Judith Slavin-Cosel vs. Camilla'S Recovery Cottage, LLC

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.August 25, 2014

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Daniel M. Hodes, Esq. [State Bar No. 101773] Jason M. Caruso, Esq. [State Bar No. 287809 HODES MILMAN LIEBECK, LLP 9210 Irvine Center Drive Irvine, California 92618 Telephone: (949) 640-8222 Facsimile: (949) 336-8114 ou nt y of Or an ge 06 /2 8/ 20 16 at 07 :1 4: 00 PM Li E L E C T R O N I C A L L Y FI LE D Su pe ri or Co ur t of Ca li fo rn ia Cl er k of th e Su pe ri or Co ur t By An ge li na Ng uy en -D o, De pu ty Cl er k Attorneys for Plaintiff JUDITH SLAVIN-COSEL SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE- CENTRAL JUSTICE CENTER JUDITH SLAVIN-COSEL, CASE NO: 30-2014-00741627-CU-MM-CJC JUDGE: Mary Fingal Schulte Plaintiff, PLAINTIFF’S NOTICE OF MOTION AND MOTION TO TAX COSTS OF DEFENDANTS CAMILLA’S RECOVERY COTTAGE AND CAROL O’DONNELL VS. CAMILLA’S RECOVERY COTTAGE, LLC; ROBERT KESSLER, M.D.; RODRIGO ANTONIO COVARRUBIAS, M.D.; SPH- IRVINE, LLC; CAROL O’DONNELL; and DOES 1 through 50, inclusive, [Filed with Declaration of Jason M. Caruso, Esq. and [Proposed] Order) DATE: July 28, 2016 TIME: 1:30 p.m. DEPT.: C-21 RESV. #: 72400619 Defendants. Complaint Filed: August 25, 2014 S e r ? N r ? N s ? N a r M a e ? M e ? N a ” e t en M r N e M u r ? e s ? a Me at s a a ” as u t ” aw e” TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on July 28, 2016 at 1:30 p.m. in Department C-21 of the above-captioned Court, Plaintiff will move for an order taxing the Memorandum of Costs submitted by Defendants CAMILLA’S RECOVERY COTTAGE and CAROL O’DONNELL pursuant to Code of Civil Procedure section 1033.5 and California Rules of Court Rule 3.1700. 1 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO TAX COSTS OF DEFENDANTS CAMILLA’S RECOVERY COTTAGE AND CAROL O'DONNELL 10 Ld 12 13 14 1.5 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants’ Memorandum contains impermissible costs, including those submitted on behalf of other entities that are not parties to this case, for pre-intervention costs. Defendants also inexplicably seek witness fees and mileage for witnesses whose depositions were not noticed by Defendants, and appear to impermissibly seek fees charged by various physicians for the taking of their depositions. Defendants seek costs for “court-ordered experts” that were indeed not ordered by the Court. Defendants also seek costs for transcripts of court proceedings not ordered by the Court. Defendants seek fees for the filing of discovery motions that were previously considered and awarded in other proceedings. Defendants seek the reimbursement of impermissible travel expenses. Defendants also claim deposition costs duplicative of those claimed by Defendant CAROL O’DONNELL’s other counsel, in a separate cost memorandum filed on behalf of Defendant O'DONNELL. Such duplicative costs by definition are not reasonably necessary to the conduct of litigation. Defendants’ costs should therefore be taxed in the amount of at least $7,464.55, pending a review of Defendants’ undisclosed invoices. This Motion is based on the foregoing Notice and following Memorandum of Points and Authorities, as well as the Declaration of Jason M. Caruso, Esq. and all exhibits thereto, all papers, pleadings and records on file herein, and upon such further evidence as may be considered by the Court at or before the hearing of this Motion. Dated: June 28, 2016 HODES MILMAN LIEBECK, LLP ASON M. CARUSO Attorney for Plaintiff 2 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO TAX COSTS OF DEFENDANTS CAMILLA'’S RECOVERY COTTAGE AND CAROL O’DONNELL 10 11 12 13 14 ib 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND RELEVANT FACTS. This is a medical negligence action involving treatment Plaintiff JUDITH SLAVIN- COSEL received on March 11, 2014 at Defendant CAMILLA’S RECOVERY COTTAGE, LLC (“CAMILLA’S”). CAMILLA’S is owned and operated by Defendant CAROL O’DONNELL (“O'DONNELL”). O’DONNELL is further accused of negligence in her personal capacity. This Court granted motions for summary