Gabriel Montoya vs. Ford Motor Company

Opposition

Cal. Super. - 4th Dist.June 14, 2013

OO 0 N N Ln BA W N = N N N N N N N N N m m e m e m e m e m e m e m e m c o JN O N wn BRA W N = DO 0 NN NY E W N = Oo KNIGHT LAW GROUP LLP Steve Mikhov (SBN 224676) stevem @knightlaw.com Amy Morse (SBN 290502) amym @knightlaw.com 10250 Constellation Blvd., Suite 2500 Los Angeles, CA 90067 Telephone: (310) 552-2250 Facsimile: (310) 552-7973 ELECTROMICALLY FILED Superior Court of Califarnia, County of Orange 09/17/2018 at 01:43:00 PM Clerk of the Superior Court By & Clerk, Deputy Clerk HACKLER DAGHIGHIAN MARTINO & NOVAK, P.C. Sepehr Daghighian (SBN 239349) 10250 Constellation Blvd., Suite 2500 Los Angeles, CA 90067 Telephone: (310) 887-1333 Facsimile: (310) 887-1334 E-mail: sd@hdmnlaw.com Attorneys for Plaintiff: GABRIEL MONTOYA SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE GABRIEL MONTOYA, Plaintiff, VS. FORD MOTOR COMPANY, a Delaware Corporation, and DOES 1 through 10, inclusive, Defendant. Case No. 30-2013-00656947-CU-BC-CXC Unlimited Jurisdiction Assigned to: Hon. Glenda Sanders Department: CX101 PLAINTIFF’S OPPOSITION TO DEFENDANT’S NOTICE OF MOTION AND MOTION FOR COSTS PURSUANT TO C.C.P. §998 Hearing Date: September 28, 2018 Time: 1:30 p.m. Dept.: CX101 PLAINTIFF'S OPPOSITION TO DEFENDANT'S NOTICE OF MOTION AND MOTION FOR COSTS PURSUANT TO C.C.P. §998 OO 00 4 O N Ln BA W N ND N N N N N N N N Em m E e m e m e m e m e m p m c o NN A N Un RA W O N = O O NN S Y R E W I N D = O MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On August 1, 2018, Defendant Ford Motor Company (“Defendant” or “FMC”) submit its Memorandum of Costs which was wholly excessive and overlooked the statutory limitations on which costs are recoverable. While FMC is free to litigate its case as aggressively and as costly as it wishes, not every expenditure is passed on to Plaintiff merely because it was incurred by FMC. Code of Civil Procedure section 1033.5 (“CCP § 1033.5”) specifically identifies and limits the items of] costs that are recoverable as litigation costs. While Defendant may be entitled to post-offer costs under C.C.P. §988, Defendant’s Memorandum of Costs seeks recovery of expenses far beyond what is permitted. A memorandum of costs is not intended to substitute as a company expense account. Yet, the majority of the exorbitant sum that Defendant seeks to recover is comprised of unrecoverable expenses. CCP § 1033.5 codifies the list of permissible litigation costs, and even those listed costs must still be “reasonably necessary to the conduct of litigation,” not just “merely convenient or beneficial,” if they are to be reimbursed. Only a few thousand dollars of FMC’s claimed expenditures are actually recoverable as litigation costs under the statute. The rest should be stricken. The burden is on Defendant to justify its costs. As set forth below, a verified cost memorandum is prima facie evidence that costs were necessarily and reasonably incurred only if] those costs appear proper on their face. In such a circumstance, the opposing party, i.e. Plaintiff, must rebut the costs. However, whereas here, the costs are not proper on their face, there burden remains on FMC as the claiming party to justify its costs upon a proper challenge, such as this motion. Consequently, the burden is squarely on FMC to explain why it should recover the improper requests for reimbursement that are not statutorily recoverable. While Defendant has provided no evidence or documentation to substantiate any of its stated costs, Plaintiff accept as reasonable the amount of costs stated for filing and motion fees, jury fees, and service of process costs. These costs are generally allowed under Section 1033.5(a) and Defendant’s counsel has certified by signing the Memorandum of Costs (Summary) that these charges are appropriate. However, the deposition costs, court-ordered transcripts, models, enlargements, photocopies of exhibits, and “other” charges are not allowed under Section 1033.5(a) under the facts of this case. In light of the following, Defendant should be taxed the sum of $24,038.30. PLAINTIFF'S OPPOSITION TO DEFENDANT'S NOTICE OF MOTION AND MOTION FOR COSTS PURSUANT TO C.C.P. §998 OO 0 N N Ln BA W N = N N N N N N N N N m m e m e m e m e m e m e m e m c o JN O N wn BRA W N = DO 0 NN NY E W N = Oo II. ARGUMENT A. Defendant Bears the Burden of Establishing That Its Cost Were Necessary and Reasonable If the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal. App.2d 678, 698) and the burden of showing that an item is not| properly chargeable or is unreasonable is upon the party challenging