Thomas A. Vogele vs. Richard Dessert Williams

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.April 2, 2012

B R O E D L O W L E W I S L L P w w w . B r o e d l o w L e w i s . c o m 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jeffrey Lewis (SBN 183934) Kelly Broedlow Dunagan (SBN 210852) BROEDLOW LEWIS LLP 734 Silver Spur Road, Suite 300 Rolling Hills Estates, CA 90274 Tel. (310) 935-4001 Fax. (310) 872-5389 E-Mail: Jeff@BroedlowLewis.com Attorney for plaintiffs THOMAS A. VOGELE and GIMINO VOGELE ASSOCIATES, LLP SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER THOMAS A. VOGELLE,etc. et al., Plaintiffs, VS. RICHARD DESSERT WILLIAMS, etc. al., Defendants. ) ) ) ) ) ) ct) ) ) ) ) Case No.: 30-2012-00558522-CU-NP-CJC (fssigned for all purposes to Hon. Michael Brenner, Dept. C-62) MOTION BY PLAINTIFFS TO STRIKE OR TAX COSTS CLAIMED BY DEFENDANTS RICHARD WILLIAMS, KELLY LYTTON & WILLIAMS AND SUSAN LINTZ WILLIAMS; DECLARATION OF JEFFREY LEWIS IN SUPPORT THEREOF Hearing Date: Hearing Time: Hearing Dept.: June 19, 2017 9:00 a.m. C-62 Action Filed: April 2, 2012 Trial Date: February 1, 2017 MOTION TO TAX COSTS B R O E D L O W L E W I S L L P w w w . B r o e d l o w L e w i s . c o m 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: NOTICE IS HEREBY GIVEN that on June 19, 2017 at 9:00 a.m. or as soon thereafter as the matter may be heard in Department C62 of the Orange County Superior Court, Central Justice Center, located at 700 Civic Center Drive West, Santa Ana, CA 92701, plaintiffs Thomas A. Vogele and Gimino Vogele Associates will and hereby do move this Court to strike and tax costs saught by Defendants Richard Dessert Williams, Kelly Lytton & Williams, LLP and Susan Lintz. The motion is made pursuant to Code of Civil Procedure, section 1033.5 on the grounds that the moving parties have sought costs that are not authorized by law to be awarded. This motion is based on this Notice and the attached Memorandum of Points and Authorities filed concurrently herewith, and such further evidence and argument as the Court may receive at the hearing. DATED: May 23, 2017 BROEDLOW LEWIS LLP Attorneys for plaintiffs THOMAS A. VOGELE and GIMINO VOGELE ASSOCIATES, LLP -2 - MOTION TO TAX COSTS B R O E D L O W L E W I S L L P w w w . B r o e d l o w L e w i s . c o m 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITES I. Introduction Plaintiff Thomas A. Vogele (“Vogele”) obtained a judgment against Richard Williams (“Richard”), Susan Lintz Williams (“Susan”) and Kelly Lytton & Williams LLP (“KLW”). The jury did not award any damages to Vogele’s former law firm, Gimino Vogele Associates (“GVA”). Counsel for Richard, Susan and KLLW filed a memo of costs utilizing an optional judicial council form that is poorly suited for this case. The memo does not specify who the costs are sought against or who the costs are sought for. In addition, the memo contains requests for costs items that are not recoverable costs and should be taxed. By this motion, Vogele and GVA seek the following relief: 1. If the memo seeks a costs award against Vogele, it should be stricken in its entirety. Vogele is unquestionably a prevailing party. 2. If the memo seeks a costs award against GVA, because the jury found that defendants acted for an improper purpose against GVA, GVA is a prevailing party notwithstanding the absence of a damages award. The memo should be stricken in its entirety as to GVA. 3. In the alternative, the memo contains excessive costs in the amount of $21,540.54 that should be taxed for the reasons specified below. II. The Motion to Strike Should Be Granted as to Vogele and GVA Vogele recovered compensatory and punitive damages against the Richard, Susan and KLW. He is unquestionably a prevailing party. (Code Civ. Proc. § 1032, subd. (a)(4) [defining prevailing party to include party with a net monetary recovery]. After the filing of the memo of costs, defendants counsel confirmed that the filing of the memo of costs was not intended to seek costs against Vogele personally. (Lewis Decl, 9 3, Ex. 1). In addition, as to GVA,the jury found in its special verdict that defendantsfiled the prior action with an improper purpose. (Special Verdict, § 1). Although no damages were awarded in favor of GVA, GVA may still be deemed the prevailing party because GVA prevailed on the issue of liablity. - 3 - MOTION TO TAX COSTS B R O E D L O W L E W I S L L P w w w . B r o e d l o w L e w i s . c