Elijah Pomaika Simone vs. Bruce Graham Jameson

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.January 27, 2016

LawOffices of 10 13 12 13 14 15 16 17 18 1:9 20 21 22 23 24 25 26 27 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92653 (949) 454-2500 Law Offices of Cullins & Grandy LLp Moulton Park Place 23141 Verdugo Drive, Suite 204 Laguna Hills, CA 92653-1341 (949)454-2500 Attorney Bar Number: 105527 Attorneys for Defendant, LELA JAMESON, as Personal Representative of ESTATE OF BRUCE G. JAMESON SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE-CENTRAL JUSTICE CENTER ELIJAH POMAIKA SIMONE, an individual, Plaintiff, VS. LELA JAMESON, as Personal Representative of the Estate of Bruce G. Jameson, an individual, and DOES 2 to 50, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) No: 30-2016-00832256 Assigned For All Purposes To: HON. JAMES CRANDALL Dept. C33 NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES Date: December 13, 2018 Time: 1:30 p.m. Dept.: C33 Reservation # 72896793 TO THE COURT, PLAINTIFF AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on December 13, 2018 at 1:30 p.m. in Department C33 of the above-entitled Court, Defendant LELA JAMESON, as Personal Representative of the ESTATE OF BRUCE G. JAMESON (“Defendant”) will move the Court for an order taxing the costs claimed by Plaintiff ELIJAH SIMONE (“Plaintiff”). This motion will be made pursuant to California Code of Civil Procedure §1033.5 and rule 3.1700(b) of the California Rules of Court, on the grounds that the following items of costs claimed in Plaintiffs Memorandum of Costs were unnecessary, excessive or unrecoverable: 1 NOTICE OF MOTION AND MOTION TO TAX COSTS LawOffices of 10 Ld. 1:2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92653 (949) 454-2500 MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Although the prevailing party is entitled to recover costs of suit, such costs must be necessarily incurred and allowed by statute. Code Civ. Proc. §1033.5(c). Plaintiffs in this matter seek more than $2 million in costs, a vast majority of those costs stemming from expert witness fees, exhibit fees, filing fees and interest. The costs claimed by Plaintiff have not been shown to be reasonable or necessary to the litigation. Plaintiff has not itemized the claimed exhibit, filing and witness costs to allow the reasonableness to be determined. Additionally, several items, including expert fees for Jon Landerville and Paul Kayfetz are patently unreasonable, especially given that the vast majority of Mr. Kayfetz’ work in this matter was excluded. Accordingly, Defendant respectfully requests that the Court strike or tax Plaintiff's claimed costs for expert fees, filing fees, and exhibit fees. THE COURT HAS AUTHORITY TO STRIKE OR TAX COSTS The right to costs is determined entirely by statute. Code Civ. Proc. §1032. Only the prevailing party as determined by statute is entitled, as a matter of right, to recover costs of suit. Code Civ. Proc. §1032(b). Those costs allowed and disallowed are listed in Code of Civil Procedure section 1033.5. Because the right to costs is governed by statute, the Court has no discretion to award items of costs prohibited by Section 1033.5 (b) or other items of costs disallowed by statute. Ladas v. California State Automobile Assoc. (1993) 19 Cal.App.4th 761, 773-74. Additionally, if a defendant rejects plaintiff's Code of Civil Procedure §998 Offer to Compromise and fails to obtain a more favorable judgment, plaintiff is entitled to recover statutory costs as the prevailing party. Code Civ. Proc. §1032. The court may order Defendant to pay reasonable fees for plaintiff's experts in preparation for and/or during trial. Code Civ. Proc. §998(d). “All costs awarded must be ‘reasonable in amount’ and ‘reasonably necessary to conduct of the litigation rather than merely convenient or beneficial to its preparation.” 