Mount Olympus Mortgage Company vs. Benjamin Anderson

Reply Other

Cal. Super. - 4th Dist.June 19, 2014

~N O Y ne B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MAYER BROWN LLP NEIL M. SOLTMAN (SBN 67617) nsoltman@mayerbrown.com JOHN NADOLENCO (SBN 181128) Jnadolenco@mayerbrown.com ANDREW Z. EDELSTEIN (SBN 218023) aedelstein@mayerbrown.com 350 South Grand Avenue, 25th Floor Los Angeles, CA 90071-1503 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 MAYER BROWN LLP DONALD M. FALK (SBN 150256) dfalk@mayerbrown.com 3000 El Camino Real, Suite 300 Palo Alto, CA 94306 Telephone: (650) 331-2000 Facsimile: (650) 331-2060 Attorneys for Defendant and Cross-Complainant GUARANTEED RATE, INC. ELECTRONICALLY FILED Superior Court of California, County of Orange 1017/2016 at 04:10:00 Pi Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER MOUNT OLYMPUS MORTGAGE COMPANY, a California corporation, Plaintiff, V. BENJAMIN ANDERSON, an individual, residing in the State of California, BRIAN DECKER, an individual, residing in the State of California, JONATHAN SOLEK, an individual, residing in the State of California, WILLIAM MICKLEY, an individual, residing in the State of California, DIANA FERNANDEZ, an individual residing in the State of California; SHANNON BARKER, an individual residing in the State of California; JULIE RODIECK, an individual residing in the State of California, YVONNE FELIX, an individual residing in the State of California, GUARANTEED RATE, INC., an Illinois Corporation, and DOES 1 through 100, inclusive, Defendants. Case No. 30-2014-00729438-CU-BT-CIC (Lead) c/w 30-2014-00755924-CU-OE-CJC DEFENDANT GUARANTEED RATE, INC.’S SUPPLEMENTAL REPLY IN SUPPORT OF MOTION TO TAX COSTS Assigned To: Hon. Craig Griffin Hearing Date: November 21, 2016 Hearing Time: 2:00 P.M. Dept: C17 Complaint Filed: June 19, 2014 DEFENDANT GUARANTEED RATE, INC.’S SUPPLEMENTAL REPLY ISO MOTION TO TAX COSTS; CASE NO. 30-2014-00729438-CU-BT-CJC ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BENJAMIN ANDERSON, an individual, BRIAN DECKER, an individual, Cross-Complainants, V. MOUNT OLYMPUS MORTGAGE COMPANY, a California corporation; and ROES, 1-10, inclusive, Cross-Defendants. GUARANTEED RATE, INC., an Illinois Corporation, Cross-Complainant, V. MOUNT OLYMPUS MORTGAGE COMPANY, a California corporation; and ROES, 1-50, inclusive, Cross-Defendants. YVONNE FELIX, Plaintiff, Vv. MOUNT OLYMPUS MORTGAGE COMPANY, DOES, 1-10, Defendants. DEFENDANT GUARANTEED RATE, INC.’S SUPPLEMENTAL REPLY ISO MOTION TO TAX COSTS; CASE NO. 30-2014-00729438-CU-BT-CJC ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to the Court’s September 26, 2016, Order (the “September 26 Order”), GRI files this supplemental reply in support of GRI’s Motion to Tax Costs, limited to two issues: (1) Mt. Olympus’s excessive travel and meal costs incurred for out-of-town depositions; and (2) Mt. Olympus’s excessive amounts claimed for models, blowups, and trial exhibits. This Court ordered Mt. Olympus to provide further itemization on these two issues, but the information Mt. Olympus has provided in response to the September 26 Order is unresponsive to that order, and still fails to provide a basis to determine the reasonableness of Mt. Olympus’s supposed costs. I. MT. OLYMPUS’S TRAVEL AND MEAL COSTS ARE INADEQUATELY ITEMIZED AND EXCESSIVE. Mt. Olympus requests a substantial sum, $7,898.50, in “meal costs” and other travel expenses relating to three trips from Los Angeles to Chicago. There is no question that “[t]he trial court is vested with broad discretion in determining if an expense is ‘reasonably necessary to the conduct of the litigation.” Howard v. American Nat. Fire Ins. Co. (2010) 187 Cal. App.4th 498, 541 (citing Code of Civil Procedure Section 1033.5(c)(2)). But Mt. Olympus’s Supplemental Opposition fails to provide an adequate basis on which this Court can assess the reasonableness of the travel and meal expenses. This is particularly so because “the incurring of meal expenses” for depositions is generally considered “merely convenient,” so that the court must use its discretion to determine if the costs were truly necessary. Mt. Olympus ignores that meal expenses are frequently excluded from deposition travel costs, in large part because of the patent potential for abuse. As one court observed, deposition-related “meal expenses” cannot “be justified as ‘necessary to conduct the litigation’ since attorneys have to eat, whether they are conducting litigation or not.” Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, 774. Mt. Olympus’s itemized expenses do not explain how those expenses were reasonable and necessary. In fact, many appear to be neither. Among Mt. Olympus’s costs are $286.30 for “coffee” on a single day. Supplemental Opposition at 1. Mt. Olympus also lists $492.77 in charges for deposition room rentals at the Westin luxury hotel chain. Id. at 1-2. There was no reason to incur these room rental expenses when GRI's counsel had an office in Chicago. 1 DEFENDANT GUARANTEED RATE, INC.’S SUPPLEMENTAL REPLY ISO MOTION TO TAX COSTS; CASE NO. 30-2014-00729438-CU-BT-CJC ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further, Mt. Olympus offers no explanation of meal expenses that appear excessive on their face. For example, single lunches cost as much as $400.82 and $359.91. Id. at 1-2. Even if some meal costs are recoverable within the Court’s discretion, Mt. Olympus should bear these excessive room and meal charges. Mt. Olympus is misguided in relying on Thon v. Thompson (1994) 29 Cal.App.4th 1546. The court in Thon only awarded travel costs when presented with “itemization of the travel expenses for each deposition and a declaration by defense counsel explaining the need and reason for the costs.” Id. at 1548 (emphasis added). In contrast, Mt. Olympus has offered no explanation or justification of the costs identified in the Supplemental Opposition. In addition, Mt. Olympus lumps together its airfare expenses and its hotel charges, making it impossible to determine the actual respective amounts and therefore their reasonableness. This is clearly unresponsive to the court’s September 26 Order which asked for a clear itemization to address the reasonableness for “each” expense. Because Mt. Olympus has not adequately responded to the Court’s request for further justification of its meal and travel expenses, the Court should deny Mt. Olympus recovery of these costs. II. MT. OLYMPUS’S COSTS FOR MODELS, BLOWUPS, AND TRIAL EXHIBITS ARE INADEQUATELY ITEMIZED, UNEXPLAINED, AND CLEARLY EXCESSIVE. Mt. Olympus requests $73,493.50 for cost of exhibits and demonstratives prepared by its trial presentation vendor. Mt. Olympus still does not indicate how the exhibits were necessary, or even used, at trial. In fact, Mt Olympus’s bare-bones itemized list only demonstrates how these costs are unreasonable and excessive. First, this Court’s September 26 order required Mt. Olympus to provide “more information ... to assess the reasonableness and necessity of this cost,” including “how the work related to trial exhibits or trial presentation, usefulness for the jury, etc.” Mt. Olympus does not even attempt to explain how the exhibits were “useful[] for the jury” or otherwise necessary. The only statement of explanation in Mt. Olympus’s Supplemental Opposition (at p. 3 ) is this: “These costs were reasonably necessary ... to the conduct of trial.” Presumably, this conclusory response 2 DEFENDANT GUARANTEED RATE, INC.’S SUPPLEMENTAL REPLY ISO MOTION TO TAX COSTS; CASE NO. 30-2014-00729438-CU-BT-CJC ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 flouts the Court’s order because Mt. Olympus simply cannot explain how these exhibits were useful to the jury. Second, Section 1033.5(a)(13) implies that only the hard costs of models and exhibits are recoverable. The statue does not provide for costs of all the legal strategy, research, and other background costs that may underlie the exhibit. Yet Mt. Olympus’s itemization indicates that Mt. Olympus seeks to recover exactly these strategy and research costs. Mt. Olympus tries to justify this as part of the “iterative process” that went into formulating the exhibits. Supplemental Opposition at p. 3-4. However, Section 1033.5(a)(13) does not make this “iterative process” a recoverable cost. If it did, parties could unfairly seek costs for hours upon hours of legal work and strategy that have absolutely nothing to do with the costs under Section 1033.5. From Mt. Olympus’s own itemization, only the entries for “Graphic Design & Production,” “Production Coordination” and for the hard materials such as “Gator Board” (totaling $41,522.50 of the $74,493.50 requested) even appear to relate the actual creation of exhibits. Supplemental Opposition at p. 5-6. Yet even these hard costs for the actual exhibits are undifferentiated and impossible to parse, meaning that Mt. Olympus has still failed to carry its burden to justify these costs.' Third, Section 