Moorefield Construction, Inc. vs. Jt Interiors, Inc.

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.December 22, 2015

5 n A A on QO e o 0 N N A A n n A W N = N O N N N N N N N N e m e m e m e m e m e m e m e m e m j e W@ W N N N W n RA R W N = S Y 0 N N N R W N = Jonathan A. Ross, Esq., State Bar No. 146973 jross@bglawyers.com Darren G. Mayers, Esq., State Bar No. 207252 dmayers@bglawyers.com Darren P. Salute, Esq., State Bar No. 175285 dsalute@bglawyers.com BRADLEY & GMELICH LLP 700 North Brand Boulevard, 10" Floor Glendale, California 91203-1202 Telephone: (818) 243-5200 Facsimile: (818) 243-5266 Attorneys for Defendant, JT INTERIORS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER MOOREFIELD CONSTRUCTION, INC., Case No. 30-2015-00826621-CU-BC-CJC NOTICE OF MOTION AND MOTION OF Plaintiff, DEFENDANT, JT INTERIORS, INC. TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; vs. DECLARATION OF DARREN G. MAYERS, ESQ. Date: June 23, 2017 JT INTERIOR, INC., a corporation; DOES Time: 9:00 a.m. 1 through 100, inclusive, Dept.: C-62 (Assigned to the Hon. Michael Brenner , Defendant. Department C-62) Complaint Filed: 12/22/2015 Discovery Cutoff: 02/10/2017 Motion Cutoff: 02/24/2017 Trial Date: 04/03/2017 TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THATon June 23, 2017, at 9:00 a.m., or as soon thereafter as counsel may be heard, in Department C-62 of the above-captioned Court, located at 700 W. Civic Center Dr., Santa Ana, California 92701, Defendant, JT INTERIORS, INC., (“JT Interiors™) will and hereby does move this Court, pursuant to Code ofCivil Procedure §1033.5 and Rule 3.1700 1 NOTICE OF MOTION AND MOTION OF DEFENDANT, JT INTERIORS, INC. TO TAX COSTS (G ME LI CH 1 1 Bags B r A D L E Y a W N N o 0 a S N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the California Rules ofCourt for an order taxing Plaintiff, MOOREFIELD CONSTRUCTION, INC.’S (“Plaintiff”), Memorandum of Costs served on or about May 10, 2017. JT Interiors moves this Court for an order taxing the following costs claimed in Plaintiffs Memorandum of Costs: Item 4 (a, d, Attachment): Deposition Costs for Deponents: 1. Charles Pringle; 2. Vitaly Voytyuk. Contested amount of $1,430.85. Plaintiff’s cost memorandum states that Plaintiff took the two (2) identified depositions. However, JT Interiors was the party that actually took the deponents’ depositions and incurred said deposition costs. (See, Mayers decl. § 7.) Moreover, the amount requested is not supported by any receipts, invoices, cancelled checks or credit card receipts evidencing the reasonableness and necessity of said cost. Expert Witness Fees for the following deponent: 1. John Callanan. Contested amount of $780.00, on the ground that expert witness fees are not deemed a recoverable cost. (Code ofCivil Procedure §1033.5(b)(1).) Plaintiff has produced no admissible evidence that the expert witnesses testimony was ordered by the Court. (See, Mayers decl. 9 8-9.) Moreover, the amount requested is not supported by any receipts, invoices, cancelled checks or credit card receipts evidencing the reasonableness and necessity of said cost. Item 13: Other - Videographer for Trial - Technical Reliance, Inc. Contested amount of $2,865.00, on the ground that the amount requested is not supported by any receipts or invoices justifying the sum or establishing that the cost was reasonable and necessary. (Code ofCivil Procedure §1033.5(c)(2-3).) Defendant retained a trial technician for trial. The trial tech rate was $175.00 per hour. Equipment consisting of two laptops, a printer, scanner and copier were included in the tech hourly rate. Plaintiffs trial tech was present for approximately % day of trial and played portions of the Chuck Pringle deposition and the Vitaly Voytuck deposition. Each ofthe depositions were edited to about 20 minutes for trial. 