Jeffrey Robinson vs. Orange County Sheriffs Department

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.November 26, 2013

N O O 0 N N N N n n W w 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 004.509:297354v1 William L. Haluck, Esq. (SBN 80146) Michael J. Rossiter, Esq. (SBN 258410) Koeller, Nebeker, Carlson & Haluck, LLP 3 Park Plaza, Suite 1500 Irvine, CA 92614-8558 949-864-3400; fax: 949-864-9000 Attorneys for Defendant COUNTY OF ORANGE [Exempt from Filing Fee per Government Code §6103) SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER JEFFREY ROBINSON, Plaintiff, Vv. ORANGE COUNTY SHERIFFS DEPARTMENT and DOES ONE through TWENTY,inclusive, Defendants. DIANN MCCLOSKEY, JUAN ALVAREZ and SAM CASTELLANOS, Plaintiffs, v. COUNTY OF ORANGE and DOES 1 through 28, inclusive, Defendants. Case No. 30-2013-00690343-CU-OE-CJC Assigned for All Purposesto: Judge Peter Wilson Dept. C12 DEFENDANT’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFF MCCLOSKEY’S COSTS, OR IN THE ALTERNATIVE, MOTION TO TAX PLAINTIFF MCCLOSKEY’S COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [FILED CONCURRENTLY WITH DECLARATION OF MICHAEL J. ROSSITER; and [PROPOSED] ORDER] 11/26/13 11/30/15 Action Date: Trial Date: DATE: March17,2016 TIME: 2:00 p.m. DEPT: C12 RESERVATION NO: 72306072 Case No. 30-2014-00741633-CU-OE-CJC Assigned for All Purposesto: Judge Peter Wilson Dept. C12 Action Date: 8/25/14 Trial Date: 11/30/15 DEFENDANT'S MOTION TO STRIKE OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 a7 28 004.509:297354v1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 17, 2016 at 2:00 p.m. or as soon thereafter as the matter may be heard in Department C12 of the above-entitled court located at 700 Civic Center Dr. West, Santa Ana, CA 92701, Defendant, COUNTY OF ORANGE (“Defendant”), will move this Court for an Orderstriking the entire Memorandum of Costs filed by Plaintiff Diann McCloskey (“McCloskey”), or in the alternative, taxing certain costs, striking and/or reducing the amounts claimed. Defendant seeksto strike all costs claimed by McCloskey pursuant to CCP § 1033 and the holdings in Chavez v. City ofLos Angeles (2010) 47 Cal.4th 970 and Steele v. Jensen Instrument Co. (1997) 59 Cal.App.4th 326, which stand for the proposition that where there is a lack of evidence regarding damages and the recovery is less than $25,000, the Court has absolute authority to strike all costs. In the alternative, Defendant seeks to tax certain costs as not allowable under CCP § 1033.5 and/or not properly apportioned by McCloskey due to the fact that this consolidated case involved two plaintiffs - one who lost and one who prevailed. Therefore, Defendant requests that this Court reduce McCloskey’s costs from $15,957.77 to $10,832.95 based on the calculations and arguments laid out in the points and authorities. This motion will be based on this Notice of Motion, the attached Memorandum of Points and Authorities, Declaration of Michael J. Rossiter, the papers and records on file herein, and on such oral and documentary evidence as may be presented at the hearing of the Motion. DATED: January 21,2016 Koeller, Nebeker, Carlson & Haluck, LLP Tlf William L. Haluck, Esq. Michael J. Rossiter, Esq. Attorneys for Defendant COUNTY OF ORANGE 2 DEFENDANT’S MOTION TO STRIKE OR TAX COSTS O O 0 N N O N n n B R A W N n N N N N N N = e e e m e m e e e m e d e s e e N B E R O U O U R P E S 0 x 9 a n v r w R O = © 28 004.509:297354v1 MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION McCloskey presented little to no evidence of damages at trial. She didn’t see a single doctor. She didn’t take any medication. She wasn’t prescribed any medication. There wasn’t a single medical record regarding McCloskey produced during discovery or introduced at trial. One month before trial she saw a therapist - provided by the Defendantfree-of-charge. She admitted at trial she was not subjected to an adverse employment action. She testified that she was promoted at least twice - once after the harassment. She was never denied a promotion. She was never demoted. There