1033.5(a)(13) provides that costs are recoverable only for “[m]odels and enlargements of exhibits and photocopies of exhibits... if they were reasonably helpful to aid the trier of fact” (emphasis added). As the Court’s September 26 Order recognized, only costs for the exhibits used at trial (and thus helpful to the jury) are expressly recoverable under the statute. See Ripley v. Pappadopoulos (1994) 23 Cal. App.4th 1616, 1623 (cost for overhead projector exhibit only recoverable because it was actually used at trial); Green v. County of Riverside (2015) 238 Cal.App.4th 1363, 1374 (allowing recovery only after showing technology based exhibits are “reasonably helpful to aid the jury”). Mt. Olympus’s itemization does not differentiate between exhibits actually used at trial and those that were not. As the court is aware, the court excluded some of Mt. Olympus’s proposed exhibits. Other exhibits were unused. Mt. ' Mt. Olympus attaches Exhibit 1 (its opening PowerPoint presentation) to justify its expenses, but a single PowerPoint presentation (which numerous lawyers and paralegals can produce while sitting at their desks) cannot stand in for more than $70,000 in costs. 3 DEFENDANT GUARANTEED RATE, INC.’S SUPPLEMENTAL REPLY ISO MOTION TO TAX COSTS; CASE NO. 30-2014-00729438-CU-BT-CJC ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Olympus cannot recover for these exhibits, but the itemization does not show which exhibits fall within Section 1033.5(a)(13) and which do not. In short, because Mt. Olympus has not explained the necessity of its exhibit costs as ordered by this Court, the entire amount should be taxed. III. CONCLUSION For the foregoing reasons, GRI respectfully requests that the Court tax the items for travel and meal expenses and the exhibit and demonstrative costs, along with the costs GRI has previously requested to tax. Dated: October 17, 2016 MAYER BROWN LLP NEIL M. SOLTMAN DONALD M. FALK JOHN NADOLENCO ANDREW Z. EDELSTEIN By: s/ Neil M. Soltman Neil M. Soltman Attorneys for Defendant and Cross- Complainant GUARANTEED RATE, INC. 4 TBE [DEFEN DANT GUARANTEED RATE, INC.”S SUPPLEMENTAL REPLY ISO MOTION TO TAX COSTS; CASE NO. 30-2014-00729438-CU-BT-CJC © N N A \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE - (Consolidated Matters) Mount Olympus Mortgage Company v. Benjamin Anderson, et al., Orange County Superior Court, Central Justice, Case No. 30-2014-00729438-CU-BT-CJC (Lead) Yvonne Felix v. Mount Olympus Mortgage Company, et al., Orange County Superior Court, Central Justice, Case No. 30-2014-00755924-CU-0E-CJC I, Cristina A. Villa, declare: I am employed in Los Angeles County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is Mayer Brown LLP, 350 South Grand Avenue, 25th Floor, Los Angeles, California 90071-1503. On October 17, 2016, I served a copy of the within document(s): DEFENDANT GUARANTEED RATE, INC.’S SUPPLEMENTAL REPLY IN SUPPORT OF MOTION TO TAX COSTS [x] (BY EMAIL) by transmitting electronically the document(s) listed above to the email addresses set forth below on this date. SEE ATTACHED SERVICE LIST I declare under penalty of perjury under the laws of the United States of America that the above is true and correct. A Executed on October 17, 2016, at Los Angeles, California. (apd Cristina AZ Villa PROOF OF SERVICE; CASE NO. 30-2014-00729438-CU-BT-CIC © J O N wn \O 10 11 12 13 14 15 16 17 18 19 20 21 7 23 24 25 26 27 28 SERVICE LIST MANATT, PHELPS & PHILLIPS, LLP Attorneys for Plaintiff and Cross-Defendant EMIL PETROSSIAN, ESQ. EPetrossian@manatt.com 11355 West Olympic Boulevard Los Angeles, CA 90064 Telephone: (310) 312-4000 Fax: (310) 312-4224 SIDLEY AUSTIN LLP CHAD HUMMEL, ESQ. chummel@sidley.com DAVID CARPENTER, ESQ. drcarpenter@sidley.com ERIC SCHWARTZ, ESQ. eschwartz@sidley.com 1999 Avenue of the Stars, 17 Floor Los Angeles, CA 90067 Telephone: (310) 595-9500 Fax: (310) 595-9501 JANUS CAPITAL LAW GROUP DERON M. COLBY, ESQ. dcolbyjanus@gmail.com 16530 Bake Parkway, Suite 100 Irvine, CA 92618 Telephone: (949) 250-8655 Fax: (877) 275-5954 YVONNE FELIX Yvonnefelix@aol.com 22859 Miriam Way Grand Terrace, CA 92313 Tel.: (909) 945-7670 MOUNT OLYMPUS MORTGAGE COMPANY Attorneys for Plaintiff and Cross-Defendant MOUNT OLYMPUS MORTGAGE COMPANY Attorneys for Defendants and Cross- Complainants BENJAMIN ANDERSON; BRIAN J. DECKER, JONATHAN SOLEK; WILLIAM MICKLEY; DIANA FERNANDEZ; SHANNON BARKER and JULIE RODIECK IN PRO PER PROOF OF SERVICE; CASE NO. 30-2014-00729438-CU-BT-CJC