o m 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Pirkig v. Dennis (1989) 215 Cal.App.3d 1560, 1566). The Court should, therefore, strike the costs memo in its entirety. III. The Motion to Tax Should Be Granted Because Defendants are Claiming Costs that are Unreasonable and Unauthorized by Statute A. The Court Should Tax $1,308.08 in Excessive Costs for Filing and Motion Fees. The memo of costs includes a claim for $3,638.08 in “filing and motion fees.” However, the memo improperly includes excessive surcharges on top offiling fees that are likely attorney service charges. As demonstrated below, $1,308.08 in attorney service or other excess charges should be taxed. Filing and Motion Fees Claimed Proper Excess Answer $799.95 $790.00 $9.95 SLAPP Motion $99.95 $40.00 $59.95 Motion for Order to Stay $100.94 $40.00 $60.94 Motion to Compel $103.91 $40.00 $63.91 Ex Parte Application $74.90 $60.00 $14.90 Proposed Order on Ex Parte Application $75.90 $- $75.90 MS] $544.90 $500.00 $44.90 Stipulation and order $33.91 $20.00 $13.91 Ex Parte Application $75.90 $60.00 $15.90 Motions in Limine $811.93 $780.00 $31.93 Motions in Limine $915.89 0 $44.11) Sub-Total of Filing and Motion $3,638.08 $2,330.00 $1,308.08 - 4 - MOTION TO TAX COSTS B R O E D L O W L E W I S L L P w w w . B r o e d l o w L e w i s . c o m 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For filing the answer for two parties, the statutory answer fee is $395. The excess of $9.95 should be excluded. The filing fee for a SLAPP motion was $40.00 not $99.95. The filing fee for a motion for orderto stay is $40.00 not $100.94. Thefiling fee for a motion to compel is $40.00, not $103.91. Thefiling fee for an ex parte application is $60.00 not $74.90. And there is no court filing fee for a proposed order. There is a $500 charge for motions for summary judgment. The extra $44.90 is likely a service fee by the attorney service. The stipulation and order fee is $20.00 not $33.91. The fee for an ex parte application is $60.00 not $75.90. The filing fee in excess of $1,700 for motions in limine is excessive. There is a $60.00 filing fee for each. Defendants filed 13 motions in limine in Phase I and then filed them again in Phase II. The Court denied or deferred most of defendants’ motions in limine finding them to be premature and best resolved during trial.! Many of the motions in limine were repetitive or made for the purpose of prejudicing the Court against plaintiffs. The Court should find that $1,700 for motions in limine is excessive and should tax all but $780.00, the filing fee for 13 motions in limine. B. The Court Should Tax $5,404.53 in Excessive Costs for Depositions. Defendants have sought $14,400.13 in deposition costs. However, $5,404.53 ofthose costs are excessive and should be stricken. Defendants are claiming $1,375.55 for videotaping the deposition of Thomas Vogele but that video was never played at trial. In addition, defendants are claiming deposition costs of $612.50, $1,638.70 and $2,119.70 for witnesses who never testified live or via deposition, Frances O’Meara, Jeffrey Knee and Kenneth Rugeti. In addition, as to expert witness Kenneth Rugeti, it appears that defendants are seeking to recover the cost of the transcript $1,054.70 plus his expert witness fee of $1,065. The latter is not permitted. None of the foregoing costs were reasonably necessary in this action. "The Court’s June 4, 2015 minute order confirms that defendants motions in limine 1-3, 5-7 and 9, 12-13 were denied or deferred. Motions in limine 4 and 8 were taken under submission. Motion in limine number 10 to preclude introduction of evidence withheld in discovery was unnecessary and was granted as to both sides. -5- MOTION TO TAX COSTS B R O E D L O W L E W I S L L P w w w . B r o e d l o w L e w i s . c o m 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. The Court Should Tax $9,038.46 in Excessive Costs for Models, Blow ups and Exhibits Defendants have sought $11,038.46 in costs for models, blowups and exhibits. This number is excessive. By comparison, Plaintiffs are claiming $1,990.21 in such costs. $11,038.46 is excessive in comparison. Moreover, it should be noted that defendants had over 531 trial exhibits in 12 volumes with an estimated total of 6,681 pages. Only 67 of the 531 trial exhibits were actually used. The remaining exhibits were simply unnecessary and unreasonable. Trial exhibits not used at trial are not recoverable as a cost. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775 [holding that trial court was “not authorized” to award $10,202.89 in costs for trial exhibits and blow ups not used attrial]). Given that 87%of defendants’ trial exhibits were never used at trial, the court would be well within its discretion to reduce the claimed $11,038.46 by 87%or $9,645.66 and award only 13%of the claimed cost ($1,392.80). D. The Court Should Tax $3,377.00 in unauthorized fees for court reporter The court reporter fee is $250 per day by statute. The claimed reporter fees for transcription of law and motion matters should be stricken (January 31, 2014 for $30.00). There were 18 days oftrial in February 2017. There were 11 other trial or trial related hearings in 2015 for a total of 29 trial days chargeable at $250 each. $7,250 is the maximum amount of court reporter fees allowed by statute. The excess of $3,377 claimed by defendants are likely fees for “real time” or expediting transcripts. Neither is recoverable. Only $7,250 should be awarded. E. The Court Should Strike $2,412.47 in excessive fees for Service of Process Defendants are seeking $3,045.12 in fees for service of process. Many of these charges are for service of process for witnesses who never appeared at trial. Other service of process costs appear excessive, the following witnesses did not appear attrial: Ahern, Hartford, Kaufman firm, PMQ for Kaufman, COR for Kaufman, O’meara, Nguyen. The costs for - 6 - MOTION TO TAX COSTS B R O E D L O W L E W I S L L P w w w . B r o e d l o w L e w i s . c o m 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 those witnesses of $632.65 should be stricken. The remaining charges for Gimino and Dohr are excessive. There is no explanation as to why it cost $1,608.62 to serve witnesses that appeared voluntarily at trial. Similarly, $803.85 was billed to serve Gimino. That amountis excessive. The Court should strike $2,412.47 in the claimed $3,045.12 service of process Costs. F. Summary of $21,540.54 in Unauthorized Costs The improper costs claimed by defendants and described in Parts A through E above are summarized below. Plaintiffs respectfully request that the trial court tax $21,540.54 ofthe claimed $44,759.95 in claimed costs. Filing and Motion Feees $1,308.08 Depositions $5,404.53 Models, Blow Ups and Exhibits $9,038.46 Transcripts $3,377.00 Service of Process $2,412.47 Total $21,540.54 IV. Conclusion Based on the foregoing, plaintiffs respectfully request that the costs memo be stricken in its entirety as defendants did not prevail. If the Courtis to allow any costs, such costs should be chargeable only to GVA. The only costs that are authorized by law are $23,219.41. The remaining $21,540.54 claimed by defendants are excessive, unreasonable and not authorized by law. The Court should tax that amount. DATED: May 23, 2017 BROEDLOW LEWIS LLP By: fe etfrey Mew. Attorneys for plaintiffs THOMAS A. VOGELE and GIMINO VOGELE ASSOCIATES, LLP -7 - MOTION TO TAX COSTS B R O E D L O W L E W I S L L P w w w . B r o e d l o w L e w i s . c o m 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JEFREY LEWIS I, Jetfrey Lewis, declare as follows: 1. I am an attorney and partner with Broedlow Lewis LLP, counsel of record for plaintiffs Thomas A. Vogele and Gimino Vogele Associates, LLP (collectively, “Vogele.”) 2. I have personal knowledge of the truth and accuracy ofthe facts stated herein and if called to testify as a witness, I could competently do so. I do not intend to waive the attorney client privilege, work product doctrine by making any statement herein. 3. On May 18, 2017, I wrote counsel for defendants Richard Williams and Kelly, Lytton & Williams inquiring whether the costs memo was directed to Thomas A. Vogele, Gimino Vogele Associates or both. Defendants counsel confirmed that the filing of the memo of costs was not intended to seek costs against Vogele personally. A true and correct copy of the May 18, 2017 email is attached herto as Exhibit “1.” I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 234 day of May, 2017 in Rolling Hills Estates, California. 