judgment as to Defendant O°’ DONNELL in both her individual and owner capacities. In addition, this Court granted a motion for summary judgment in favor of Defendant CAMILLA’s. The Court entered judgment as to Defendant O’DONNELL on May 25, 2016, and Defendant O’DONNELL served and filed a Memorandum of Costs thereon on June 6, 2016. (Exhibit 1 to Declaration of Jason M. Caruso, Esq. (“Caruso Decl.”).) Defendant CAMILLA’s and O’ODONNELL also jointly filed and served a Memorandum of Costs on June 9, 2016. (Exhibit 2, Caruso Decl.) The Court will recall that during the pendency of this action Plaintiff became aware that Defendant CAMILLA’s was a suspended entity. Plaintiff therefore filed a motion to strike CAMILLA’s answer. Defendants’ cost memorandum claims fees on behalf of non-party Liberal Mutual Insurance Company, relating to its efforts to intervene in this case. (Caruso Decl. 4.) As reflected by the Defendants’ cost memoranda, Defendant O’DONNELL has at all relevant times in this litigation been represented by counsel with Ericksen Arbuthnot, as well as by counsel with Ropers, Majeski, Kohn & Bentley. O'DONNELL elected to have both her counsel defend this action on her behalf, including by traveling to attend the depositions in this matter. (Caruso Decl. §5.) In light of inappropriately-claimed costs and apparently duplicative claimed litigation charges, this Motion follows. 117 3 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO TAX COSTS OF DEFENDANTS CAMILLA’S RECOVERY COTTAGE AND CAROL O'DONNELL 10 11 12 13 14 i5 16 17 18 39 20 21 22 23 24 25 26 27 28 II. ARGUMENT. Code of Civil Procedure section 1033.5 provides that a prevailing party may recover certain statutorily-enumerated costs. This includes certain costs for taking and traveling to depositions, as well as ordinary witness fees. (/bid.) However, all such claimed costs must be both reasonable in amount, and reasonably necessary to the conduct of the litigation. (Code of Civ. Proc. § 1033.5(c).) Costs “merely convenient or beneficial” to preparation of the litigation are disallowed. (Ibid.; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132-33.) Even costs “allowable as a matter of right” may be disallowed if the Court determines they were not “reasonably necessary.” Likewise, the Court has the power to reduce the amount of any cost item to an amount that is reasonable. (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245-intent and effect of section 1033.5 is to authorize the Court to strike any cost incurred unnecessarily.) Certain costs are expressly disallowed. This includes the fees of expert witnesses not ordered by the Court-including fees charged by and paid to physicians for the taking of their depositions. (Olson v. Automobile Club of Southern Calif. (2008) 42 Cal.4th 1142, 1149-50.) Transcripts of court proceedings not ordered by the Court are disallowed. (Code of Civ. Proc. § 1033.5(b).) Any party seeking costs to intervene in an action is strictly limited to costs incurred after intervention and there is no “relation back” of charges incurred up to that point. (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 733.) A. Defendants Seek Impermissible Filing and Motion Charges. Several of Defendants’ filing and motion fee entries are not permitted. The “Ex Parte Application to file Complaint-in-Intervention,” “LMIC Motion to Intervene,” and “LMIC Reply to Motion to Strike Answer of Suspended Corporation” were not filed on behalf of either Defendant CAMILLA’s or O’DONNELL. Rather, these documents were filed on behalf of a non-party intervenor, Liberty Mutual Insurance Company. (Caruso Decl. § 6.) Given a party 4 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO TAX COSTS OF DEFENDANTS CAMILLA'S RECOVERY COTTAGE AND CAROL O'DONNELL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cannot seek costs preceding the time of its actual intervention in the case, there is no basis to shift these filing costs to Plaintiff. (Garcia, supra, 28 Cal. App.4th at p. 733.) Defendants also seek filing costs for “Motion to Compel Discovery Responses from Plaintiff by Camilla’s” and