Albert Sukut vs. James Toner

Motion

Cal. Super. - 4th Dist.February 7, 2014

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gordon G. Phillips,Jr., Bar No. 90232 Saleem K. Erakat, Bar No. 233452 PHILLIPS ERAKAT, LLP 1600 North Broadway, Suite 650 Santa Ana, CA 92706 PHONE (714) 541-3000 FAX (714) 541-3070 Attorneys for Plaintiff, ALBERT SUKUT SUPERIOR COURT OF THE STATE O F CALIFORNIA IN AND FOR THE COUNTY OF ORAN GE, CENTRAL JUSTICE CENTER ALBERT SUKUT, Plaintiff, VS. JAMES TONER, an individual, and DOES 1 through 10, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 30-2014-00703389-CU-PO -CIC PLAINTIFF’S NOTICE OF MOTIO N AND MOTION TO STRIKE AND TAX COSTS; MEMORANDUM OF POI NTS AND AUTHORITIES; DECLARAT ION OF GORDON G. PHILLIPS, JR.; [PROPOSED] ORDER Date: December 30, 2016 Time: 8:30 a.m. Dept.: C62 Trial Date: August 2, 2016 Time: 9:30 am Judge: Hon. Michael Bre nner Dept: C62 Complaint Filed: February 7,2014 PLAINTIFF’S MOTION TO STRIKE AND TAX COSTS1 10 11 12 13 14 1b 16 17 18 19 20 21 22 23 24 25 26 27 28 TO DEFENDANT AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on December 30, 2016 at 8:30 a.m., or as soon thereafter as the matter may be heard, in Department C62 of the Su perior Court of the State of California, County of Orange, 700 Civic Center Drive West, Santa Ana, California, Plaintiff Albert Sukut will and hereby does move this Courtto strike portions of and tax the Memorandum Of Costs filed by Defendant James Toner. This motion is made pursuant to California Code of Civil Procedure sections 1032 and 1033.5, and California Rule of Court 3.1700 on the grounds tha t: (1) the Memoranda of Costs seeks to recover expenses that are expressly prohibited by s tatute, or are otherwise not allowable under the statute and/or case law; (2) the Memoranda of Cos ts seeks expenses that were not reasonably necessary to the litigation or reasonable in amount; and (3) the Memoranda of Costs seeks expenses that may be awarded at the Court’s discretion a nd they are not warranted here. This motion is based upon this Notice, the accompanying Memorandum, the accompanying Declaration of Gordon G. Phillips, Jr., the pleadings on file in this m atter, and on such other and further evidence that the Court deems proper. PHILLIPS ERAKAT, LLP Jet A A /F / / 4 7 | pA {- Dated this: December 27, 2016 By : 4 fem AS J Co se GORDON G.PHILLIPS, IR. A) Attorneys for Plaintiff (/ ALBERT SUKUT PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITI ES L INTRODUCTION Defendant James Toner (“Defendant”) did not properly ser ve Plaintiff with his Memorandum of Costs. As a result, Defendant’s enti re Memorandum of Costs must be stricken. However, even if the Memorandum of Costs was serve d, it seeks numerous improper Costs. Preliminarily, although Plaintiff Albert Sukut (“Plaintiff”) did not obtain a verdict more favorable than the Code of Civil Procedure section 998 offer made by Defendant, Plaintiff was the prevailing party in this litigation. Defendantis only entitled to his post-offer costs and not his pre-offer costs. Plaintiff would have been entitled to his pre -offer costs, but elected not to file his own Memorandum of Costs. Finally, even for the po st-offer costs authorized by statute, Defendant seeks costs that were not reasonably necessary to the litigation nor reasonable in amount. For the reasons set forth below, Plaintiff respectfully req uests that the Courtstrike and tax the costs specified. IL. BACKGROUND Plaintiff filed this litigation on February 7, 2014. The majority of depositions and discovery was concluded prior to May 6, 2015, when Defendan t served his Code of Civil Procedure section 998 offer to compromise in the amoun t of $125,001. On August 10, 2016, the jury returned a verdict in favor of Plaintiff in the amount of $37, 107.63. Thereafter, on September 16, 2016, Defendant filed his Memorandum o f Costs and on September 22, 2016, Defendant filed his Memorandum of Costs Worksheet. Plaintif f did