© 00 9 O N Un BA W N N N N N N N N N ND mm e m e m e m e m e m e m e m c o NN O N Wn BA W N = © OO 0 NN O N B R A W N = O LAW OFFICES OF STEPHENSON, ACQUISTO & COLMAN, INC. MELANIE JOY STEPHENSON-LAWS, ESQ. (SBN 1ELECTRONICALLY FILED Superior Court of California, BARRY SULLIVAN, ESQ. (SBN 136571) County of Orange RICHARD A. LOVICH, ESQ. (SBN 113472) 05172017 at 04:31:00 PW DAVID F. MASTAN, ESQ. (SBN 152109) Clerk of the Superior Court 303 N. Glenoaks Blvd., Suite 700 BF E Gira lleputy alerk Burbank, CA 91502 (818) 559-4477 Telephone (818) 559-5484 Facsimile Attorneys for Plaintiff NY on poe THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Fel Gov't Code a public trust corporation, on behalf of THE UNIVERSITY § 6103 OF CALIFORNIA, IRVINE MEDICAL CENTER SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF ORANGE UNLIMITED JURISDICTION THE REGENTS OF THE Case No. 30-2015-00808967-CU-CO-CJC UNIVERSITY OF CALIFORNIA, a public trust corporation, on behalf of [Assigned for all purposes to the IRVINE MEDICAL CENTER, PLAINTIFF’S OPPOSITION TO Plaintiff. DEFENDANTS’ MOTION TO TAX COSTS; DECLARATION OF vs. DAVID F. MASTAN IN SUPPORT KAISER FOUNDATION HOSPITALS, | Hearing: June 1, 2017 a California corporation; SOUTHERN | Time: 1:30 p.m. CALIFORNIA PERMANENTE Place: Dept. C21 MEDICAL GROUP, a California partnership; and DOES 1 THROUGH 25, INCLUSIVE, Complaint Filed: September 10, 2015 Defendants. 12002 - 1 - PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS; DECLARATION OF DAVID F. MASTAN IN SUPPORT © 00 9 O N Un BA W N NN N N N N N N N N m mm e m e m e m p m e m p m e m pe c o NN O N Wn BA W N = © OO 0 NN O N B R A W N = O PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS Plaintiff The Regents of The University of California, a Public Trust Corporation, on behalf of the University of California, Irvine Medical Center ("UCI Medical Center") hereby opposes Defendants Kaiser Foundation Hospitals and Southern California Permanente Medical Group's (collectively "Kaiser's") motion to tax costs. SUMMARY OF MOTION TO TAX COSTS BY KAISER Kaiser has responded to UCI Medical Center’s Memorandum of Costs with their motion to tax the costs requested. There are three (3) categories of costs that Kaiser would like the court to review and thereafter reduce or remove: (1) Transport of Exhibit Boxes to and from the courthouse; (2) Fees incurred by Plaintiff in regard to the mandatory Mediation per the contract; (3) Court Reporter Fees. Each of the three (3) categories will be addressed below. UCI Medical Center contends that each of the costs requested for reimbursement is appropriate. II. REIMBURSEMENT OF COSTS FOR TRANSPORT OF EXHIBIT BOXES WOULD BE APPROPRIATE Although CCP 1033.5 does not specifically denote “transportation of exhibit boxes to and from the courthouse” as a recoverable costs, CCP 1033.5(c)(4) does state “Items not mentioned in this section and items assessed upon application may 12002 - 2 - PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS; DECLARATION OF DAVID F. MASTAN IN SUPPORT © 00 9 O N Un BA W N ND ND ND N N N N N ND E E Em Em e m e m e m e s e m c o NN O N Wn BA W N = © OO 0 NN O N B R A W N = O be allowed or denied in the court’s discretion.” [Emphasis added] The very fact that this provision is included in CCP 1033.5 demonstrates the understanding that not every single reimbursable costs need be enumerated specifically in CCP 1033.5 in order to be recoverable. As well, in light of the fact that the statute CCP 1033.5 does allow for these types of discretionary costs, and as these costs would therefore be “based on statute,” there would be no need to “plead” or “prove at trial” as suggested by Kaiser. In nearly all cases in our modern age, an attorney’s appearance at trial requires the necessity of various accoutrements, such as laptop computers, personal notebooks, reference materials, brief cases, extension cords, etc. It is difficult to conduct a trial without them. Each of these necessities, however, was, in fact, personally transported by counsel for UCI Medical Center to and from the courthouse, and no request was made for reimbursement for any costs incurred to transport them. (See Declaration of David F. Mastan, paragraph 2). In addition to the above necessities, counsel for UCI Medical Center was ordered by the court to provide exhibit notebooks for (1) your Honor, (2) the witnesses, (3) opposing counsel. In addition, counsel for UCI Medical Center needed a copy of each exhibit notebook for his personal reference. Contrary to the “two boxes” alleged by Kaiser counsel (See Moving Papers, page 4, line 13), the total number of boxes transported to and from the courthouse was ten (10). (Declaration of David F. Mastan, paragraph 2) Each of the boxes contained various notebooks. The notebooks contained trial exhibits, pleadings, etc. The notebooks themselves were prepared