Reply Iso Motion To Tax

Reply

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

Je ff Le wi s La w 60 9 De ep Va ll ey Dr iv e, Su it e 20 0 T l lectronically Filed by Superior Court of California, County of Orange, 03/27/2020 01:07:00 PM. 30-2012-00H58522-CU-NP-CJ C - ROA #1164 - DAVID H. YAMASAKI, Clerk of the Court By e Clerk, Deputy Clerk. 1 || Jeffrey Lewis (Bar No. 183934) Sean Rotstan (Bar No. 316041) 2 || JEFF LEWIS LAW 609 Deep Valley Drive, Suite 200 3 || Rolling Hills Estates, CA 90274 Tel. (310) 935-4001 4 || Fax. (310) 872-5389 E-Mail: Jeff@JeffLLewisLaw.com Attorney for Plaintiffs 6 ||THOMAS A. VOGELE and GIMINO VOGELE ASSOCIATES, LLP 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9D COUNTY OF ORANGE - CENTRAL JUSTICE CENTER 10 11 THOMAS A. VOGELE, etc. et al., Case No.: 30-2012-00558522-CU-NP-CJC ) ) 12 Plaintiffs, ) REPLY IN SUPPORT OF MOTION TO + ) STRIKE OR TAX COSTS; g 13 VS. ) SUPPLEMENTAL DECLARATION OF 3 ) JEFFREY LEWIS IN SUPPORT i 14 RICHARD DESSERT WILLIAMS, etc. ) THEREOF 2 et al., ) = 15 ) RELATED TO ROA # 1154 = Defendants. ) = 16 ) (Assigned for all purposes to = Hon. Michael Brenner, Dept. C34) 17 RES ID: N/A 18 Date: April 6, 2020 19 Time: 8:30 a.m. Department: C34 20 Case Filed: April 2, 2012 21 Trial Date: February 1, 2017 22 23 24 25 26 27 28 REPLY IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS Je ff Le wi s La w 60 9 De ep Va ll ey Dr iv e, Su it e 20 0 Ro ll in g Hi ll s Es ta te s, CA 90 27 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. Briefing and Hearing Delays and Good Cause to Hear Motion on Merits Plaintiff Thomas Vogele (“Vogele”) previously filed a motion to tax costs on October 21, 2019. When it was originally set for hearing on December 16, 2019, the Court was unable to take the matter on when the parties appeared to argue it because the Court was engaged in a trial. (Lewis Decl., 4 3.) The matter was reset for hearing on February 3, 2020. The motion to tax costs was fully briefed but Vogele’s counsel did not appear due to inadvertence. (Lewis Decl., § 4.) The Court did not deny the motion but merely took the motion off calendar due to the non- appearance of counsel. (Lewis Decl., 4 4, Ex. 5.) The matter has now been re-noticed for an April 6, 2020 hearing date.! There is no impediment to the Court hearing the motion that was previously briefed. To the extent that Vogele’s counsel's inadvertent failure to appear on February 3 is viewed by the Court as an impediment to hearing the motion, good cause exists to relieve Vogele of the mistake through an affidavit of fault. (Lewis Decl., § 5; Code Civ. Proc., § 473 subd.(b)[authorizing relief based on attorney affidavit of fault].) The matter was previously briefed and there is no prejudice to anyone to simply hear the motion. On the other hand, Vogele will be prejudiced if the motion is not heard. Defendants claim costs, including over $80,000 in expert costs, that are undisputed as not proper costs, yet defendants persist in seeking their collection and have not withdrawn such costs. The motion should be heard. II. Summary of Merits of Motion In the motion, Vogele established that the costs claimed by defendants is excessive and improper. The largest item of costs, $82,165.74 in expert costs was 1 Although based on various orders issued by the Presiding Judge due to COVID-19, this April 6, 2020 hearing date may be continued. .9. REPLY IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS Je ff Le wi s La w 60 9 De ep Va ll ey Dr iv e, Su it e 20 0 Ro ll in g Hi ll s Es ta te s, CA 90 27 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 improperly claimed and defendants concede this point. The Court should, therefore, tax those costs. In addition, Defendants offer no convincing reason as to why the Court should award to Defendants $44,759.95 in costs that were previously claimed, awarded and incorporated into a judgment against plaintiff Gimino Vogele Associates (“GVA”), should be awarded a second time leading to a windfall and double recovery of the same costs. Expert witness fees are not recoverable as a “cost” unless they were court-ordered expert witnesses. (Code Civ. Proc., § 1033.5, subds.