the costs (Wilson v. Nichols (1942) 55 Cal.App.2d 678, 682-683). “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.” (Foothill-DeAnza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.) Once items are properly objected to, they are put in issue, and the burden of proof is on the party claiming them as costs. (Melnyk v. Robeldo (1977) 64 Cal.App.3d 618, 624; Ladas v. California State Auto Assn’ (1993) 19 Cal.App.4th 761, 774; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265.) However, where the claim is made for a disbursement which on its face does not appear to be proper or is for a disbursement the necessity for which is doubtful, and the item is properly challenged upon a motion to tax costs, the burden is on the claimant to establish the necessity for the disbursement. (Stenzor v. Leon (1955) 130 Cal.App.2d 729, 735.) Where costs are not expressly allowed by statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary. (Perko’s Enterprises, Inc. v. RRNS Enterprise (1992) 4 Cal.App.4th 238, 245.) When claimed costs are properly challenged, the claiming party must submit supporting documentation to sustain its burden. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1263; Bach v. County of Butte (1989) 215 Cal. App. 3d 294, 308.) Thus, the analysis first considers whether the charges appear proper on their face. If facially proper, the burden is on Plaintiff as the challenging party to show the costs should be disallowed. However, whereas here, the objectionable costs are not proper on their face inasmuch as there is no statutory basis supporting recovery, the burden is on Defendant as the claiming party to justify the PLAINTIFF'S OPPOSITION TO DEFENDANT'S NOTICE OF MOTION AND MOTION FOR COSTS PURSUANT TO C.C.P. §998 OO 0 N N Ln BA W N = NN N N N N N N N N Em e m e m e m e m e m e m em e m 0 NN O N Ln kA W I N D = O 0 0 N N N N R W = O request for the expense items. As more fully set forth below, the overwhelming majority off Defendant’s costs are beyond the scope permitted by statute and should be stricken. Accordingly, upon this noticed motion, Plaintiff objects to costs which are not statutorily permissible or are unreasonable or excessive on their face, as more specifically set forth below. The burden rests with Defendant to justify its expenditures. B. Defendant Seeks Reimbursement of Costs That Are Legally Impermissible, Unreasonable and/or Unnecessary CCP § 1033.5 provides a laundry list of sixteen categories of litigation costs that may be reimbursed to a prevailing party. (Code Civ. Proc. § 1033.5(a)(1) - (16).) Although an item may be on the list, “Any award of costs shall be subject to the following: . . . (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount.” (Code Civ. Proc § 1033.5(c).) “The intent and effect of section 1033.5(c)(2) is to authorize a trial court to disallow recovery of costs, including filing fees, when it determines the costs were incurred unnecessarily.” (Perko’s Enterprises, supra, 4 Cal.App.4th at 245.) “Costs statutes are to be strictly construed.” (Shulman v. Group W Productions, Inc. (1997) 51 Cal. App.4th 850, 894 emphasis added.) “Because the right to costs is governed strictly by statute a court has no discretion to award costs not statutorily authorized.” (Rose v. Hertz Corp. (1985) 168 Cal.App.3d Supp. 6, 11; see also Parker v. City of Los Angeles (1974) 44 Cal.App.3d 556, 566; Hogan v. Ingold (1952) 38 Cal.2d 802, 814.) Costs permitted by statute are allowable only if they “were reasonably necessary to the conduct of the litigation” and “reasonable in amount.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.) Costs that are merely convenient or beneficial are not recoverable. (See id.) Here, Defendant seeks recovery of a variety of statutorily impermissible expenses. The recovery of costs is purely a creature of statute. The Legislature saw fit to identify several categories of reimbursable expenses, to the exclusion of others. The list of recoverable costs under CCP § 1033.5 is obviously not an exhaustive list of all expenses that are typically incurred during a litigation. PLAINTIFF'S OPPOSITION TO DEFENDANT'S NOTICE OF MOTION AND MOTION FOR COSTS PURSUANT TO C.C.P. §998 OO 0 N N Ln BA W N = NN N N N N N N N N Em e m e m e m e m e m e m em e m 0 NN O N Ln kA W I N D = O 0 0 N N N N R W = O There is a difference between “costs” and “expenses.” (See Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 491 [holding litigation “expenses” are far broader than “costs.”].) In this motion, the issue is “costs,” not “expenses.” There are many expenditures incurred during litigation, but not all