at a time when counsel for UCI Medical Center anticipated that the trier of fact in this case would a jury. Kaiser had posted jury fees and had been insistent that this matter 12002 - 3 - PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS; DECLARATION OF DAVID F. MASTAN IN SUPPORT © 00 9 O N Un BA W N N N N N N N N N ND mm e m e m e m e m e m e m e m c o NN O N Wn BA W N = © OO 0 NN O N B R A W N = O would be put before a jury for consideration. As such the method of preparation was that as for a jury trial, and the type of documentation necessary for a jury trial was included in the vast number of exhibit binders, all of which were stored in the ten (10) boxes. (Declaration of David F. Mastan, paragraph 3). On February 14, 2017, the jury trial for this matter was set to begin. On that date the court heard argument on the motions in limine. The court had previously ordered all trial documents to be brought to court on that date. UCI Medical Center was required to bring the ten (10) boxes of documents to court on that day. The court heard the motions in limine, and subsequently continued the start of the trial to March 6, 2017. The court also stated that the boxes could not remain or be stored in the courtroom in the interim. As such, on February 14, 2017, the boxes had to be removed from the court and brought back to the law firm. However, also on that date two (2) of the boxes were provided to Kaiser counsel, and therefore eight (8) boxes were transported back to the law firm. (Declaration of David F. Mastan, paragraph 4). As the court may recall, counsel for UCI Medical Center recently was married, on February 25, 2017 to be exact, and after the ceremony set out on a honeymoon, as is the custom. The honeymoon was to last through Sunday, March 5, 2017. During that honeymoon, counsel for UCI Medical Center anticipated that on Monday, March 6, 2017, the jury trial for this case would commence. Preparation to that effect had been completed prior to the wedding so that no work needed to be done while on honeymoon. (Declaration of David F. Mastan, paragraph 5). These eight (8) boxes containing all of the court ordered exhibits, etc. needed to be delivered to the Court on Monday, March 6, 2017 per the court’s order. As such, the boxes needed to be picked up from counsel’s office on Friday, 12002 - 4 - PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS; DECLARATION OF DAVID F. MASTAN IN SUPPORT © 00 9 O N Un BA W N ND ND ND N N N N N ND E E Em Em e m e m e m e s e m c o NN O N Wn BA W N = © OO 0 NN O N B R A W N = O March 3, 2017, as counsel was, at that time, out of the state on honeymoon. (Declaration of David F. Mastan, paragraph 6). Not until Friday, March 3, 2017, the Friday directly before a jury trial was to commence, was counsel for UCI Medical Center informed by counsel for Kaiser that Kaiser had suddenly changed its mind and now wished to proceed without a jury. Counsel for UCI Medical Center received an email to this effect from counsel for Kaiser while counsel for UCI Medical Center was on his honeymoon and out of the State, a fact known to counsel for Kaiser, as the above was discussed in open court. (Declaration of David F. Mastan, paragraph 7). The timing of this revelation by Kaiser counsel was questionable to say the least. Some may say it constituted inappropriate gamesmanship, the type vehemently disfavored by the courts . . . although I am not in a position to make that judgment. But the actions of Kaiser did have two results. First, as this was the Friday before Monday's trial, the boxes still needed to be picked up by the delivery service and transported to the court. Second, counsel for UCI Medical Center needed to cut short his honeymoon and take those remaining days to transform the presentation of the trial from a jury trial to a court trial. No small feat. Witnesses also needed to be contacted over the weekend in order to alter the schedule of their testimony. (Declaration of David F. Mastan, paragraph 8). Kaiser counsel notes in his moving papers that he was able to transport his own boxes using a dolly. (Moving Papers, page 4, line 9). That is a notable accomplishment, although it did not appear that Kaiser was ordered to produce the same number of binders that UCI Medical Center was ordered to produce. The employment of a service to assist with the boxes was not for mere convenience of counsel for UCI Medical Center. The reality is that the boxes were numerous, heavy, cumbersome and the transport of these is physically demanding. 