Motion To Tax Costs

Motion

Cal. Super. - 4th Dist.July 2, 2015

~N O N wn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 MARTORELL LAW APC Eduardo Martorell, State Bar No. 240027 EMartorell @ Martorell-LLaw.com Megan Atkinson, State Bar No. 282648 MAtkinson @Martorell-Law.com Howard Hughes Center 6100 Center Drive, Suite 1130 Los Angeles, California 90045 Telephone: (323) 840-1200 Facsimile: (323) 840-1300 Attorneys for Plaintiff, KAREN CULLINANE ELECTRONICALLY FILED Superior Court of Califarnia, County of Orange 02/14/2019 at 11:59:00 AM Clark of the Superior Court By Jeannette Dowling, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE KAREN CULLINANE, Plaintiff, Vv. RCEA, INC.; RCEA, LP, and DOES 1 through 100, inclusive, Defendants. Case No. 30-2015-00796929-CU-PO-CJC [Assigned for all purposes to the Honorable Deborah Servino, Dept. C21] PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR ORDER TAXING CUSHMAN & WAKEFIELD, INC.’S COSTS; MEMORANDUM OF POINTS AND AUTHORITIES [Filed concurrently with [Proposed] Order] Date: April 12, 2019 Time: 10:00 AM Dept.: C21 Reservation: 72986332 Action Filed: Trial Date: July 2, 2015 October 15, 2018 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR ORDER TAXING COSTS ~N O N wn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 12, 2019 at 10:00 am in Department C21 of the above-entitled Court, located at 700 W. Civic Center Drive, Santa Ana, California 92701, Plaintiff Karen Cullinane (“Plaintiff”) will and hereby does move the Court for an order pursuant to California Rules of Court, Rule 3.1700(b)(1) and California Code of Civil Procedure section 1033.5, taxing costs sought in this action by striking the following items from the Memorandum of Costs filed by Defendant Cushman & Wakefield, Inc. (“Cushman & Wakefield”) because they were not reasonably necessary: 1. Item Number 1: Filing and motion fees in the amount of $560; 2. Item Number 8: Witness fees in the amount of $64,916.42; 3. Item Number 16: Other fees in the amount of $28,167.76. This Motion is based on this notice, the attached memorandum of points and authorities, all pleadings and records on file herein, and such oral argument and other evidence as may be presented at the time of the hearing. Dated: February 14, 2019 MARTORELL LAW APC By: é - Eduardo Martorell Megan Atkinson Attorneys for Plaintiff KAREN CULLINANE 2 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR ORDER TAXING COSTS ~N O N wn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff KAREN CULLINANE (“Plaintiff”) hereby respectfully submits the following in support of her Motion for an Order Taxing Costs sought by Defendant Cushman & Wakefield, Inc. (“Cushman & Wakefield”): I. INTRODUCTION Plaintiff was exposed to substantial mold while working at a Citibank branch, resulting in her suffering a fungal mycetoma and having to undergo eight (8) procedures. The mold was caused by years of ongoing water leaks. Cushman & Wakefield failed to timely test for mold, remediate it, or warn Plaintiff of the harm. After a complete defense verdict, Cushman & Wakefield now brings a motion to recover $117,364.96 from Plaintiff. She is an individual of limited means. Under these circumstances, the costs should be scrutinized very carefully. This Court should issue an Order taxing costs which were not reasonably necessary. IL. THIS COURT SHOULD ISSUE AN ORDER TAXING COSTS All costs awarded must be reasonable in amount and “reasonably necessary to conduct the litigation rather than merely convenient or beneficial to its preparation.” Code Civ. Proc. § 1033.5(c)(2), (3). Code of Civil Procedure section 1033.5(c)(2) authorizes a trial court “to disallow recovery of costs, including filing fees, when it determines the costs were incurred unnecessarily.” Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal. App.4th 238, 245. Once a party moving to strike or tax costs properly objects to the items appearing in a cost bill, the burden of proof is on the party claiming the cost to show that it was reasonable. Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774. Here, it was not reasonably necessary for Cushman & Wakefield to incur the following: 1. Filing and motion fees in the amount of $560. Cushman & Wakefield seeks to recover $500 for filing a Motion for Summary Judgment. It was denied in its entirety and should not be recovered. Cushman & Wakefield also seeks to recover 3 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR ORDER TAXING COSTS ~N O N wn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 $60 for filing an unnecessary ex parte to have the Final Status Conference occur at an earlier date. 2. Witness fees in the amount of $64,916.42. This is the largest line item in Cushman & Wakefield’s Cost Memorandum. It includes $9,025.00 for Joanne Latham and $2,312.67 for David Weiner, expert witnesses who were never deposed and never called to testify at trial. In addition, Cushman & Wakefield and Defendant Jones Lang LaSalle Americas, Inc. (“JLL”) identify the same experts, but for some the fees are in identical amounts (Doctor Cherry, Brian Daly, Joanne Latham, Doctor Szeftel) and in some the fees are different amounts (David Weiner and Hall Mortimer & Associates). It is unclear whether (1) the two defendants split the bills in half, in which the fees should all be equal; or (2) Defendants are each charging Plaintiff the full amount of the invoices, in which case she would be double charged. Also, there is a total of $11,423.75 included for Brian Daly in the cost memorandum from Cushman & Wakefield, and another entry for the same amount in the cost memorandum from JLL. Mr. Daly testified at trial on December 5, 2018 that he had invoiced around $5,000. It is unclear why the other nearly $18,000 was reasonably necessary after the first day he testified. 