of those are codified as recoverable. Many naturally occurring expenses were not included in the canon of allowable costs. “That plain language [of the statute] reflects a clear intent to limit the recovery of costs to those which are ‘reasonably necessary.”” (Perko’s Enterprises, supra, 4 Cal.App.4th at 244.) Thus, not all litigation expenses are permissible. Those which were delineated in CCP § 1033.5 are the statutory “costs” that may be recovered; other litigation “expenses” are not recoverable. The burden is squarely on FMC to justify the need for its spending. Plaintiff submit this Court should tax the following costs, which are not permitted by statute, are not reasonable or necessary to the conduct of this litigation, and/or lack supporting documents to be able to ascertain whether or not the cost amount is reasonable and necessary: 1) Deposition Costs ( 4) Plaintiff objects to FMC seeking $4,876.00 for Deposition Costs. FMC did not attach any invoices or itemization of the deposition costs associated in this case. Plaintiff has no idea what deposition FMC is referring to in its memorandum of costs. Defendant has not offered any supporting documentation that could be reviewed to determine the necessity or reasonableness of this improper expense. In light of the objection. FMC is obligated to present documentation to support this expenditure and to explain what expenses it incurred for deposition costs. 2) Court-Ordered Transcripts ( 9) “Transcripts of court proceedings ordered by the court are recoverable.” (Code Civ. Proc. § 1033.5(a)(11).) This means that transcripts not ordered by the Court are not recoverable. The Legislature articulated a distinction between the types of transcripts of hearings that are recoverable versus those that are not by carving out the limitation that they are recoverable if the Court orders the 3 PLAINTIFF'S OPPOSITION TO DEFENDANT'S NOTICE OF MOTION AND MOTION FOR COSTS PURSUANT TO C.C.P. §998 OO 0 N N Ln BA W N = NN N N N N N N N N Em e m e m e m e m e m e m em e m 0 NN O N Ln kA W I N D = O 0 0 N N N N R W = O transcripts. There was no court order for transcripts in this case. Based on the fact that the Legislature as spoken on this cost category and created a limitation, it must be inferred that the Legislature intended that not all transcripts would be recoverable as litigation costs. Accordingly, the total sum of $4,857.37 must be taxed. Furthermore, Defendant has not offered any supporting documentation that could be reviewed to determine the necessity or reasonableness of this improper expense. Plaintiff objects on this basis as well. Regardless, even if the transcripts were conceivably reasonable and necessary to FMC’s defense, FMC would have to present a basis for why it is reasonable and necessary to ignore CCP § 1033.5 in trying to have the $4,857.37 reimbursed. As discussed above, the recovery of costs is based on statute and must be strictly construed. The amount FMC seeks for transcripts is simply not recoverable under the statute because the transcripts were not ordered by the Court. 3) Models, enlargements, and photocopies ( 12) Plaintiff objects to FMC seeking $12,166.38 for models, enlargements, and photocopies off} exhibits. Expenses for models, enlargements, photocopies, etc. that are “reasonably helpful to aid the trier of fact” are recoverable costs. CCP §1033.5(a)(13); see Cristler v. Express Messenger Systems, Inc. (2009) 171 CA 4th 72, 90-91, 89 CR3d 34, 48-49--costs award for exhibits and blowups used at trial; Ripley v. Pappadopulos (1994) 23 CA4th 1616, 1623 28 CR2d 878, 881-rental overhead projected used a trial was a recover cost item. However, these items must have been used in trial. Costs for exhibits not actually used at trial are not recoverable under CCP §1033.5 (a)(13) because the exhibits are not “reasonably helpful to aid the trier of fact.” Ladas v. California State Auto. Ass'n (1993) 19 CA4th 761, 774, 23 CR2d 810, 817; see Great Western Bank v. Converse Consultants, Inc. (1997) 58 CA4th 609, 615, 68 CR2d 224, 228. Here, FMC did not introduce any models, blowups, or photocopies during this trial. In fact, the exhibit binders in this case were prepared and paid for by Plaintiff. FMC must provide documentation that supports the amount of the change and explain why this charge was not reasonable and necessary. While FMC produced a very limited number of exhibits, it sought admission of very few if any of its exhibits. FMC must therefore demonstrate that these costs were incurred and were 4 PLAINTIFF'S OPPOSITION TO DEFENDANT'S NOTICE OF MOTION AND MOTION FOR COSTS PURSUANT TO C.C.P. §998 OO 0 N N Ln BA W N = N N N N N N N N N m m e m e m e m e m e m e m e m c o JN O N wn BRA W N = DO 0 NN NY E W N = Oo necessary to the prosecution of this case. Accordingly, the amount of $12,166.38 does not appear to be an authorized, necessary or reasonable reimbursement and should be taxed. 