was no evidence that she lost a single day of work due to the harassment. At trial, McCloskey testified that she only complained one time about the harassment. In fact, during deposition McCloskey admitted that the only damage she suffered was from the occasional headache and stomach ache, and a slight loss of sleep for a short period of time. McCloskey’s counselfiled her case in unlimited jurisdiction knowing all these facts - or he should have known these facts. McCloskey’s counsel clearly took a gamble in filing the case in unlimited jurisdiction knowing that there waslittle to no evidence of damages. McCloskey was hoping to win big. But under California law, a plaintiff who takes that gamble by filing a case with little to no evidence of damages may lose their claim for costs. Moreover, the Memorandum of Costs includes several items not allowed by statute due to either misinterpretation ofthe statute or miscalculation. And finally, McCloskey claims costs that should be apportioned since this case involved two plaintiffs - one of which prevailed and the other one who did not prevail. Therefore, many ofthe costs should be apportioned. 2. RELEVANT BACKGROUND On November 26, 2013, Plaintiff Jeffrey Robinson (“Robinson”) filed a complaint against the County of Orange alleging harassment, discrimination, and retaliation pursuant to California’s Fair Employment and Housing Act (FEHA). On August 25, 2014, Robinson’s co-workers - Plaintiffs McCloskey, Juan Alvarez, and Sam Castellanos - also filed a complaint against the County of Orange for harassment, discrimination, and retaliation under FEHA. On January 30, 2015, this Court consolidated both actions. On October 13, 2015, Alvarez and Castellanos 1 DEFENDANT'S MOTION TO STRIKE OR TAX COSTS O O 0 N N O N n n B R A W N = N O N O N R N N N m e e m e e e e e s e a e e N R S R U E 2 B 8& 8 8 ® 4 9 a n v o & Ww W N O = © 28 004.509:297354v1 dismissed all oftheir claims with prejudice. On October 22, 2015, this Court granted Defendant’s Motion for Summary Adjudication as to McCloskey’s causes of action for discrimination and retaliation. On November 23, 2015, Robinson dismissed his claims for discrimination and retaliation. Therefore, on November 30, 2015, Robinson and McCloskey proceeded to trial against the County of Orange on a single cause of action for harassment under FEHA. After seven (7) days oftrial, the jury issued its verdict on December 16, 2015. As to Robinson, the jury found that he was not subjected to unwanted harassing conduct because of any protected category. As to McCloskey, the jury found that she was subjected to unwanted harassing conduct because of her gender and awarded her $15,000 in past pain and suffering, and $0.00 in future pain and suffering.' On January 6, 2016, McCloskey filed her Memorandum of Costs claiming $15,957.77 in total costs. 3. LEGAL STANDARD The non-prevailing party may dispute any or all ofthe items in the prevailing party's costs memorandum by a motion to strike or tax costs. See Cal. Rules of Crt 3.1700(b). A motion to strike challenges the entire costs bill, whereas a motion to tax challenges particular items or amounts. Id. 4. ARGUMENT A. This Court Should Strike McCloskey’s Costs Pursuant to CCP § 1033 Because She Failed to Bring Her Claims In Limited Jurisdiction. Under California law, where a plaintiff recovers a judgment in an “unlimited” civil case that could have been recovered in a limited civil case (i.e., $25,000 or less), the award ofcosts is discretionary. CCP § 1033(a); Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 989. This rule specifically applies when a party brings an action under FEHA that is not brought as a limited civil case and recovers an amount that could have been awarded in a limited civil case - the plaintiff'sfailure to take advantage ofthe time- and cost-savingfeatures ofthe limited civil case procedures may be considered a special circumstance that would render a fee award unjust. Chavez, 47 Cal.4th at 986. In determining whether a FEHA action should have been I Neither Robinson nor McCloskey made a claim