Sharon Fratilla vs. David Wirta

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.June 29, 2015

N O 0 O Y n r B R W N N N N N N N N N N N ) e m e e b E = = e e e e e d e d c o 3 S N n n B E WL W = O e N S N R W = O CLEIDIN Z. ATANOUS, ESQ., (State Bar No.: 189149) MICHELLE L. VILLARREAL, ESQ., (State Bar No.: 239263) LAW OFFICE OF CLEIDIN Z. ATANOUS 500 S. Kraemer Boulevard Suite 205 Brea, California 92821 PH: (714) 528-8226 / FAX: (714) 528-8227 Attorney for: Plaintiff, SHARON FRATILLA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE SHARON FRATILLA Plaintiff, VS. DAVID WIRTA, M.D., et al., Defendants. CASE NO: 30-2015 00795990 PLAINTIFE’S NOTICE OF MOTION AND MOTION TO STRIKE AND TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; [PROPOSED] ORDER Date: May 26, 2017 Time: 9: 30 a.m. Dept: C20 Res ID: 72565622 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 26, 2017 at 9:30 a.m., in Department C20, of the above entitled court located at 700 W. Civic Center Drive, Santa Ana, CA 92701, Plaintiff, SHARON FRATILLA will present a Motion to Strike and Tax Costs as to the Memorandum of Costs served by mail on March 23, 2017 by defendant DAVID WIRTA. The motion is made pursuant to California Rule of Court 3.1700, on the grounds set forth below. 1 © o o N N a w n B s W N = N N N N N N N N N E E e e e e e e e e c o N I O N n m BR A W N = O L V N Y BR E W N = O The motion is based on this Notice ofMotion, the accompanying Memorandum ofPoints and Authorities, the pleadings, records and files in this action, such matters ofwhich the Court may take judicial notice, and such further evidence and argument as may be presented by the Plaintiff at or before the hearing on this Motion. Dates: April 6, 2017 LAW OFFICE CLEIDIN Z. ATANOUS Cleidin Z. Atanous, Esq. Mighelle L. Villarreal, Esq. Attorneys for Plaintiff SHARON FRATILLA Q O 0 0 N a N n n B R W N N O R D N N N N N N e e e e e e e d = e d p e © ~ ~ O N L h D R W N R e © O O 0 S n s w = O MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION. Plaintiff, SHARON FRATILLA challenges and puts at issue the costs claimed by Defendant in the Memorandum of Costs and Costs Summary, served by mail on March 23, 2017. Defendant served the judicial council form “Memorandum of Costs (Summary)and the requisite judicial council form “Worksheet.” However, Defendant failed to submit any itemization or documentation to support the claimed costs. In the absence of any evidence justifying the costs claimed, the cost bill is hereby put at issue, and should be stricken by the court. Moreover, the amount of the costs claimed, including, among others, costs for expert witnesses, and models, blowups and photocopy exhibits, appear on their face to be excessive and unreasonable. Again, without any evidence to justify these amounts, these amounts are hereby put at issue, and should be stricken by the court for lack of substantiation. 1L LEGAL ANALYSIS A. Legal Authority The non-prevailing party may challenge items in the prevailing party’s cost memorandum by a motion to tax costs. see CCP § 1033.5; Cal. Rules ofCourt, rule 3.1700. This motion is timely made asit is filed within 20 days ofMarch 23, 2016,the date the plaintiff’s costs memorandum was served by regular mail. B. Documentation is Required to Support the Defendant’s Claimed Costs The procedure for claiming prejudgment costs is governed by statute and Judicial Council Rules. (CCP §§ 1034(a), 1034.5; and Cal. Rules of Court, rules 3.1705,3.1702, 3.2000.) The Judicial Council has adopted a “worksheet” and summary form to be used in claiming costs. Supporting documentation must be submitted ifcosts have been put at issue by a motion to tax costs. Jones v. Dumrichob, 63 Cal.App.4th 1258, 1267 (1998). Upon proper objection, the burden ofproof is on the party claiming expenses to show that the charges were necessary to the conduct ofthe litigation. Ladas v. California State Auto, 19 Cal.App.4th 761, 775-776. O O ©0 0 I O N h h B A W N e N O N R N O N N N N N N = m m m m e m e e b e pe ed R e 0 ~ 1 O N w i B s W R N O Y N Y B R W N e s O D Here, the Defendant’s cost bill was served on or about March 23, 2017, without any documentation or itemization of the claimed costs. As such, the entirety of the costs bill is questionable and unverifiable. Itemized documentation as to all claimed costs is required to verify and support Defendant’s claimed costs. B. The Court Should Deny the Request Unless Defendant Provides Documentation to Support that the Sums were Actually Incurred and are Reasonable. If the court is inclined to award the defendant all claimed costs, Plaintiff respectfully requests that the defendant be required to provide proof of the costs claimed to evaluate whether they were actually incurred, and are reasonable. See Jones v. Dumrichob, 63 Cal.App.4th 1258, 1267 (a party seeking an award for costs must