4) “Other Expenses” ( 16) FMC must meet its burden to demonstrate that the cost was reasonably necessary to conduct the litigation rather than merely convenient or beneficial to its preparation. (Code Civ. Proc., §1033.5(c). Accordingly, without any specification from Plaintiff of what the “Other” costs are which total $2,138.55, the Court cannot know whether these costs are expressly allowed, expressly disallowed, or allowed only in the Court's discretion. Under such circumstances, there has been no prima facie showing by Defendant that the “items appearing in a cost bill appear to be proper charges.” Ladas v. California State Auto. Ass’n. (1993) 19 Cal. App. 4th 761, 774. Had the items been identified as costs specifically allowed by Section 1033.5(a) the result might be different. However, where the Defendant has made no attempt to even classify the “Other” costs of $2,138.55 as allowable costs, Defendant has failed to make a prima facie showing that the costs are proper. At a minimum, the filing of this motion shifts the burden to Defendant to justify this comparatively large amount of unspecified “Other” costs. 1" 1" 1" 1" 1" 1" 1" 1" 1" 1" 1" 1" PLAINTIFF'S OPPOSITION TO DEFENDANT'S NOTICE OF MOTION AND MOTION FOR COSTS PURSUANT TO C.C.P. §998 OO 0 N N Ln BA W N = N N N N N N N N N m m e m e m e m e m e m e m e m c o JN O N wn BRA W N = DO 0 NN NY E W N = Oo III. $24,038.30 as follows: Dated: Accordingly, the full amount of $2,138.55 should be taxed. CONCLUSION The Court should exercise its discretion and tax Defendant’s costs in the total sum of] Deposition Costs: $4,876.00 Transcripts not ordered by the Court: $4,857.37 Models, enlargements, and photocopies of exhibits: $12,166.38 Other: $2.138.55 TOTAL TO BE STRICKEN: $24,038.30 September 17, 2018 Respectfully submitted, GABRI L ONT OYA PLAINTIFF'S OPPOSITION TO DEFENDANT'S NOTICE OF MOTION AND MOTION FOR COSTS PURSUANT TO C.C.P. §998 © 0 J O N Un B W ND = ND N N N N N N N ND = m EE Em Em em em em e m c o NI O N Ln B A W N = DO V N Y N RE E W N = O PROOF OF SERVICE (Code of Civil Procedure §1013a) I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to the within action. My business address is 10250 Constellation Blvd., Suite 2500, Los Angeles, CA 90067. I served the foregoing document described as: PLAINTIFF’S OPPOSITION TO DEFENDANT’S NOTICE OF MOTION AND MOTION FOR COSTS PURSUANT TO C.C.P. §998 Said document was served on the interested parties in this action, addressed as follows: SEE ATTACHED MAILING LIST BY OVERNIGHT MAIL/DELIVERY: I caused such envelope to be delivered by hand to the office(s) of the addressee(s) via OVERNIGHT EXPRESS or by local courier service. BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on September 17, 2018 at Los Angeles, California. A Jp J fyteth Tapia -1- PROOF OF SERVICE © 0 J O N Un B W ND = ND N N N N N N N ND = m EE Em Em em em em e m c o NI O N Ln B A W N = DO V N Y N RE E W N = O SERVICE LIST Montoya v. FMC Case No.: 30-2013-00656947-CU-BC-CXC Matthew M. Proudfoot, Esq. GATES, O'DOHERTY, GONTER & GUY, LLP 38 Discovery, Suite 200 Irvine, California 92618 Counsel for Defendant, FORD MOTOR COMPANY (via Overnight only) Lisa Perrochet, Esq. HORVITZ & LEVY LLP 3601 West Olive Avenue, 8th Floor Burbank, CA 91505 Associated Counsel for Defendant, FORD MOTOR COMPANY (via Overnight only) Michael H. Rosenstein, Esq. LAW OFFICES OF MICHAEL H. ROSENSTEIN 10250 Constellation Blvd., Suite 2500 Los Angeles, CA 90067 Email: mrosenstein @rose-lawoffice.com Associated Counsel for Plaintiff, GABRIEL MONTOYA (via E-Mail only) Richard M. Wirtz, Esq. WIRTZ LAW APC 4370 La Jolla Village Drive, Suite 800 San Diego, CA 92122 Email: Rwirtz@wirtzlaw.com Associated Counsel for Plaintiff, GABRIEL MONTOYA (via E-Mail only) Justin Sanders, Esq. SANDERS ROBERTS, LLP 1055 W. 7th Street, Suite 3050 Los Angeles, CA 90017 Associated Counsel for Defendant, FORD MOTOR COMPANY (via Overnight only) Bryan C. Altman, Esq. THE ALTMAN LAW GROUP 10250 Constellation Blvd., Suite 2500 Los Angeles, CA 90067 Email: Bryan @altmanlawgroup.net Associated Counsel for Plaintiff, GABRIEL MONTOYA (via E-Mail only) Paul R. Kiesel, Esq. KIESEL LAW LLP 8648 Wilshire Boulevard Beverly Hills, California 90211 Email: kiesel @kiesel.law Associated Counsel for Plaintiff, GABRIEL MONTOYA (via E-Mail only) 2 PROOF OF SERVICE