for economic damages. DEFENDANT’S MOTION TO STRIKE OR TAX COSTS Ne o E E ° N O N O N D O R N N N N m m e e e m e s e e e s e e e e N R S G R O N m S © ® u o u h w D = O 28 004.509:297354v1 brought as a limited civil case, for purposes of CCP 1033(a), the trial court should evaluate the entire case in light of the information that was known, or should have been known, by the plaintiff's attorney when the action wasinitially filed and asit developed thereafter. /d. In Chavez, the plaintiff (an LAPD officer) sued his employer and certain supervisors for discrimination, harassment, and retaliation. Id. at 980. The jury only found for the plaintiff on his retaliation claim and awarded $10,000.00 in noneconomic damages and $1,500.00 in economic damagesfor a total award of $11,500.00 in damages. /d. After a hearing to determine appropriate costs, including attorney fees,the trial court denied the plaintiff's request for costs. Id. at 981. The trial court noted that “plaintiff's case at trial had been ‘overwhelmingly devoted to liability,” that none of plaintiffs witnesses gave any direct testimony about economic damages, and that .... plaintiffs evidence of noneconomic damages ‘was equally sparse’ ...” Id. On review, the California Supreme Court upheld thetrial court’s denial offees and costs reasoning that the trial court could “conclude that [the FEHA] action should have been brought as a limited civil case.” Id. at 991. The Supreme Court went on to explain: “As the trial court carefully explained in its statement of decision, plaintiff's evidence in support ofthe FEHA retaliation claim was seriously deficient on one essential element: damages. Plaintiff presented no evidenceatall of the amount of economic loss ... and the trial court characterized plaintiff's evidence regarding the emotional distress he suffered ... as ‘equally sparse’ .... We have no reason to question the trial court's implied determinations on these points. Thus, there was no abuse of discretion in the trial court's decision denying an attorney fee award to plaintiff. See Chavez at 991 (emphasis added). The Supreme Court supported its conclusion citing to Steele v. Jensen Instrument Co. (1997) 59 Cal.App.4th 326, which reached a similar conclusion. In Steele, the plaintiff brought a FEHA action against her employer and two individuals,alleging pregnancy discrimination. Steele v. Jensen Instrument Co. (1997) 59 Cal.App.4th 326, 328. A jury trial resulted in an award in her favor for $21,078. Steele, 59 Cal.App. 4th at 328. Because the award was less than $25,000, and thus could have been recovered in limited jurisdiction, the trial court, relying on section 1033(a), denied the plaintiff her litigation costs, including attorney fees. Id. at 329-30. The Court of 3 DEFENDANT’S MOTION TO STRIKE OR TAX COSTS O O 0 N N N N n n R r W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 004.509:297354v1 Appeal affirmed the trial court’s ruling concluding that when the amount of damages that a FEHA plaintiff recovers in superior court could have been awarded by a court of lesserjurisdiction, the trial court has discretion to deny costs, including attorney fees, to the plaintiff. Id. at 331; see also Guerrero v. Rodan Termite Control, Inc. (2008) 163 Cal.App.4th 1435 (holding that the trial court did not abuseits discretion in refusing to award costs to termite inspection company on the basis that home purchasers’ $15,600 verdict against company could have been rendered in a limited civil case). Similarly here, McCloskey filed a claim for discrimination, harassment, and retaliation under FEHA and recovered well under the jurisdictional limit on only one claim. Of striking resemblance is that in this case, as in Chavez, there was no evidence of economic damages and very sparse evidence of noneconomic damages. It is not surprising then, that the jury awarded similar amounts in this case and in Chavez (i.e. $11,500 in Chavez and $15,000 in this case). In fact, McCloskey did not even make a claim for economic damages attrial. (Rossiter Decl. § 2). Moreover, the evidence presented