an associated reply, the costs of which were considered and previously ordered by the Court on a Motion to Compel. The ordered costs have been paid. (Caruso Decl. § 7.) Defendants cannot now seek duplicative charges for filing those discovery motions. Lastly, the entry “California Secretary of State Certificate of Revivor” is unclear as to what type of cost is claimed and for what reason. This entry on its face falls into none of the categories enumerated at Code of Civil Procedure section 1033.5, and bears explanation if reimbursement is sought from Plaintiff. In light of the foregoing, $1,024.61 in impermissible filing and motion charges should be struck by the Court. B. Witness Fees for Persons Not Subpoenaed by Defendants. Defendants Memorandum claims ordinary witness fees and mileage for Julia Contreras, Marcia Tejeda, and Felicia Gibson, persons who were not subpoenaed by Defendants. These deponents were provided for deposition upon service of a deposition notice on Defendants’ counsel. Per their deposition testimony, Julia Contreras and Felicia Gibson are not current employees of Defendants, and Marcia Tejeda remains an employee.' (Caruso Decl. Exhibit 3 and § 8.) A party’s power to recoup ordinary witness fees in a costs memorandum is limited to those incurred by the claimant party to compel the attendance of a witness at deposition or trial. (Code of Civ. Proc. § 1033.5(a)(7); see Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 598.) Given Defendants did not incur any costs to compel the attendance of Julia Contreras, Marcia Tejeda, or Felicia Gibson at deposition, Defendants cannot claim witness fees for them. Tejeda would be entitled to no witness fees or mileage in any event, as ! Given Tejeda was an employee of Defendants as of her deposition, a notice alone was effective to compel her attendance at deposition. She would therefore in no event be entitled to witness fees or mileage. (Code of Civ. Proc. § 2025.280.) 5 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO TAX COSTS OF DEFENDANTS CAMILLA’S RECOVERY COTTAGE AND CAROL O’DONNELL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 she is a party employee. In light of the foregoing, $161.10 in unclaimable witness fees and mileage should be struck by this Court. C. Fees for Experts Not Ordered by the Court. Defendants claim fees charged by their experts Drs. Kyle Boone and Andrew Woo to perform medical examinations on Plaintiff. Such expert witness fees are expressly not recoverable: “the fees of experts not appointed by the court are not allowable as costs.” (Code of Civ. Proc. § 1033.5(b)(1); Olson, supra, 42 Cal.4th at p. 1149.) It is of no moment that the Court ordered Plaintiff to undergo examinations by Drs. Kyle Boone and Andrew Woo, for the Court appointed neither expert. These impermissibly claimed costs in the amount of $3,366.00 should be struck, as there is no legal basis for shifting these costs. D. Fees for Reporting Not Ordered By the Court. Transcripts of court proceedings not ordered by the Court are not allowable as costs. (Code of Civ. Proc. § 1033.5(b)(5); Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, 440-42.) No proceedings were ordered transcribed the Court in this case. (Caruso Decl. 49.) Defendants nevertheless claim $844.00 in such costs. This item should be struck. E. Unnecessary Travel Expenses. Defendants impermissibly seek travel expenses for preparation for depositions of Defendants’ employees. In addition, Defendants seek reimbursement for travel to argue a motion to compel medical examination as well as a motion for summary judgment. None of the foregoing is permitted by Code of Civil Procedure section 1033.5. Given the advent of CourtCall and the clear ease with which deposition preparation can be conducted by telephone, there is no reasonable justification for these expenses. (Caruso Decl. § 10.) As a final note, Defendants’ counsel claims $1,435.57 for travel costs to the deposition of Marcia Tejeda. That is approximately $800 more expensive than counsel’s travel costs for the next most expensive deposition from a travel perspective, and there is no explanation for the discrepancy. That 6 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO TAX COSTS OF DEFENDANTS CAMILLA’'S RECOVERY COTTAGE AND CAROL O'DONNELL 10 1.1. 