Mark Fudge vs. City of Laguna Beach, City Council of City of Laguna Beach, And Its Planning Commission

Opposition

Cal. Super. - 4th Dist.October 31, 2016

~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PETER HSIAO (BAR NO. 119881) PHsiao@mofo.com MATTHEW L. HOFER (BAR NO. 307055) MHofer @mofo.com MORRISON & FOERSTER LLP 707 Wilshire Boulevard, Suite 6000 Los Angeles, California 90017-3543 Telephone: 213.892.5200 Facsimile: 213.892.5454 Attorneys for Petitioner and Plaintiff MARK FUDGE ELECTRONICALLY FILED Superior Court of California, County of Orange 06/06/2018 at 04:50:00 PM Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE CENTRAL DISTRICT MARK FUDGE, an individual, Petitioner and Plaintiff, Vv. CITY OF LAGUNA BEACH, CITY COUNCIL OF CITY OF LAGUNA BEACH, and its PLANNING COMMISSION; SUE KEMPF in her capacity as Chair of the City of Laguna Beach Planning Commission, and DOES 1 through 25, Respondents and Defendants. LAGUNA BEACH GOLF AND BUNGALOW VILLAGE, LLC Real Party in Interest. la-1384194 Case No. 30-2016-00884488-CU-WM-CXC Assigned for All Purposes to: Honorable William Claster Department CX102 PETITIONER’S OPPOSITION TO JOINT MOTION TO TAX COSTS Hearing Date: July 27, 2018 Time: 9:00 a.m. Trial Date: February 23, 2018 Trial Time: 1:30 p.m. Action Filed: October 31, 2016 PETITIONER’S OPPOSITION TO JOINT MOTION TO TAX COSTS ~N O Y B 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 Respondent City of Laguna Beach and Real Party in Interest Hany Dimitry jointly move to tax Petitioner and Plaintiff Mark Fudge’s Memorandum of Costs for two items: fees for delivery of courtesy copies to this Court in the amount of $194.25, and legal research costs in the amount of $1,155.35. Given its small amount, Mr. Fudge stipulates to tax the $194.25 for delivery of courtesy copies. The costs for computerized legal research are properly recoverable as “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code of Civil Procedure, § 1033.5, subd. (c)(2); see also id. at (c)(4) [Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”].) While Respondents rely solely on Ladas v. Cal. State Automobile Assn. (1993) 19 Cal.App.4th 761, 774, they ignore the weight of more recent decisions, which have roundly criticized the reasoning of Ladas and declined to follow it, holding instead that legal research fees are properly recoverable under Code of Civil Procedure section 1033.5, subdivision (©)(4): The Court finds that computerized legal research is not only ‘reasonably necessary,’ it is essential, to effective representation. The Court recognizes that the single reported California case discussing this issue, Ladas v. California State Auto. Ass’n, 19 Cal.App.4th 761, 23 Cal.Rptr.2d 810 (1993), found that such expenses were not recoverable pursuant to section 1033.5(c)(4), presumably because they were precluded “investigation expenses.” Id. at 818 (citing section 1033.5(b)(2)). The court in Ladas did not specify the basis for its conclusion that legal research was an “investigation expense.” Such research might well be an investigative tool if used by counsel to investigate whether a plaintiff had a claim at all. Counsel also might use Lexis or Westlaw to investigate whether the party sued had any assets or whether suit might be an expensive but ultimately futile gesture. A plaintiff might also investigate whether it has named the right corporate la-1384194 2 PETITIONER’S OPPOSITION TO JOINT MOTION TO TAX COSTS ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 entity, for example, or to locate all potentially liable corporate defendants. Databases might be used to locate witnesses, but there is no indication that that was the purpose here. Numerous legal issues were raised and motions were filed that obviously contained the results of the research. To the extent that Ladas holds that computerized research is always the equivalent of “investigation expenses,” this Court respectfully disagrees. Moreover, section 1033.5 was enacted well after computerized research became standard. If the legislature had wanted to preclude such fees in all cases, it could easily have used that phrase. The cost for automated research will be allowed. (Moore v. IMCO Recycling of CA, Inc. (C.D.Cal. September 28, 2005) No. CV 04-1304 DSF (VBKX), 2005 WL 5887180, *3; Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc. (C.D.Cal. March 25, 2009) No. CV 05-02200 MMM (MCx), 2009 WL 10669361, *25-26 [adopting Moore’s reasoning]; Pande v. ChevronTexaco Corp. (N.D.Cal. April 1, 2008) No. C- 04-05107 ICS, 2008 WL 906507, *9 [same].) The Court should follow these more recent decisions and deny the motion to tax legal research costs. Dated: June 6, 2018 MORRISON & FOERSTER LLP By: /s/ Matthew Hofer MATTHEW HOFER Attorneys for Petitioner and Plaintiff MARK FUDGE la-1384194 3 PETITIONER’S OPPOSITION TO JOINT MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Mark Fudge v. City of Laguna Beach, et al. Orange County Superior Court Case 30-2016-00884488-CU-WM-CXC I declare that I am employed with the law firm of Morrison & Foerster Lie, whose address is 707 Wilshire Boulevard, Los Angeles, California 90017-3543. I am not a party to the within cause, and I am over the age of eighteen years. I further declare that on June 6, 2018, I served a copy of: PETITIONER’S OPPOSITION TO JOINT MOTION TO TAX COSTS x] (BY E-MAIL - ELECTRONIC SERVICE through One Legal, LLC) Based on the Court’s requirements that documents must be filed electronically in this action, the parties must also serve documents and accept service of documents electronically from all other parties which are not required to be personally served. I affected electronic service by submitting an electronic version of the document(s) to One Legal, LLC, through the user interface at www.onelegal.com, which caused the documents to be sent by electronic transmission to the person(s) at the electronic service address(es) listed on the attached Service List. Philip D. Kohn Attorneys for Respondents and Rutan & Tucker, LLP Defendants City of Laguna Beach 611 Anton Blvd., Ste. 1400 Costa Mesa, CA 92626-1931 pkohn@rutan.com Steven H. Kaufman Attorneys for Real Party in Interest Nossaman LLP i Laguna Beach Golf and Bungalow 777 South Figueroa Street, 34" Floor village, LLC Los Angeles, CA 90017 skaufmann@nossaman.com I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Los Angeles, California, this 6M day of June, 2018. ~~ Janis Price pI A 0 (typed) (signature) la-1384585 + PROOF OF SERVICE