Motion To Strike Or Tax Costs

Motion

Cal. Super. - 4th Dist.June 2, 2016

© 0 9 a N n n B W = N N N N N N N N N e m e m e m e m e m e m e m e e c o N N L n R A W I N D = D O O N N N R E W I N D = O Gregory A. Lee Bar No.: 77139 Jahzeel Osejo Bar No.: 279483 LEE & OSEJO, LLP Attorneys at Law 17897 MacArthur Boulevard, Suite 205 Irvine, CA 92614 p. (949) 955-2445 f. (949) 955-2446 Attorney for Plaintiffs and Cross-Defendants Eric A. Wong and Violi Wong SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER ERIC A. WONG,an individual, CASE NO. 30-2016-00856206-CU-BC- Plaintiff, cc VIOLI WONG’S NOTICE OF MOTION AND MOTION TO TAX COSTS: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO TAX COSTS FKC INTERNATIONAL, INC., a California corporation; KENNETH K. CHANG,an individual; and DOES 1 to 100, inclusive Defendants. Judge: Hon. Sheila Fell Dept.: C25 Date: August 15, 2018 Time: 10:00 a.m. FKC INTERNATIONAL, INC., a California corporation, Cross-Complainants, v Court Reservation No.: 72834057 YIWONG, an individual; ERIC A. WONG,an individual; PETER DOCIS, an"individual; aLkbROES 1 through100, Cross-Defendants. N r w r w r w r w r w r “ w r “ w r “ r r “ r t “ = r “ r r “ r t “ = r “ r t = r “ = r “ = r “ = r “ = r “ = r “ = r “ = “ - ' “ - ' “ = IMotion to Tax Costs © 0 9 a N n n B W = N N N N N N N N N e m e m e m e m e m e m e m e e c o N N L n R A W I N D = D O O N N N R E W I N D = O TO, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August 15, 2018, at 10:00 a.m., or as soon thereafter as the matter may be heard in department C25 of the Orange County Superior Court located at 700 Civic Center Drive West, Santa Ana, California 92701, Plaintiff Violi Wong moves the Court for an order reducing, taxing, orstriking costs that are improper, unreasonable, and/or not reasonably necessary aslisted in Defendants” memorandum of costs. This motion is based on this motion and the attached memorandum of points and authorities, along with the pleadings, files, and records in this action. The motion will also be based upon any oral and documentary evidence that may be presented at the hearing on the motion DATED: June 18, 2018 LAW OFFICES OF LEE & OSEJO, LLP Oazp JAHZEEL OSEJO Attorney for Plaintiff VIOLI WONG 2Motion to Tax Costs © 0 9 a N n n B W = N N N N N N N N N e m e m e m e m e m e m e m e e c o N N L n R A W I N D = D O O N N N R E W I N D = O MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendants’ seek to recover $9,574.30 in costs, most of which are neither reasonable and necessary. A large portion of these costs are attributable, at least equally, to the defense of claims made by Plaintiff Eric A. Wong, a party whose claims are currently pending and set fortrial in May of 2019. Defendants have not shown that any of these costs are allowable, and if they are allowable, that the costs are reasonable and necessary. Therefore, Plaintiff Violi Wong’s motion to tax for $8,298.60 ofthe total amount should be granted. II. SUMMARY OF LAW California law recognizes three types oflitigation costs: (1) allowable; (2) disallowable; and (3) discretionary. (Code Civ. Proc. § 1033.5, subds. (a), (b), (c)(4)). For allowable and discretionary costs to be recoverable, they must also be both “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (Code Civ. Proc., sec. 1033.5, subd. (¢)(2)-(3).) If specifically allowable under section 1033.5, the party challenging the costs has the burden of showing that the costs sought are not reasonable or necessary. However, if the costs not specifically allowable are objected to, then the burden of prooflies with the requesting party to demonstrate that the costs were necessary and reasonable. (Ladas v. Cal Sata Automobile Assn. (1993) 19 Cal.App.4th 761, 771.) Whether a cost is reasonable is a question of fact. (Lubetzky v, Friedan (1991) 228 Cal.App.3d 35, 39.) Plaintiff Violi Wong respectfully requests that the court tax Defendants’ costs as set below. A. Filing and Motion Fees - Lines 1(a)-(g) Plaintiff Violi Wong seeks taxing of Defendants’ filing and motion fees for items 1(a)-(g). All filing and motion fees claimed by Defendants are still necessary as to the pending litigation between Defendants and remaining Plaintiff, Eric A. Wong. Whether or not Violi Wong was a named Plaintiff at the outset oflitigation, these are all costs that Defendants would have incurred in their defense of the causes of action brought by Plaintiff Eric A. Wong. Thus, the court should disallow these costs entirely in the amount of $1,240.00. To allow Defendants to recover these costs from Plaintiff Violi Wong whilelitigation is still pending as between Plaintiff Eric A. Wong 3Motion to Tax Costs © 0 9 a N n n B W = N N N N N N N N N e m e m e m e m e m e m e m e e c o N N L n R A W I N D = D O O N N N R E W I N D = O and Defendants would be premature as it is entirely possible for Plaintiff Eric A. Wong to prevail at trial, thereby making these costs unrecoverable by Defendants. B. Deposition Costs Plaintiff Violi Wong seeks the taxing of the deposition costs because they were not reasonable, necessary, or reasonable in amount. A prevailing party may recover costs for taking, video recording, and transcribing necessary depositions, in addition to travel expenses to attend necessary depositions so long as these costs are reasonable, necessary and reasonable in amount. (Code Civ. Proc. Sec 1033.5.) Plaintiff Violi Wong objects to four categories of Defendants’ asserted deposition costs; 1. deposition costs of deposing Plaintiff Eric A. Wong, 2. deposition costs of deposing Violi Wong, 3. videotaping costs as to all depositions, and 4. overtime and travel costs of an out-of-town interpreter. 1. Depositions of Eric A. Wong - Lines 4(a)-(b) Defendants request the recovery of $2,344.00 for the taking and transcribing of two separate depositions of Eric A. Wong (videotaping will be discussed below). These items should be disallowed as they are still necessary to the pending litigation between Defendants and remaining Plaintiff, Eric A. Wong. There is still a pending trial date as to these causes of actions. Moreover, the depositions of Eric A. Wong are also necessary as to the cross-complaintfiled by Defendants against Eric A. Wong, Violi Wong, and Peter Docis. 2. Depositions of Violi Wong - Lines 4(c)-(d) Plaintiff Violi Wong seeks taxing of her deposition costs in the amount of $2,416.60, in light oftheir relation and necessity as to the pending litigation between Eric A. Wong and Defendants as well as the pending cross-complaint from Defendants-Plaintiffs against Violi Wong, Eric A. Wong, and Peter Docis. Again, Violi Wong argues that to allow Defendants to recover these costs would be premature asit is entirely possible that Plaintiff Eric A. Wong will recover at trial, thus making these same costs unrecoverable by Defendants, who would then become the non-prevailing parties. 11 11 7Motion to Tax Costs © 0 9 a N n n B W = N N N N N N N N N e m e m e m e m e m e m e m e e c o N N L n R A W I N D = D O O N N N R E W I N D = O 3. Videotaping - Lines 4(a)-(d) Defendants’ request recovery of $1,680.00 for videotaping four separate depositions. Like all other allowable costs, the cost of videotaping a deposition is only permissible if it is both reasonable and necessary. (Code Civ. Proc. Sec. 1033.5.) It is generally recognized that videotaping a deposition is only necessary when the witness being deposed is ill, infirm, oris otherwise unable to attend trial. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2012) q 8:659, p. 93.) Defendants seek costs for video recording four depositions in this matter, none of which were necessary. Neither of the videotaped Plaintiffs/Deponents were ill, claimed to be ill, or claimed they would be unavailable for any future trial dates. All deposed parties still intend to present oral testimony at trial, and any anticipated impeachment can be accomplished by reading portions of the transcripts into evidence. Therefore, it was wholly unnecessary for Defendants’ to videotape these depositions and the court should tax Defendants’ cost bill by the entire cost of $1,680.00. for unnecessarily videotaping these depositions. 4. Interpreting Services - Line 4(e) During the March 5, 2018 deposition of Violi Wong, Tagalog interpreting services were admittedly necessary. However, the costs were not reasonable. Here, the deposition began at 10:00 a.m. and did not conclude any later than 6:00 p.m. The interpreter did not work overtime and should not be allowed to recover an overtime fee of $195.00. Moreover, the selected interpreter traveled from Bakersfield, California to downtown Los Angeles, where Defendants’ counsel’s office is located, and is now claiming $123.00 in mileage and $300.00 in travel time. Given that Tagalog is the third most commonly used language in California after English and Spanish, Plaintiffs are unconvinced that there was no Tagalog language interpreter located within 50 miles of downtown Los Angeles. These costs are not reasonable. 11 11 11 11 5Motion to Tax Costs © 0 9 a N n n B W = N N N N N N N N N e m e m e m e m e m e m e m e e c o N N L n R A W I N D = D O O N N N R E W I N D = O III. CONCLUSION Violi Wong respectfully requests that this Court grant her motion to tax and reduce Defendants’ costs memorandum by $8,298.60. DATED: June 18, 2018 LAW OFFICES OF LEE & OSEJO, LLP JAHZEEL OSEJO Attorney for Plaintiff VIOLI WONG 6Motion to Tax Costs © 0 9 a N n n B W = N N N N N N N N N e m e m e m e m e m e m e m e e c o N N L n R A W I N D = D O O N N N R E W I N D = O PROOF OF SERVICE BY MAIL (1013a, 2015.5, C.C.P.) I certify that I am over the age of 18 years and not a party to the within action; that my business address is, LAW OFFICES OF LEE & OSEJO, LLP, 17897 Mac Arthur Boulevard Suite 205 in Irvine, California 92614 and that on this date I placed a true copy of the foregoing document(s) entitled: VIOLI WONG’S NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO TAX COSTS on the parties in this action by placing a true copy thereof in a sealed envelope addressed as stated: ( ) onthe attached mailing list (X) as follows: Joseph A. Siffered, Esq. Peter Docis POINDEXTER & DOUTRE, INC. 422 Aria Drive 624 S. Grand Avenue, Suite 2420 Brea, Ca 92821 Los Angeles, CA 90017 I caused each envelope to be sent by Overnight Courier. (XX) (By Mail) I placed the envelope for collection and mailing, following the firm’s ordinary business practices. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under practice, it would be deposited with U.S. Postal Service on that same day with postage thereon fully prepaid at Irvine, 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. (By Personal Service) I caused to be delivered such envelope by hand to the offices of the addressee. (By FAX) I caused such document to be sent by FAX to the following numbers: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this 18" day of June 2018 at Irvine, California (== Paul Quiroz 7Motion to Tax Costs