at trial as to her noneconomic damages was limited to her testimony that she would get headaches and an upset stomach on occasion and that, one month before trial, she saw a counselor that the Defendant provided to her free of charge. (Rossiter Decl. 9 3). The only other evidence of damages was from her son who testified that she seemed stressed and had to alter her workout schedule due to the harassment. (Rossiter Decl. § 4). However, there was no evidence that she was taking any medication or saw any doctors. (Rossiter Decl. { 5). There was no expert testimony to put a monetary value on her upset stomach, headaches, and workout routine alteration. (Rossiter Decl. § 6). Importantly, McCloskey admitted several times during the trial that she was never subjected to an adverse employment action, received at least two promotions (including one after the alleged harassment), never received a decrease in pay, was never demoted, never denied a promotion, and never received a pay decrease. (Rossiter Decl. § 7). Clearly, with this scant amount of evidence regarding damages, McCloskey should have filed her case in limited jurisdiction in order to take advantage ofits time and cost savings. See Chavez at 988 (“Section 1033(a)'s purposeis to encourage plaintiffs to bring their actions as limited civil actions whenever 4 DEFENDANT’S MOTION TO STRIKE OR TAX COSTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 004.509:297354v1 it is reasonably practicable to do so (citation) ... [which requires] a realistic appraisal of the amount of damages at issue ...”) McCloskey made a gamble hoping the jury, without any evidence, would come up with a big number; however, there was no reasonable basis to believe that the number ever should have been larger than $25,000.00. McCloskey took a gamble and she lost. The question is whether she was reasonable in believing she could get more than the jurisdictional amount when she had no evidence of any monetary value on any damages and her damages were what a normal person suffers everyday - namely headaches, upset stomach, and the lack of motivation to workout at a specific time. Therefore, this Court should follow the Supreme Court in Chavez and the Court of Appeal in Steele by striking McCloskey’s entire memorandum of costs. B. Even If This Court Does Not Strike All of McCloskey’s Costs, This Court Should Tax McCloskey’s Costs, As Discussed Below, Because Many of the Costs Are Either Not Allowable or McCloskey Failed to Properly Apportion her Costs. i. McCloskey Claims Costs That Are Not Allowed 1. Court-Ordered Transcripts McCloskey claims $1,534.50 in Court-ordered transcripts. (See Item 9 of McCloskey’s Memorandum of Costs). However, the Court never ordered any transcripts. (Rossiter Decl. { 8). California Code of Civil Procedure § 1033.5, subsection (b)(5), clearly states that transcripts of court proceedings not ordered by the court are not allowable costs. See CCP § 1033.5(b); see Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, 440-442 (disapproved on other grounds in Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 105-107; Sanchez v. Bay Shores Med. Group (1999) 75 Cal.App.4th 946, 948-949; Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 599-600 (citing text). Therefore, the entire amount of $1,534.50 should be strickenfrom McCloskey’s Memorandum ofCosts. 2. Models. Blowups, and Photocopies of Exhibits Pursuant to CCP 1033.5(a)(13), “Models and enlargements of exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to aid the trier of fact.” But costs for exhibits not actually used at trial are not recoverable because the exhibits are not “r easonably 5 DEFENDANT'S MOTION TO STRIKE OR TAX COSTS O O 0 0 O N O N n n Bs r W N N N N N N = e s e s e e e e e s e d e s e s e e 28 004.509:297354v1 helpful to aid the trier of fact.” Ladas v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774; see Great Western Bank v. Converse Consultants, Inc. (1997) 58 Cal.App.4th 609, 615. McCloskey did not use or even create any models or enlargements of any exhibits. (Rossiter Decl. 19). Moreover, McCloskey and Robinson together only had 34 exhibits that totaled 48 pages of documents. (Rossiter Decl. § 10). Of those exhibits, only 11 were admitted into evidence for a total page count of 13 pages. (Rossiter Decl. § 10). In other words, only 13 pages of documents, at most, could’ve been helpful to aid the jury. McCloskey states that it cost her $0.10 for each photocopy. (See Item 10 of McCloskey’s Memorandum of Costs (Worksheet)). Therefore, at the very most McCloskey should only get $1.30 (i.e. $0.10 x 13 pages). 