not receive either of these filings. III. ARGUMENT A. Defendant Did Not Properly Serve the Memorand um of Costs and the Entire Cost Bill Must be Stricken As set forth in Plaintiff’s accompanying ex parte application to p ermit the filing ofthis Motion, Defendant did not properly serve his Memorandum of Costs. Phi llips Erakat did not receive Defendant’s Memorandum of Costs or Memorand um of Costs worksheet via email, fax or US Mail. See Declaration of Denise Baca filed in Support of Ex Parte Application 113, 4; Declaration of Gordon G. Phillips in Support of Ex Parte Application 11 4. California Rule of PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS3 10 JI 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Court 3.1700(a)(1) provides that a party who claims costs “must er ve and file a memorandum of costs...” (emphasis added). The rule provides that it mus t be served and filed. Withoutfiling and service, the entire Memorandum of Costs must be stri cken. Dow v. Ross (1891) 90 Cal. 562, 563. B. Evenif the Memorandum of Costs Was Properly Served, The Memorandum of Costs Improperly Seeks Pre-Offer Costs Assuming arguendo that Defendant served his Memorandum o f Costs, and its failure to arrive at Plaintiff’s counsel’s office was not caused by Defendan t, Defendant’s Memorandum of Costs secks improper, pre-offer costs. Code of Civil Procedure s ection 998 provides, in pertinent part, as follows: If an offer made by a defendantis not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recoverhis or her postoffer costs and shall pay the defendant’s costs from the time of the offer. * kk If an offer made by a defendantis not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time ofthe offer, shall be deducted from any damages awarded in favor ofthe plaintiff. If the costs awarded underthis section exceed the amount of the damages awarded to the plaintiff the net amountshall be awarded to the defendant and judgment or award shall be entered accordingly. C.C.P. § 998(c)(1), (¢) emphasis added. Where a party prevails on the underlying complaint, but fails to obtain a jud gment more favorable than a pre-trial C.C.P. § 998 offer, that party is the prevailing party for purposes of the litigation, but the offering party is the prevailing party for purposes of costs re coverable pursuant to § 998. Scott Co. of California v. Blount, Inc. (1999) 20 Cal.4th 1103, 1107-1108 . In Scott, Plaintiff obtained a verdict of $442,000 after rejecting Defendant’s $900,000 offer to compromise. Id. at 1107. Although the dispute in Scott was over Plaintiff’s ability to rec over PLAINTIFF’S MOTION TO STRIKE AND TAX COSTS 10 1k 12 13 14 15 16 17 18 19 20 2% 22. 23 24 25 26 2 28 pre-offer attorneys’ fees, the analysis is the same . The Court held that Plaintiff was entitled to his pre-offer attorneys’ fees and that Defendant would only be treated as the prevailing party fo r his post-offer costs. Id. at 1112, 1114. Here, Defendant’s Memorandum of Costs (Workshee t) makes clear that defendant improperly seeks pre-offer cost s. California law recognizes three types of litigation costs: (1) allowable; (2) disallowable; and (3) discretionary. See Cal. Civ. Proc. Code §§ 10 33.5 (a), (b), (c)(4). For allowable and discretionary costs to be recoverable, they must also be both “reasonably necessary to the conduct of the litigation rather than merely convenie nt or beneficial to its preparation” and “reasonable in amount”. Cal. Civ. Proc. Code §§ 103 3.5, (c)(2)-(3); Perko’s Enters., Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245; Cal. Prac. Guide: Civ. Trials & Evid. § 17:112.1 (“Even costs otherwise ‘allowable as a matte r of right’ may be disallowed if the court determined they were not ‘reasonably necessary.’ Likew ise, the court has powerto reduce the amount of any cost item to an amount thatis ‘reasonable.””). If specifically allowable under Section 1033.5, the party challenging the costs has the burd en of showing that the costs sought are not reasonable or necessary. However,if the costs not sp ecifically allowable are objected to, then the burden of proof lies with the claiming party to dem onstrate that the costs were necessary and reasonable. See Ladas v. Cal. State Automobile Assn. (1993) 19 Cal.App.4th 761, 774. Plaintiff respectfully request that the Court tax Defendant’ s costs as set forth below. (Pursuant to California Rule of Court 3.1700(b), Plaintiff addresses the costs in t he order of Defendant’s MOC). 1. Filing and Motion fees - Line 1 a. Motion to strike (first appearance fee - 3-25-14) $46 5.00 b. Demurrer (court filing fee - 3-25-14) $60.00 c. Demurrer to FAC (court filing fee - 6-6-14) $90.00 d. Motion to strike FAC (court filing fee - 6-6-14) $60.00 e. Association of attorneys (e-filing fee - 8-19-14) $9.95 f. Amended answer (e-filing fee 8-19-14) $9.95 g. Ex parte to continue trial (courtfiling fee - 1-28-15) $60.00 h. Motion to bifurcate (courtfiling fee 2-25-15) $60.00 PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i. j- Motion in limine Nos. 1-3 (courtfiling fee - 4-6-15) Motion in limine Nos. 4-6 (court filing fee - 4-6-15) Total: 2. Deposition Costs - Line 4 a. b. C. Albert Sukut (taken October 22, 2014) Michael J. Einbund (taken February 9, 2015) Todd Kenneth Saczalski (taken March 25, 2015) David Harris (taken March 25, 2015) Dr. Anthony Fenison (taken March 11, 2015) Total: 3. Service of Process - Line 5! a. b. es d. = H 5 0 J o Laguna Dana PT, CR Southwest PT, CR Hansen Fitness/Golf, CR So. County Orthopedic Specialists Hand Ctr, CR (ABI) Saddleback Valley Radiology, CR (ABI) Laguna Dana Urgent Care, CR (ABI) Specialty Surgical Center, CR (ABI) Specialty Surgical Center, CR (ABI) Specialty Surgical Center/Radiology, CR (ABI) Laguna Dana Urgent Care, CR (ABI) Saddleback Valley Radiology, CR (ABI) Hansen Fitness for Golf, CR (ABI) Neurological Surgery Medical Assoc, CR (ABI) Gary Sugarman, MD, CR (ABI) Calif Orthopedics Specialists, CR (ABI) So. County Orthopedic Specialists Hand Ctr, CR (ABI) ! Defendant did not provide invoices for ABI. Based on the date that Plaintiff obtained these records, the ABI invoices predated the 998 offer. $180.00 $180.00 $1,174.90 $571.60 $1,656.35 $1,987.60 $596.40 $344.25 $5,156.20 $145.57 $152.98 $130.74 $143.38 $157.72 $137.28 $162.13 $130.74 $119.90 $138.44 $138.44 $108.40 $177.61 $205.49 $226.82 $143.89 PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 q. EI Niguel Country Club, CR (ABI) $131.58 r. California Orthopedic Specialists, CR (ABI) $67.61 s. Mariana Glickman, witness - invoice 1/23/15 $60.00 t. David Harris, witness - invoice 3/30/15 $1,208.80 Total: $3,887.52 4. Expert Fees - Line 8(b) a) Anthony Fenison, MD Invoice Dated 2/2/2015 $4,550.00 Invoice Dated 3/13/2015 $1,787.50 Invoice Dated 7/7/15 (for work performed 3/20/15) $1,950.00 b) Neil Chafetz Invoice Dated 12/23/2014 $2,774.50 Invoice Dated 2/13/2015 $600.00 ¢) Judson Welcher, PHD Invoice Dated 4/3/2015 $1,570.90 Total: $13,232.90 Based on the above, Defendant has improperly sought $23,451.52 in pre-offer costs. The Court muststrike those costs as they are not authorized by statute and are not recoverable. C. Defendants Memorandum of Costs Seeks Post-Offer Costs that Were Not Reasonably Necessary to the Litigation Nor Reasonable in Amount Although allowable to a party whose C.C.P. § 998 offer to compromise was not accepted, service of process costs and expert witness fees muststill be reasonable and necessary. Defendant seeks two costs that are unreasonable and unnecessary. Defendant seeks $2,656.80 in service of process costs for Hansen Fitness for Golf trainers (Line 5(u)). “Even costs otherwise ‘allowable as a matter of right” may be disallowed if the court determined they were not ‘reasonably necessary.” Likewise, the court has power to reduce the amount of any cost item to an amountthat is ‘reasonable.””