(a)(7), (8); Gorman v. Tassajara Development Corp. (2009) 178 Cal. App.4th 44, 74.) III. Defendants Concede that Expert Fees of $81,100.74 Should be Taxed as to Defendants’ Experts and $1,065 as to Plaintiffs’ Expert, Ken Rugeti Defendants improperly claimed $81,100.74 in fees paid to defense experts and $1,065 paid to Plaintiffs’ expert Ken Rugeti. Defendants concede these amounts are improper and should be stricken. IV. Principles of Collateral and Judicial Estoppel Require that the Court Decline to Award $44,759.95 in Costs a Second Time Against a Different Party Defendants do not dispute that in 2017, they sought $44,759.95 in costs. Williams was awarded the entirety of that amount and received a judgment against GVA in 2017 for $44,759.95. Having claimed those costs in 2017, he cannot now claim that those same costs form the basis of a separate judgment against Vogele. Judicial estoppel precludes a party from taking one position in a prior case and an inconsistent position in a later case. (Evid. Code, § 623; Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 130-131, quoting Daar & Newman v. VRL International (2005) 129 Cal. App.4th 482, 490-491.) In 2017, Williams claimed that $44,759.95 costs were 3 REPLY IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS Je ff Le wi s La w 60 9 De ep Va ll ey Dr iv e, Su it e 20 0 Ro ll in g Hi ll s Es ta te s, CA 90 27 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 incurred in 2017 as against GVA, and now claims inconsistently that the same costs were incurred against Vogele, this Court accepted Williams’ 2017 argument and this Court should not allow its hands to be sullied by allowing Williams to fraudulently claim that the costs were incurred against Vogele. V. If Defendants are not Estopped to Re-Characterize Costs in 2019, then Plaintiffs are not Precluded from Arguing the Merits of the Claimed Costs Defendants invoke collateral estoppel throughout their opposition brief in defense of the balance of costs claimed. If estoppel principles apply here, it applies to bar defendants from re-characterizing the costs as applied to Vogele instead of GVA. If the Court disagrees and finds that estoppel does not apply to this motion, then Plaintiffs should be entitled to argue the merits as to each item of costs claimed by Defendants. A. The Court Should Tax $5,404.53 in Excessive Costs for Depositions Defendants have sought $14,400.13 in deposition costs. These costs are unreasonable. Only reasonable costs are allowed to be awarded. (Code Civ. Proc., § 1033.5(c)(2), (3).) Of the $14,400.13 of the costs sought, $5,404.53 of those costs are excessive and should be taxed. 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. (Code Civ. Proc., § 1033.5(b)(1).) None of the foregoing costs were reasonably necessary in this action. 4 REPLY IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS Je ff Le wi s La w 60 9 De ep Va ll ey Dr iv e, Su it e 20 0 Ro ll in g Hi ll s Es ta te s, CA 90 27 4 EA ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. The Court Should Tax $14,447 of the Claimed $18,072.00 in fees Claimed for Statutory Court Reporter Fees Defendants are seeking $18,072 for claimed statutory court reporter fees. The court reporter fee is $250 per day by statute. These fees were split by counsel at trial. (Lewis Decl., § 6.) There were 18 days of trial in February 2017. (Lewis Decl. q 6.) 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. But these were split 50/50 by counsel, so the most that Defendants could seek would be $3,625. The Court should tax $14,447 in these claimed fees representing the difference between the claimed amount of $18,072 and the amount actually paid by Williams, of $3,625. The excess of $14,447 claimed by defendants are likely fees for “real time” or expediting transcripts. Neither is recoverable; neither is “reasonably necessary’ and both are “merely convenient” to the litigation. (Code Civ. Proc., § 1033.5(c)(2).) Only $3,625 should be awarded. Defendants offer no substantive response to this argument other than collateral estoppel. 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 claimed $1,990.21 in such costs. (Lewis Decl. 9 7.) $11,038.46 1s 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. (Lewis Decl., § 7.) Only 67 of the 531 trial exhibits were actually used. (Lewis Decl., § 7.) The remaining exhibits were simply unnecessary and unreasonable. (Lewis Decl., § 7.) 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 at trial].) 5 REPLY IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS Je ff Le wi s La w 60 9 De ep Va ll ey Dr iv e, Su it e 20 0 Ro ll in g Hi ll s Es ta te s, CA 90 27 4 EA ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Given that 87.4% 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 87.4% or $9,645.66 and award only 12.6% of the claimed cost ($1,392.80). D. 