2 NOTICE OF MOTION AND MOTION OF DEFENDANT, JT INTERIORS, INC. TO TAX COSTS 2 % S o . B R A D L E Y € % 2 (G ME LI CH 1. »3 ut th o e X 9 3 S N n n A W N N N N N N N N N Y e m e m e m e m e m m k e m e d m k e d 3 8 B o H B R 8 N R EB E Z S 2 2 3 2 o k = D = After Plaintiff's trial tech left, the trial tech your declarant retained helped Plaintiff show portions of video of Voytuck and also printed documents for counsel for Plaintiff at no charge. As such, the claimed charge fortrial tech support is excessive. (See, Mayers Decl. 9 10.) This Motion is based on this Notice of Motion, the attached Memorandum of Points and Authorities, the Declaration of Darren G. Mayers, Esq., filed concurrently herewith, all ofthe pleadings, files, and records in this proceeding, all other matters of which the Court may take judicial notice, and any argument or evidence that may be presented to or considered by the Court priorto its ruling. Respectfully submitted, Dated: May 25, 2017 BRADLEY & GMELICH LLP BywameedMapes Jonathan A. Ross, Esq. Darren G. Mayers, Esq. Darren P. Salute, Esq. Attorneys for Defendant, JT INTERIORS, INC. 3 NOTICE OF MOTION AND MOTION OF DEFENDANT, JT INTERIORS, INC. TO TAX COSTS L L P o n t e t . 8, ( G M E L I C H Eo . ; 02 a e o Q W 9 S N n N A R W N N O N O N ON N O R N O N N O N me em em jm em pm em ed em fe W @ J N S N N n R A W N E S C N N S N R W N = DECLARATION OF DARREN G. MAYERS, ESQ. I, Darren G. Mayers, hereby declare: 1. I am an attorney licensed to practice before all courts of the State of California, and am an attorney with Bradley & Gmelich LLP, attorneys of record for Defendant, JT INTERIORS, INC. (“JT Interiors”). Iam one ofthe attorneys with responsibility for this file, and as such, the following facts are within my own personal knowledge. If called as a witness, I could and would competently testify to the facts set forth below. I make this declaration in support of JT Interiors’ Motion To Tax Costs in the present lawsuit. 2. This litigation arises out of an alleged oral contract between JT Interiors and Plaintiff, Moorefield Construction, Inc. (“Plaintiff”) Pursuant to the Complaint, JT Interiors orally “agreed to perform demolition, insulation and construction of unistrut to support new speakers at the Cinemark Century Theater project located in the Westfield Mall in San Francisco, California,” and that said work was to be performed on a time-and-materials basis. This oral contract was supposedly breached on September 25, 2014, when “one of Defendant’s employees while performing work on the project hit a fire sprinkler head which broke and released water into portions of the Century Theaters and in other locations inside the mall, thereby resulting in tangible property damage.” Based thereon, Plaintiff filed a Complaint alleging two (2) causes of action for Breach of Contract and Negligence. 3. The matter was tried before a jury on April 3, 2017 through April 7, 2017, and Plaintiff prevailed on its Negligence cause of action alone. Plaintiff has now submitted a cost bill which includes, among other things, fees that are improper and unsubstantiated expenses. For the reasons set forth below, JT Interiors requests that all improper items in the cost bill be taxed. 4, On January 4, 2013, Defendants were served with a copy of Plaintiff’s Memorandum of Costs,a true and correct copy of whichis attached hereto as Exhibit “A” and incorporated herein by this reference. 5. The Memorandum of Costs contains items that are not properly chargeable as costs in the following respects: 111 8 NOTICE OF MOTION AND MOTION OF DEFENDANT, JT INTERIORS, INC. TO TAX COSTS £3 XI <-5) => © N o o e O N S N n t A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. Item 4 (a, d, Attachment): Deposition Costs for Deponents: Charles Pringle and Vitaly Voytyuk. Contested amount of $1,430.85. 