Cheyenne Chen vs. The Irvine Company, LLC

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.January 28, 2016

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GIRARDI | KEESE THOMAS V. GIRARDI, State Bar No. 36603 tgirardi@girardikeese.com 1126 Wilshire Boulevard Los Angeles, California 90017 Telephone: (213) 977-0211 Facsimile: (213) 481-1554 Attorneys for Plaintiff, Cheyenne Chen SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER CHEYENNE CHEN, Case No. 30-2016-00832531-CU-BC-CJC Plaintiff, Assigned for All Purposes to: Hon. Geoffrey T. Glass, Dept. C31 Vv. THE IRVINE COMPANY, LLC, a Delaware PLAINTIFF'S NOTICE OF MOTION limited liability company; JUSTIN VELEZ, an AND MOTION TO STRIKE OR TAX individual; and DOES 1 through 250, COSTS SUBMITTED BY DEFENDANT inclusive, Date: July 27,2018 Defendants. Time: 1:30 p.m. Dept.: C31 Action Filed: January 28, 2016 Trial Date: April 9.2018 TO ALL INTERESTED PARTIES AND TO THEIR ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that on July 31, 2018 in Department C31 ofthe above-entitled Court, Plaintiff CHEYENNE CHEN ("Plaintiff") will move the Court for an order striking and/or taxing costs of this action claimed by Defendants THE IRVINE COMPANY, LLC and JUSTIN VELEZ ("Defendants") under Rule 3.1700(b) of the California Rules of Court. This motion will be presented on the grounds that as a matter of law Defendants are not entitled to certain costs as claimed in the Memorandum of Costs. This motion will be based on this notice, the accompanying memorandum of points and authorities, the records on file with the Court, as well as PLAINTIFF'S moving papersat the June 25, 1 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT (FIRST AMENDED MEMORANDUM OF COSTS) B H N O 0 ~ ~ O Y W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2018 hearing, and on such other evidence as may be presented at the hearing of the motion. DATED: July 23, 2018 GIRARDI | KEESE By: /s/ THOMAS V. GIRARDI THOMAS V. GIRARDI Attorneys for Plaintiff, Cheyenne Chen 2 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT (FIRST AMENDED MEMORANDUM OF COSTS) S N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION DEFENDANT'S "Amended Memorandum of Costs" (hereinafter, "Amended MC") is DEFENDANT'S second attempt - an untimely attempt - to obtain costs in the amount 0£$97.780. In their original Cost Memorandum, DEFENDANTS failed to provide adequate documentation to substantiate their purported costs; as such the Cost Memorandum was not complete. As a result, PLAINTIFF filed a Motion to Tax or Strike Costs, there arguments of which PLAINTIFF herein incorporates by reference. (See PLAINTIFF'S Motion to Tax or Strike Costs, regarding the original Cost Memorandum, attached hereto as Exhibit 1) . At the hearing for PLAINTIFF'S original motion to tax, which was heard on June 25, 2018, the Court's tentative ruling was to continue the hearing to allow DEFENDANTto file an Amended MC; however, the Court also heard PLAINTIFF'S argumentthat since DEFENDANT failed to file a complete and substantiated Cost Memorandum in the first instance, DEFENDANT had waived costs because it was now beyond the statutory deadline provided in the California Rules of Court rule 3.1700. The Court continued the hearing to July 27, 2018 and, while it allowed DEFENDANTto file an Amended MC, the Court specifically stated that the timeliness ofthe Amended MC would still be at issue at the continued hearing. For these reasons, as detailed infra, PLAINTIFF respectfully requests this Court strike and/or tax DEFENDANTS’ claimed costs. ) IL ARGUMENT California Rule ofCourt ("CRC") rule 3.1700(a)(1) states: "A prevailing party who claims costs must serve and file a memorandum ofcosts within 15 days after the date of service of the notice of entry ofjudgment or dismissal by the clerk under Code of Civil Procedure section 664.5..." Pursuant to the Clerk's Certificate of Service by Mail, the notice of entry ofjudgment was mailed on April 26, 2018. (See "Clerk's Certificate of Service by Mail", attached hereto as Exhibit 2). 