Albert Sukut vs. James Toner

Motion to Strike or Tax Costs

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 OF CALIFORNIA IN AND FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER ALBERT SUKUT, Plaintiff, VS. JAMES TONER, an individual, and DOES 1 through 10, inclusive, Defendants. N a ’ N r ’ N a e N w N e N a w N a w ’ N e a a N m N a t ? N r N w N a N r N a e a a e ? N a e N w N a N e N a N a ” S e ’ Case No.: 30-2014-00703389-CU-PO-CJC Reservation No.: 72507738 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO STRIKE AND TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF GORDON G. PHILLIPS, JR.; DECLARATION OF DARIUS ESPIRITU; DECLARATION OF DENISE BACA; AND [PROPOSED] ORDER Date: February 3, 2017 Time: 9:00 a.m. Dept.: C62 Trial Date: August 2, 2016 Time: 9:30 am Judge: Hon. Michael Brenner Dept: C62 Complaint Filed: February 7,2014 PLAINTIFF’S MOTION TO STRIKE AND TAX COSTS1 10 11 12 13 14 15 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 February 3, 2017 at 9:00 a.m., or as soon thereafter ag the matter may be heard, in Department C62 of the Superior 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 Court to 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 that: (1) the Memoranda of Costs seeks to recover expenses that are expressly prohibited by statute, or are otherwise not allowable under the statute and/or case law; (2) the Memoranda of Costs seeks expenses that were nof 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 and they are not warranted here. This motion is based upon this Notice, the accompanying Memorandum, the accompanying Declarations of Gordon G. Phillips, Jr.; Darius Espiritu; and Denise Baca, the pleadings on file in this matter, and on such other and further evidence that the Court deems proper. PHILLIPS ERAKAT, LLP Datedthis: January 3, 2017 By:IPei/ GORDON G. PHILLIPS, J 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 AUTHORITIES L INTRODUCTION Defendant James Toner (“Defendant”) did not properly serve Plaintiff with hig Memorandum of Costs. As a result, Defendant’s entire Memorandum of Costs must be stricken. However, even if the Memorandum of Costs was served, 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. Defendant is 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 post-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 requests that the Court strike 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 Defendant served his Code of Civil Procedure section 998 offer to compromise in the amount 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, Defendantfiled his Memorandum of Costs and on September 22, 2016, Defendant filed his Memorandum of Costs Worksheet. Plaintiff did not receive either of these filings. III. ARGUMENT A. Defendant Did Not Properly Serve the Memorandum of Costs and the Entire Cost Bill Must be Stricken As set forth in Plaintiff’s accompanying ex parte application to permit the filing ofthis Motion, Defendant did not properly serve his Memorandum of Costs. Phillips Erakat did nof receive Defendant’s Memorandum of Costs or Memorandum of Costs worksheet via email, fax or US Mail. See Declaration of Denise Baca filed in Support of Ex Parte Application qY 3, 4] Declaration of Gordon G. Phillips in Support of Ex Parte Application § 4. California Rule of PLAINTIFF’S MOTION TO STRIKE AND TAX COSTS3 10 11 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 serve and file a memorandum of costs...” (emphasis added). The rule provides that it must be served and filed. Withoutfiling and service, the entire Memorandum of Costs must be stricken. Dow v. Ross (1891) 90 Cal. 562) 563. B. Even if the Memorandum of Costs Was Properly Served, The Memorandum of Costs Improperly Seeks Pre-Offer Costs Assuming arguendo that Defendant served his Memorandum of Costs, and its failure to arrive at Plaintiffs counsel’s office was not caused by Defendant, Defendant’s Memorandum of] Costs seeks improper, pre-offer costs. Code of Civil Procedure section 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 post offer costs and shall pay the defendant’s costs from the time of the offer. * k x If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff. If the costs awarded underthis section exceed the amount ofthe damages awarded to the plaintiff the net amount shall 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 judgment more} favorablethan a pre-trial C.C.P. § 998 offer,that party is the prevailing party for purposes ofthe litigation, but the offering party is the prevailing party for purposes of costs recoverable 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 Scot was over Plaintiff’s ability to recover PLAINTIFF’S MOTION TO STRIKE AND TAX COSTS4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pre-offer attorneys’ fees, the analysis is the same. The Court held that Plaintiff was entitled toj his pre-offer attorneys’ fees and that Defendant would only be treated as the prevailing party for his post-offer costs. Id. at 1112, 1114. Here, Defendant’s Memorandum of Costs (Worksheet) makes clear that defendant improperly seeks pre-offer costs. California law recognizes three types oflitigation costs: (1) allowable; (2) disallowable; and (3) discretionary. See Cal. Civ. Proc. Code §§ 1033.5 (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 convenient or beneficial to its preparation” and “reasonable in amount”. 