3 NOTICE OF MOTION AND MOTION TO TAX COSTS LawOffices of 10 11 12 13 14 1.5 16 17 18 1.9 20 21 22 23 24 25 26 27 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92 (949) 454-2500 653 El Dorado Meat Co. v. Yosemite Meat & Locker Serv., Inc. (2007) 150 Cal.App.4th 612, 616. PLAINTIFF BEARS THE BURDEN OF ESTABLISHING THAT ITS COSTS WERE NECESSARY AND REASONABLE In ruling on a motion to tax costs, the burden of proof is always on the party seeking the award to submit evidence that clearly supports the claim. “The trial court's first determination is whether the statute expressly allows the particular item and whetherit appears proper on its face . ..” Foothill-DeAnza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29. Once items are properly objected to, they are put at issue and the burden of proof is on the party claiming them as costs. Melnyk v. Robeldo (1977) 64 Cal.app.3d 618, 624; Ladas, supra 19 Cal.App.4th at 774; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265. Where a claim is made for costs which on its face does not appearto be proper or is for costs for which the necessity is doubtful and the item is properly challenged upon a motion to tax costs, the burden is on the claimant to establish the necessity for the cost. Stenzor v. Leon (1955) 130 Cal.App.2d 729, 735. Similarly, where the claimed costs are not expressly allowed by statute, the burden is on the claimant to establish the necessity of the costs claimed. Perko’s Enterprises, Inc. v. RRNS Enterprise (1992) 4 Cal.app.3d 294, 308. When claimed costs are properly challenged, the claiming party must submit supporting documentation to sustain its burden. Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1263; Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308. PLAINTIFF'S CLAIMED COSTS ARE PATENTLY UNREASONABLE AND EXCESSIVE Here, the filing fees, witness fees, and exhibit fees are not proper on their face inasmuch as the costs are excessive and unreasonable. Plaintiff claims $2,155.82 for filing fees, but provides virtually no information about the fees claimed and why they are reasonable and necessary. Plaintiff also claims more than $36,000 in exhibit fees, 4 NOTICE OF MOTION AND MOTION TO TAX COSTS LawOffices of 9 10 11 12 13 14 15 16 17 18 19 20 2. 22 23 24 25 26 27 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92653 (949) 454-2500 including more than $28,000 to a single vendor with no explanation. Finally, Plaintiff claims a staggering $410,578.70 in witness fees, including $115,982.30 for expert Paul Kayfetz, $134,189.60 for expert sé Landerville, $5,150.00 to David Lechuga, $8,189.71 to Hugh Rae, and $15,000 to Joseph Burton. However, more than $100,000 in fees for a single accident reconstruction expert (Mr. Landerville) who provided no video simulation and deferred visibility and human factors opinions to other experts is patently unreasonable. Additionally, a vast majority of Mr. Kayfetz' work in this matter, consisting of video visibility studies, was excluded by the Court on the grounds that it lacked foundation and did not comport with the evidence. David Lechuga was never designated as an expert in this matter, was never deposed and did not testify. An internet search of Dr. Lechuga indicates he is a neuropsychologist. However,in this case, Plaintiff waived his brain injury claim months before Plaintiffs CCP §998 Offer to Compromise was served. Finally, there is no indication whatsoever as to who Joseph Burton and Hugh Rae are, how they are involved in this case, or why they incurred any fees related to this case. Accordingly, Defendant objects to Plaintiffs claimed costs which are unreasonable and/or excessive on their face. The burden rests on Plaintiff to justify his expenditures, but Plaintiff has not provided copies of any bills or invoices, hourly rates, what the claimed charges are for, or what work was done to justify the claimed costs. As such, the memorandum of costs is deficient and the costs should be stricken. PLAINTIFF MUST PROVIDE SUFFICIENT INFORMATION TO JUSTIFY ITS COSTS The burden is squarely on Plaintiff to justify the need for the substantial spending Plaintiff has presented to the Court. Because Plaintiff has failed to do so, Defendant requests that the following costs be stricken or taxed as they are unreasonable unnecessary, or lack supporting documents. 5 NOTICE OF MOTION AND MOTION TO TAX COSTS LawOffices of 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92653 (949) 454-2500 1. FILING AND MOTION FEES Defendant challenges and objects to Plaintiff's requested recovery of $2,155.82 in filing fees. Plaintiff failed to indicate when eachfiling fee was paid or to provide any supporting invoices or other documents justifying the expense. As a result, Defendant and the Court are unable to determine the reasonableness of the fees sought and the fees therefore cannot be recovered. 