7 Jeffrey Lewis - 8 - MOTION TO TAX COSTS EXHIBIT 1 Gmail by LOX le FW: eService Alert! Case No. 30-2012-00558522-CU-NP-CJC. Memorandum of Costs (Summary) Lucy Mekhael Thu, May 18, 2017 at 3:45 PM To: Jeffrey Lewis Cc: Frank Nemecek , Richard Williams , "Shawnell J. Russell" , Charles Chuck Kanter Jeff, The deposition costs you are seeking were not incurred by Vogele or GVA. You are seeking a windfall. The referee fees were court-ordered to be split. You are seeking to overturn that ruling by seeking recoupment in the memo of costs. If these costs are not withdrawn, we will move to tax. Our memo of costs is only against GVA. | will look into the issues below. NEMECEK-COLE Attorneys At Law Lucy H. Mekhael Attorney at Law Imekhael@nemecek-cole.com 15260 Ventura Blvd., Ste. 920, Sherman Oaks, CA 91403-5344 Tel 818.788.9500 | Fax 818.501.0328 | Lucy Mekhael Bio Download vCard IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, please be advised that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used or relied upon, and cannot be used orrelied upon, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or(ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. Confidentiality Notice: The information contained in this electronic e-mail and any accompanying attachment(s) is intended only for the use of the intended recipient and may be confidential and/or privileged. If any reader of this communication is not the intended recipient, unauthorized use, disclosure or copying is strictly prohibited, and may be unlawful. If you have received this communication in error, please immediately notify the sender by return e-mail, and delete the original message and all copies from your system. Thank you. From: Jeffrey Lewis [mailto:jeff@broedlowlewis.com] Sent: Thursday, May 18, 2017 3:08 PM To: Lucy Mekhael Cc: Frank Nemecek ; Richard Williams ; Shawnell J. Russell ; Charles Chuck Kanter Subject: Re: FW: eService Alert! Case No. 30-2012-00558522-CU-NP-CJC. Memorandum of Costs (Summary) [Quoted text hidden] B R O E D L O W L E W I S L L P w w w . B r o e d l o w L e w i s . c o m 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Vogele v. Williams OCSC Case No.: 30-2012-00558522-CU-NP-CJC I, Jason R. Ebbens, declare that I am over the age of 18 years, employed in the County of Los Angeles, and not a party to the within action; my business address is 734 Silver Spur Road, Suite 300, Rolling Hills Estates, CA 90274. On May 23, 2017, I served the foregoing: MOTION BY PLAINTIFES TO STRIKE ORTAX COSTS CLAIMED BYDEFENDANTS RICHARD WILLIAMS, KELLYLYTTON & WILLIAMS AND SUSAN LINTZ WILLIAMS; DECLARATION OFJEFFREY LEWIS IN SUPPORT THEREOFon the interested parties in this action by placing [1 the original a true copy thereof, enclosed in a sealed envelope with postage pre-paid, addressed as follows: * See Attached Service List * [1] BY MAIL. Iam readily familiar with this law firm's practice for collection and processing of correspondence for mailing with the U. S. Postal Service. The within correspondence will be deposited with the U. S. Postal Service on the same day shown on this affidavit, in the ordinary course of business. I am the person who sealed and placed for collection and mailing the within correspondence on this date at Palos Verdes, California, following ordinary business practices. XI BY ELECTRONIC SERVICE. I served the foregoing document(s) on interested parties by using the electronic filing service ONE LEGAL to serve and file documents electronically as mandated by the Orange County Superior Court. The documents were electronically transmitted to the e-mail addresses of the persons set for the above. DX] (STATE) I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. Executed on May 23, 2017, in Los Angeles County, California. as R. Ebbens = -9 - MOTION TO TAX COSTS B R O E D L O W L E W I S L L P w w w . B r o e d l o w L e w i s . c o m 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST (Page 1 of 1) Vogele v. Williams OCSC Case No.: 30-2012-00558522-CU-NP-CJC NEMECEK & COLE 15260 Ventura Blvd.. Suite 920 Sherman Oaks, CA 91403 Frank Nemecek. Esq. FNemecek(@Nemecek-Cole.com Tel: (818) 788-9500 | Fax: (818) 501-0328 Lucv H. Mekhael. Esq. LMekhael@Nemecek-Cole.com Tel: (818) 788-9500 | Fax: (818) 501-0328 Attorneysfor Defendants: Richard D. Williams, Esq. Kelly Lytton & Williams, LLP PALMIERI, TYLER. WIENER, WILHELM & WALDRON, LLP 1900 Main Street, Suite 700 Irvine, CA 92614 Charles H. Kanter. Esa. CKanter@PTWWW.com Tel: (949) 851-7232 | Fax: (949) 825-5411 Attorneysfor Defendant: Mary Davis LYTTON WILLIAMS. LLP1539 Westwood Blvd.. Suite 300Los Angeles, CA 90024Richard D. Williams. Esa.RWilliams@ILvttonWilliams.comTel: (310) 982-2733 | Fax: (310) 277-5953 Attorneysfor Defendant:Susan Lintz -10- MOTION TO TAX COSTS