Andrea Knohl-Trider vs. Rebecca Foster

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.September 12, 2016

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AnnaR. Salusky (SBN 222484) asalusky@ mahoney-law.net Michael A. Swift (SBN: 296993) msw ift@ mahoney-law.net MAHONEY LAW GROUP, APC 249 E. Ocean Blvd. Ste. 814 Long Beach, CA 90802 Telephone: (562) 590-5550 Facsimile: (562) 590-8400 Attorneys for Plaintiffs ANDREA KNOHL-TRIDER and GRANT-TRIDER by and through his guardian ad litem, ANDREA KNOHL-TRIDER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL DISTRICT ANDREA KNOHL-TRIDER, an individual; Case No.: 30-2016-00874402-CU-PO-CJC GRANT TRIDER, by and through his guardian ad litem, ANDREA KNOHL-TRIDER, PLAINTIFFS’ NOTICE OF MOTION AND MOTIONTO TAX COSTS FILED Plaintiffs, BY DEFENDANT IRVINE PROPERTY MANAGEMENT, INC.; MEMORANDUM V. OF POINTS AND AUTHORITIES REBECCA FOSTER, anindividual; RAMON Assigned for all purposes to: M.G.SORIANO, M.D; an individual, Hon. David R. Chaffee, Dept.: C20 ASUNCION G.RAMOS-SORIANO,M .D.; an individual; SORIANO INVESTMENTS Date: September 28, 2018 LIMITED PARTNERSHIP, a Texas Time: 9:30 a.m. Corporation; IRVINE PROPERTY Dept. C20 MANAGEMENT, INC., a California Reservation Id: 72882193 Corporation; and DOES 1-100,inclusive, Complaint Filed: September 12, 2016 Defendants. Trial Date: July 9, 2018 1 PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT IRVINE PROPERTYMANAGEMENT, INC.; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 28, 2018 at 9:30 a.m. in Department C20 of the above-entitled Court, Plaintiffs ANDREA KNOHL-TRIDER and GRANT TRIDER, by and through his guardian ad litem, ANDREA KNOHL-TRIDER (“Plaintiffs”) will and hereby do move for an order taxing unrecoverable costs and/or excessive costs, pursuant to California Rules of Court, rule 3.1700(b) as set forth in the memorandum of costs filed by Defendant IRVINE PROPERTY MANAGEMENT, INC. (“Defendant”). This motion is based upon this notice of motion, the attached memorandum of points and authorities, declaration of Anna R. Salusky, upon the pleadings and documents filed in this action, whether written or oral, as may be presented to the Court at or before the hearing on this motion. Dated: August 31,2018 MAHONEY LAW GROUP, APC /s/Anna R. Salusky AnnaR. Salusky Michael A. Swift Attorney for Plaintiffs ANDREA KNOHL- TRIDER and GRANT TRIDER De PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT IRVINE PROPERTYMANAGEMENT, INC.; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On August 16, 2018, Defendant IRVINE PROPERTY MANAGEMENT, INC. (“Defendant”), mailed their memorandum of costs, which seeks to recover $3,930.40 in costs. (See Exhibit “A” attached to the Declaration of Anna R. Salusky (“Salusky Decl.”) § 3, filed concurrently herewith.) Certain costs sought by Defendant are either not recoverable as a matter of law or in excess of that permitted by law. Specifically, Plaintiff will seek to tax costs in the following amounts: 1. Excessive claimed filing and motion fees in the sum of $45.50; 2. Excessive claimed jury fees in the sum of $179.50; and 3. Deposition costs without any documentary support in the sum of $3,270.35. Il. PROCEDURAL HISTORY This case arises out of Plaintiffs’ claim that the patio of the Adjacent Property was not constructed to code and was incorrectly built above the weep screed, instead of below of the weep screed, which prevented dog urine, and other liquids such as water, from properly draining away from Plaintiffs’ home. Instead the liquids pooled next to the wall and seeped into Plaintiffs” wall creating an odorin Plaintiffs” home that made it uninhabitable. Trial commenced on July 9, 2018. Upon conclusion of Plaintiffs’ closing argument on July 19, 2018, Defendant moved the Court for a nonsuit on the entire complaint. After hearing the arguments of counsel and considering the matter, Defendant’s nonsuit motion was granted in favor of Defendant. The remainder of the case was submitted to a jury. Il. ARGUMENT A. Plaintiffs Motion to Tax Costs Is Timely California Rules of Court, rule 3.1700(b) provides “Any notice of motion to strike or to tax costs must be served and filed 15 days after the service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided by Code of Civil Procedure Section 1013.” I] 1 PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT IRVINE PROPERTYMANAGEMENT, INC.; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, Defendant served its memorandum on August 16, 