Joan Tommarello vs. Bmw of North America LLC

Reply to Opposition

Cal. Super. - 4th Dist.January 8, 2014

© 0 3 O N wn» BA W N = N N N N N N N N N e m e m e m e m e m e m p m e m co J a N nn RA W I N D = D O O N N N RR W D = O O’CONNOR & MIKHOV LLP* Steve B. Mikhov (SBN 224676) 1801 Century Park East, Suite 2300 Los Angeles, CA 90067 Telephone: (310) 552-2250 Facsimile: (310) 552-7973 LAW OFFICES OF MICHAEL H. ROSENSTEIN Michael H. Rosenstein (SBN 169091) Brian T. Shippen-Murray (SBN 288188) 1801 Century Park East, Suite 2300 Los Angeles, CA 90067 Telephone: (310) 286-0275 Facsimile: (310) 286-0274 Attorneys for Plaintiffs, JOAN TOMMARELLO and JESSICA TOMMARELLO ELECTRONICALLY FILED Superior Court of California, County of Orange 06/02/2017 at 07:06:00 PM Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE JOAN TOMMARELLO and JESSICA Case No.: 30-2014-00697020-CU-BC-CJC TOMMARELLO, Assigned for All Purposes to the Honorable Andrew P. Banks Blainiits, PLAINTIFFS’ REPLY TO V8. OPPOSITION TO MOTION TO TAX COSTS BMW OF NORTH AMERICA, LLC, a Delaware Limited Liability Company, and DOES 1 through 10 inclusive, Hearing Date: June 9, 2017 Time: 1:30 p.m. Defendants. Dept.: Cll 0 RESERVATION ID: 72584243 Plaintiffs’ Reply to Opposition to Motion to Tax Costs *O’Connor & Mikhov, LLP recently reformed as Knight Law Group, LLP. A Substitution of Attorney is in the process of being executed and will be filed with the court as soon as it is received. © 00 J a nm BA W N = N N N N N N N N N e m e m e m e m p m e m p m e m co NI AN Un BRA W I N D = O O N N N R E W I N D = O MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION Plaintiffs Joan Tommarello and Jessica Tommarello seek strike or tax the outrageous costs sought by defendant BMW of North America, LLC’s (“Defendant” or “BMW?”). In their motion to strike costs, Plaintiffs identified various categories of costs claimed by Defendant constituting $24,386.00 in unrecoverable expenditures under Code of Civil Procedure section 1033.5, and/or those costs which are allowable but were unreasonably incurred or excessive in amount. In its opposition, Defendant does not attempt to justify the unreasonable $191.00 incurred serving unnecessary business records subpoenas, nor does Defendant attempt to justify the exorbitant costs of trial exhibit copies, which Plaintiffs asked the Court to tax at least half of the requested $3,686.00, but even this amount is not supported by BMW. “[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.” (People v. Stanley (1995) 10 Cal.4th 764, 793.) BMW is entirely as to both amounts. Accordingly, this Court should tax the sum of $3,877.00 as unsupported by Defendant. In its opposition, Defendant also chose to attack Plaintiffs’ litigation conduct rather than offer justification for the reasonableness of its own costs. Across the board, Defendant implores the Court to rely exclusively on its discretion and to ignore the comprehensive list of cost items that are recoverable under Code of Civil Procedure sections 1033.5(a)(1)-(16). In such a case, the doctrine of expressio unius est exclusio alterius applies: when the legislature manifests its intent to include specific matters, it should be inferred that the legislature intended to exclude other matters. For example, CCP § 1033.5 undeniably limits recovery of the costs of transcripts to those involving depositions or those transcripts ordered by the court. Surely, the legislature was aware that attorneys might want transcripts from hearings or transcripts from trial. The legislature spoke on the issue of transcripts - making it clear that the legislature considered them - but chose to limit the recovery of transcripts to the exclusion of other transcripts. Defendant would have this Court overlook statutory prohibitions to exercise discretion that is 1 Plaintiffs’ Reply to Opposition to Motion to Tax Costs *O’Connor & Mikhov, LLP recently reformed as Knight Law Group, LLP. A Substitution of Attorney is in the process of being executed and will be filed with the court as soon as it is received. © 00 J a nm BA W N = N N N N N N N N N e m e m e m e m p m e m p m e m co NI AN Un BRA W I N D = O O N N N R E W I N D = O contrary to legislative intent. CCP § 1033.5 is a long and extensive statute, but under Defendant’s interpretation, it could be boiled down to one short sentence: The court can ignore the statute and award any and all costs it deems reasonable under its discretion. However, the statute does not work like that. It is meant to be strictly construed. The only costs that should be awarded are those actually permitted under the