Frazer vs Grand

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.September 10, 2014

Pr TTIBONE L LAW © 00 J O N wn BA WwW N = N N N N N N N N N E e e m e m e m e m e m e m e d c o NN O N Ln BA W N Y D = O OO 0 N N N R E W I N D = O PETTIBONE LAW Douglas J. Pettibone, Esq. (SBN: 134044) Century Centre 2601 Main Street, Penthouse Suite 1300 Irvine, CA. 92614 T: 714-730-9091 F: 714-276-0122 E: douglas @pettibonelaw.com Attorney for Steve Grand ELECTRONICALLY FILED Superior Court of California, County of Orange 03/28/2017 at 10:58:00 A Clerk of the Superior Court By Brma Castle, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER IRA FRAZER Plaintiff, STEVE GRAND and DOES 1 to 50 Defendant. Case No.: 30-2014-00744143-CU-BC-CIC : DEFENDANT STEVE GRAND’S NOTICE ) OF MOTION AND MOTION TO TAX ) PLAINTIFF IRA FRAZER'S ) MEMORANDUM OF COST: ) MEMORANDUM OF POINTS AND ) AUTHORITIES & DECLARATION OF ) DOUGLAS J. PETTIBONE IN SUPPORT ) [PROPOSED ORDER FILED ) CONCURRENTLY HEREWITH] ) Date: April 27, 2017 ) Time: 1:30 PM )D Reservation No: 72560129 ) C omplaint Filed: September 10, 2014 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 27,2017 at 1:30 PM of the above-captioned Court, located at 700 Civic Center Drive West, Santa Ana, California, Defendant STEVE GRAND 1 DEFENDANT’S MOTION TO TAX COSTS Pr TTIBONE - LAW © 00 J O N wn BA WwW N = N N N N N N N N N E e e m e m e m e m e m e m e d c o NN O N Ln BA W N Y D = O OO 0 N N N R E W I N D = O (hereinafter “GRAND”) will move this Court for an order taxing Plaintiff IRA FRAZER’S (hereinafter “FRAZER”) memorandum of costs. This motion to tax costs is brought pursuant to Code of Civil Procedure § 1033.5 and Rule 3.1700(b) of the California Rules of Court, on the grounds that the following items of costs claimed in FRAZER’S Memorandum of Costs are unnecessary, excessive, or unrecoverable: I. Item No. 1b. FRAZER filed the case in the wrong jurisdiction and GRAND should not be required to reimburse costs for transfer-$ 485.00; Item No. le. Ex-Parte/Motion to Compel Ishii’s Deposition-$118.10: Kent Ishii’s Deposition was never taken not was he a witness at trial; Item No. 4b. Videotaped deposition of GRAND. The videotaped deposition was not required to be used at trial-$1,408.75; Item No.4b. Deposition of Steve Grand. Travel expense-$75.00; and Item No. 11. Item No. 11 requires FRAZER to “specify”. There is no specification provided. FRAZER never used modals or blow-ups at trial-$3,809.05 The motion will be based on this notice, the attached memorandum in support, the Declaration of Douglas J. Pettibone in support, the files and records in this action, and any further evidence and argument that the Court may receive at or before the hearing. Dated: March 28, 2017 PETTIBONE LAW /s/ Douglas J. Pettibone Douglas J. Pettibone, Esq. Attorney for Defendant STEVE GRAND 2 DEFENDANT’S MOTION TO TAX COSTS Pr TTIBONE - LAW © 00 J O N wn BA WwW N = N N N N N N N N N E e e m e m e m e m e m e m e d c o NN O N Ln BA W N Y D = O OO 0 N N N R E W I N D = O MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION The jury trial in this case commenced on December 5, 2016. The judgment was entered by the Court on January 6, 2017. On March 2, 2017, GRAND gave the Notice of Entry of Judgment. The right to costs is governed strictly by statute, and Court has no discretion to award costs that are not statutorily authorized. Ladas v. California State Automotive Assoc. 