James Haefner, In The Right of And For The Benefit of Northwest Surgical Development Company, Inc. vs. Frisk

Reply to Opposition

Cal. Super. - 4th Dist.June 16, 2011

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Neal M. Goldstein, Esq., California State Bar No. 82187 11400 W. Olympic Boulevard Suite 600 ] ; ELECTRONICALLY Los Angeles, California 90064 Superior Court of Ealfornia Telephone: (310) 817-6006 County of Orange Attorney for Defendant and Cross-complainant Richard A. Frisk 08/93/2018 Hl 20:00 AN erk of the Superior Court Bye Clerk. Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE JAMES HAEFNER, ) CASE NO. 30-2011-00484502 ) Plaintiff, ) DEFENDANT FRISK’S REPLY IN ) SUPPORT OF MOTION TO TAX V. ) COSTS ) RICHARD A. FRISK, an individual; ) DATE: August 14,2018 AVANTI SKIN COMPANY, INC; ) TIME: 2:00 pm and DOES 1 through 50, ) DEPT. C13 ) Defendants. ) ) Case filed: 6/16/2011 ) Reservation Number: 72829239 And related Cross-complaints. ) ) ) 2676h1 REPLY IN SUPPORT OF FRISK MOTION TO TAX COSTS 1 10 11 12 13 14 15 le 17 18 19 20 21 22 23 24 25 26 27 28 L INTRODUCTORY STATEMENT. Before the Court is the motion of defendant Richard A. Frisk to tax costs. As noted in the motion papers, Mr. Frisk objects primarily to costs which were not those of the party seeking to recover them. In addition, he asserts certain costs are inappropriate or excessive. While the opposition asserts the motion was short on substance, in fact, the opposition fails to address the specifically noted items and provide a basis to contest the instant motion. As Mr. Frisk duly called these items into question and the plaintiff has not addressed the issues raised or otherwise sought to present a basis for recovering such costs, Mr. Frisk submits the instant motion should be granted as prayed. IL. MR. HAEFNER HAD THE BURDEN TO SHOW HE EXPENDED AND NECESSARILY EXPENDED THE AMOUNTS AND ITEMS ON HIS MEMORANDUM OF COSTS. AS TO THE CONTESTED ITEMS, HE HAS FAILED TO MEET THAT BURDEN AND THE CONTESTED ITEMS SHOULD BE TAXED. The rule applicable to the resolution of this motion was set forth in Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29-30 “In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face. ‘If so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131 [84 Cal.Rptr.2d 753].) Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary. (Id. at p. 132....)” Here, as to the items noted not to have been incurred by the moving party, there is no attempt to assert that they were incurred by the plaintiff. Clearly, as to the items incurred while the plaintiff was not in the case, the assertion in the Memorandum of Costs does not give rise to 2676h1 REPLY IN SUPPORT OF FRISK MOTION TO TAX COSTS 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 something that would appear proper on its face. In response to the instant motion, as to such items, there is total silence. We submit this lack of response is an admission that the items are not recoverable. Similarly, as to the items that appear related to another case, there is no attempted justification. All there is is an assertion that “the court does not always charge costs for filing documents on the day they were processed.” Oppo 3: 8-9. There is no attempt in the opposition to tie the items in question to charges in this case. In fact, there is no assertion that the charges were for the motions or other filings in this case. No authority is presented for plaintiff's proposition and the case authority noted below belies the plaintiff's position. We submit as to each item contested, the moving party has failed to meet its burden as noted in the foregoing authority. Further highlighting the lack of merit in the moving party’s position is the assertion: “ As for deliveries and parking, they are reasonably related to the conduct of the litigation and reasonable in amount.” Oppo. 3:16-17. Lots of costs are “reasonably related to the conduct of the litigation and reasonable in amount.” Driving to depositions, meals related to local deposition, copying of pleadings and service and filing of the same are all such costs. Yet all such costs have been expressly held to be nonrecoverable. In Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 98, it was expressly noted: “Section 1033.5, subdivision (a)(3) clearly contemplates recovery of travel costs incurred by counsel to attend depositions. (Foothill-De Anza Community College Dist. v. Emerich, supra, 158 Cal.App.4th 11, 30.) By negative implication, this statute does not provide for recovery of local travel expenses by attorneys and other firm employees unrelated to attending depositions (Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761, 775-776 (Ladas)) nor does it allow recovery for ‘meals eaten while attending local depositions.” (Id. at p. 774.)” [Emphasis added.] We submit the Gorman opinion negates and renders without merit the moving party’s attempt to expand the scope of what is recoverable in Section 1032 et seq. 2676h1 REPLY IN SUPPORT OF FRISK MOTION TO TAX COSTS 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The statute is to be taken at its words and as explained in case authority, such as that noted above. The statute does not allow for a party to assert it spent some sum and assert therefore it is recoverable. It does not allow a party to assert that a cost is for one thing and then come back and say well I meant something else. Due process requires that the moving party explain its expenses, so that the opposing party can respond. As noted in Gorman, “this statute does not provide for recovery of local travel expenses by attorneys and other firm employees unrelated to attending depositions.” Thus, the items noted as not being recoverable should be taxed. See e.g. all of the charges for messengers and related to local filings. These are all improper requests. Code of Civil Procedure § 1033.5 provides what is and is not recoverable. It is a very specific and limited statute. As noted above, ancillary costs are not recoverable. The contested items listed as recoverable filing and motion fees are not that. There are no filing fees for oppositions, replies and supplements. Yet, Mr. Hafner seek to recover significant charges for such. See items 1¢,1d, le,1f,1h,, 1i, 1j, 11, Im, 1n, lo, 1g, Ir, 1s, 1t, 1v-aa, inclusive, lcc, lee-mm, inclusive. All these items should be taxed. Here, the moving party duly contested the amounts requested in the moving papers and the opposing party has failed to respond to such contest other than to say something to the order maybe (not even definitively) we meant something else. It is submitted that such is not sufficient to recover the amounts contested. The moving party submits that each of the items contested should be taxed. They were not properly requested and it has been shown, without any rebuttal, that they are not recoverable under the statute. III. MR. HAEFNER HAS NOT SHOWN HE INCURRED THE CONTESTED CHARGES. THUS, THE CHARGES SO CONTESTED SHOULD BE TAXED. Mr. Haefner was not a party to this action when many of the items in his Memorandum of Costs were incurred. He did not become a party until 2013, after most of the contested costs were incurred. As to the contested depositions after he was a party, these depositions were noticed and taken by another party. There is no evidence that such expenses were incurred or even shared by Mr. Haefner. There is no proof that he had anything to do with the payment of such expenses. As 2676h1 REPLY IN SUPPORT OF FRISK MOTION TO TAX COSTS 4 10 11 12 13 14 15 16 17 18 1s 20 21 22 23 24 25 26 27 28 a result, without question, Mr. Haefner has not made the required showing to request that they be awarded to him. This means that the items on lines 1.a through 1.ee should be taxed. This means that the items on lines 4.a through 4.u should be taxed. IV. MR. HAEFNER HAS NOT SHOWN THAT CERTAIN CONTESTED ITEMS IN HIS MEMORANDUM OF COSTS WERE INCURRED IN THIS CASE. THUS, THE CHARGES SO CONTESTED SHOULD BE TAXED. As noted in the moving papers, several items in Mr. Haefner’s memorandum of costs appear to relate to other actions. His response that he may have the dates wrong does not satisfy the requirement that he duly set forth items that are recoverable. Complaint and Summary Judgment Fees from another case are not recoverable here. See items on lines 1.p and 1.dd for examples of such. See also items 1bb, lcc, 1dd, lee, 4n and 5b, which all appear to be as either incurred by other parties and/or in another case. All of the items so contested should be taxed. There is no showing that they were incurred in this case and are recoverable by Mr. Haefner. Vv. MR. HAEFNER IS NOT ENTITLED TO RECOVER EXCESSIVE CHARGES AND THE CHARGES FOR THE CLEARLEY DEPOSITION ARE EXCESSIVE. The one item addressed in the opposition is the travel charges to the Clearley deposition. Mr. Huston’s declaration is submitted in an attempt to bolster the claim for $1244 for travel to a short deposition in the State of California. Interestingly, if the charges were incurred and reasonable, it would have been a simple matter to provide receipts. However, that is not what is presented. Rather, all we have is Mr. Huston’s statement he needed to fly up and stay overnight. That does not address or answer the question as to how did the expenses got to $1244? As noted in the motion papers and Mr. Goldstein’s declaration, flights to Sacramento were under $400. Hotels are available for less than $200. $50 to rent a car for a day, should have been easily obtained. So, there is nothing to show that the charges were not excessive. We submit that plaintiff has failed to meet 2676h1 REPLY IN SUPPORT OF FRISK MOTION TO TAX COSTS 5 10 11 12 13 14 15 16 1.7 18 19 20 21 22 23 24 25 26 27 28 his burden. Plaintiff had two chances to justify his claim. The failure to support the claimed charges is troubling. We submit that the costs on line 44y should be taxed or reduced to no more than % of such sum. VI. CONCLUSION. In total, as specifically noted in the motion papers, Mr. Frisk submits that the following amounts should be taxed from the lines of the designated lines of the Memorandum of Costs (Summary): Line Description Amount to Be Taxed 1: Filing and Motion Fees 7,568.25 4. Deposition costs 25,302.45 3, Service of Process 300.17 16. Other 206.42 Total to be Taxed $33,377.29 The specific items to be taxed were noted in the moving papers and Mr. Haefner has not established that any of the items are recoverable costs. The motion should be granted as prayed. The Memorandum of Costs filed by Mr. Haefner is submitted to be erroneous and overreaching in many ways. Mr. Frisk therefore submits that the requested costs should be taxed by the sum of $33,377.29 and only $12,376.87 should be awarded in costs. Dated: August 3, 2018 Iw BA ” Neal M/ Goldstein, Attorney for Defendant, Cross-complainant and Cross-defendant FRISK 2676h1 REPLY IN SUPPORT OF FRISK MOTION TO TAX COSTS 6