Strohmeyer vs. Santos Electronics, Inc.

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.July 24, 2015

= E e E V . a T E N N N N N N N N O N m m e m e m m m p m p m p m p m s m t m e 0 N N A W n B R W N = D O W 0 0 0 N O N i n R E W N e e Rodney W. Bell (SBN 125314) Audrey L. Khoo (SBN 254007) CHANG & COTE, LLP 19138 E. Walnut Drive North, Suite 100 Rowland Heights, California 91748 Telephone: (626) 854-2112 Facsimile: (626) 854-2120 Attorneysfor Defendant (Main Case) and Plaintiff (Consolidated Case)SANTOS ELECTRONICS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ORANGE JENNIFER STROHMEYER, Plaintiff, Vs. SANTOS ELECTRONICS, INC., dba OSD AUDIO,a California corporation; and DOES, 1 through 25, inclusive, Defendants. SANTOS ELECTRONICS, INC., dba OSD AUDIO, Plaintiff, Vs. JENNIFER STROHMEYER, an individual, and DOES 1 through 5,inclusive, Defendants. Case No. 30-2015-00800613-CU-WT-CJC {Consolidated with Case No. 30-2016- 00828282-CU-IP-CJC) Assigned For All Purposes To: Judge CRAIG GRIFFIN Department C17 NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DATE: July 24,2017 TIME: 2:00 p.m. DEPT: C17 Reservation ID: 72607238 Main Action Complaint Filed: 07/24/2015 Related Action Complaint Filed: 01/05/2016 TO THE COURT, AND TO PLAINTIFF JENNIFER STROHMEYER AND HER COUNSEL OF RECORD: A IE INC. N O 0 N A L n A W N N N N N N N N N N e m m e m m e m p m e m m t em a e m p e 0 N A B W N = O O N N N R A W N = PLEASE TAKE NOTICE that on July 24, 2017 at 2:00 p.m. or as soon thereafter as the matter may be heard in Department C17 of the above-entitled court, located at 700 Civic Center Drive West Santa Ana, California, Defendant SANTOS ELECTRONICS, INC. dba OSD AUDIO ("OSD AUDIO”) will move the court for an order taxing costs claimed by PlaintiffJENNIFER STROHMEYER (“Plaintiff”) in Items 11 and 13 ofher Memorandum of Costs (“Cost Bill”) pursuant to Rule 3.1700, subd. (b) of the California Rules of Court and Code of Civ. Pro. sec. 1033.5. The motion is made on the grounds that Items 11 and 13 ofthe Cost Bill claim costs that are improper, unreasonable in amount, and/or not reasonably necessary to the conductofthe litigation,as discussed in the attached memorandum of points and authorities. This motion shall be based upon this notice of motion, the attached memorandum ofpoints and authorities, the Declaration of Rodney W. Bell, matters upon which the court may take judicial notice, the pleadings and record in this action, and such further evidence and legal argument as may be presented or considered at the hearing on the motion. Dated: June 15, 2017 . CHANG & COTE A Limited Liability Partnership By: - Audrey L. Khoo _ Attorneys for Defendant and Plaintiff, SANTOS ELECTRONICS, INC. N O 0 N N N W n h s W w N D - B R N R N N N N N N e m m m m m pe s m m e d p m e m pm s pe e 0 N N W n A W N = , O Y 0 N N S W e e D MEMORANDUM OF POINTS AND AUTHORITIES IL INTRODUCTION Plaintiff’s Cost Bill seeks to recover nearly $53,000.00 in litigation costs incurred in pursuit of an award of only $28,782.53." In connection with the Cost Bill, Plaintiff’s counsel provided details supporting the claimed expenses, which is attached as Exhibit A (“Cost Backup”) to the Declaration of Rodney W. Bell. All of the expenses Plaintiff seeks to recover under Items 11 and 13 of her cost Bill are neither authorized under Code of Civ. Pro. sec. 1033.5 nor reasonable and necessary to this litigation. Accordingly, the Court should disallow and tax $20,496.32 in costs from Plaintiff's Cost Bill. IL. OBJECTIONABLE COST ITEMS The rightto an award ofcosts is governed wholly by statute. (Posey v. Cal. (1986) 180 Cal. App. 3d 836, 852, 225.) Bystatute,there are three recognized categories ofcosts: o Costs specifically allowable under Code of Civ. Pro.sec. 1033.5, subd. (a); e Costs which are specifically not allowable under Code of Civ. Pro. sec. 1033.5, subd. (b); and ¢ To the extent an item is not specifically enumerated under the foregoing subdivisions, discretionary costs which the court may allow or deny. (Code of Civ. Pro. sec. 1033.5 subd. (c)(4); Green v. Cty. ofRiverside (2015) 238 Cal. App.4th 1363, 1374, 190 Cal. Rptr. 3d 693, 703.) Whether allowed by the express language ofthe statute or at the court’s discretion, any award of costs must “be reasonably necessary to the conduct ofthe litigation rather than merely ' In its Special Verdict, the jury awarded Plaintiff $13,333.33 in unpaid severance wages, $12,499.20 in “waiting time”penalties, and $2,950 in wage statement penalties. (See Judgment.) OSD AUDIO has a pending motion for partial judgment notwithstanding the verdict as to the award of unpaid severance wages, which, if granted, would also eliminate recovery of attendant waiting time penalties and thereby significantly reduce Plaintiff’s net recovery to an amount below OSD AUDIO’s rejected 998 offer. OSD AUDIO therefore reservesthe right to object further to Plaintiffs Cost Bill. N O 0 9 3 N N RA R W N N O N N O N N N N B N N s m m m m k d p m p m m m p a p m W W ~ ~ h h A W N = O N O 0 N N R W - = convenient or beneficial to its preparation” and “reasonable in amount.” (Code of Civ. Pro.sec. 1033.5 subds. (c)(2) and (3).) A. Item No. 11: Plaintiff Is Not Entitled To Recover Costs for Models, Blowups, and Photocopies of Exhibits Not Used At Trial. Item 11 of Plaintiff’s Cost Bill seeks recovery of $7,987.49 for “models, blowups, and photos copies of exhibits” and “exhibit tabs, velo binding.” Analysis of the Cost Backup shows the following component expenses that conceivably would be included within Item 11 costs: Cost Description Amount Exhibit Tabs $24.75 Velo Binding $108.00 Cost for obtaining copies, exhibit tabs, $2,139.44 prints and colorprints Color Copies $268.00 In House Copies $5,394.90 Total $7,935.09 The Cost Backup provides no apparent support for the difference between the above $7,935.09 total and the $7,987.49 claimed in Item 11. To the extent no support can be supplied by Plaintiff for this $52.40 discrepancy, the Court should disallow that amount. While Code of Civ. Pro. sec. 1033.5, subd. (a)(13) allows only costs of“models and enlargements of exhibits and photocopies of exhibits [] if they were reasonably helpful to aid the trier of fact,” that section does not permit recovery of exhibit tabs and binding costs. Moreover, the expenses of copying documents are expressly disallowed. (Code of Civ. Pro. sec. 1033.5, subd. (b); Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1627.) The statute makes an exception to allow photocopies of exhibits, however the foregoing entries provide no indication of what has been copied.’ 2 To the extent any Item 11 expenses are for photocopies of exhibits, costs of preparing unused trial exhibits are not recoverable and should be taxed. “On its face, this statutory language [of section 1033.5] excludes as a permissible item of costs exhibits not used at trial, which obviously could not have assisted the trier offact.” (Seever v. Copley Press, Inc. (2006) 141 Cal. App. 4th 1550, 1557, 47 Cal. Rptr. 3d 206, 211.) N O N v R e W N B O N N N N N N N m m e m e m e m p m e e m t e m e a p m W W ~ ~ G N L h R h L N = O W 0 N N W R W N e e As such, the sum of $7,987.49 requested in Item 11 should be taxed in its entirety. B. Item No. 13: Plaintiff is Not Entitled To Recover Miscellaneous Costs Relating to Travel, Courtcall, Settlement Conference, and “Other” Costs. Item 13 of Plaintiff’s Cost Bill contains a potpourri of costs, none ofwhich are allowable by statute and all of which should be taxed. Courts “strictly construe the statutes permitting costs and only those items specifically enumerated are recoverable.” (Sequoia Vacuum Sys. v. Stransky (1964) 229 Cal. App. 2d 281, 289.) Statutes allowing costs do not contemplate that a defendant must pay all of the successful plaintiff's expenses in connection with the litigation. (Moss v. Underwriters’ Report, Inc. (1938) 12 Cal. 2d 266, 274, 83 P.2d 503, 507,citations omitted.) 1. Travel Related Expenses are NotAllowable Costs. Plaintiff's first category of Item 13 expenses seeks recovery of $3,934.08 in “travelrelated costs.” Review ofPlaintiff's Cost Backup indicates Plaintiff has incurred only $3,197.06 in travel related costs, comprising ofthe following: Cost Description Amount Mileage and tolls for Plaintiffs counsel $2,676.31 Parking for Plaintiffs counsel $520.75 Total $3,197.06 The Cost Backup provides no details to substantiate the additional $737.02 claimed in Item 13 Travel Related Costs beyond the foregoing $3,197.06 sum. As to the $3,197.06 in mileage,tolls, and parking costs, these local travel expenses are not recoverable. Parking fees are not part of the “ordinary costs under section 1033.5.” (Ferrell v. Cty. ofSan Diego (2001) 90 Cal. App. 4th 537, 108 Cal. Rptr. 2d 681.) Similarly, mileageis not allowable under section 1033.5. (Fairchild v. Park (2001) 90 Cal. App. 4th 919.) Routine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct oflitigation and should not be allowed. (Ladas v. Cal. State Auto. Assn. (1993) 19 Cal. App. 4th 761, 775-76, 23 Cal. Rptr. 2d 810, 818.) O O 0 N N n M R W N D N N N N N N N N N e m e m m m em t em t em t e d e t e b W W N R V L A W N = O O V W N N N R W N N - = O O Therefore, all of Plaintiff's $3,934.08 in Item 13 travel related costs should be taxed. 2. Courtcall Fees are Telephone Cliarges Expressly NotAllowable By Statute. Plaintiff's second category of Item 13 expenses improperly seeks reimbursement of $636.00 in CourtCall fees. Code of Civ.Pro. sec. 1033.5, subd. (b)(3) precludes recovery of telephone charges. Courtcall fees fall squarely within this subdivision and are barred from recovery. These fees are plainly for the convenience of Plaintiff's counsel and would also be barred under Code of Civ. Pro. sec. 1033.5, subd. (c)(2), as they are not necessary to the conductoflitigation. The Court should therefore tax the amount of $636.00 in Item 13 from the Cost Bill. 3. Settlement Conference Expenses are NotAllowable Costs. Plaintiffs next category of Item 13 expenses seeks recovery of $392.85 in settlement conference expenses identified in the Cost Backup as follows: Cost Description Amount Cost Advanced Ace Attorney Service, Inc. for processing $128.68 mandatory settlement conference on 3/18/16 to Lillian K. Lin. Cost Advanced to Ace Attorney service, Inc. for processing $127.16 mandatory settlement conference and proof of service on 3/18116 to Tom Gandula Cost Advanced Ace Attorney Service, Inc. for processing $137.01 mandatory settlement conference on 3/18/16 to Ken Reingold Total $392.85 It is unclear from the Cost Bill and the Cost Backup as to the nature of above settlement conference expenses. All of the above individuals are ordinary witnesses who have been paid a witnesses fee for which Plaintiff seeks recovery under Item 8(a)(1), (2), and (3) ofthe Cost Bill. Thus, Plaintiff’s claim for “settlement conference” expenses are either redundant ofamounts claimed under Item 8, or not reasonably necessary to the conduct ofthe litigation as none ofthese individuals are parties to this action whose participation at a settlement conference is mandatory. The Court should tax the amount of $392.85 from Item 13 ofthe Cost Bill. O o O R 2 N n A W N R P 9 O N h h B h W L = O W O N N N E W N ~ ~ O o 4. PlaintiffMay Not Recover Unspecified “Other” Costs Plaintiff’ s-last category of Item 13 expenses appears to be a catch-all for $7,545.90 in “other” unidentified costs. Though Plaintiff’s Cost Bill offers no description to the components of these “other” costs, the Cost Backup leaves only the remaining expenses: ¢ Investigation Expenses: $2,618.28 e Attorney Meals and Lodging: $1,415.74 o Telephone, Postage, and Fax Charges: $452.00 e Bates Stamping, Cancelled Process Server and Reporter Fees, Runners and Trial Setup, and CDs: $3,391.00. Each are further parsed into their componentcosts and discussed below. a. Investigation Expenses are Not Allowable Costs. Plaintiff's Cost Bill and Cost Backup includes the following legalresearch and investigation expenses: Cost Description Amount Lexis Nexis online search and/or documentretrieval fees $2,163.84 Costs for obtaining court records $428.69 Fees for court name searches,litigation searches, and $25.75 index of defendants Total $2,618.28 Recovery of investigation expenses in preparing a case for trial is precluded under Code of Civ. Pro. sec. 1033.5, subd. (b)(2). Investigation expenses includes fees for legal research and are not compensable as costs. (Ladas, supra at 776 (trial court erred in allowing costs for computer legal research.)) b. Attorney Meals and Lodging are Not Allowable Costs. Plaintiff's Item 13 appearsto include $1,415.74 in meals and lodging for Plaintiffs counsel during and/or deposition: O O 0 0 N N W n B R Ww W N D B N O N N N N N N N N N m m e m m m e m p e e m m d p b p e s 0 ~ ~ A h R W N = O Y O N N N E W N = D Cost Description Amount Attorney meals $474.96 Attorney lodging $940.78 Total $1,415.74 The only meals statutorily allowable as costs are those for jurors during trial and deliberation pursuant to Code of Civ. Pro. sec. 1033.5, subd. (a)(2). (/d. at 774.) “Nor can meal expenses be justified as ‘necessary to the conduct ofthe litigation’ since attorneys have to eat, whether they are conducting litigation or not. At best, these expenses are ‘merely convenient or beneficial’ to preparation forlitigation, the recovery ofwhich is proscribed under section 1033.5, subdivision (c).” (Id. at 775.) The foregoing rationale applies equally to lodging, which is also only allowable for jurors under Code of Civ. Pro. sec. 1033.5, subd. (a)(2) and not reasonably necessary to the conduct of litigation. C. Telephone, Postage, and Fax Charges are Not Allowable By Statute Plaintiff's Cost Backup includes $452.00 in telephone, postage, fax, and photocopy charges: Cost Description Amount Fax $113.00 Conference calls $113.00 Postage $226.00 Total $452.00 Like Courtcall charges, the foregoing items are specifically disallowed under Code of Civ. Pro. sec. 1033.5, subd. (b)(3) (“The following items are not allowable as costs... Postage, telephone, and photocopying.”). d Bates Stamping, Cancelled Process Server Charges, Delivery Charges, and CDs Are Not Allowable Costs and Merely Convenient. Plaintiff's Cost Backup includes the following unnecessary costs: 11 111 O o Y h B s W N - N R N N O N O N O N O N R N m m m m e m m m be m p m p m p e m d W W N A B R W N = O N O 0 0 N N B W N = © Cost Description : Amount Bates stamping and electronic images $1,393.35 Cancelled service ofprocess and reporting fees $1,227.00 Runners and trial setup assistance $690.65 CDs $80.00 Total $3,391.00 Bates stamping and electronic image fees appear to be unreasonable in amount and unnecessary to the litigation, particularly when this litigation did not involve unusually large volumes of documents. Plaintiff's submitted approximately 360 exhibits at trial, many ofwhich (e.g. emails) were short in length. Plaintiff's Cost Backup includes nine instances in which process server or court reporter’s services were cancelled and incurred a cancellation fee. These costs certainly could not have been reasonably necessary to the litigation, as such services were cancelled and notutilized. Plaintiff's Cost Backup also includes charges for runners to pick up boxes from the court and trial set up assistance. Both charges were not reasonably necessary or unreasonable in amount, as Plaintiff’s counsel could have undertaken such duties in their many trips to and from the courthouse. At best, these cost items were incurred merely for the convenience of Plaintiff's counsel and should not be allowed. Plaintiff’s Cost Backup further includes CD charges incurred on four separate occasions at $20 each with no detail as to suggest what the CDs may contain or why they would be reasonably necessary to the conduct ofthis litigation. As all items discussed in sections 4(a)-(d) supra are not expressly allowable, thus the full $7,545.90 amount ofPlaintiff's “other” Item 13 costs should be taxed. 111 111 111 O O 0 N N O N n n R e W N N O N N N N N N N N e m m m m t e t p e p t m d e d p e Q W N R n n A W N = O O N N R W e e III. CONCLUSION Forthe foregoing reasons, OSD AUDIO respectfully moves to tax Items 11 (i.e. $7,987.49) and Items 13 (i.e. $12,508.83) from the Cost Bill, and reduce Plaintiff's Cost Bill by a total of $20,496.32. Dated: June 15, 2017 CHANG & COTE A Limited Liability Partnership By: udrey L. Kho Attorneys for Defendant and Plaintiff, SANTOS ELECTRONICS, INC. N O N O N D N N R N N D D N me m m t pa m e t p d p d pe t pe t p t pe a W R 3 A W U B W = O N O O N I O N E W N - - = S O O 0 N O N W n b h W N 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 19138 East Walnut Drive North, Suite 100 Rowland Heights, CA 91748. On June 15, 2017, I served the foregoing document(s) described! titled as: NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the following interested parties by the method described: See Attached Service List a BY MAIL: I placed the original of the foregoing documentin a sealed envelope addressed to each interested party as set forth. | am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Underthat practice, it would be deposited with the U.S. Postal Service on the same day with postage thereon fully prepaid at Rowland Heights, California in the ordinary course of business. [ am aware that on motion ofthe party served, service is presumed invalid if postal cancellation date or postage meter date is more than one (1) day after date of deposit for mailing an affidavit. a BY OVERNIGHT CARRIER: I placed the original ofthe foregoing documentin a sealed envelope, box, or other facility maintained by FedEx or other express carrier service, or delivered to a courier or driver authorized by said expresscarrier service to receive documents with delivery fees paid for or provided for. VIA HAND DELIVERY a BY FACSIMILE: | sent by facsimile transmission such document(s) to the numbers indicated and 0 confirmed successful transmission of all pages. A transmission report was properly issued by the sending facsimile machine for each interested party served. BY ELECTRONIC MAIL: (BY EMAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an agreementofthe parties to accept service by email or electronic transmission,| sent by email or electronic transmission such document(s) to the emails indicated. 1 did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. XI (STATE) I declare under penalty of perjury that the aboveis true and correct. a (FEDERAL) [ declare that I am employed in the office of a member ofthe bar of this court at whose direction the service was made. Executed on June 15,2017 at Rowland Heights, California. A) ( Vo Jeffrey Cara 1PROOF OF SERVICE C O 0 N N W h R B W N B N N O R M N N N R N O N m m m m e m m d e m e d p t p t p d 0 3 O N n n R h W N O N D 0 N N t h B R W N = D (CASE NO.: 30-2015-00800613-CU-WT-CJC) a) Greg A Garbacz Thomas E. Daugherty Floyd A. Brown Karla M. Hamilton Randy A. Baker Catherine Bond Sean Higgins KLINEDINST PC 501 West Broadway, Suite 600 San Diego, CA 92101 Email: ggarbacz@klinedinstlaw.com Email: tdaugherty@klinedinstlaw.com Email: fborown@klinedinstlaw.com Email: khamilton@klinedinstlaw.com Email: rbaker@klinedinstlaw.com Email: cbond@klinedinstlaw.com Email: shiggins@klinedinstlaw.com SERVICE LIST Attorneysfor Plaintiff/Cross-Defendant JENNIFER STROHMEYER 2PROOF OF SERVICE