3 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT (FIRST AMENDED MEMORANDUM OF COSTS) 2 L h w o e ~ ~ 10 11 12 13 14 15 16 17 18 19 20 21 22 This means that DEFENDANT had until May 11, 2018 to file its cost memorandum. DEFENDANT filed its original Cost Memorandum on May 7, 2018; however, said memorandum was incomplete as it did not include the necessary documentation to substantiate those costs. To that effect, PLAINTIFF subsequentlyfiled a timely Motion to Tax or Strike Costs in order to put the burden on DEFENDANT to produce such evidentiary support. PLAINTIFF'S motion to tax or strike costs was heard on June 25,2018. Up to that point, DEFENDANT had failed to file a full and complete Cost Memorandum with the substantiating documents. This was beyond the 15-day deadline (May 11, 2018) as provided by CRC 3.1700(a)(1). Nonetheless, the California Rules ofCourt allow the parties to agree to extend the time for serving and filing a cost memorandum. This was not done here. Still, the California Rules ofCourt empower the courts to extent the time for serving and filing a cost memorandum, but only for a period "not to exceed 30 days." Specifically, CRC 3.1700(b)(3) states: | The party claiming costs and the party contesting costs may agree to extend the time for serving and filing the cost memorandum and a motion to strike or tax costs. This agreement must be confirmed in writing, specify the extended date for service, and be filed with the clerk. In the absence of an agreement, the court may extend the times for serving and filing the cost memorandum or the notice ofmotion to strike or tax costs for a period not to exceed 30 days. Here, the parties did not agree to an extension. Neither did the Court provide for a 30-day extension. Even if a 30-day extension had been provided, the 30-day extension deadline would have been June 10, 2018. DEFENDANT did notfile its Amended MC until July 9, 2018; this was well beyond the time allowed by the applicable and controlling rules. In other words, given that DEFENDANT did not file an Amended MC until July 9, 2018: Description Date Did DEFENDANT meet deadline? Judgment mailed by clerk | April 26, 2018 15-day deadline to file May 11, 2018 No complete and substantiated cost memorandum 30-day extension to file a June 10, 2018 No complete and substantiated cost memorandum 4PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BYDEFENDANT (FIRST AMENDED MEMORANDUM OF COSTS) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. CONCLUSION Given that DEFENDANT did not file a timely, substantiated Cost Memorandum until well beyond the statutory deadline, PLAINTIFF respectfully requests this Court deem DEFENDANT'S claimed costs of $97,780 as being excessive, unreasonable, unnecessary and so DENY said costs. DATED: July 23,2018 GIRARDI | KEESE By: /s/ THOMAS V. GIRARDI THOMAS V. GIRARDI Attorneys for Plaintiff, Cheyenne Chen 5 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT (FIRST AMENDED MEMORANDUM OF COSTS) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF THOMAS V. GIRARDI I, THOMAS V. GIRARDIdeclare as follows: 1. I am an attorney at the law firm of Girardi | Keese and one ofthe attorneys of ‘record herein for Plaintiff, Cheyenne Chen in the above-captioned matter. Unless otherwise indicated, I have personal knowledge of the matters stated in this declaration, and if called as a witness, I could and would testify competently thereto. I make this declaration in support of Plaintiff's Notice OfMotion And Motion To Strike Or Tax Costs Submitted By Defendant (First Amended Memorandum of Costs). 2. Attached hereto as Exhibit 1 is a true and correct copy of PLAINTIFF'S Motion to Tax or Strike Costs, regarding the original Cost Memorandum, filed May 22, 2018. 3. Attached hereto as Exhibit 2 is a true and correct copy of the Clerk's Certificate of Service of Judgment by Mail, mailed out April 26, 2018. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on this 24th day of July, 2018 in Los Angeles, California. /s/ THOMAS V. GIRARDI THOMAS V. GIRARDI 6 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT (FIRST AMENDED MEMORANDUM OF COSTS) EXHIBIT 1 GIRARDI | KEESE THOMAS V. GIRARDI, State Bar No. 36603 tgirardi@girardikeese.com 1126 Wilshire Boulevard Los Angeles, California 90017 Telephone: (213) 977-0211 Facsimile: (213) 481-1554 Attorneys for Plaintiff, Cheyenne Chen ELECTROHICALLYFILED Superior Court of California, County of Orange 0522/2048 at 02:22:00 Phi Glens of the Superor Court By kdarene Orellana, Deputy Clerk SUPERIORCOURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER CHEYENNE