submit supporting documentation ofthose costs that have been put in issue by a motion to tax costs.) If the documentation fails to support the elements, the request for fees should be denied or reduced. Without the requested documentation, neither the court, nor the Plaintiff are in a position to evaluate whether the claimed costs were actually incurred and reasonable. Thus the plaintiffhereby puts into issue the fees claimed for each and every expert listed under category 8b, and requests that Defendant provide sufficient documentary support as to the work performed, the dates performed and the amount charged, such that the court can determine if the charge was reasonably necessary. Plaintiff also puts into issue and requests the production of sufficient documentary support for the costs claimed for models, blowups, an photocopies under category 11. Only those expenses for models, blowups, photocopies, etc. that are “reasonably helpful to aid the trier of fact” are recoverable costs. CCP § 1033.5(a)(13). Again, without the requisite itemized documentary support, neither the plaintiff, nor the court are in a position to determine whether these costs were reasonable, necessary and permitted under Section 1033.5. Plaintiff also puts into issue and requests the production of sufficient documentary support for the costs claimed for service ofprocess for “Across the Board Resources” under section 5; and the court reporter fees claimed under category 12a. 1 iz A W N O o « © 3 9 O N W n 10 11 12 13 14 15 16 17 18 19 20 21 92 23 24 25 26 27 28 III. CONCLUSION For the reasons set forth above, PlaintiffFratilla respectfully requests that the court grant the motion to tax costs. Date: April 6,2017 LAW OFFICES OF CLEIDIN Z. ATANOUS MICHELLE L. VILLARREAL, ESQ. Attorneys for Plaintiff SHARON FRATILLA BY wicioL Z. ATANOUS, ESQ. © 0 0 2 N N n n k e W N = N O N N N N N N N N r m e e e e e m e e p e e d e t e d 0 0 ~ ~ O N w n R A W N = o W N S Y I n R W N O SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE SHARON FRATILLA, CASE NO: 30-2015-00795990 Plaintiff, [PROPOSED] ORDER vs. DAVID WIRTA, M.D., et al., Defendant. TO ALL PARTIES AND THEIR ATTORNEYS OF RECORDS HEREIN: Plaintiff’s motion for Order Taxing Costs came for hearing in Department C20 ofthis court on May 26, 2017. Having read and considered the Motion, opposing papers, reply papers, and having heard the argument of counsel, IT IS ORDERED: (1) Deposition costs (Item 4 of the Memorandum of Costs) are taxed and reduced from $33,600.00 to [An exact amount cannot be determined under Plaintiff’s counsel has reviewed invoices]; (2) Service ofProcess costs (Item number 5 ofthe Memorandum of Costs) for Across the Board Resources, in the amount of $50.00 be stricken. (3) Models, blowups and photocopies of exhibits (Item number 11 of the Memorandum of Costs) in the amount of $910.00 be stricken. n o v o o e a 3 O N n n B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: JUDGE OF THE SUPERIOR COURT © © 3 O& O n m BA B Ww W N h = N O N N N N N N N N H E e e e e e e e e e e e e c o I O N n m h h W N = O L O X N Y N R E W d = O PROOF OF SERVICE (10134, 2015.5 C.C.P.) STATE OF CALIFORNIA ) ) ss. FRATILLA V WIRTA COUNTY OF ORANGE ) I am employed in the County of Orange, State of California, I am over the age of eighteen years and not a party to the within entitled action; my business address is 500 S. Kraemer Boulevard, Suite 205, Brea, California 92821. I am readily familiar with the business practice at my place of business for collection and processing of correspondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in ordinary course of business. On this date, I served the forgoing PLAINTIFF’S NOTICE OF MOTION AND MOTION TO STRIKE AND TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; [PROPOSED] ORDER on the interested parties in this action, by placing a true copy thereof, enclosed in a sealed envelope, addressed as follows: Terrence J. Schafer, Esq. DOYLE SCHAFER McMAHON, LLP 100 Spectrum Center Drive, Suite 520 Irvine, CA 92618 Fax: (949) 727-1284 Attorneyfor Defendants, David Wirta, M.D. and Aesthetic Eye Care Institute (X) (BY MAIL) I caused such envelope with postage thereon fully prepaid at my place of business to be placed in the United States mail at Brea, California. : () (OVERNIGHT MAIL) I caused such documents to be placed in a Fed Ex envelope and deposited at an overnight drop box for next day deliver pursuant to CCP 1013(c) 0 (BY FACSIMILE) I caused the attached document to be transmitted via facsimile to the number(s) listed above, from fax number (714) 528-8227. ( ) (BY PERSONAL SERVICE) I caused such document to be delivered by hand to the office of the addressee(s). (X) (STATE) I declare under penalty ofperjury under the laws ofthe State of California that the above is true and correct. WiDated: April 7, 2017 HELLY7SON MM15-0204