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 (“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 amount that is ‘reasonable.’”). If specifically allowable under Section 1033.5, the party challenging the costs has the burden of showing that the costs sought are not reasonable or necessary. However,if the costs not specifically allowable are objected to, then the burden of prooflies with the claiming party to demonstrate 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 the order of Defendant’s MOC). 1. Filing and Motionfees - Line 1 a. Motion to strike (first appearance fee - 3-25-14) $465.00 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 (court filing fee - 1-28-15) $60.00 h. Motion to bifurcate (court filing 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 2. i. j- Motion in limine Nos. 1-3 (court filing fee - 4-6-15) Motion in limine Nos. 4-6 (court filing fee - 4-6-15) Total: Deposition Costs - Line 4 a. b. c. d. 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: Service of Process - Line 5! =H E A p t s . 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) $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 ! Defendant did not provide invoices for ABI. Based on the date that Plaintiff obtained these records, the ABI invoices predated the 998 offer. PLAINTIFF’S MOTION TO STRIKE AND TAX COSTS6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 g. El 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 must strike 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 must still 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 Goll] 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 costs are recoverable only if PLAINTIFF’S MOTION TO STRIKE AND TAX COSTS7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reasonably necessary. See Republic Indem. Co. v. Schofiled (1996) 47 Cal.App.4th 220, 229. Besides establishing the necessary and reasonableness of service costs, Defendant must detail how the subpoenas were served to allow the Court to determine 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 for service of a subpoena on two witnesses, they provided no information as to why no attempt was made to contact the employer of the witnesses at the time. A simple google search would have revealed the location of Hansen Fitness for Golf, the entity through which the witnesses were employed at the time of the underlying treatment. Rather than undertake this basic search, Defendant’s investigator generated an exorbitant bill with futile service attempts. The Court should tax these costs. Defendant also seeks $5,478.40 (Line 8(b)(3)) for expert witness 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 not necessary to the litigation] Therefore, Plaintiff request that the Court tax the $5,478.40 in 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 on Plaintiff. If the Court finds that the Memorandum of Costs, Plaintiff respectfully requests that the Court strike $23,451.52 in costs as improperly seeking pre-offer costs and tax $8,135.20 in costs as not reasonable and necessary to the litigation, for a total amount of $31,586.72. PHILLIPS ERAKAT, LLP Dated this: January 3, 2017 By: LH» GORDON G. PHILLIPS, JR. 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 DECLARATION OF GORDON G. PHILLIPS I, Gordon G. Philips, declare as follows: 1. I am an attorney at law licensed to practice before the courts of the State of California and am counsel of record for plaintiff Albert Sukut. I know the matters herein declared on my personal knowledge and will so testify under oath if required to do so. 2. On December 16, 2016, Denise Baca, my paralegal, informed me that we had received Defendant Toner’s proposed judgment, reflecting that Toner had filed a Memorandum of Costs of more than $54,000. I reviewed my emails and confirmed that pursuant to Phillips Erakat’s mail procedure, I did not receive a copy of Toner’s Memorandum of Costs. 3. Immediately upon learning of the Memorandum of Costs, my office contacted Toner’s counsel’s office and requested a copy of the Memorandum of Costs and the accompanying proof of service. Attached hereto as Exhibit A is a true and correct copy of the Memorandum of Costs and Proof of Service received from Defendant’s office on December 20, 2016. Attached hereto as Exhibit B is a true and correct copy of the Memorandum of Costs (Worksheet) and Proof of Service received from Defendant’s office on December 20, 2016. 4, Although email service has not been agreed to by the parties, I confirmed that our office was not served with the Memorandum of Costs via email. Further, I confirmed that our office was not served with the Memorandum of Costs (Worksheet) via email, despite Defendant’s proof of service to the contrary. 5. Attached hereto as Exhibit C is a true and correct copy of the cover letter and proposed Amended Judgment served by counsel for Toner. 6. Attached hereto as Exhibit D is Plaintiff’s Proposed Motion to Tax Costs. 7. On December 27, 2016, at approximately 10:33 a.m., my office provided notice of this Ex Parte Application to Defendant via facsimile. Attached hereto as Exhibit E is a trug and correct copy of that facsimile and the confirmation page. My office provided Defendant with these moving papers on December 27, 2016, my office contacted Defendant’s counsel via telephone to provide ex parte notice. PLAINTIFF’S MOTION TO STRIKE AND TAX COSTS9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 27, 2016 at Santa Ana, California. HNPA_ GORDON G. PHILLIPS, JR. PLAINTIFF’S MOTION TO STRIKE AND TAX COSTS10 2 23 24 25 2¢ 8 DECLARATIONOF DARIUS ESPIRITU I, Darius Espiritu, declare as follows: 1. 