CHEN, Plaintiff, v. THE IRVINE COMPANY, LLC, a Delaware limited liability company; JUSTIN VELEZ, an individual; and DOES 1 through 250, inclusive, Defendants. Case No. 30-2016-00832531-CU-BC-CJC Assigned for All Purposes to: Hon. Geoffrey T. Glass, Dept. C31 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT Date: June 25, 2018 Time: 1:30 p.m. Dept.: C31 Action Filed: January 28, 2016 Trial Date: April 9, 2018 TO ALL INTERESTED PARTIES AND TO THEIR ATTORNEYS OF RECORD: NOTICEIS HEREBYGIVEN that on June 25, 2018 in Department C31 ofthe above-entitled Court, Plaintiff CHEYENNE CHEN ("Plaintiff") will move the Court for an orderstriking and/or taxing costs of this action claimed by Defendants THE IRVINE COMPANY, LLC and JUSTIN VELEZ ("Defendants") under Rule 3.1700(b) ofthe California Rules of Court. This motion will be presented on the grounds that as a matter of law Defendants are not entitled to certain costs as claimed in the Memorandum of Costs. This motion will be based on this notice, the accompanying memorandum of points and authorities, the recordson file with the Court, and on such other evidence as may be presentedat the PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT N y o h o o 10 11 12 13 14 1s 16 17 18 19 20 21 22 23 24 25 26 27 28 hearing of the motion. DATED: May 22, 2018 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE ORTAX COSTS SUBMITTED BY GIRARDI | KEESE mw 2 SF THOMAS ¥. G Atto for Plaintiff, Cheyenne Chen 2 DEFENDANT N o N Y n y A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IL ~ INTRODUCTION DEFENDANTS filed a Cost Memorandum in the total amount of $97,780.05. PLAINTIFF seeksto tax all costs claimed by DEFENDANTS. Due to DEFENDANTSfailure to provide adequate documentation, PLAINTIFFS cannot determine which costs are proper and which costs are not. Asa result, PLAINTIFFS moveto strike all costs claimed by DEFENDANTS. The decision to award or deny costs upon presentation of a Cost Memorandum is a matter left to the sound discretion of the trial court, and is reviewed under the abuse of discretion standard. Garcia v. Hyster Co., (1994) 28 Cal.App. 4% 724, 732. Even as to costs allowable as a purported "matter of right," the trial court still retains authority to determine whether they were reasonably necessary to the conduct of the litigation, and whether the amounts are reasonable. Code of Civil Procedure § 1033.5(c)(2); Pamela v._Millsom (1994) 25 Cal.App. 4® 950, 961. In the case at bar, the Court is asked, despite DEFENDANTS' claim,to examine each cost item extensively, and to exercise its discretion in favor of PLAINTIFF'S arguments as more fully set forth, below. Ifthe itemsare properly objected to, they are put at issue, and the burden ofproofshifts to the party claiming them as costs. Rappenecker v. SeaLandServ. (1979) 93 Cal. App. 3d 256; QakGrove School District V. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698. When that party offers 10 substantiation ofthe claimed costs beyond the cost bill and argument, the trial court has discretion to disallow the costs. Levy v. Toyota Motor Sales, Inc. (1992) 4 CalApp4" 807. DEFENDANTShave failed to provide substantiation of the claimed costs beyond the cost bill and have failed to provide argument. DEFENDANTS must provide bills and/or receipts for the claimed costs. DEFENDANTS’ omissions may prevent this Court from making any rational decisions about whatmay or may not be recoverable under the reasonable and necessary standard articulated under § 1033.5 of the Code Civil Proc. Therefore, the request for costs must be denied. The Court is also asked to consider the anticipated argument that DEFENDANTS will raise; that PLAINTIFF has the burden to demonstrate the unreasonable nature of the costs asserted. However, when the costs are not substantiated with documentary support in any manner or are 3 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 otherwise illogical or incomprehensible, it is impossible for the PLAINTIFF to challenge the costs; DEFENDANTS' argument on this point falls short. For these reasons, PLAINTIFF respectfully requests this Court strike and/or tax DEFENDANTS' claimed costs. | IL. LEGAL STANDARD A. THE BURDEN OF PROOF RELATIVE TO THE PROPRIETY OF THE COST ASSERTION FALLS UPON THE DEFENDANT In Melnyk v. Robledo, (1974) 64 Cal.App.3d 618, 624, the court held: "... where the items are properly objected to, they are put in issue, and the burden of proof is upon the party claiming them as costs [citing Oak Grove School Dist. v. City Title Ins. Co., (1963) 217 Cal.App.2d 678, 698.1" (emphasis and italics added)." This principle is reiterated in Jones v. Dumrichob (1998) 63 Cal.App.4™ 1258, 1267, which stands for the proposition that when a motion to strike/tax costs is at issue before the court, the burden ofproof is uponthe party claiming the costs to establish and substantiate the costs which are objected to by providing supporting documentation and explanation. In Nelson v. Anderson, (1999) 72 Cal.App.4™ 111, 131, the court ofappeal confirmed that "if the costs items are properly objected to, they are put in issue and the burden ofproofis on the party claiming them as costs... {wle agree the mere filing of an motion to tax costs may be a ‘proper objection’ to an item, the necessity of which appears to be doubtful, or which does not appear to be proper on its face. (See Oak Grove School Dist. v. City Title Ins. Co., (1963) 217 Cal.App. 2d 678, 698,699. As more fully set forth below, the PLAINTIFF has properly objected to DEFENDANTS’ claimed cost items; hence the burden is now upon DEFENDANTSto prove each of their claimed costs are reasonable, necessary and proper. B. THE RULE OF LAW REGARDING AVAILABLE COSTS As a rule, the parties to civil litigation are required to finance their own participation in the litigation. Riley v. Pappadopoulos (1994) 23 Cal.App.4™ 1616, 1622; see also Davis v. KGO-TV, Inc. 1998) 17 Cal.4™436, 439 [absent express statutory authority to the contrary, parties engaged in civilPp: p 4 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 litigation must bear their own expenses in a lawsuit]. The right to recover costs 1s purely a creature of statute. See e.g. Murillo v, Fleetwood Ent. Inc. (1998) 17 Cal.4™ 985, 989. In the absence ofauthorizing statute, no costs canbe recovered. Davis v. KGO-TV, Inc., supra 17 Cal.4™ at 439. Similarly, a court has no authority to award costs not authorized by statute. Ladas v. California State Auto. Assn. (1993) 19 Cal.App. 4% 761, 774. Statutes permitting costs are strictly construed, and only those items specifically enumerated are recoverable. Sequoia Vacuum Systems v. Stanksy (1964) 229 Cal.App.2d-281, 289. Furthermore, a court cannot add provisions to a statute, alter it, or insert words into it. See e.g. Wells Fargo Bank v. Superior Court, (1991) 53 Cal.3d 1082,1097. Even when an award of costs is authorized bystatute, there are still limitations on a party's ability to recover any such award. Trial courts have a duty to determine whether a claimed cost is reasonable and appropriate, both in terms of amount and basis. Thon v. Thompson, (1994) 29 Cal.App.4™ 1546, 1548. Thus, a trial court has broad discretion to disallow costs which are unreasonable or unnecessary, even to a party entitled to receive such costs as a matter of course. As stated by the court in Perko's Enterprises Inc. v. RRNSEnterprises, (1992) 4 Cal.App.4™ 238, 245; "the intent and effect of section 133.5, subdivision, (c)(2) is to authorize a trial court to disallow recoveryof costs, including filing fees, when it determines the costs were incurred unnecessarily." HI. LEGAL ARGUMENT A. OBJECTION TO THE ENTIRE COST MEMORANDUM PLAINTIFF herein objects to the entire Cost Memorandum submitted by DEFENDANTS in the total amount of $97,780.05. In Nelson v. Anderson, (1999) 72 CalApp.4™ 111, 131, the court of appeal confirmed that "ifthe costs items are properly objected to, they are put in issue and the burden ofproofis on the party claiming them as costs... [w]e agree the mere filing of an motion to tax costs may be a "proper objection’ to an item, the necessity of which appears to be doubtful, or which does not appear to be proper on its face. (See Oak Grove School Dist. v. City Title Ins. Co., (1963) 217 Cal.App. 2d 678, 698,699. DEFENDANTShavefailed to provide substantiation ofthe claimed costs beyond the cost bill and have failed to provide argument. DEFENDANTS must provide bills and/or : 5 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE ORTAX COSTS SUBMITTED BY DEFENDANT c o ~ ~ O o 10 11 12 13 14 | 15 16 RY 18 19 20 21 22 23 24 25 26 27 28 receipts for the claimed costs. DEFENDANTS’ omissions may