code or those that have been appropriately explained by Defendant as actually reasonably necessary to the conduct of litigation, rather than merely convenient or beneficial. Further, the charges must be reasonable in amount under the plain language of the statute. The code does not contemplate creating an expense account for lawyers as Defendant has done here. Litigation does not create and all you can eat buffet of expenses. Some costs were included in the list of recoverable costs, some costs were not. Here, Defendant has the burden to defend its costs, yet Defendant’s opposition makes no attempt assert why the costs were appropriate in this case. As such, the Court should exercise its discretion and tax Defendant’s costs in the total sum of $24,386.00 as requested by Plaintiffs’ motion. II. ARGUMENT A. Code of Civil Procedure section 1033.5 Delineates Specific Costs to be Recovered and Other Costs Should be Excluded Under the Maxim of Expressio Unius Est Exclusio Alterius “Costs statutes are to be strictly construed.” (Shulman v. Group W Productions, Inc. (1997) 51 Cal.App.4th 850, 894.) “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 Parker v. City of Los Angeles (1974) 44 Cal.App.3d 556, 566). “The maxim expressio unius est exclusio alterius, i.e., the inclusion of one thing implies the exclusion of another, may be applied to assist in determining actual legislative intent which is not otherwise manifest . . . under this rule when legislative intent is in question, we can presume that when the legislature expressly includes specific terms, it intends to exclude any items not expressly included in the specific list.” (Mejia v. Reed (2003) 31 Cal.4th 657, 666- 2 Plaintiffs’ Reply to Opposition to Motion to Tax Costs *O’Connor & Mikhov, LLP recently reformed as Knight Law Group, LLP. A Substitution of Attorney is in the process of being executed and will be filed with the court as soon as it is received. © 00 J a nm BA W N = N N N N N N N N N e m e m e m e m p m e m p m e m co NI AN Un BRA W I N D = O O N N N R E W I N D = O 667.) “Under the familiar rule of construction, expressio unius est exclusio alterius, where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed.” (Mutual Life Ins. Co. v. City of Los Angeles (1990) 50 Cal.3d 402, 410.) As applied to statutory construction, expressio unius maxim means that if exemptions are specified in a statute, a court may not imply additional exemptions unless there is a clear legislative intent to the contrary. (Dover Village Assn. v. Jennison (2010) 191 Cal. App.4th 123, 128.) “One of the more common rules of statutory interpretation is that expressed in the Latin maxim expressio unius est exclusio alterius, i.e., the mention or inclusion of one thing implies the exclusion of another. This rule may be applied to assist in determining actual legislative intent which is not otherwise manifest, although the maxim should not be employed to override or defeat a clearly contrary legislative intention.” (State v. Crawford (2008) 39 Kan.App.2d 897, 899.) A similar rule of construction is inclusio unius est exclusio alterius, inclusion of the one is the exclusion of another. (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 991.) The legislature has thoughtfully provided courts with guidance concerning the scope of recoverable litigation costs. It may be inferred from the length and breadth of the statute that the final version of the law was the product of careful consideration. While the list may not be exhaustive of all litigation expenditures, and the legislature has given courts a means of exercising discretion under CCP § 1033.5(¢c)(4), that discretion should not be exercised where it would be contrary to the legislature’s intent on limiting the types of expenditures that can be reimbursed. “That plain language [of the statute] reflects a clear intent to limit the recovery of 22% costs to those which are ‘reasonably necessary.” (Perko’s Enterprises, supra, 4 Cal.App.4th at 244.) In its opposition. Defendant plainly asks the Court to throw out the entire list of costs enumerated in CCP § 1033.5(a)(1) - (16) and award costs that the legislature clearly considered, but did not permit. Defendant’s position is essentially that the judicial discretion permitted under CCP § 1033.5(c)(4) abrogates the rest of the entire statute but Defendant does not present any case that says that subsection was intended in that way. 3 Plaintiffs’ Reply to Opposition to Motion to Tax Costs *O’Connor & Mikhov, LLP recently reformed as Knight Law Group, LLP. A Substitution of Attorney is in the process of being executed