2. EXHIBIT FEES Defendant challenges and objects to Plaintiff's claim for $36,205.93 for models, enlargements, and photocopies of exhibits. Plaintiff again fails to itemize these costs or provide any supporting documentation to allow Defendant and the Court to determine what the costs paid for and whether they are reasonable or necessary. To the extent the costs are associated with services that merely made presentation of the exhibits at trial more convenient, those costs are not reasonably necessary and are not recoverable. Moreover, more than $36,000 in exhibit costs is patently excessive, especially with no supporting documentation. 3. WITNESS FEES Defendant challenges and objects to Plaintiff's claim for $410,578.70 in expert fees. The award of expert witness expenses where there is a failure to accept a pretrial 998 Offer is discretionary, not automatic. Santantonio v. Westinghouse Broadcasting Co., Inc. (1994) 25 Cal.4th 102, 121-24; Rouland v. Pacific Specialty Ins. Co. (2013) 220 Cal.4th 280, 289. The expert fee recovery under Code of Civil Procedure §998 is limited to the reasonable fees and the claiming party has the burden to prove reasonableness. Michelson v. Camp (1999) 72 Cal.4th 955, 974. Here, Plaintiff has made no showing whatsoever that the fees charged by his experts are reasonable. To the contrary, the fees of Mr. Landerville, Mr. Kayfetz, Dr. Lechuga, Mr. Burton, and Mr. Rae are patently unreasonable, as described above. Therefore, Defendant respectfully requests that the Court exercise its discretion and tax or strike the expert fees claimed by Plaintiff. 6 NOTICE OF MOTION AND MOTION TOTAX COSTS 1 CONCLUSION 2 Plaintiff seeks an award of costs, many of which are patently excessive, 3 statutorily impermissible, unsupported, and/or unreasonable and unnecessary. The 4 Court should therefore tax Plaintiff's costs and award only statutorily permissible costs 5 which are both reasonable and necessary. DATED: September WM 2018 LAW OFFICES OF CULLINS & GRANDY LLP ° | By: . 4S 9 DOUGLAS D. CULLINS HEATHER G. COTE 10 Attorneys for Defendant, BRUCE GRAHAM JAMESON i § 12 3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LawOffices of 7CULLINS & GRANDY _ 23h roe #204 NOTICE OF MOTION AND MOTION TO TAX COSTS Laguna Hills, 92653 (949) 454-2500 Law Offices of 1:0 del 12 13 14 18 16 17 18 19 20 21 22 23 24 25 26 27 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92653 (949) 454-2500 PROOF OF SERVICE 1013a(3) C.C.P. STATE OF CALIFORNIA ) ) Ss. COUNTY OF ORANGE ) | am employed in the County of Orange, State of California. | am over the age of 18 and not a party to the within action; my business address is: 23141 Verdugo Drive, Suite 204, Laguna Hills, California 92653. I, Ryan Cullins, on the date below, served the foregoing document described NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES on all interested parties in this action addressed as follows: PLEASE SEE SERVICE LIST XI BY MAIL: As follows: | 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 that same day with postage thereon fully prepaid at Laguna Hills, California in the ordinary course of business. | 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. [_] BY EMAIL: By attaching a .pdf copy of the above-referenced document(s) to an email to plaintiff's counsel Brad Simon, Esq. at Brad@)justiceteam.com and sending the email on the date below. [_] BY PERSONAL SERVICE: | delivered such envelope by hand to the offices of the addressee. [_] BY OVERNIGHT COURIER SERVICE: | caused such envelope(s) to be personally delivered via [Federal Express], to the addressee(s) designated on the attached service list. DX] STATE: | declare under penalty of perjury under the laws of the State of California that the above is true and correct. [| FEDERAL: | declare that | am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on September 24 , 2018, at Laguna Hills, California. RYAN CULLINS ~ ga- - - 10 11. 12 1.3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Law Offices of CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92653 (949) 454-2500 SIMONEV. JAMESON Orange County Superior Court - Central Case No.: 30-2016-00832256 Brad Simon, Esq. THE SIMON LAW GROUP, LLP 34 Hermosa Ave. Hermosa Beach, CA 90254 (310) 914-5400 (310) 914-5401 FAX Attorneys for Plaintiff, ELIJAH POMAIKA SIMONE