prevent this Court from making any rational decisions about what may or may not be recoverable under the reasonable and necessary standard articulated under § 1033.5 ofthe Code of Civil Proc. Therefore, the PLAINTIFF respectfully requests that the request for costs be denied. B. - OBJECTION TO SPECIFIC COST ITEMS Even when an award of costsis authorized by statute, there are still limitations on a party's ability to recover any such award. Trial courts havea duty to determine whether a claimed costis reasonable and appropriate, both in terms of amount and basis. Thon v. Thompson (1994), 29 CalApp.4™ 1546, 1548. Thus, a trial court has broad discretion to disallow costs which are unreasonable or unnecessary, even to a party entitled to receive such costs as a matter of course. As stated by the court in Perko's Enterprises Inc. v. RRNS Enterprises (1992), 4 Cal.App.4™ 238, 245: | "the tent and. effect of section 133.5, subdivision, (c)(2) is to authorize a trial court to disallow recovery of costs, including filing fees, when it determines the costs were incurred unnecessarily." 1. Filing and Motion Fees [Itern No. 1] - Amount to be Taxed: $3,840.00 DEFENDANTSclaim $3,840.00 in Filing and Motion fees, yet fail to attach any supporting documentation regarding the amount claimed. PLAINTIFF moves to strike and/or tax this portion of the Cost Memorandum on the basis that DEFENDANTS have not provided sufficient documentation regarding the amount claimed. PLAINTIFF also movesto strike and/or tax this portion of the Cost Memorandum onthe basis that the costs are neither reasonable nor where they reasonably necessary to ‘the conduct oflitigation (notably, as DEFENDANTSfailed to provide supporting documentation and argument, there is no information before this Court to make such a determination; as such,the costs should be stricken and/or taxed). 2. Jury Fees [Item No. 2] - Amount to be Stricken/Taxed: $831.33 DEFENDANTS claim $831.33 in Jury fees, yet fail to attach any supporting documentation regarding the amount claimed. PLAINTIFF moves to strike and/or tax this portion of the Cost Memorandum on the basis thatDEFENDANTS have notprovided sufficient documentationregarding the amount claimed. PLAINTIFF also moves to strike and/or tax this portion of the Cost Memorandum on the basis that the costs are neither reasonable nor where they reasonably necessary to 6 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the conduct oflitigation (notably, as DEFENDANTSfailed to provide supporting documentation and argument, there is no information before this Court to make such a determination; as such, the costs should bestricken and/or taxed). | 3. Deposition Costs [ Item No. 4] - Amount to be Stricken/Taxed: $21,940.54 DEFENDANTS claim $831.33 in Deposition costs, yet fail to attach any supporting documentation regarding the amount claimed. Furthermore, DEFENDANT provides no dates when the deposition costs were incurred. PLAINTIFF moves to strike and/or tax this portion of the Cost Memorandum on the basis thatDEFENDANTS have not provided sufficient documentationregarding the amount claimed. Furthermore, PLAINTIFFS seck to tax costs for witnesses who were not called at trial, any cost associated with rough drafts, expeditedtranscripts,real time, etc. PLAINTIFF also moves to strike and/or tax this portion of the Cost Memorandumon the basis that the costs are neither reasonable nor where they reasonably necessary to the conduct of litigation (notably, as DEFENDANTSfailed to provide supporting documentation and argument, there is no information before this Court to make such a determination; as such, the costs should be stricken and/or taxed), 4. Expert Fees [Item No. 8b/16] - Amount to be Stricken/taxed: $51,559.50 DEFENDANTS claim $51,559.50 in Expert fees, yet fail to attach any supporting documentation regarding the amount claimed. Furthermore, according to DEFENDANTS Memorandum of Costs Worksheet, DEFENDANTSclaim the entirety ofthese expert fees pursuant to’ C.C.P. §998. However, DEFENDANTShavefailed to provide proofbefore this Court thataC.C.P, § 998 offer to compromise was offered and served upon PLAINTIFF such that Defendant would be eligible to receive expert fees. Ofnote, the costs for services ofexpert witnesses awarded under C.C.P. §998 may not exceed the costs specified in California Govt. Code § 68092.5. Further, a party is not entitled to the costs of services ofexpert witnesses as a matter ofright under California C.C.P. §998. Rather, awarding such costs is within the discretion ofthe trial court. Syverson v. Heirman (1985) 171 Cal. App.3d 106. (Emphasis added.) Further, only reasonable offers made in good faith give rise to cost shifting under California CCP. § 998 and deciding whether an offer is reasonable is within the trial court’s discretion as 7 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 viewed under the reasonable circumstances under which the offer was made. Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal. App.3d 692. The court will only award costs ofexpert witness fees if it finds that the defendant’s compromise offer was made in good faith and was realistically reasonable, rather than merely token or nominal, under the circumstances of the particular case. Culbertson v. RD. Werner Co., Inc. (1987) 190 Cal. App.3d 704. Additionally, DEFENDANTS have failed to demonstrate that the entire amount, totaling $51,559.50, was incurred following DEFENDANTS alleged C.C.P. § 998 offer, which is all that C.C.P. § 988 providesa trial court discretion to award. Furthermore, DEFENDANTS have wholly failed to demonstrate that, pursuant to CCP. § 998(d), the costs were "actually incurred and reasonably necessary" in the preparation of, or during, trial. DEFENDANTS have wholly failed to provide a breakdown of said sum. As proof ofa C.C.P. § 998 offer to compromise has not been placed before this Court, and as DEFENDANTShave failed to provide sufficient documentation regarding the claimed amount, and as C.C.P. §1033.5(b)(1) providesthat fees for experts not ordered by the court are not recoverable (and as the experts for which DEFENDANTS seek to recover fees were not ordered by the court), PLAINTIFF moves to strike and/or tax this portion of the Cost Memorandum. PLAINTIFF also movesto strike and/ortax this portion ofthe Cost Memorandum on the basis that the costs are neither reasonable nor where they reasonably necessary to the conduct oflitigation (notably, as DEFENDANTS failed to provide supporting documentation and argument,there is no information before this Court to make such a determination; as such, the costs should be stricken and/or taxed). 5. Court Reporter Fees as Established by Statute {Item No. 11] - Amount to be Stricken/taxed: $10,337.25 DEFENDANTS claim $10,337.25 in Court Reporter fees, yet fail to attach any supporting documentation regarding the amount claimed. Furthermore, DEFENDANTSfail to provide the name of the Court Reporter (and/or company) and fail to provide dates when the Court Reporter fees were incurred, as required by the Cost Memorandum Worksheet. PLAINTIFF moves to strike and/or tax this portion of the Cost Memorandum onthe basis that DEFENDANTS have not provided sufficient 8 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY : DEFENDANT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 documentation regarding the amount claimed. PLAINTIFF also moves to strike and/or tax this portion of the Cost Memorandum on the basis that the costs are neither reasonable nor where they reasonably necessary to the conduct of litigation (notably, as DEFENDANTS failed to provide supporting documentation and argument, there is no information before this Court to make such a determination;as such,the costs should be stricken and/or taxed). 6. Models, Enlargements, and Photocopies of Exhibits [Item No. 12] - Amount fo be Stricken/taxed: $2,816.14 DEFENDANTS claim $2,816.14 in costs associated with models, enlargements, and photocopies of exhibits, yet fail to attach any supporting documentation regarding the amount claimed. PLAINTIFF moves to strike and/or tax this portion ofthe Cost Memorandum on the basis that DEFENDANTS have not provided sufficient documentation regarding the amount claimed. PLAINTIFF also moves to strike and/or tax this portion ofthe Cost Memorandum on the basis that the .costs are neither reasonable nor where they reasonably necessary to the conduct oflitigation (notably, as DEFENDANTSfailed to provide supporting documentation and argument, there is no information before this Court to make such a determination; as such, the costs should be stricken and/or taxed). 7. Fees for Electronic Filing [Item No. 14] -Amount to be Stricken/taxed: | $6,455.29 DEFENDANTS claim $6,455.29 in fees for Electronic Filing, yet fail to attach any supporting documentation regarding the amount claimed. Furthermore, as stated in the Memorandum of Costs Worksheet, this fee request only applies 1f the line item was required or ordered by the Court. DEFENDANTS have provided no proof that Electronic Filing was required by this Court. PLAINTIFF moves to strike and/or tax this portion of the Cost Memorandum on the basis that DEFENDANTS have not provided sufficient documentation regarding the amount claimed. PLAINTIFF also moves to strike and/or tax this portion ofthe Cost Memorandum onthe basis that the costs are neither reasonable nor wherethey reasonably necessary to the conduct oflitigation (notably, as DEFENDANTSfailed to provide supporting documentation and argument, there is no information before this Court to make such a determination; as such, the costs should be stricken and/or taxed). [1] PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT e r ~ ~ O N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. AT MINIMUM, DEFENDANT SHOULD BE COMPELLED TO SUBMIT INVOICES DEMONSTRATING THE APPROPRIATENESS OF ITS CLAIMED COSTS Though DEFENDANTS should be awarded no costs, at the very minimum, DEFENDANTS must provide documentation that supports the costs claimed in its Memorandum of Costs. Items that are properly objected to are put in issue, and the burden of proof is on the party claiming them as costs. Ladas v. California State Auto. Ass'n(1993) 19 Cal.App.4th 761; 774-776. The contesting party may meet its burden by showing the entire cost bill is improper rather-than by challenging particular items. Fennessy v. DeLeuw-Cather Corp. (1990) 218 Cal.App.3d 1192, 1195. Supporting documentation, including invoices,etc., must be submitted if costs have been put in issue by a motion to tax costs. Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267. In this case, PLAINTIFF has challenged Item Nos. 1-2, 4, 8b, 11-12, 14, and 16, claimed by DEFENDANTSin its Memorandum, as being improper. Furthermore, PLAINTIFF has pointed out that DEFENDANTS' Memorandum and Worksheet are faulty such that it is not clear ‘which costs Defendant claims under which statutory authority. In effect, DEFENDANTS have provided no supporting documentation to alow PLAINTIFF to challenge the particular claimed costs as being permissible by statute or "reasonable and necessary." In looking at the only docurpentation Defendant provided ~ Memorandum and Worksheet - both the Court and the PLAINTIFF are left to wonder where these figures came from, whether they. were in fact incurred, or how these figures were calculated. DEFENDANTS have failed to attach any supporting documentation (e.g. invoices, proof of payment, etc.) that would show how the costs provided in said Ttems were determined. Without any such documentation supporting the costs itemized in Item Nos. 1-2, 4, 8b, 11-12, 14, and 16, these costs appear arbitrary, as DEFENDANTS simply created them out of thin air. Consequently, in the absence ofthe aforementioned documentation, PLAINTIFF has concurrently shown that Defendant's claim for said costs are not "reasonable and necessary." By showing that Defendant's claim in Item Nos. 1-2, 4, 8b, 11-12, 14, and 16 are improper and 10 PLAINTIFF'S NOTICE OF MOTIONAND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT 10 11 12 13 14 15 16 17 181 19 20 21 22 23 24 25 26 27 28 not "reasonable and necessary," the burden shifts from PLAINTIFF to DEFENDANTS. This burden shifting requires DEFENDANTS to substantiate these costs by proving their necessity and reasonableness. At the very minimum, DEFENDANTS must produce the original invoices for all costs which it claims entitlement for reimbursement such that the Court and the PLAINTIFF can review the specifics of each cost claimed: Iv. CONCLUSION For the foregoing reasons, PLAINTIFF requests that the costs discussed herein be taxed and/or denied as being excessive, unreasonable, unnecessary, and unsupported by documentation. DATED: May 22, 2018 GIRARDI | KEESE a THOMAS\V. CIRABDE~- Attorneys for Plaintiff, Cheyenne Chen By: 11 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT wn » S h W N ~ ~ D h 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. Iam employed in the County of Los Angeles, State of California. My business address is 1126 Wilshire Boulevard, Los Angeles, CA 90017-1904. On May 22, 2018, I served true copies of the following document(s) described as PLAINTIFF'S NOTICE OF MOTIONAND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL: [enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. Iam readily familiar with the practice of Girardi | Keese 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 postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope was placed in the mail at Los Angeles, California. I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct, : Executed on May 22, 2018, at Los Angeles, California. Vs CL - 7Grace Fujioka PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT SERVICE LIST EVERETT DOREY LLP Attorneys for Defendants Seymore B. Everett THE IRVINE COMPANY LLC and severett@everettdorey.com JUSTIN VELEZ Samantha E. Dorey sdorey(@everettdorey.com One MacArthur Place, Suite 110 Santa Ana, CA 92707 Telephone: (949) 771-9233 Facsimile: (949) 377-3110 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT EXHIBIT 2 ves) TEER TRE ATNTTITRE TT TIA) TTSeRAS ShAa IERIE TATEeeeSNYRREe 2 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA 4 FOR THE COUNTY OF ORANGE 5 } Case No.: 30-2016-00832531 6 CHEYENNE CHEN, Judgment Plaintiff, | 7 VS. 8 ) |THE IRVINE COMPANY and JUSTIN ) 7 IVELEZ, | 10 Defendants. 11 12 This matter came on fora jury trial. The clerk swore in the jury on April 13, 2018. The 13 court dismissed all unnamed and unserved “Doe” defendants. On April 19, 2018, the jury 14 returned their verdict. 15 Based upon the matters submitted to the jury and the special verdict rendered, the 16 court enters judgment as follows: 17 The court awards judgement in favorof The Irvine Company and Justin Velez on all 18 causes of action in the complaint by Cheyenne Chen against them. 19 The Irvine Company and Justin Velez are the prevailing parties and are entitled to costs 20 ||in the amount of S per a Memorandum of Conf. Pp 54 DATED: Appel 14.71% 57 2hoe 22 Judglotro SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE RECEIVED CREreBonarbri. Civic Center DriveSanta Ana, GA 82702 APR 30 2018 £3FFS a SHORT TITLE: Chen vs, The Irvine Company, LLC GIRARDI KEESE ' CASE NUMBER:CLERK'S CERTIFICATE OF SERVICE BY MAIL 30-2016.00832531.CU-BC.CJC | certify that | am not a party to this cause. | cerlify that a true copy of JUDGMENT was mailed following standard court practices in a sealed envelope with postage fully prepaid, addressed as indicated below. The mailing and this certification occurred at Santa Ana, California, on 04/26/2018. Clerk of the Court, by: Arse AononiodA , Deputy GIRARDI | KEESE EVERETT DOREY LLP 1126 WILSHIRE BLVD AVENUE 1 MACARTHUR PLACE # 110 LOS ANGELES, CA 80017 US SANTA ANA, CA 92707 US CLERK'S CERTIFICATE OF SERVICE BY MAIL Page: 1 V3 1013a (June 2004) Coda of Civlf Procedure , § CCP1013(a) = 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. Iam employed in the County ofLos Angeles, State of California. My business address is 1126 Wilshire Boulevard, Los Angeles, CA 90017-1904. On July 24, 2018, I served true copies ofthe following document(s) described as PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT (FIRST AMENDED MEMORANDUM OF COSTS) on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. Iam readily familiar with the practice of Girardi | Keese 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 postage fully prepaid. 1 am a resident or employed in the county where the mailing occurred. The envelope was placed in the mail at Los Angeles, California. I declare under penalty ofperjury under the laws of the State of California that the foregoing is true and correct. Executed on July 24, 2018, at Los Angeles, California. nde. Orb Linda Castro PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT (FIRST AMENDED MEMORANDUM OF COSTS) 10 Il 12 13 14 15 16. 17 18 19 20 21 22 23 24 25 26 27 28 EVERETT DOREY LLP Seymore B. Everett severett(@everettdorey.com Samantha E. Dorey sdorey@everettdorey.com One MacArthur Place, Suite 110 Santa Ana, CA 92707 Telephone: (949) 771-9233 Facsimile: (949) 377-3110 SERVICE LIST Attorneys for Defendants THE IRVINE COMPANY LLC and JUSTIN VELEZ PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS SUBMITTED BY DEFENDANT (FIRST AMENDED MEMORANDUM OF COSTS)