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 at trial: Ahern, Hartford, Kaufman firm, PMQ for Kaufman, COR for Kaufman, O'Meara, Nguyen. (Lewis Decl., 8.) The costs for 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 amount is excessive. Allowable costs must be reasonable in amount. (Code Civ. Proc., § 1033.5(c)(3).) The Court should strike $2,412.47 in the claimed $3,045.12 service of process costs. E. The Court Should Strike $9,088.50 in Excessive Fees for Technology Defendants are seeking $9,088.50 in technology fees. Such fees were not necessary and are not authorized by law. Moreover, given the extreme overreaching of defendants in seeking clearly unauthorized costs such as $81,000 in expert fees, the Court should find that Defendants have unclean hands and disallow all costs claimed by Defendants. F. The Court Should Strike $1,293.75 in excessive fees for Discovery Referee Defendants are seeking $1,293.75 in fees for the services of a discovery referee. The discovery referee had the discretion to allocate such fees in connection with discovery motions and chose not to. There is no reason for this Court to disturb that result. 6 REPLY IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS Je ff Le wi s La w 60 9 De ep Va ll ey Dr iv e, Su it e 20 0 Ro ll in g Hi ll s Es ta te s, CA 90 27 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VI. Conclusion Based on the foregoing, Vogele respectfully requests that the motion to strike be granted in its entirety. Alternatively, $44,759 should be taxed as costs previously awarded against GVA in 2017 and $123,576.34 should be taxed as not authorized by statute. DATED: March 27, 2020 JEFF LEWIS LAW Attorney for Plaintiffs THOMAS A. VOGELE and GIMINO VOGELE ASSOCIATES, LLP 7 REPLY IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS Je ff Le wi s La w 60 9 De ep Va ll ey Dr iv e, Su it e 20 0 Ro ll in g Hi ll s Es ta te s, CA 90 27 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPPLEMENTAL DECLARATION OF JEFFREY LEWIS I, Jeffrey Lewis, declare as follows: 1. I am counsel for Plaintiffs Thomas A. Vogele (“Vogele”) and Gimino Vogele Associates, LLP (“GVA”). 2, I have personal knowledge of the truth and accuracy of the facts set forth herein, and if called upon as a witness, I could competently testify thereto. I do not intend to waive the attorney-client privilege or work product doctrine by making any statement herein. 3. After several continuances, I originally appeared to argue the motion on December 16, 2019 date. A true and correct copy of my prior motion face page is attached hereto and incorporated herein as Exhibit “4.” 4, The court was in trial and unprepared to hear the motion. The hearing was continued to February 3, 2020. Due to inadvertence and mistake, that date was not properly calendared and I did not appear. I note that the minute order for the motion did not indicate the motion was denied, it was merely taken off calendar. A true and correct copy of the February 3, 2020 minute order is attached hereto as Exhibit “5.” 5. The failure to appear on February 3, 2020 was my own fault. My client would be prejudiced if the court were to deny the motion as there are tens of thousands of dollars in costs claimed by defendants that are not remotely justifiable, including expert witness costs of $81,000 that are undisputedly not recoverable as costs. I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct. Executed this 27th day of March 2020, at Rolling Hills Estates, California. = eflreylewis 8 REPLY IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS Exhibit 4 Je ff Le wi s La w 60 9 De ep Va ll ey Dr iv e, Su it e 20 0 Ro ll in g Hi ll s Es ta te s, C A 9 0 2 7 4 Electronically Filed by Superior Court of California, County of Orange, 10/21/2019 03:57:00 PM. DAVID H. YAMASAKI, Clerk of the Court By Sonya Wilson, Deputy Clerk. 30-2012-00558522-CU-NP-CJ C ROA #1124 Jeffrey Lewis (Bar No. 183934) Sean Rotstan (Bar No. 316041) JEFF LEWIS LAW 609 Deep Valley Drive, Suite 200 Rolling Hills Estates, CA 90274 Tel. (310) 935-4001 Fax. (310) 872-5389 E-Mail: Jeff@JeffLewisLaw.