7. Plaintiff’s cost memorandum states that Plaintiff took the two (2) identified depositions. However, JT Interiors was the party that actually took the deponents” depositions and incurred said deposition costs. Moreover, the amount requested is not supported by any receipts, invoices, cancelled checks or credit card receipts evidencing the reasonableness and necessity of said cost. 8. Expert Witness Deposition Costs for the following deponent: John Callanan. Contested amount of $780.00, on the ground that expert witness fees are not deemed a recoverable cost. (Code ofCivil Procedure §1033.5(b)(1).) 9. Plaintiff has produced no admissible evidence that the expert witness’ testimony was ordered by the Court, as it was not Court ordered. Moreover, the amount requested is not supported by any receipts, invoices, cancelled checks or credit card receipts evidencing the reasonableness and necessity of said cost. 10. Item 13: Other - Videographer for Trial - Technical Reliance, Inc. Contested amount of $2,865.00, on the ground that the amount requested is not supported by any receipts or invoices justifying the sum or establishing that the cost was reasonable and necessary. (Code of Civil Procedure §1033.5(c)(2-3).) A. Defendant retained a trial technician for trial. The trial tech rate was $175.00 per hour. Equipment consisting of two laptops, a printer, scanner and copier were included in the tech hourly rate. B. Plaintiff’s trial tech was present for approximately ¥2 day oftrial and played portions of the Chuck Pringle deposition and the Vitaly Voytuck deposition. Each of the depositions were edited to about 20 minutes for trial. C. After Plaintiff's trial tech left, the trial tech your declarant retained helped Plaintiff show portions of video of Voytuck and also printed documents for counsel for Plaintiff at no charge. As such, the claimed charge for trial tech support is excessive. 9 NOTICE OF MOTION AND MOTION OF DEFENDANT, JT INTERIORS, INC. TO TAX COSTS 5 a 5 - 8) = Qo B R A D L E Y e o 0 a 9 A N n n A R W N N O N O N N N N N N O N r e e m m d e d p d p k p d p d pe d pe d E F R B 6 B R 8 8 R R 8 3 % 2 3 a 8 a 2 o o 0 2 = 11. Based on the foregoing, Defendant, JT INTERIORS, INC., requests that the Court tax the costs of Plaintiff, Moorefield Construction, Inc., in the amount of $3,643.35. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed May 25, 2017, at Glendale, California. edspeelMpenes DARREN G. MAYERS, ESQ. 10 NOTICE OF MOTION AND MOTION OF DEFENDANT, JT INTERIORS, INC. TO TAX COSTS MC-010 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, state bar number, and address): FOR COURT USE ONLY +- RICHARD A. SOLL SBN 67610 MAHONEY & SOLL LLP 150 West First Street, Suite 280 Claremont, California 91711 TeLepHoneno.: (909) 399-9987 Faxno: (909) 399-0130 ATTORNEY FOR (Name: Plaintiff INSERT NAME OF COURT, JUDICIAL DISTRICT, AND BRANCH COURT,IF ANY: Orange County Superior Court Central PLAINTIFF: MOOREFIELD CONSTRUCTION, INC. DEFENDANT: JT INTERIORS, INC., a corporation CASE NUMBER: MEMORANDUM OF COSTS (SUMMARY) 30-2015-00826621-CU-BC-CIC The following costs are requested: TOTALS 1. Filing and motion fees 1. $ 567.23 2. Jury fees 2. 3 560.85 3. Jury food and lodging 3. 3 4. Deposition costs 4. $ 8,415.79 5. Service of process . ees eee sereneree 5 $ 402.80 6. Attachment expenses. tesssssmses 6. $ 7. Surety bond PrEIMIUMS session 7.0% 8. WINESS FEES sesso 8. $ 9. Court-ordered transcripts ........ . 9 9 10. Attorney fees (enter here if contractual or statutory fees are fixed without necessity of a court determination; otherwise a noticed motion iS reqUIred) ........eeessoomssessssssosesessisesns 10. $ 11. Models, blowups, and photocopies Of EXNIDIS esses 11. $ 105.83 12. Court reporter fees as established by statute - 12. $ 1,200.00 13. Other. . 