and will be filed with the court as soon as it is received. © 00 J a nm BA W N = N N N N N N N N N e m e m e m e m p m e m p m e m co NI AN Un BRA W I N D = O O N N N R E W I N D = O The following addresses BMW's arguments in support of reimbursement of its claimed expenditures: 1) Models, Blowup and Photocopies of Exhibits To reiterate, BMW does not counter any claims made by Plaintiffs in their motion to tax costs that the costs sought for trial exhibit copies were excessive. Plaintiffs requested that at least half of the $3,686.00 should be taxed but BMW does not even make the pretense of trying to justify any portion of this amount. Instead, Defendant has one conclusory sentence that “the Court also has discretion to allow costs for exhibits not actually used at trial.” (Opp. p. 4:5-7.) But Defendant does not inform the Court why it should exercise that discretion in this case. According to the code, costs for exhibits not actually used at trial are not recoverable under Code Civ. Proc., § 1033.5, subd. (a)(13) (See Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.) Inasmuch as Defendant does not assert what portion, if any, of these charges were reasonably helpful to a trier of fact, this Court should tax the entirety of the $3,686.00 for trial exhibits that were not used, and were not helpful to a trier of fact, and are not explained by BMW as such. BMW also seeks recoupment of a shocking amount paid to a third-party visual technology company called Technical Reliance, Inc. BMW falsely claims that Plaintiffs used the projection services “throughout the trial.” This is flat out incorrect. BMW spent an outrageous $14,787.00 but BMW does not even attempt to argue that this expense was necessary to conduct litigation especially in light of the fact BMW had two attorneys present each day at trial. Instead, BMW attempts to flip the burden by claiming that Plaintiffs have not given any evidence that these expenses are unreasonable but, under the clear law cited in Plaintiffs’ moving papers, it is BMW's burden to support the reasonableness and necessity of the amount where the statute does not permit such expenditures. (See Ladas v. California State Auto Assn’ (1993) 19 Cal.App.4th 761, 774; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265; Melnyk v. Robeldo (1977) 64 Cal. App.3d 618, 624.) BMW tries to point the finger at Plaintiffs’ counsel for having three attorneys at trial as if that justifies BMW outsourcing the 4 Plaintiffs’ Reply to Opposition to Motion to Tax Costs *O’Connor & Mikhov, LLP recently reformed as Knight Law Group, LLP. A Substitution of Attorney is in the process of being executed and will be filed with the court as soon as it is received. © 00 J a nm BA W N = N N N N N N N N N e m e m e m e m p m e m p m e m co NI AN Un BRA W I N D = O O N N N R E W I N D = O task of using a computer mouse attached to a laptop to project a document on a screen, but BMW would undoubtedly object to Plaintiffs seeking to recover that third attorney’s fees had Plaintiffs prevailed and sought fees under the Song-Beverly Act. Instead of explaining the need for the third-party “technology,” BMW tries to point the finger the other way. The cost of the technical specialist company is exceedingly unreasonable for, what BMW always claims is, a “simple lemon law case.” BMW mis-cites case law for support that the Court has discretion to award this charge for an unbelievable $14,787.00. That case discusses whether the cost of a paralegal is an appropriate reimbursement. The paralegal’s billing included operating technical equipment. Putting aside that distinguishable fact, and assuming that the Court has discretion to award such costs general, BMW fails to articulate why the Court should exercise discretion based on the circumstances of this case. BMW does not identify what in particular about this case required cutting-edge technology, or what cutting- edge technology it actually implemented in this case, or how it was helpful to a trier of fact. BMW spent nearly $15,000.00 so that it could publish repair orders on a screen - the same thing Plaintiffs’ counsel did by simply plugging in a chord from a projector to a computer. Thus, even if the Court has discretion to award this exorbitant charge, BMW does not do anything to persuade the Court that it should exercise that discretion ere under these particular facts. There were no intricate visual displays and there was nothing performed by Technical Reliance, LLC that either one of BMW's two attorneys at counsel table could not have done themselves. “It is certainly not inappropriate for a party to choose cutting edge technology to present its case to a jury. But that does not mean that it can automatically pass the high cost of that technology to the other side, especially when it is used only sporadically during the trial, . .” (Nelson v. Anderson (1999) 72 Cal. App.4th 111, 132-133.) BMW fails to explain why its second attorney sitting at counsel table throughout trial was incapable of controlling a computer mouse to click on documents on a computer for them to be put on a screen. This takes no great skill and certainly does not justify $14,787.00 that BMW claims to have incurred. 