12002 - 5 - PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS; DECLARATION OF DAVID F. MASTAN IN SUPPORT © 00 9 O N Un BA W N N N N N N N N N ND mm e m e m e m e m e m e m e m c o NN O N Wn BA W N = © OO 0 NN O N B R A W N = O At 53 years of age, this may not be the most advisable pursuit for UCI Medical Center’s counsel. (Declaration of David F. Mastan, paragraph 9). The boxes of binders had to be delivered to the court. Kaiser counsel’s assertion that the transportation fees were incurred in a diabolical effort to “drive up the costs of litigation” (See Moving Papers, page 4, line 17) seems a bit farfetched and small-minded. Kaiser chose not to resolve the case prior to trial, forcing UCI Medical Center to engage in what was clearly a document intensive trial on the merits, and UCI Medical Center prevailed at that trial. The transportation of the documents is merely one of the necessary and reasonable costs that needed to be incurred so that UCI Medical Center could engage properly in the trial. As such, UCI Medical Center requests that the court deny Kaiser’s motion to remove or reduce the transportation costs set forth by UCI Medical Center. III. REIMBURSEMENT FOR COSTS FOR MEDIATION FEES ARE A RECOVERABLE COST The contract, which was at issue during the trial of this matter, (Plaintiff’s Exhibit 1, page 12) mandated that a mediation must take place in order to try and resolve any dispute between Kaiser and UCI Medical Center. UCI Medical Center was required to pay for 1/2 of the mediator’s fee. UCT Medical Center participated in the mediation in good faith. The trial for this matter, and the judgment therefrom, confirmed that the positions that Kaiser maintained at trial and during the mediation were not reasonable in light of the contract provisions. Regardless, UCI Medical Center was forced to incur the expense of the mediator by Kaiser, and of course thereafter the expense of the trial. 12002 - 6 - PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS; DECLARATION OF DAVID F. MASTAN IN SUPPORT © 00 9 O N Un BA W N N N N N N N N N ND mm e m e m e m e m e m e m e m c o NN O N Wn BA W N = © OO 0 NN O N B R A W N = O The cost of the mediation would fall under the provision of CCP 1033.5(c)(4), as a “discretionary” cost recovery. UCI Medical Center contends that UCI should not have had to go through the mediation process in order to resolve the claims involved in this case as the contract was exceptionally clear. However, Kaiser persisted in their unreasonable interpretation of the contact, and as a result UCI Medical Center was forced to incur the mediation fees. Compelling a costly mediation in light of the unreasonable position taken by Kaiser could be understood as a designed deterrent by Kaiser, as opposed to a good faith potential method of resolution. UCI Medical Center is requesting that this court employ its discretion, and order Kaiser to reimburse UCI Medical Center the cost of the unnecessary mediation. IV. REIMBURSEMENT FOR COURT REPORTER FEES ARE A RECOVERABLE COST Counsel for Kaiser argues that the prevailing party is entitled by statute to recover only $55 per day for court reporter fees citing to CA Government Code section 69948. (Moving Papers, page 5, line 16). However, counsel for Kaiser is citing to the wrong statute. In accordance with the Court Reporter’s Board of California: “The court reporter fees set out in Government Code section 69948 are what the court charges as part of a cost recovery program and apply only to court reporters that are hired for and paid by the court.” CRB letter of May 14, 2012 12002 - 7 - PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS; DECLARATION OF DAVID F. MASTAN IN SUPPORT © 00 9 O N Un BA W N ND ND ND N N N N N ND E E Em Em e m e m e m e s e m c o NN O N Wn BA W N = © OO 0 NN O N B R A W N = O The court reporter provided for the case at issue was not a “court appointed” court reporter, but a privately arranged reporter. In accordance with California Rules of Court 2.956, entitled “Court reporting services in civil cases”, the following is stated: “If the services of an official court reporter are not available for a hearing or trial in a civil case, a party may arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter. It is that party's responsibility to pay the reporter's fee for attendance at the proceedings, but the expense may be recoverable as part of the costs, as provided by law.” CRC 2.956(c) [Emphasis added]. In the current case UCI Medical Center paid the reporter’s fees and are seeking to recover the fees expended in accordance with CCP 1033.5(a)(10). In addition, California Government Code section 69953 is the correct statute to reference in regard to the court reporter fees. This section provides as follows: “In any case where a verbatim record is not made at public expense pursuant to Section 69952 or other provisions of law, the cost of making any verbatim record shall be paid by the parties in equal proportion; and either party at his option may pay the whole. In either case, all amounts so paid by the party to whom costs are awarded shall be taxed as costs in the case. The fees for transcripts and copies ordered by the parties shall be