19 Cal. App. 4™ 761, 773-74 (1993). Rule 3.1700(b), California Rules of Court. Some costs are specifically allowed as a matter of right. CCP § 1033.5(a). Others are expressly prohibited. Id, § 1033.5(b). Those costs not mentioned in § 1033.5 are left to the court’s discretion. Id, §1033.5(c)(4). But all “allowable costs” must be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. Id, §§1033.5(c)(2) -(3). IF the items appearing in a cost bill appear proper, then the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. Ladas, 19 Cal. App. 4™ at 773-74. Once the moving party has objected to the costs, then the burden of proof is on the party claiming the costs. Id. Whether a cost item was reasonably necessary to the litigation is a question of fact. Id. IL. ARGUMENT CCP §1033.5 provides costs that are allowable pursuant to CCP §1032. A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of the mailing of notice of entry of judgment by the clerk. (CRC 3.1700(a)(1).) The right to costs is governed strictly by statute, court has no discretion to award costs not statutorily authorized. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774, rehearing denied. (internal citations and quotations omitted.) Accordingly, the costs claimed by FRAZER should be reduced as discussed herein. 3 DEFENDANT’S MOTION TO TAX COSTS Pr TTIBONE - LAW © 00 J O N wn BA WwW N = N N N N N N N N N E e e m e m e m e m e m e m e d c o NN O N Ln BA W N Y D = O OO 0 N N N R E W I N D = O III. CLAIMED COSTS ARE NOT RECOVERABLE a. Filing of the Action in the Wrong Jurisdiction FRAZER is claiming as costs Transfer fee to Orange County Superior Court from San Diego Superior Court in the amount of $485.00. FRAZER filed in the wrong Court. These costs are not recoverable. See CCP §1033.5 (1) - (4), see Ladas, 19 Cal. App. 4" qt 773-74. GRAND’S motion to tax $485.00 in transfer fees should be granted. b. Ex-Parte Motion to Compel Deposition of Kent Ishii Kent Ishii’s deposition was never taken. He was never called as a witness at trial. Therefore, this motion was not necessary to the case. GRAND’S motion to tax $118.10 in item le, for Ex-Parte Motion to compel deposition of Kent Ishii should be granted. ¢. Videotaped Deposition of GRAND FRAZER is claiming as costs videotaping of the deposition of GRAND in the amount of $1,408.75. GRAND argues that the cost to videotape his deposition appears unreasonably high. Further, the deposition was not used at trial. The standard is whether the cost is “reasonably necessary to the conduct of the litigation” under §1033.5 (2). GRAND’S motion to tax $1,408.75 in item 4(b), for videotaped deposition should be granted. d. Travel Expenses Re: Deposition of Steve Grand FRAZER wanted to take the deposition of GRAND at 2400 E. Katella Avenue, Anaheim, California. Travel expenses should not be allowed where the deposition is being taken at a place designated by FRAZER. e. Models, blowups, and photocopies of exhibits FRAZER is claiming as costs “Models, blowups, and photocopies of exhibits” in the amount of $3,809.05. A prevailing party may recover costs for “models and blowups of exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to aid the trier of fact.” CCP 4 DEFENDANT’S MOTION TO TAX COSTS Pr TTIBONE - LAW © 00 J O N wn BA WwW N = N N N N N N N N N E e e m e m e m e m e m e m e d c o NN O N Ln BA W N Y D = O OO 0 N N N R E W I N D = O §1033.5(a) (13). “On its face this statutory language excludes as a permissible item of costs for exhibits not used at trial, which obviously could not have assisted the trier of fact.” See Seever v. Copley Press. Inc., 141 Cal. App. 4™ 1550, 1557 (2006). GRAND argues that FRAZER only submitted 12 pages of trial exhibits, yet seeks to recover the costs of copying in the amount of $3,809.05. In addition, FRAZER used no models or blow-ups at trial. FRAZER fails to “specify” item 11 as required. GRAND’S motion to tax $3,809.05 in item 11 for models, blowups, and photocopies of exhibits should be granted. IV. CONCLUSION Defendant’s claimed cost for the following items should