5 Plaintiffs’ Reply to Opposition to Motion to Tax Costs *O’Connor & Mikhov, LLP recently reformed as Knight Law Group, LLP. A Substitution of Attorney is in the process of being executed and will be filed with the court as soon as it is received. © 00 J a nm BA W N = N N N N N N N N N e m e m e m e m p m e m p m e m co NI AN Un BRA W I N D = O O N N N R E W I N D = O 2) Court Reporter Fees - Which are Actually Transcript Costs BMW's opposition fails to even address the objections posed in Plaintiffs’ motion that BMW attempts to mislead the Court by seeking recovery transcript fees which is not allowed by statute) under the guise of “court reporter fees” (which would be allowed by statute). BMW simply states in conclusory fashion that the costs were “reasonable and necessary” without any further explanation. Most troubling, BMW cites no authority that would permit recovery of the costs of dailies that were ordered by BMW. The issue of transcripts has already been addressed by the legislature in stating that transcripts of depositions and transcripts ordered by the Court are reimbursable. Accordingly, the doctrine of expressio unius est exclusio alterius and its companion principle inclusio unius est exclusio alterius both dictate that other transcripts not discussed should not be reimbursed. Accordingly, the Court should strike the amount of $2,682.00 from Defendant’s request because those are not “court reporter fees,” but rather comprises the cost of “dailies,” which is not recoverable. 3) Expert Witness Fees Without any legal justification, BMW seeks a tremendous amount paid for expert witness fees. BMW makes no argument that this particular expert was necessary or even reasonable. BMW’s only argument is that BMW did not have access to a full staff of engineers for its lemon law cases. Plainly stated, “[f]ees of experts not ordered by the court” are expressly “not allowable as costs, except when authorized by law.” (Code Civ. Proc. § 1033.5(b)(1).) Expert witness fees are not recoverable under the general cost statute of CCP § 1033.5. They “may” be recovered, though not mandatory, in the court’s discretion when a party does not prevail over a 998 offer. In conclusion, the Court should strike half of the $9,766.00 because it is not reasonable in amount.” (Code of Civ. Proc. § 1033.5(¢c).) Mr. Arruda’s time in this case grossly exceeds reasonableness. The falsehood of BMW's attempts to justify the amount is observed in plain black and white by looking at Mr. Arruda’s invoice. BMW responds to Plaintiffs’ objections by claiming “there is no entry for 8 6 Plaintiffs’ Reply to Opposition to Motion to Tax Costs *O’Connor & Mikhov, LLP recently reformed as Knight Law Group, LLP. A Substitution of Attorney is in the process of being executed and will be filed with the court as soon as it is received. © 00 J a nm BA W N = N N N N N N N N N e m e m e m e m p m e m p m e m co NI AN Un BRA W I N D = O O N N N R E W I N D = O hours for reviewing plaintiff’s deposition transcript [and] there is no flight from Illinois.” First, while it is true the time spent was erroneously stated by Plaintiffs’ moving papers as plaintiff’s deposition, it was actually plaintiff’s expert deposition that incurred 8 hours for review along with some ambiguous “analysis/research.” Then, seven days later, Mr. Arruda spent another 8 hours for “Review file materials.” It strains credulity how an expert could spend 16 hours reviewing a deposition and the repair orders. BMW claims that Mr. Arruda did not have a flight from Illinois but, according to the invoice, not only did Mr. Arruda charge for a flight, he charged for two flights - they may not have been from Illinois but the address on his invoice shows Illinois and BMW conveniently omits where he actually came from. In virtually every case, BMW uses one of its many in-house technical specialists as its designated expert. Under such a circumstance, that expert’s costs are not recoverable as an employee of the party. (Code Civ. Proc. § 998(c).) BMW