13. § 2,865.00 TOTAL COSTS 3 14,117.50 | am the attorney, agent, or party who claims these costs. To the best of my knowledge and belief this memorandum of costs is correct and these costs were necessarily incurred in this case. Date: May /0 , 2017 MAHONEY & SOLL ALP _RICHARD.A... SOLL b [- '/ TYPE OR PRINT NAME) 7 (SIGNATURE) (Proof of service on reverse) Form Approved for Optional Use MEMORANDUM OF COSTS (SUMMARY) Code of Civil Procedure, Judicial Council of California ' §§ 1032, 1033,5 MC-010 [Rav. July 1, 1999) MOOREFIELD wa) ESSENTIAL FORMS™ I MC-011 [SHORT TITLE: CASE NUMBER: v |MOOREFIELD CONSTRUCTION v. JT INTERIORS 30-2015-00826621-CU-BC-CJC MEMORANDUM OF COSTS (WORKSHEET) 1. Filing and motion fees Paperfiled Filing fee a. Complaint $ 459.23 b. Proof of Service $ 9.00 c. Management $ 9.00 d. Case Management Statement $ 9.00 e. Declaration in Response to Ex Parte Motion $ 9.00 f. Notice of Intent $ 9.00 g. XZ} Information about additionalfiling and motion fees is contained in Attachment 1g. $63.00 2. Jury fees TOTAL 1. |$ 567.23 Date Fee & mileage a. 4/8/16 = Deposit $ 164.25 b. 4/4-4/7/17 $ 396.60 Cc. $ d. $ e. [3 Information about additionaljury fees is contained in Attachment 2e. TOTAL 2. |$ 560.85 3. (QJurorfood:$~~andlodging:$ TOTAL 3. |$ 4. [X] Deposition costs el Taking Face Travel bin Subtotals a. Pringle $__ 772.35 $ $245.96 % 410.00 $1,428.31 b. Gabriel Gomez $ 453.68 $ 278.50 §% $ $ 732.18 c. Juan Torres $ 747.39 % 278.50 % $ $1,025.89 d VitaliyVo tyuk $___ 658.50 $ $ 382.64 $ 356.80 $1,397.94 e. (X] Information about additional deposition costs is contained in Attachment 4e. $3,831.47 TOTAL 4. |$ 8,415.79 (Continued on reverse) Page 2_ of 5 meCa aripes MEMORANDUM OF COSTS (WORKSHEET) Code ofciprocedure Ad wa) ESSENTIAL FORMS™ MOOREFIELD 12 EXHIBIT A SHORT TITLE: CASE NUMBER: © MOOREFIELD CONSTRUCTION v., JT INTERIORS 30-2015-00826621~CU~-BC-CJC 5. Service of process Name of person Public Registered Other served officer process Publication (specify) a. JTInteriors $ $ $ $ 45.00 b. RET$ $ $ $ 155.60 Ryan Peacoc ¢c. Marini $ $ $ $ 202.20 Construction d. ( Information about additional costs for service of process is contained in Attachment 5d. TOTAL 5. |$ 402.80 6. Attachment expenses (specify): 6. 1% 0.00 7. Surety bond premiums (itemize bonds and amounts). ......cee. 7. I$ 0.00 8. a. Ordinary witness fees Name of witness Daily fee Mileage Total (1) days at $/day miles at c/mile ... $ 2) days at $/day miles at c/mile .... $ 3) days at $/day miles at c/mile .. $ (4) days at $/day miles at c/mile .... $ (5) days at $/day miles at c/mile $ (6) L1 Information about additional ordinary witnessfees is contained in Attachment 8b(6). SUBTOTAL 8a. |$ 0.00 (Continued on next page) Page3 of ______ MC-011 [Rev. July 1, 1999] 8 Murtin Dean's ESSENTIAL FORMS™ 13 MEMORANDUM OF COSTS (WORKSHEET) MOOREFIELD EXHIBIT A SHORT TITLE: CASE NUMBER: ‘ |MOOREFIELD CONSTRUCTION, INC. v. JT INTERIORS, INC. 30-2015-00826621-CU-BC-CJC MEMORANDUM OF COSTS (WORKSHEET) (Continued) 8. b. Expert fees (per Code of Civil Procedure section 998) Name of witness Fee (1 hours at $ /hr $ (2) hours at $ Ihr $ (3) hours at $ fro... $ 4) hours at $ Ihr $ (5) (J Information about additional expert witness fees is contained in Attachment 8b(5). c. Court-ordered expert fees SUBTOTAL 8b. |$ 0.00 Name of witness Fee (1) hours at $ Ihr $ (2) hours at $ /hr $ (3) J Information about additional court-ordered expert witness fees is contained in Attachment 8¢(3). SUBTOTAL 8c. [$ 0.00 TOTAL (8a, 8b, & 8¢) 8. |$ 0.00 9. Court-ordered transcripts (specify): eter rr 9. |$ 0.00 10. Attorney fees (enter here if contractual or statutory fees are fixed without necessity of a court determination; otherwise a noticed motion is required): 10. |$ 0.00 11. Models, blowups, and photocopies of exhibits (specify): 11. [$ 105.83 Photocopies for trial exhibits and Binders (4) 12. Court reporter fees (as established by statute) a. (Name of reporter). Phillips, Fees:$___1,200.00 b. (Name of reporter). Fees: $ c. [J Information about additional court reporter fees is contained in Attachment 12c. TOTAL 12. |$ 1,200.00 13. Other (specify). Videographer..for.trial..