2018, by regular mail. As such, the deadline to file Plaintiffs motion is September 5, 2018. B. Defendant Has the Burden Of Establishing Its Claimed Costs Because the right to costs is governed strictly by statute, the Court has no discretion to award costs not statutorily authorized. (Hogan v. Ingold (1952) 38 Cal.2d 802.) W here the items are properly objected to, they are putin issue, and the burden of proofis upon the party claiming them as costs. (Rappenecker v. Sea-L and Services (1979) 93 Cal.A pp.3d 256; Oak Grove School District v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698-699.) As stated in Ladas v. California State Auto Assn (1993) 19 Cal.App.4th 761“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proofis on the party claiming them as costs.” (Id. at p. 774.) W hether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Lubetzky v. Friedman (1991) 228 Cal.App.3d 35, 39.) In this case, a substantial portion of the costs requested are not recoverable by Defendant because they are not provided for in the applicable statutes, are in excess of those permitted by law, do not have documentary support, were not reasonably necessary to conductthe litigation, and/or were merely for convenience. IV. A SUBSTANTIAL PORTION OF THE COSTS SOUGHT MUST BE STRICKEN Code of Civil Procedure Section 1033.5(b) expressly prohibits the recovery of certain costs. And, although certain costs may be permissibly recovered under Code of Civil Procedure Section 1033.5 (a), those costs must be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficialto its preparation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5(c)(2) and (3).) Here, as discussed below, Defendant seeks to recover costs which they are either not entitled to as a matter of law or are in excess of those permitted by law. A. Item No. 1 - Filing and Motion F ees Under Item No. 1, Defendant seeks recovery of $480.55 for “Filing and Motion Fees.” De PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT IRVINE PROPERTYMANAGEMENT, INC.; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant provides no supporting documentation or other evidence substantiating these costs. For instance, Defendant claims a total cost of $473.05 for the filing of Defendant’s Answer to Plaintiffs Complaint. Under the Superior Court of California, County of Orange Civil Fee Schedule, the filing fee for an answer is $435.00. (See Salusky Dec., 1 4, Ex. “B”) Further, Defendant claims $7.50 for “E-Filing” which is not reasonably necessary to conduct the litigation. At the court's discretion, a party may recover delivery charges, but only when reasonable or necessary when compared to filing by mail (Benach v. Los Angeles (2007) 149 Cal.A pp.4th 836, 857). In light ofthe foregoing, the requested costs are not “reasonable in amount,” a requirement under Code of Civil Procedure section 1033.5(c)(3). Plaintiff respectfully requests that the Court strike a total of $45.50 from the cost bill as it relates to Filing and M otion Fees. B. Item No.2 - J ury Fees Under Item No. 2 for “Jury Fees,” Defendant claims $179.50. This cost must be taxed as no supporting documentation or other evidence has been presented substantiating such costs. California Code of Civil Procedure §631 (b) states that At least one party demanding a jury on each side of a civil case shall pay a nonrefundable fee of one hundred fifty dollars ($150), unless the fee has been paid by another party on the same side of the case. The fee shall offset the costs to the state of providing juries in civil cases. If there are more than two parties to the case, for purposes of this section only, all plaintiffs shall be considered one side of the case, and all other parties shall be considered the other side of the case. Payment of the fee by a party on one side of the case shall not relieve parties on the otherside of the case from waiver pursuant to subdivision (f). (California Code of Civil Procedure §631 (b)) The Court’s docket indicates the Soriano Defendants paid Defendants’ jury fees on February 10,2017. Defendant Irvine Property Management’s payment ofthis fee is therefore not necessary to conduct litigation and must be taxed. Further, on February 17, 2017, Defendant served Plaintiffs with its Notice of Posting J ury Fees in the amount of $150.00. (See Salusky Decl. 15, Ex. C.) Defendant’s requested cost of $179.50 is therefore not “reasonable in amount,” under Code of Civil Procedure section 1033.5(c)(3). Additionally, Defendant Irvine