paid by the party ordering them. Except as provided in Section 69952, no reporter shall perform any service in a civil action other than transcriptions until his fee for it has been deposited with the clerk of the court or with the reporter.” CA Government Code 69953. As such, counsel for Kaiser is merely wrong in his assertion that court reporter fees should be reimbursed at $55 per day. As noted the law provides that 12002 - 8 - PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS; DECLARATION OF DAVID F. MASTAN IN SUPPORT O© 00 3 O N Wn hb WwW ND N D ND N N NN N D N D N N N N = m m e m p d e d e m p m p a 00 NN O N nn A W D = O V0 0 0 N D RR W I N D = O court reporter fees are a recoverable cost and the amount paid should be allowed as a recoverable cost. UCI therefore requests that the court deny Kaiser’s motion as to court reporter fees and award UCI Medical Center the amount of costs requested in its memorandum. IV. CONCLUSION As set forth above, UCI Medical Center contends that this court has discretion and legal authority to award all costs sought by UCI Medical Center as the prevailing party in this action. UCI Medical Center therefore respectfully requests that the court deny Kaiser’s motion to remove or reduce costs. Dated: May 17, 2017 STEPHENSON, ACQUISTO & COLMAN C DAVID F. MAYTAN Attorneys for THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a public trust corporation, on behalf of THE UNIVERSITY OF CALIFORNIA, IRVINE MEDICAL CENTER 12002 - 9. PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS; DECLARATION OF DAVID F. MASTAN IN SUPPORT © 00 9 O N Un BA W N N N N N N N N N ND mm e m e m e m e m e m e m e m c o NN O N Wn BA W N = © OO 0 NN O N B R A W N = O DECLARATION OF DAVID F. MASTAN I, David F. Mastan, declare: I. I am over the age of eighteen years and am not a party to this action. I am an attorney at the firm of the Law Offices of Stephenson, Acquisto & Colman, Inc., attorneys of record for plaintiff, The Regents of the University of California, a Public Trust Corporation, on behalf of the University Of California, Irvine Medical Center ("UCI Medical Center"). If called upon to testify to the facts within this declaration, I could and would competently so testify because such facts come from my own personal knowledge, or from knowledge gained by review of the case file in this matter. 2. UCI Medical Center was ordered by the court to provide exhibit notebooks for (1) your Court, (2) the witnesses, (3) opposing counsel. In addition, I needed a copy of each exhibit notebook for my personal reference. There were not two (2) boxes that needed to be transported, as stated by Kaiser counsel in his moving papers, but ten (10) boxes. In addition to the ten (10) boxes, I also needed to bring with me all of the other necessities of trial, and this involved the use of my own hand dolly, although UCI Medical Center is not seeking to recover any costs for the transport of these necessities. 3. Each of the boxes contained various notebooks. The notebooks contained trial exhibits, pleadings, etc. The notebooks themselves were prepared at a time when counsel for UCI Medical Center anticipated that the trier of fact in this case would a jury. Kaiser had posted jury fees and had been insistent that this matter would be put before a jury for consideration. As such the method of preparation was that as for a jury trial, and the type of documentation necessary for 12002 - 10 - PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS; DECLARATION OF DAVID F. MASTAN IN SUPPORT © 00 9 O N Un BA W N N N N N N N N N ND mm e m e m e m e m e m e m e m c o NN O N Wn BA W N = © OO 0 NN O N B R A W N = O a jury trial was included in the vast number of exhibit binders, all of which were stored in the ten (10) boxes. 4. On February 14, 2017, the jury trial for this matter was set to begin. On that date the court heard the motions in limine. The court had also ordered all trial documents to be brought to court on that date. UCI Medical Center was required to bring the ten (10) boxes of documents to court on that day. The court heard the motions in limine, and then continued the start of the trial to March 6, 2017, and stated that the boxes could not remain or be stored in the courtroom. As such, on February 14, 2017, the boxes had to be removed from the court and brought back to the law firm. However, also on that date two (2) of the boxes were provided to Kaiser counsel, and therefore eight (8) boxes were transported back to the law firm. 5. As the court may recall, I was married on February 25, 2017, and after the ceremony set out on a honeymoon. The honeymoon was to last through Sunday, March 5, 2017. During that honeymoon, I anticipated that on Monday, March 6, 2017, the jury trial for this case would commence. Preparation to that effect had been completed prior to the wedding so that no work needed to be done while on honeymoon. 