=.Technical. Reliance,..Inc 13. |$ 2,865.00 TOTAL COSTS ... $ 14,117.50 (Additional information may be supplied on the reverse) Page __4 of ___H MC-011 [Rev. July 1, 1999] MEMORANDUM OF COSTS (WORKSHEET) cy Martin Dean's ESSENTIAL FORMS” 14 MOOREFIELD EXHIBIT A SHORT TITLE: MOOREFIELD CONSTRUCTION v. JT INTERIORS CASE NUMBER; 30-2015-00826621~-CU-BC-CJC MEMORANDUM OF COSTS (WORKSHEET) (Continued) 1 Attachment lg Subtotal 2 Opposition to Motion to Bifurcate Trial $27.00 3 Motion in Limine (3) $9.00 4 Opposition to Motions in Limine $9.00 5 Trial Brief $9.00 6 Jury Instructions $9.00 7 8 Subtotal 1g $63.00 9 10 11|| Attachment 4e Taking Travel Subtotal 12|| Michael Bosco $934.55 $934.55 13|| Charles Pringle, Vol. II $237.25 $439.84 $677.09 14|| John Callanan $1,428.83 $11.00 $1,439.83 15|| John Callanan $780.00 $780.00 16|| (Expert Witness Fee) 17 Subtotal 4e $3,831.47 18 19 20 21 22 23 24 25 26 27 Page 5 of 5 MC-011 (Rev. July 1, 1999] MEMORANDUM OF COSTS (WORKSHEET) MOOREFIELD¢ )| MartinDeans ESSENTIAL FaRMs™ 15 EXHIBIT A SHORT TITLE: CASE NUMBER: MOOREFIELD CONSTRUCTION v. JT INTERIORS 30-2015~00826621~-CU-BC-CJC PROOF OF [XJ MAILING [] PERSONAL DELIVERY 1. At the time of mailing or personal delivery, | was at least 18 years of age and not a party to this legal action. 2. My residence or business address is (specify): 150 West First Street, Suite 280 Claremont, CA 91711 3. I mailed or personally delivered a copy of the Memorandum of Costs (Summary) as follows (complete either a or b). a. [1 Mail. | am a resident of or employed in the county where the mailing occurred. (1) enclosed a copy in an envelope AND (a) [0 deposited the sealed envelope with the United States Postal Service with the postage fully prepaid. (b) XA placed the envelope for collection and mailing on the date and at the place shown in items below following our ordinary business practices. | am readily familiar with this business’ practice for collecting and processing correspondence for mailing. On the same day that correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postagefully prepaid. (2) The envelope was addressed and mailed as follows: (a) Name of person served: Darren G. Mayers, Esd. (b) Address on envelope:BRADLEY & GMELICH 700 North Brand Blvd., 10th Floor Glendale, CA 91203-1422 (c) Date of mailing: May /¢, 2017 (d) Place of mailing (city and state). Claremont, CA b. [1 Personal delivery. | personally delivered a copyas follows: (1) Name of person served: (2) Address where delivered: (3) Date delivered: (4) Time delivered: | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. pate: May /0, 2017 MARY.K..TREAT AllingAe7 (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT) MC-010 (Rev. July 1, 1899), MEMORANDUM OF COSTS (SUMMARY) Page two ta MarthReals so ee ESSENTIAL FORMS™ MOOREFIELD 16 EXHIBIT A Pi pos yok xX O ped] Ll 5 N o a S N n n E A W N N O N N N N N N N e m e m e m e m e m e m e m e m e d ® 9 S N N E W N E S Y e N N S N N E W N = e PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES Atthe time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 700 North Brand Boulevard, 10th Floor, Glendale, California 91203. On May 25, 2017, I served true copies of the following document(s) described as NOTICE OF MOTION AND MOTION OF DEFENDANT, JT INTERIORS, INC. TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DARREN G. MAYERS, ESQ. on the interested parties in this action as follows: Richard A. Soll, Esq. Mahoney & Soll LLP 150 West First Street, Suite 280 P.O. Box 940 Claremont, California 91711 Telephone: (909) 399-9987 Facsimile: (909) 399-0130 Attorneyfor Plaintiff, MOOREFIELD CONSTRUCTION. INC. BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed above and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with Bradley & Gmelich LLP's practice for collecting and processing correspondence for mailing, On the same day that the correspondence is placed for collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service,in a sealed envelope with postage fully prepaid. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May 25, 2017, at Glendale,California. Patricia J. Morse 17 NOTICE OF MOTION AND MOTION OF DEFENDANT, JT INTERIORS, INC. TO TAX COSTS