Property Management and Defendant Rebecca Foster are represented by the same counsel. However, both parties request the same $150.00 jury fee. If the 23 PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT IRVINE PROPERTYMANAGEMENT, INC.; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Court is not inclined to tax this cost due to the payment of the $150.00 fee by the Soriano Defendants, Defendants Rebecca Foster and Irvine Property Management should not both be granted the same $150.00 fee incurred by their shared counsel. For the foregoing reasons, Plaintiff respectfully requests that the Courtstrike a total of $179.50 from the cost bill as it relates to J ury Fees. C. Item No. 4 - Deposition Costs Under Item No. 4, Defendant attempts to recover deposition costs in the amount of $3,270.35. Besides the requested costs not being supported by any documentation or evidence to substantiate such costs, there is no showing that all of these depositions were necessary. (See Code Civ. Proc. § 1033.5(c)(2) and (3).) To the extent that Defendant is entitled to deposition costs at all, it must produce invoices showing the costs accrued alleged in its memorandum regarding these depositions. (See Code Civ. Proc. § 1033.5(c)(1).) In addition to not providing any supporting documentation substantiating the deposition costs sought, Defendant Rebecca Foster attached invoices to her M emorandum of Costs to recover transcript costs for the depositions of Andrea Knohl-Trider, Michael Lee, Ramon M.G. Soriano, M.D., Asuncion G. Ramos-Soriano, M.D, Buddy Bardsley, and Michelle Atiyeh; duplicative of the costs sought by Defendant. Furthermore, Defendant seeks to recover $748.80 for the Deposition of Rebecca Foster. Such costs were not reasonably necessary because it was stipulated at the deposition that counsel for Rebecca Foster, Dawn Ebert, would maintain (and counsel has presumably maintained atall times) the original of that deposition transcripts. (See Salusky Decl. 6, Ex. “D.”) For these reasons, Plaintiff respectfully requests that the Court strike the entire sum of $3,270.35. 111 111 111 111 111 4 PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT IRVINE PROPERTYMANAGEMENT, INC.; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. CONCLUSION For all of the foregoing reasons, Plaintiff respectfully requests that the Court strike a total of $3,495.35 in costs sought by Defendant. Dated: August 31, 2018 MAHONEY LAW GROUP, APC /s/Anna R. Salusky AnnaR. Salusky Michael A. Swift Attorney for Plaintiffs, ANDREA KNOHL-TRIDER and GRANT TRIDER 5. PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS FILED BY DEFENDANT IRVINE PROPERTYMANAGEMENT, INC.; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Code of Civ. Proc. § 10133, subd. (3) STATE OF CALIFORNIA, COUNTY OF ORANGE | am employed in the County of Los Angeles, State of California. | am over the age of eighteen (18) and not a party to the within entitled action. My place of business is 249 East Ocean Boulevard, Suite 814, Long Beach, CA 90802. On August 31, 2018, | served a true copy of the document described as: MOTION TO TAX COSTS FILED BY DEFENDANT IRVINE PROPERTY MANAGEMENT, INC; MEMORANDUM OF POINTS AND AUTHORITIES to the interested parties in this action, addressed as follows: Rey Yang, Esq. Dawn M. Ebert, Esq. Y ang Professional L aw Corporation Hartsuyker, Stratman & Williams- 80 S. Lake Avenue, Suite 820 Abrego Pasadena, CA 91101 2677 N. Main Street, Suite 200 ryang@ yangpc.com Santa Ana, CA 92705 dawn.ebert@ farmersinsurance.com Attorney for Ramon M.G. Soriano, M.D .; Asuncion G. Ramos-Soriano, M.D .; Soriano Attorney for Rebecca F oster and Irvine Investments Limited Partnership Property Management, Inc. IX] By electronic service: Based on a court order, | caused the document(s) to be sent to the persons at the electronic service addresses listed above by transmission through ONE LEGAL. IX] By Mail: | enclosed the document(s) in a sealed envelope or package addressed to the person(s) at the addresses above. | then placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that 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. | am employed in the county where the mailing occurred. The envelope or package was placed in the mail at Long Beach, CA. X] State: | declare under penalty of perjury underthe laws of the State of California that the foregoing is true and correct. Executed on August 31, 2018, at Long Beach, California. /s/Nicole Pierson Nicole Pierson 1 PROOF OF SERVICE