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 Case No.: 30-2012-00558522-CU-NP-CJC NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF JEFFREY LEWIS IN SUPPORT THEREOF THOMAS A. VOGELE, etc. et al., Plaintiffs, VS. RICHARD DESSERT WILLIAMS, etc. et al., (Assigned for all purposes to Hon. Michael Brenner, Dept. C34) Defendants. N r ” N r ” N r ” N a N a N a N a N a a a RES ID: N/A Date: December 6, 2019 Time: 8:30 a.m. Department: C34 Case Filed: April 2, 2012 Trial Date: February 1, 2017 TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: NOTICE IS HEREBY GIVEN THAT on December 6, 2019 at 8:30 a.m. or as soon thereafter as the matter may be heard in Department C34 of the Orange County Superior Court, Central Justice Center, located at 700 Civic Center Drive West, Santa Ana, CA 92701, Plaintiffs Thomas A. Vogele (“Vogele”) and Gimino Vogele NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS Exhibit 5 SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE Central Justice Center 700 W. Civic Center Drive Santa Ana, CA 92702 SHORT TITLE: Vogele vs. Williams CLERK'S CERTIFICATE OF MAILING/ELECTRONIC SERVICE CASE NUMBER: 30-2012-00558522-CU-NP-CJC I certify that I am not a party to this cause. I certify that the following document(s), Minute Order dated 02/03/20, have been transmitted electronically by Orange County Superior Court at Santa Ana, CA. The transmission originated from Orange County Superior Court email address on February 3, 2020, at 4:57:30 PM PST. The electronically transmitted document(s) is in accordance with rule 2.251 of the California Rules of Court, addressed as shown above. The list of electronically served recipients are listed below: JEFF LEWIS LAW JEFF@JEFFLEWISLAW.COM NEMECEK & COLE MSCHAEFFER@NEMECEK-COLE.COM Clerk of the Court, by: £ & Chery Pp Deputy CLERK'S CERTIFICATE OF MAILING/ELECTRONIC SERVICE V3 1013a (June 2004) Code of Civ. Procedure , § CCP1013(a) SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE CENTRAL JUSTICE CENTER MINUTE ORDER DATE: 02/03/2020 TIME: 09:00:00 AM DEPT: C34 JUDICIAL OFFICER PRESIDING: Michael Brenner CLERK: Ka Po Chung-Marquez REPORTER/ERM: None BAILIFF/COURT ATTENDANT: None CASE NO: 30-2012-00558522-CU-NP-CJ C CASE INIT.DATE: 04/02/2012 CASE TITLE: Vogele vs. Williams CASE CATEGORY: Civil - Unlimited CASE TYPE: Non-PI/PD/WD tort - Other EVENT ID/DOCUMENT ID: 73187892 EVENT TYPE: Motion to Strike or Tax Costs MOVING PARTY: Thomas A. Vogele CAUSAL DOCUMENT/DATE FILED: Motion to Strike or Tax Costs, 10/21/2019 APPEARANCES J effrey Lewis is not present for Plaintiff(s). Mark Schaeffer, from NEMECEK & COLE, present for Appellant,Defendant(s). No appearance by Plaintiff Moving Party. Plaintiffs Thomas A. Vogele's and Gimino Vogele Associates, LLP's Motion to Strike or Tax Costs is taken off calendar. Clerk to give notice. DATE: 02/03/2020 MINUTE ORDER Page 1 DEPT: C34 Calendar No. Je ff Le wi s La w 60 9 De ep Va ll ey Dr iv e, Su it e 20 0 Ro ll in g Hi ll s Es ta te s, CA 90 27 4 PROOF OF SERVICE Vogele v. Williams, et al. Orange County Superior Court Case No.: 30-2012-00558522 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 609 Deep Valley Drive, Suite 200, Rolling Hills Estates, CA 90274. On March 27, 2020, I served the foregoing: REPLY IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS; SUPPLEMENTAL DECLARATION OF JEFFREY LEWIS IN SUPPORT THEREOF on the interested parties in this action by placing [J the original [XI a true copy thereof, enclosed in a sealed envelope with postage pre-paid, addressed as follows: * See Attached Service List * X BY ELECTRONIC SERVICE. I served the foregoing document(s) on interested parties by using the electronic filing service ONELEGAL 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 forth the above. = (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 27, 2020, in Rolling Hills Estates, California. ; Jason R. Ebbens REPLY IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS Je ff Le wi s La w 60 9 De ep Va ll ey Dr iv e, Su it e 20 0 Ro ll in g Hi ll s Es ta te s, CA 90 27 4 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, et al. Orange County Superior Court Case No.: 30-2012-00558522 PALMIERI, TYLER, WIENER, WILHELM & WALDRON, LLP 1900 Main Street, Suite 700 Irvine, CA 92614-7232 Charles H. Kanter, Esq., Esq. Email: ckanter@ptwww.com Attorneys for Defendant: Susan Lintz NEMECEK & COLE 15260 Ventura Blvd., Suite 920 Sherman Oaks, CA 91403-5344 Frank W. Nemecek, Esq. Email: frank@nemecek-cole.com Mark Schaeffer, Esq. Email: mschaefer@nemecek-cole.com Attorneys for Defendants: Richard D. Williams Kelly Lytton & Williams LLP REPLY IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS