaintiffs who do not recover any relief against that defendant. Id. at 737-738. Applied here, Plaintiffs recovered nothing against the County. (See, Judgment, Exhibit A). The County, therefore, is the prevailing party. “[ T]he trial court has no discretion to deny prevailing party status to a litigant who falls within one of the four statutory categories in the first [sentence] of the provision. ‘As rewritten [in 1986], section 1032 now declares that costs are available as ‘a matter of right’ when the prevailing party is within one of the four categories designated by statute.” Id. at 738 (Emphasis added). The County is the prevailing party as against Plaintiffs. Accordingly, the County is entitled to its costs of suit as a matter of right. A. Defendant is Entitled to its Costs for Models, Blowups, and Photocopy. Code Civ. Proc. section 1033.5, subdivision (a) specifies cost items that are allowable, including "models and blowups of exhibits and photocopies of exhibits . . . if they were reasonably helpful to aid the trier of fact." Code Civ. Proc., § 1033.5(a)(12). Costs for photocopies are allowable if they are copies of exhibits. Code Civ. Proc. §§ 1033.5 (a)(12), (b)(3); EL Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc., 150 Cal. App.4th 612, 618-619 (2007). Indeed, costs for trial exhibit preparation and presentation such as “graphic exhibit boards” and “graphics communication system” have been upheld as properly awarded costs to the prevailing party. Science Applications Internat. Corp. v. Superior Court, 39 Cal. App.4th 1095, 1099, 1099, fn. 3, 1104 (1995); see also, Cristler v. Express Messenger Systems, Inc., 171 Cal.App.4th 72, 90- 91 (2009)(where costs were award for exhibits and blowups used at trial). Likewise, the use of labor and technology for creating exhibits are recoverable costs pursuant to Code Civ. Proc. §§ 1033.5 (a)(12) and (c)(4). El Dorado Meat Co., supra, 150 Cal. App. 4th at 617, 620; see also, Ripley v. Pappadopoulos, 23 Cal. App.4th 1616, 1623 (1994)(rental of overhead projector used at trial was recoverable cost item). Here, Defendant secks $53,845 in costs expended for models, blowups, and photocopies of exhibits. (See, Memorandum of Costs and Worksheet, Exhibit B). These costs were necessarily 3 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION TO TAX COSTS oo 0 Na S N nh Aa W N N O N O N O N N O N N O N N e em e m em em Em em em em 0 J & A W N =m S e ee N N N A W N e o incurred in the use of the services of Litigation Support Professionals for pre-trial preparation, maintaining and preparing exhibits used at trial, and support during trial. While Plaintiffs claim this cost was inflated, the copying, imaging, organizing, and presenting of the trial exhibits allowed the evidence to be presented in an orderly fashion, avoided confusion, and avoided wasting the Court’s time and resources. Indeed, Plaintiffs know first-hand the benefits of using the services of Litigation Support Professionals given that their own attorneys called upon these services themselves during trial when their clerk/legal assistant and/or paralegal could not correctly call up or properly display exhibits during trial. Accordingly, Defendant should be awarded its costs expended in preparing the exhibits for and during trial. See Applegate v. St. Francis Lutheran Church, 23 Cal. App. 4th 361, 364 (1994) (“...it would be inequitable to deny as allowable costs exhibits which a prudent attorney would prepare in advance of trial...”). While Plaintiff contends that labor costs are not recoverable because labor is not explicitly allowed in Code Civ. Proc. § 1033.5(a), this is contradicted by statute and case law. Code Civ. Proc. § 1033.5(c)(4) states items not explicitly allowed in subsection (a) may be allowed in the court’s discretion. Courts have often used their discretion to allow reasonably necessary costs of preparing exhibits for trial. See, El Dorado Meat Co., supra, 150 Cal. App. 4th at 617, 620; Bender v. County of Los Angeles, 217 Cal. App.4th 968, 991 (2013). In El Dorado Meat Co., the court stated that the cost of an exhibit, including the labor to create it, recoverable. El Dorado Meat Co., supra, 150 Cal. App. 4th at 617, 620. Based on the foregoing, Defendant should be awarded their costs for models, blowups, and photocopies of exhibits amounting necessarily incurred for Litigation Support Professionals in preparing trial exhibits. Defendant is also entitled to the expense incurred for trial presentation services and document control and database costs because these costs were incurred by Defendants in this trial not as a method of storage and retrieval, but rather for a method of trial presentation which is analogous to the use of models, blowups, and photocopies. Accordingly, this Court, in its discretion, should award such costs. See, Code Civ. Proc., § 1033.5(c)(4). Plaintiffs claim Defendant’s costs for models, blowups, and photocopies should only be $7,433.75, but provides no documentation or support for how that number was calculated. 