surely has its choice in experts but BMW does not state why Mr. Arruda’s quite expensive expertise was necessary based on the facts of this case. Did he have some in-depth knowledge about electrical systems or engine systems that other in-house experts did not have? Was there something else that required an out-of-state expert to opine in a “simple lemon law” case? BMW gives no details and no explanation. Plaintiffs offered an example of reasonable expert fees incurred by the same law firm in another case that amounted to just $2,776.32 but defense counsel ignores this point and fails to explain why the expert fees in this case are more than three times the expert fees in its other cases.' Plaintiffs do not seek to strike the entire amount because it was arguably reasonable to have a designated expert since Plaintiffs had one too - although BMW does not even say this and it is Plaintiffs now making the argument for BMW. However, BMW’s reimbursement for expert witness fees, if any is to be awarded, should be no more than $4,883.00, which is still 1 BMW notes that Plaintiffs did not state how much their expert charged in this case but that information is purposefully omitted because Mr. Blasjo’s final bill for all services has not been received and it would be very misleading to provide an amount for his bill that does not reflect the total bill. Plaintiffs chose not to deceive the Court with only a partial bill to compare. 7 Plaintiffs’ Reply to Opposition to Motion to Tax Costs *O’Connor & Mikhov, LLP recently reformed as Knight Law Group, LLP. A Substitution of Attorney is in the process of being executed and will be filed with the court as soon as it is received. © 00 J a nm BA W N = N N N N N N N N N e m e m e m e m p m e m p m e m co NI AN Un BRA W I N D = O O N N N R E W I N D = O nearly twice the amount defense counsel incurred in its last case. 4) Service of Process BMW seeks to be paid back for two charges for business record subpoenas served on insurance companies. In its opposition, BMW chose not to address these costs entirely. Therefore, BMW concedes that these costs are clearly not recoverable. As such, Plaintiffs ask this Court to strike $191.00 for the costs of these two subpoenas. III. CONCLUSION Defendant seeks an award of costs, many of which are statutorily impermissible and/or were unnecessarily and unreasonably incurred. The Court should exercise its discretion and tax Defendant’s costs in the total sum of $26,229.00, which is a slight increase from that requested by motion since Defendant has failed to justify any portion of its trial exhibits. The $26,229 is broken down as follows: Technical Reliance, Inc - Visual Technology: $14,787.00 Excessive/Unjustified Copying Costs $3,686.00 Costs of Business Record Subpoenas: $191.00 Expert Fees (half of requested amount): $4,883.00 Transcripts not ordered by the Court (claimed as court reporter fees): $2,682.00 TOTAL TO BE STRICKEN: $26,229.00 Dated: June 2, 2017 LAW OFFICES OF MICHAEL H. ROSENSTEIN Roger Kirnos, Esq (SBN 288188) Attorneys for Plaintiffs, JESSICA TOMMARELLO and JOAN TOMMARELLO 8 Plaintiffs’ Reply to Opposition to Motion to Tax Costs *O’Connor & Mikhov, LLP recently reformed as Knight Law Group, LLP. A Substitution of Attorney is in the process of being executed and will be filed with the court as soon as it is received. oo 0 ~~ N Lh A W N = N O N ND N N N N N O N = o m mm em o r d e d em e m e m p m «© 2 A nn RA W N = O Y 0 N R A 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 1801 Century Park East, Suite 2300, Los Angeles, CA 90067. I served the foregoing document described as: PLAINTIFFS’ REPLY TO OPPOSITION TO MOTION TO TAX COSTS Said document was served on the interested parties in this action, by placing true copies thereof enclosed in sealed envelopes, with postage prepaid, addressed as follows: SEE ATTACHED MAILING LIST XX 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. XX 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 this 2°¢ % of June, 2017 at Los Angeles, California. ELIN HOWARD ~~ -1- PROOF OF SERVICE Oo 00 N N N hh Bb W N D N D N N N D N D N N N N = mm p d e m e m e e p d pe p d cK 3 A N Wn Rh W N R O Y N R A W N = o Kate S. Lehrman, Esq. MAILING LIST Tommarello v. BMW Case No.: 30-2014-00697020-CU-BC-CJC LEHRMAN LAW GROUP 12121 Wilshire Blvd, Suite 1300 Los Angeles, CA 90025 Counsel for Defendant, BMW OF NORTH AMERICA, LLC (via Overnight only) Bryan C. Altman The Altman Law Group 6300 Wilshire Blvd., Suite 980 Los Angeles, CA 90048 Associated Counsel for Plaintiffs, JESSICA & JOAN TOMMARELLO (via E-mail only) 2. PROOF OF SERVICE