3. Item 13, Other Costs McCloskey’s “Other” costs seem to refer to travel expenses to attend depositions pursuant to CCP § 1033.5 (a)(3)(C). (See McCloskey’s Memorandum of Costs (Worksheet) at Item 13 and continued on to the last page of the worksheet). However, those costs are clearly inflated. Because several of the depositions were taken on the same day, McCloskey only gets costs for travel to all depositions taken on the same day. For example, Ross and Robles were taken on the same day; McCloskey and Castellanos were on the same day; Israel Hernandez, Sergio Hernandez, and Martin Gomez were on the same day; and Johnson and Becker were on the same day. (Rossiter Decl. § 11). Moreover, McCloskey did not show up for one of her deposition sessions (they were broken up into smaller sessions at her request), and one of her depositions concerned only the Robinson matter in which plaintiffs did not prevail. Thus, the calculation for travel costs to and from the deposition should be as follows: = Deposition of Jeffrey Robinson taken at plaintiffs’ counsels’ office: 0 miles. » Depositions of James Ross and Maria Robles taken at Sonoma Court Reporters: 96 miles (See Ex. 1 to Rossiter Decl.). » Depositions of McCloskey and Samuel Castellanos taken at Sonoma Court Reporters: 96 miles (Ex. 1). = Deposition of McCloskey taken on three separate occasions at Sonoma Court Reporters: 96 miles x 3 = 288 (Ex. 1). 6 DEFENDANT’S MOTION TO STRIKE OR TAX COSTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 004.509:297354v1 * Deposition of Don Wightman taken at Sonoma Court Reporters: 96 miles (Ex. 1). * Deposition of Dave Clark taken at plaintiffs’ counsels’ office: 0 miles. = Depositions of Israel Hernandez, Sergio Hernandez, and Martin Gomez taken at 245 Fischer Ave., Costa Mesa, CA: 100 miles (See Ex.2 to Rossiter Decl.). = Depositions of Randy Johnson and Scott Becker taken at 245 Fischer Ave., Costa Mesa, CA: 100 miles (Ex. 2). = Deposition of Mary Ngayan taken at 245 Fischer Ave., Costa Mesa, CA: 100 miles (Ex. 2). » TOTAL MILES: 876 » TOTAL COST: 876 miles x $.054 = $473.04. In addition, plaintiffs’ counsel only had to pay for parking six (6) times for depositions but is claiming $290.00 in parking fees for parking in Orange County (not LA), which comes to $48.33 per day.” And considering the maximum daily parking fee at Sonoma Court Reporters is only $10.00, this calculation seems very excessive. (See Ex. 3 to Rossiter Decl.). In fact, plaintiffs’ counsel’s parking fee should only be $60 (6 visits to Sonoma at $10/visit). Without providing any receipts or invoices to prove the inflated parking figure provided by McCloskey, the Court should tax those costs. Therefore, plaintiffs’ counsel should only get $473.04 for travel and $60forparkingfor a total of$533.04. ii. McCloskey Failed to Apportion Her Costs In cases involving multiple parties and claims, the court should apportion (prorate) the costs to be assessed in order to avoid unfairness. See Heppler v. JM. Peters Co., Inc. (1999) 73 Cal.App.4th 1265, 1297-1298. In addition, “Allowable costs shall be reasonably necessary to the conduct ofthe litigation rather than merely convenient or beneficial to its preparation.” CCP § 1033.5 (c) (2). McCloskey was one of four (4) plaintiffs in the consolidated action. Each plaintiff had three (3) causes of action. When the dust settled, the end result was that all plaintiffs and all causes of action were dismissed except plaintiff McCloskey and one (1) cause of action. McCloskey is now trying to claim the costs associated with the dismissed plaintiffs and dismissed 2 Plaintiffs’ counsel did not haveto pay for parking at the245 Fischer location. (Rossiter Decl. § 14). DEFENDANT’S MOTION TO STRIKE OR TAX COSTS N O 0 N N O N n n l A W N N N N N N N N N m = e s m s e m e m e m e m e m e d N d O N h h B R W N = O 0 N N N B R A W N = O 28 004.509:297354v1 claims. But those costs must be apportioned in order to avoid unfairness. 