be rejected and/or struck from Defendant’s Memorandum of Costs. - Item No. 1b in the amount of $485.00; - Item No. le in the amount of $118.10; - Item No. 4b in the amount of $1,408.75; - Item No. 4b in the amount of $75.00; and - Item No. 11. in the amount of $3,809.05. In summary, FRAZER’S memorandum of costs should be taxed in the amount of $5,895.90. Dated: March 28, 2017 PETTIBONE LAW /s/ Douglas J. Pettibone Douglas J. Pettibone, Esq. Attorney for Defendant, STEVE GRAND 5 DEFENDANT’S MOTION TO TAX COSTS Pr TTIBONE L LAW © 00 J O N wn BA WwW N = N N N N N N N N N E e e m e m e m e m e m e m e d c o NN O N Ln BA W N Y D = O OO 0 N N N R E W I N D = O DECLARATION OF DOUGLAS J. PETTIBONE I am the attorney of records for the Defendant Steve Grand (“GRANND”). The facts contained within this declaration are within my personal knowledge. This declaration is submitted in support of the underlying GRAND’S Motion to Tax Costs. Motion Fees for Item No. 1b: Transfer fees of $484.00 1. This case was originally filed in San Diego County Superior Court. There was no basis for it to be filed in San Diego. When GRAND was served, GRAND demanded that if the case be transferred to Orange County. Our office sent the attached e-mail to attorney MOORE, FRAZER'S counsel, as part of a meet and confer. Thereafter, FRAZER agreed to transfer the action to Orange County. The case should never have been filed in San Diego. A true and correct copy of the June 16, 2014 e-mail to MOORE and MOORE'’S response, stipulating to the change of venue is attached as Exhibit “A”. Motion Fees for Item No. le: Ex-Parte Motion to Compel Deposition of Kent Ishii-$118.10 2. Kent Ishii’s deposition was never taken. He was never called as a witness at trial. Therefore, this motion was not necessary to the case. Deposition Costs 1b: Videotaping of GRAND’S Deposition-$1,408.75 and Travel Costs- $75.00 3. GRAND’S deposition was not used at trial. 4. Pursuant to the attached Notice of Deposition, FRAZER noticed GRAND’S deposition to be taken at our office at 2400 E. Katella Avenue, Anaheim, CA. There should be no travel expenses of $75.00 associated with FRAZER'S notice of the location of the deposition. A true and correct copy of FRAZER'S Notice of Deposition of GRAND is attached hereto as Exhibit “B”. 6 DEFENDANT’S MOTION TO TAX COSTS $reerrmoNe NO 0 3 O N nn BA W N BN ND ND N N N N N N H e em e m m m e m p m p m em e l 0 NN A R W = O 0 N N N D R A W N m= o o Fees for Item No. 11: Models, blowups, and photocopies of exhibits 5. There were no invoices or supporting declaration attached to the memorandum of costs, even though the form requires FRAZER to “specify” these costs. Therefore, it cannot be determined what these costs were for. 6. FRAZER did not use any blow ups or modals at trial. 7. If this amount of $3,908.05 is for exhibits, then that cannot be possible. FRAZER only offered 12 Exhibits into evidence at trial. Attached hereto as Exhibit “C” collectively are the two minute orders from the Court from December 7, 2016 and December 12, 2016, establishing the 12 Exhibits offered into evidence by FRAZER. 8. It is also possible that FRAZER is making a misrepresentation to the court and trying to get money he is not entitled. This can be determined by FRAZER or MOORE producing an affidavit with invoices in opposition to this Motion to Tax Costs. I declare under the penalty of perjury that the foregoing is true and correct and if called as a witness, I would and could competently testify thereto. Executed on this 28" day of March, 2017 in Irvine, California. < . ) AND C (VV /5/ Douglas J. Pettibone, Esq. Attorney for Defendant, STEVE GRAND 7 DEFENDANT’S MOTION TO TAX COSTS EXHIBIT A 3/28/2017 Mail ~ pettibonelaw @hotmail.com Thomas A. Moore