4 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION TO TAX COSTS $v 0 Na a n t A W N = N O O N N N O N O N N N N EE em mm em em em em e m e d 0 J & Wh A W O N mE S e N S N E W N = O Plaintiffs further contend that Litigation Support Professionals did nothing more than “listen[] to counsel asking to pull up an exhibit and clicked on the exhibit.” (See Plaintiff’s Motion, at 4:14.) This portrayal is simply false. Litigation Support Professionals compiled and organized detailed paper and video exhibits in this document intensive case. One exhibit alone had over 5,000 pages, and Litigation Support Professionals was able to display the large and detailed exhibits for both sides. While Plaintiff claims “there is nothing special” about the tasks entrusted to Litigation Support Professionals because Plaintiffs used a law clerk and paralegal for exhibit presentation, Plaintiffs’ counsel also utilized Litigation Support Professionals during trial to display the exhibits they needed when Plaintiffs’ counsel own assistants were unable to do so. The costs expended thus were not for mundane tasks as Plaintiffs describe. Rather, the costs expended were for suitably trained personnel to compile and present an immense amount of detailed exhibits in a highly efficient manner which was advantageous for both sides. Plaintiffs failed to support their argument to tax costs with a single case and thus, failed to meet their burden. The burden is on the party seeking to tax costs to show they were not reasonable or necessary. Ladas v. California State Auto. Ass'n, 19 Cal.App.4th 761, 774-776 (1993). Where “reasonableness” of a particular item is challenged, conclusory allegations that the item was “neither necessary nor reasonable” does not satisfy the objecting party's burden. County of Kern v. Ginn, 146 Cal. App.3d 1107, 1114 (1983); Jones v. Dumrichob, 63 Cal. App.4th 1258, 1266 (1998)(mere statements in points and authorities and declaration of counsel insufficient to rebut prima facie showing). B. All Other Costs Should be Awarded The losing party may dispute any or all of the items in the prevailing party's costs memorandum by a motion to strike or tax costs. See California Rules of Court, rule 3.1700(b). A motion to tax must be directed to particular items in the costs memorandum and state why each is objectionable. California Rules of Court, rule 3.1700(b)(2). Here, Plaintiffs’ only object to a portion of costs for photocopies of exhibits. No other items are disputed by Plaintiff. Accordingly, Defendant must be awarded costs for those items Plaintiffs have not disputed. See, Longshore v. Pine, 176 Cal.App.3d 731, 734, fn. 2 (1986)(Failure to oppose may be construed by 5 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION TO TAX COSTS eo 0 a S N n t Rh W N N O N N O N N D N DN N N Ee em em em em e m em em em 0 J & hn Es W N m S vO S n R W O the court as an admission that the motion is meritorious, and the court may grant the relief requested in the motion.); Campbell v. Ingram, 37 Cal. App. 728, 732 (1918)("Since appellant has not deigned to reply to the argument of respondent, we have a right to assume that the former deems the argument of the latter unanswerable[.]".) This includes costs detailed as Item no. 13 (“Other Costs”). Although Plaintiffs briefly mention these costs, their statements regarding these costs are confusing and vague. To the extent Plaintiff is trying to tax item no. 13, the challenge was not brought appropriately. No argument was made, nor was any support brought to tax the “Other” costs. In any event, any such argument would be without merit. The costs expended in item 13 were charges from obtaining regular and oversized copies from Ikon and Ace and from in house copying. These costs are clearly separate from the photocopying and exhibit costs from an entirely separate company. Moreover, these costs are explicitly allowable under Code Civ. Proc. § 1032(a)(4) and Benach v. County of Los Angeles, 149 Cal. App.4th 836, 857 (2007) (stating although the prevailing party could have found photocopies for less than half the price elsewhere, the costs were recoverable because a law firms performing photocopying in house with personnel expenses is not analogous to retail copying services). Defendants should be awarded all costs for jury fees, deposition costs, service of process costs, court reporter fees, and other fees as Plaintiff has not disputed those costs. As for the particular items Plaintiffs do dispute, Plaintiffs have failed to meet their burden. III. CONCLUSION For all of the foregoing reasons, Defendant, as the prevailing party, respectfully requests that the Court award Defendant all costs totaling $89,320.00. DATED: August 10, 2016 Respectfully submitted, LYNBERG & WATKINS A Professional Corporati By: : ( NORMAN J. WATKINS S. FRANK HARRELL PANCY LIN Attorneys for Defendant COUNTY OF ORANGE 6 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION TO TAX COSTS oo @® Na a nn Ae W N = N O O N O N RN N N N D N N ee j m p s je Em e e p d e l p d 0 TI & WN Rh W N =m 2 VY N S N R W Ny y R o Case Name: Anderson, et al. v. County of Orange, et al. Case No.: 30-2010-00376368 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 1100 Town & Country Road, Suite 1450, Orange, California 92868. On August 10, 2016 I served the foregoing document(s) described as DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION TO TAX COSTS on the interested parties by placing a true copy thereof enclosed in sealed envelopes addressed as follows: Joel W. Baruch, Esq. LAW OFFICES OF JOEL W. BARUCH, P.C. 2020 Main Street, Suite 900 Irvine, CA 92614-8203 Tel: (949) 864-9662 Fax: (949) 851-3185 Counsel For Plaintiffs JACK ANDERSON, JOHN DAVIS, BRIAN COSSAIRT, DEANA BERGQUIST, and ROBERT EASON ] BY MAIL: As follows: Iam "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice, I deposited such envelope in the mail at Orange, California.. [] BY FACSIMILE: I caused all of the pages of the above-entitled document to be sent to the recipient(s) noted via facsimile at the respective telephone numbers indicated above.. X BY ELECTRONIC TRANSFER via electronic filing service provider: By electronically transmitting the document listed above to ONE LEGAL, an electronic filing and service provider The transmission was reported as complete and without error. [] BY PERSONAL SERVICE: I caused such envelope to be delivered by hand to the office(s) of the addressee via messenger. Xx (State): I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on August 10, 2016, at Orange, California amas Im CHRISTINE HARRIS PROOF OF SERVICE