6. These eight (8) boxes containing all of the court ordered exhibits, etc. needed to be delivered to the Court on Monday, March 6, 2017. As such, the boxes needed to be picked up from my office on Friday, March 3, 2017, as I, at that time, out of the state on honeymoon. 7. Not until Friday, March 3, 2017, the Friday directly before the jury trial was to commence, was I informed by counsel for Kaiser that Kaiser had 12002 - 11 - PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS; DECLARATION OF DAVID F. MASTAN IN SUPPORT O© 00 3 O&O Un Hr WW DD = N O N ND ND N N ND N D N D o e m e m e m e m e m e m e R e a 00 NN O N Un A W D = Oo OO 0 0 N D NN B A W ND = OO suddenly changed its mind and now wished to proceed without a jury. I received an email to this effect from counsel for Kaiser while I was on my honeymoon and out of the State, a fact known to counsel for Kaiser, as the topics of my marriage and honeymoon were discussed in open court. 8. The timing of this revelation by Kaiser counsel was questionable to say the least. Some may say it constituted inappropriate gamesmanship, the type vehemently disfavored by the courts . . . although I am not in a position to make that judgment. But the actions of Kaiser did have two results. First, as this was the Friday before Monday's trial, the boxes still needed to be picked up by the delivery service and transported to the court. Second, I needed to cut short my honeymoon and take those remaining days to transform the presentation of the trial from a jury trial to a court trial. No small feat. Witnesses also needed to be contacted over the weekend in order to alter the schedule of their testimony. 9. The employment of a service to assist with the boxes was not for mere convenience. The reality is that the boxes were numerous, heavy, cumbersome and the transport of these is physically demanding. At 53 years of age, it may not be advisable for me to engage in that type of activity. I declare under the penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct. Executed on 17 May 2017, in “LF Lhe C Burbank, California. DAVID F. MASTAN 12002 - _ PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS; DECLARATION OF DAVID F. MASTAN IN SUPPORT OO 0 NN O N Wn kA W N NN N N N N N N N N mm e m e m p m p m md p m e m pe c o NN O N Dn Br W N = O 0 0 O N R E W I N D = O 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 303 North Glenoaks Boulevard, Suite 700, Burbank, California 91502-3226. On May 17, 2017, I served the foregoing document(s) entitled: PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS; DECLARATION OF DAVID F. MASTAN IN SUPPORT by placing a true copy thereof enclosed in a sealed envelope addressed per the attached Service List. [] [] [] [] [] BY U.S. MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at Burbank, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [C.C.P. 1013a(3); F.R.C.P. 5(b)] BY FEDERAL EXPRESS: I caused such envelope(s), with overnight Federal Express Delivery Charges to be paid by this firm, to be deposited with the Federal Express Corporation at a regularly maintained facility on the aforementioned date. [C.C.P. 1013(c) 1013(d)] BY PERSONAL SERVICE: I caused the above-stated document(s) to be served by personally delivering a true copy thereof to the individuals identified above. [C.C.P. 1011(a); F.R.C.P. 5(b)] BY EXPRESS MAIL: I caused such envelope(s), with postage thereon fully prepaid and addressed to the party(s) shown above, to be deposited in a facility operated by the U.S. Postal Service and regularly maintained for the receipt of Express Mail on the aforementioned date. [C.C.P. 1013(c)] BY TELECOPIER: Service was effected on all parties at approximately ___:___ am/pm by transmitting said document(s) from this firm's facsimile machine (818/559-4477) to the facsimile machine number(s) shown above. Transmission to said numbers was successful as evidenced by a Transmission Report produced by the machine indicating the documents had © 0 J O N Wn BA W N NN N N N N N N N N mm e m e m p m p m md p m e m pe c o NN O N Dn Br W N = O 0 0 O N R E W I N D = O been transmitted completely and without error. C.R.C. 2008(e), Cal. Civ. Proc. Code § 1013(e). [ X] BY ELECTRONIC SERVICE: By emailing true and correct copies to the persons at the electronic notification address(es) shown on the accompanying service list. The document(s) was/were served electronically and the transmission was reported as complete and without error. [ X'] State: I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on May 17, 2017 in Burbank, California. /s/ Steve Kim STEVE KIM skim@sacfirm.com SERVICE LIST Rey S. Yang, Esq. Sally Hosn, Esq. Yang Professional Law Corporation 80 S. Lake Ave, Suite 820 Pasadena, CA 91101 (626) 921-4301 ryang @yangpc.com shosn@yangpc.com cc: Gabriela Garcia ggarcia@yangpc.com