. Cal. Civ. Proc. Code §§ 1033.5, (c)(2)-(3); Perko’s Enters., Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245; Cal. Prac. Guide: Civ. Trials & Evid. § 17:112.1. Service of process costsare recoverable onlyif PLAINTIFF’S MOTION TO STRIKE AND TAX COSTS7 10 11 12 13 14 15 16 17 18 19 20 21 22 28 24 25 26 27 28 reasonably necessary. See Republic Indem. Co. v. Scho filed (1996) 47 Cal.App.4th 220, 229. Besides establishing the necessary and reasonableness of se rvice costs, Defendant must detail how the subpoenas were served to allow the Court to de termine from the face of their cost bill whether the items are proper. Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132. Although Defendant provided the invoice showing $2,656.80 f or service of a subpoena on two witnesses, they provided no information as to why no attempt wa s made to contact the employer of the witnesses at the time. A simple google search would have re vealed the location of Hansen Fitness for Golf, the entity through which the witnesses we re employed at the time of the underlying treatment. Rather than undertake this basi c search, Defendant’s investigator generated an exorbitant bill with futile service attempts. The Cour t should tax these costs. Defendantalso seeks $5,478.40 (Line 8(b)(3)) for expert witne ss Judson Welcher, PhD. Defendant should not be permitted to recover discretionary expert witness fees for an expert who did not testify at trial as it was clear that his testimony was no t necessary to the litigation. Therefore, Plaintiff request that the Court tax the $5,478.40 i n costs for the expert witness not called to testify. IV. CONCLUSION For the reasons set forth above, Plaintiff respectfully requests that the Court strike Defendant’s entire Memorandum of Costs as it was not served o n Plaintiff. If the Court finds that the Memorandum of Costs, Plaintiff respectfully requeststhat th e Court strike $23,451.52 in costs as improperly seeking pre-offer costs and tax $8,135.20 in c osts as not reasonable and necessary to the litigation, for a total amount of $31,586.72. PHILLIPS ERAKAT, LLP / ” Af ) Dated this: December 27, 2016 By: A femme J. I~ _ GORDON G. PHILLIPS,x7 Attorneys for Plaintiff ALBERT SUKUT PLAINTIFF'S MOTION TO STRIKE AND TAX COSTS8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I certify that I am over the age of 18 years a nd not a party to the within action; that my) business address is 1600 North Broadway, Su ite 650, Santa Ana, CA 92706; and that on this date I placed a true copy of the foregoing docum ent(s) entitled: PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE AND TAX COSTS; MEMORANDUM OF POINTS AND AUTHOR ITIES; DECLARATION OF GORDON G. PHILLIPS, JR.; [PROPOSED] ORDER on the parties in this action by placing a true c opy thereof in a sealed envelope addressed as stated: (XX) as follows: Bruce E. Sample, SBN 175282 DEMLER, ARMSTRONG & ROWLAND, LLP 4500 East Pacific Coast Highway, Fourth Floor Long Beach, CA 90804 Telephone: (562) 597-0029//Facsimile: (562) 494-3958 _ TIcaused each envelope to be sent by Ov ernight Courier. XX (By Mail) I am "readily familiar" w ith the firm's practice of collection and processing correspondence for mailing. Under p ractice,it would be deposited with the U.S. Postal Service on that same day with postag e thereon fully prepaid at Santa Ana, CA in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellatio n date or postage meter date is more than one day after date of deposit for mailing in a ffidavit. (By Personal Service) I caused to be delivered suc h envelope by hand to the offices of the] addressee. (By Email) I caused to be delivered by Email. (By FAX) I caused each document to be sent by FAX to the following numbers: XX (STATE) I declare under penalty of perjur y under the laws of the State of California that the above is true and correct. (Federal) I declare that I am employed in the offi ce of a member of the Bar of this Court, at whose direction the service was made. Executed on December 27, 2016, Santa Ana, California. Denise Baca PROOF OF SERVICE - 1