12 13 14 15 16 17 18 1:9 20 21 22 23 24 25 26 27 28 entry should therefore be reduced by $800. $2,068.84 in Defendants’ claimed travel expenses were therefore not reasonably necessary to the conduct of the litigation and should be struck. F. Duplicative and Unclear Deposition Charges. Comparing Exhibits 1 and 2 side by side, there are apparently duplicative deposition charges, in that both memoranda contain cost claims for the same series of depositions. If these are shared or otherwise non-duplicative charges, that remains unclear. As to such facially duplicative deposition costs, Defendants have the burden to demonstrate the costs were both reasonable and necessary to this litigation. (Ladas v. California State Auto. Ass’n (1993) 19 Cal.App.4th 761, 774-76.) As it stands, there is no evidence or explanation as to why there are two sets of claimed deposition costs, for depositions of the same witnesses. Furthermore, in Plaintiff’s counsel’s experience, the bare cost of “taking” or “transcribing” a deposition generally masks convenience fees and other items that are not allowed by statute, and that this masking only comes to light upon review of invoices. (Caruso Decl. § 11.) The actual invoices for these claimed deposition costs should be presented to the Court and Plaintiff's counsel so that Defendant can justify any masked expenses.” III. CONCLUSION. In light of the foregoing, Plaintiff - this Court tax Defendants CAMILLA’S RECOVERY COTTAGE and O°’ DONNELL’s Memorandum of Costs in the amount of at least $7,464.55, pending a review of Defendants’ undisclosed invoices. Dated: June 28, 2016 HODES MILMAN LIEBECK, LLP By: M. HODES SON M. CARUSO ttorney for Plaintiff ? Plaintiff also does not know whether the claimed deposition costs for physicians impermissibly include those physicians’ statutory witness fees. (Code of Civ. Proc. § 2034.430.) Defendants are on notice those fees will be challenged if they are being claimed. (See Baker-Hoey, supra, 111 Cal.App.4th at p. 598.) 7 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO TAX COSTS OF DEFENDANTS CAMILLA'’S RECOVERY COTTAGE AND CAROL O'DONNELL 10 1.1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA, COUNTY OF ORANGE I am over the age of 18, employed in the County of Orange, State of California, and not a party to the within action; my business address is 9210 Irvine Center Drive, Irvine, California 92618. On June 28, 2016, I served a copy, with all exhibits and attachments, of the foregoing document described as: PLAINTIFF’S NOTICE OF MOTION AND MOTION TO TAX COSTS OF DEFENDANTS CAMILLA’S RECOVERY COTTAGE AND CAROL O’DONNELL on the party or parties named below, by placing a true copy thereof enclosed in sealed envelopes, and sent as follows: (Rep. Def. Robert Kessler, M.D.) (Rep. Def. Carol O’Donnell) Terrence J. Schafer, Esq. Mark L. Kiefer, Esq. Doyle & Schafer ERICKSEN ARBUTHNOT 8105 Irvine Center Drive, Suite 520 835 Wilshire Blvd., Suite 500 Irvine, California 92618 Los Angeles, CA 90017-2656 Tel: (949) 727-7077; Fax: (949) 727-1284 Tel: (213) 489-4411; Fax: (213) 489-4332 (Rep. Def. Camilla’s Recovery Cottage, LLC and Carol O’Donnell) Kathleen Duggan, Esq. ROPERS MAJESKY KOHN BENTLEY 1001 Marshall Street, Suite 500 Redwood City, California 94063-2052 Tel: (650) 364-8200; Fax: (650) 780-1701 [X] VIA ELECTRONIC SERVICE by the Efiling Clerk at One Legal One Legal Online Court Services as directed at the time of E-filing, pursuant to the policies and procedures of www.onelegal.com. [X] STATE: I declare under penalty of perjury under the laws of the State of California that the above is true and correct. I declare under penalty of perjury ynder the Jaws of the State of California that the foregoing is true and correct. Executed on/June 28; 2016, at Irvine, California. ASON M. CARUSO 8 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO TAX COSTS OF DEFENDANTS CAMILLA’S RECOVERY COTTAGE AND CAROL O’DONNELL