3. Other fees in the amount of $28,167.76. Cushman & Wakefield includes $8,000 as a trial witness fee for David Waldman, who never testified at trial. The cost memorandum also includes $923.10 for surveillance video that was never revealed. Finally, there is a charge for $19,244.66 for “Legal Video Services - Eclectic Video Images.” It is unclear why it was reasonably necessary. Plaintiff objects to these costs because they were not reasonably necessary. See Bender v. County of Los Angeles (2013) 217 Cal. App.4th 968, 989 [recognizing that whether an item listed on the memorandum was reasonably necessary is a question of fact to be decided by the trial court, whose decision is reviewed on appeal for abuse of discretion]. 111 /11 4 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR ORDER TAXING COSTS ~N O N wn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 111 /11 III. CONCLUSION Based on the foregoing, Plaintiff respectfully requests this Court strike the following from the Memorandum of Costs: (1) Filing and motion fees in the amount of $560; (2) Witness fees in the amount of $64,916.42; and (3) Other fees in the amount of $28,167.76. Dated: February 14, 2019 MARTORELL LAW APC Eduardo Martorell Megan Atkinson Attorneys for Plaintiff KAREN CULLINANE 3 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR ORDER TAXING COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 PROOF OF SERVICE I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is Howard Hughes Center, 6100 Center Drive, Suite 1130, Los Angeles, California 90045. On February 14, 2019, I served the within document(s) described as: PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR ORDER TAXING CUSHMAN & WAKEFIELD, INC.’S COSTS; MEMORANDUM OF POINTS AND AUTHORITIES [PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR ORDER TAXING CUSHMAN & WAKEFIELD, INC.’S COSTS on the interested parties in this action as stated on the attached mailing list. (BY MAIL) By placing a true copy of the foregoing document(s) in a sealed envelope addressed as set forth on the attached mailing list. I placed each such envelope for collection and mailing following ordinary business practices. I am readily familiar with this Firm's practice for collection and processing of correspondence for mailing. Under that practice, the correspondence would be deposited with the United States Postal Service on that same day, with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. (BY OVERNIGHT DELIVERY) I deposited in a box or other facility regularly maintained by Federal Express, an express service carrier, or delivered to a courier or driver authorized by said express service carrier to receive documents, a true copy of the foregoing document(s) in a sealed envelope or package designated by the express service carrier, addressed as set forth on the attached mailing list, with fees for overnight delivery paid or provided for. (BY ELECTRONIC MAIL) Based on the authorized expressed consent of the parties to accept service by e-mail or electronic transmission., I caused the documents to be sent to the persons at the e-mail addresses listed in the attached service list pursuant to Cal. Civ. Proc. Code §1010.6(a)(2)(A)(). I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. Executed on February 14, 2019, at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Yeshenia Zambrano (Type or print name) (/ En 6 PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 Cullinane v. RCEA, Inc. et al. Case No.: 30-2015-00796929-CU-PO-CJC ML CLIENT: ML FILE NO.: Karen Cullinane 1001.001 SERVICE LIST J. Paul Lewis, Esq. Victoria L. Ersoff, Esq. WOOD SMITH HENNING & BERMAN LLP 10960 Wilshire Blvd., 18™ Floor Los Angeles, CA 90024 Tel: (310) 481-7600 Fax: (619) 849-4950 Email: Jlewis @wshblaw.com Versoff @wshblaw.com Attorneys for Defendant/Cross-Complainant: JONES LANG LASALLE AMERICAS, INC. Paul A. Buckley, Esq. Christopher R. Mordy, Esq. TAYLOR ANDERSON LLP 3655 Nobel Drive, Suite 650 San Diego, CA 92122 Tel: (858) 369-5141 Fax: (858) 369-5148 Email: pbuckley@talawfirm.com cmordy @talawfirm.com Attorneys for Defendant: CUSHMAN & WAKEFIELD, INC. Milford W. Dahl, Jr. RUTAN & TUCKER, LLP 611 Anton Blvd. Suite 1400 Costa Mesa, CA 92626-1931 Tel: (714) 641-3438 Email; MDahl @rutan.com Attorneys for Doe: H.J.K ENTERPRISES, INC. DBA LA FOGATA RESTAURANT 7 PROOF OF SERVICE