1. Deposition ofDiann McCloskey in Robinson Matter Defendant accommodated McCloskey by continually rescheduling her deposition and holding her deposition over several sessions. (Rossiter Decl. § 16). There are a total offive (5) deposition transcripts for McCloskey. One transcript concerned only the Robinson matter where she was deposed as a witness to his case. In that deposition, counsel for defendant stayed away from discussing her claims and any discussion of her claims were merely tangential. As the Court knows, Defendant was the prevailing party in the Robinson matter. Therefore, McCloskey does not get to claim the costs for the deposition of McCloskey taken on November 6, 2014. (See McCloskey’s Exhibit “C” to Memorandum of Costs). This deposition cost $699.80. This court should subtract $699.80 from the total of $1,820.68 from deposition costs for McCloskey’s deposition. (See Item 4.d of the Worksheet). Therefore, McCloskey ’s Deposition Costs (Item 4) should only total $7,731.23. 2. Motions in Limine McCloskey’s Memorandum of Costs (Worksheet) at 1.f. lists “Motions in Limine” at $335.75. However,plaintiffs’ counsel filed three motions in limine and only one of those motions referenced McCloskey. The other two motions in limine referenced only Robinson - who was not a prevailing party. (See Ex. 4 to Rossiter Decl.) According to the fee schedule posted at http://www.occourts.org/general-public/fee-schedule/#civil_motion, each motion in limine costs $60. Therefore, McCloskey should only recover 3120.00. 3. Jury Fees At Item 2 of McCloskey’s Worksheet, she lists the daily jury fees at $125.04 per day for a total of $1,125.36. However, the jury fees were for both Robinson - who was not a prevailing party - and McCloskey. In its Memorandum of Costs against Robinson, Defendant divided its total jury fees by two to reflect the fact that Defendant prevailed against Robinson but McCloskey prevailed against Defendant. This was done in good faith and out of fairness, unfortunately McCloskey did not make the same calculation necessitating this argument. Therefore, the jury fees should be divided in halfand the total should be $562.68. 8 DEFENDANT’S MOTION TO STRIKE OR TAX COSTS 8 ) 004.509:297354v1 4. Court Reporter Fees Similarto the jury fees, McCloskey failed to divide the court reporter fees by two in light of the fact that one of the plaintiffs prevailed and the other did not. Again, Defendant divided its court reporter fees by two in light ofthe fact that the court reporter was transcribing two cases but Defendant prevailed on only one of those cases. Since plaintiffs prevailed on only McCloskey’s claim and not on Robinson, the court reporter fees should be divided in two. Therefore, McCloskey should only be entitled to $1,062.50 - the same amount claimed by Defendant for prevailing on Robinson’s claim. 5. CONCLUSION It is respectfully submitted that this honorable court strike McCloskey’s costs in their entirety under CCP § 1033 and the holdings in Chavez v. City ofLos Angeles (2010) 47 Cal.4th 970 and Steele v. Jensen Instrument Co. (1997) 59 Cal.App.4th 326. In the alternative, it is respectfully submitted that this court tax McCloskey’s costs and award as follows: » Item 1. Filing and Motion Fees - $718.20. » tem 2. Jury Fees - $562.68. = [tem 4. Deposition Costs - $7,731.23. = Item 5. Service of Process - $224.00. = [tem 9. Court-ordered transcripts - $0. = Item 11. Models, blowups, and photocopies of exhibits - $1.30. = [tem 12. Court reporter fees - $1,062.50. = Jtem 13. Other - $533.04. TOTAL COSTS: $10,832.95 DATED: January 21,2016 Koeller, Nebeker, Carlson & Haluck, LLP ploT William L. Haluck, Esq. Michael J. Rossiter, Esq. Attorneys