1 am an IT Engineer employed by Acutech Network Services and provide network services to Phillips Erakat, LLP. I know the matters herein declared on my personal knowledge and will so testify under oath if required to do so. 2. I have reviewed all incoming emails from September 16, 2016 and did not locate any emails containing the Memorandum of Costs from Demler, Armstrong & Rowland, LLP, Bruce Sample, Esq. or Rose Cabrera. 3. In addition, | reviewed the facsimile log for all faxes received in December 2016. It does not show any incoming faxes from (562) 494-5381, the facsimile number for Demler, Armstrong and Rowland on December 7, 2016. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 19, 2017 at Santa Ana, California. 2 “2 - DARIUS ESPIRITU ACUTECH NETWORK SERVICES PLAINTIFEF’S MOTION TO STRIKE AND TAX COSTS11 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF DENISE BACA I, Denise Baca, declare as follows: 1. I am a paralegal at Phillips Erakat, LLP, counsel of record for plaintiff Albert Sukut. I know the matters herein declared on my personal knowledge and will so testify under oath if required to do so. 2. I am responsible for Phillips Erakat, LLP’s mail intake procedure. 1 am responsible for opening the mail. Upon opening the mail, I calendar any deadlines pursuant to the Code of Civil Procedure. Thereafter, I scan the received mail and circulate to Gordon G. Phillips, Jr. and Saleem K. Erakat. Finally, the paper copy of the received item is placed in the hard copyfile. 3. On December 15, 2016, I received via mail, Defendant James Toner’s Proposed Amended Judgment. The proposed judgment referred to a Memorandum of Costs, filed by] Toner on September 16, 2016. I did not recall receiving the Memorandum of Costs in September. I reviewed the hard copy file of Plaintiff’s file and did not locate a Memorandum off Costs. I also reviewed the electronic version of Plaintiff’s file and did not locate a Memorandum of Costs. Finally, I reviewed all emails for the months of September and October related to Plaintiff’s case and did not locate any emails containing the Memorandum of Costs. Therefore, the Memorandum of Costs did not arrive to Phillips Erakat, LLP via mail. 4. In addition, I reviewed the facsimile log for all faxes received in December 2016. Attached hereto as Exhibit A is a true and correct copy of the facsimile log for Phillips Erakat, LLP for December 2016. It does not show any incoming faxes from (562) 494-5381, the facsimile number for Demler, Armstrong and Rowland on December 7, 2016. In addition, although I cannot recall any specific examples at present, during the pendency of the underlying] litigation, there were other items that were purportedly sent to our office from Toner’s counsel’s office that we did not receive. 5. I requested Defendant’s Memorandum of Costs, Memorandum of Costs (Worksheet) and the proofs of service for both. The proof of service for the worksheet reflects that it was allegedly sent to our office by mail and email on September 16, 2016. PLAINTIFF’S MOTION TO STRIKE AND TAX COSTS12 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. Finally, I confirmed with Saleem K. Erakat and Gordon G. Phillips, Jr. that neither one ofthem received the Memorandum of Costs via email. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 27, 2016 at Santa Ana, California. C GOCoe DENISE BACA PLAINTIFF’S MOTION TO STRIKE AND TAX COSTS13 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 and not a party to the within action; that my] business address is 1600 North Broadway, Suite 650, Santa Ana, CA 92706; and that on this date I placed a true copy ofthe foregoing document(s) entitled: PLAINTIFF’S NOTICE OF MOTION AND MOTION TO STRIKE AND TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF GORDON G. PHILLIPS, JR.; DECLARATION OF DARIUS ESPIRITU; DECLARATION OF DENISE BACA; AND [PROPOSED] ORDER on the parties in this action by placing a true copy 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 I caused each envelope to be sent by Overnight Courier. XX (By Mail) I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under practice,it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Santa Ana, CA in the ordinary course of business. | am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. (By Personal Service) I caused to be delivered such envelope by hand to the offices of the addressee. XX (By Email) I caused each document to be delivered by Email. Bruce Sample, Esq.: sam@darlaw.com Rose Cabrera: cab@darlaw.com (By FAX) I caused each document to be sent by FAX to the following numbers: XX (STATE)I declare under penalty of perjury under the laws ofthe State of California) that the above is true and correct. (Federal) I declare that I am employed in the office of a memberofthe Bar ofthis Court, at whose direction the service was made. PROOF OF SERVICE - 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Executed on January 19, 2017, Santa Ana, California. Dore Dene Denise Baca PROOF OF SERVICE -2