for Defendant COUNTY OF ORANGE 9 DEFENDANT'S MOTION TO STRIKE OR TAX COSTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 004.509:297354v1 PROOF OF SERVICE -- CCP 1013A(3) STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the City of Irvine, County of Orange, State of California. I am over the age of 18 years and not a party to the within action. My business address is 3 Park Plaza, Suite 1500, Irvine, California 92614. On January 21, 2016, I served the within document, described as DEFENDANT'S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFF MCCLOSKEY’S COSTS, OR IN THE ALTERNATIVE, MOTION TO TAX PLAINTIFF MCCLOSKEY’S COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the interested parties in this action by placing [] the original a true copy in a separate sealed envelope addressed to the following address: Matthew E. Roston, Esq. ROSTON LAW GROUP 9454 Wilshire Boulevard, Penthouse Suite Beverly Hills, CA 90212 (310) 550-6221 FAX (310) 860-9624 matt@rostonlegal.com Attorneys for Plaintiffs X] BY MAIL - I am readily familiar with Koeller Nebeker Carlson & Haluck, LLP’s practice for collection and processing of documents for mailing with the United States Postal Service. I caused such document(s) to be placed in a sealed envelope, addressed to the person(s) on whom it is to be delivered pursuant to the attached service list with (*) next to the name, with postage thereon fully prepaid, to be deposited with the United States mail at Irvine, California that same day in the ordinary course of business. [CCP §1013] (| BY ELECTRONIC FILING: I electronically filed with the Clerk of the Court a true and correct copy ofthe original as indicated above, and a Notice of Electronic Filing (NEF) is automatically generated by One Legal system and sent by e-mail to all attorneys in this case. BY CERTIFIED MAIL/RETURN RECEIPT REQUESTED - I am readily familiar with Koeller Nebeker Carlson & Haluck, LLP’s practice for collection and processing of documents for mailing via certified mail with the United States Postal Service. I caused such document(s) to be placed in a sealed envelope, addressed to the erson(s) on whom it is to be delivered pursuant to the attached service list, with postage thereon fully prepaid, marked certified and return receipt requested, to be deposited with the United States mail at Irvine, California that same day in the ordinary course of business. [CCP §11] Hd BY OVERNITE MAIL - I am readily familiar with Koeller Nebeker Carlson & Haluck, LLP’s practice for collection and processing of documents for mailing via overnight delivery. I caused such document(s) to be placed in a sealed envelope designated by the overnite service carrier, addressed to the person(s) on whom it is to be served pursuant to the attached service list, and deposited said envelope in a box or other facility regularly maintained by the overnite service carrier with delivery fees paid or provided for. [CCP §1013(c)] 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 document(s) to be sent to the persons at the e-mail addresses listed above. I did not receive, 10 DEFENDANT’S MOTION TO STRIKE OR TAX COSTS w o w n O O 0 9 10 11 12 13 14 15 16 17 18 12 20 21 22 23 24 25 26 27 28 004.509:297354v1 within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. [CCP § 1010.6(a)(6)] . BY PERSONAL SERVICE - I caused the document(s) described herein to be personally served at the attorneys office by leaving a true and correct copy of the documents in a sealed envelope, clearly labeled to identify the attorney being served, with the receptionist or person having charge thereof, between the hours of 9:00 a.m. and 5:00 p.m. pursuant to the attached service list. [CCP §1011(a)] [] BY FACSIMILE - I caused the document(s) described herein to be transmitted from facsimile number 949-864-9000 to the facsimile number(s) for each party indicated on the attached service list. [CCP §1013(e)] STATE - I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 21, 2016, at Irvine, California. Connie BDReinglass 1" DEFENDANT’S MOTION TO STRIKE OR TAX COSTS