Notice of Motion And Motion To Strike Or Tax Costs

Motion

Cal. Super. - 4th Dist.June 27, 2017

10 11 12 13 14 15 16 9 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP MUSICK, PEELER & GARRETT LLP 650 Town Center Drive, Suite 1200 Costa Mesa, California 92626-1925 Telephone (714) 668-2400 Facsimile (714) 668-2490 Rosemary K. Nunn (State Bar No. 192248) r.nunn@musickpeeler.com Natasha M. Wu (State Bar No. 286163) n.wu@musickpeeler.com Attorneys for Defendants and Cross-Complainants ELECTROMICALLY FILED Superior Court of Califarnia, County of Orange 02/19/2019 at 11:18:00 AM Clerk of the Superior Court By Sarah Loose, Deputy Clerk UHC 00558 OXNARD, L.P., UHC 00558 OXNARD HOLDINGS, LLC, UHC 00539 YUCAIPA, L.P., and HPI HORIZONS AT YUCAIPA, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER TREVOR RIZZUTO dba TCR SWPPP INSPECTIONS, Plaintiff, VS. UHC 00558 OXNARD, L.P.; UHC 00558 OXNARD HOLDINGS, LLC; UHC 00539 YUCAIPA, L.P.; HPI HORIZONS AT YUCAIPA, LLC; and DOES 1 THROUGH 50, Defendants. AND ALL RELATED CROSS-ACTIONS CASE No. 30-2017-00928664-CU-BC-CJC Assigned to: Hon. Ronald Bauer Department: CX-103 DEFENDANTS AND CROSS- COMPLAINANTS UHC 00558 OXNARD, L.P., UHC 00558 OXNARD HOLDINGS, LLC, UHC 00539 YUCAIPA, L.P., and HPI HORIZONS AT YUCAIPA, LLC'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES [Filed concurrently with the Declaration of Rosemary K. Nunn; [Proposed] Order] DATE: March 25, 2019 TIME: 9:00 a.m. DEPT: CX-103 Action Filed: Trial Date: June 27, 2017 October 15,2018 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 25, 2019 at 9:00 a.m., or as soon thereafter as this matter may be heard, in Department CX103 of the above-entitled Court, located at 751 W. Santa Ana Blvd. in Santa Ana, California 92701, Defendants and Cross-Complainants UHC 00558 1144943.1 MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 9 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP Oxnard, L.P., UHC 00558 Oxnard Holdings, LLC, UHC 00539 Yucaipa, L.P., and HPI Horizons at Yucaipa, LLC hereby move this Court for an Order striking and/or taxing the Memorandum of Costs filed by Plaintiff and Cross-Defendant Trevor Rizzuto dba TCR SWPPP Inspections on February 1, 2019. This Motion is made pursuant to the California Rules of Court, rule 3.1700(b), Code of Civil Procedure, sections 1032, ef seq., and on the grounds that Rizzuto's claimed costs were not reasonable or necessary in connection with trial, and as a result, the costs are not recoverable at all Or are excessive. The following summarizes the costs that UHC seeks to tax if the costs are not stricken altogether: Cost Name of Cost Requested Amount of Amount to be Amount LA - Taxed/Stricken Allowed Number Requested 1. Filing and Motion Fees $ 916.15 $ 481.15 $ 435.00 2. Deposition Costs $3,577.24 $3,577.24 $ 0.00 5 Service of Process $ 453.41 $ 278.41 $ 175.00 yp. | Models, blowups and $1,314.72 5 821.12 § 493.60 photocopies of exhibits Other: CourtCall and 13. Parlcing Fees for Tal $ 546.00 $ 546.00 $ 0.00 TOTALS: $ 6,807.53 $5,703.92 $ 1,103.60 This Motion is based on this Notice, the Memorandum of Points and Authorities, the Declaration of Rosemary K. Nunn, the pleadings and records on file in this action, and upon such further oral and documentary evidence as may be presented at the hearing on the Motion. DATED: February 19, 2019 MUSICK, PEELER & GARRETT LLP NW w- y: Rosemary K. Nunn Attorneys for Defendants and Cross-Complainants UHC 00558 OXNARD, L.P., UHC 00558 OXNARD HOLDINGS, LLC, UHC 00539 YUCAIPA, L.P., HPI HORIZONS AT YUCAIPA, LLC 1144943.1 2 MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 9 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION AND SUMMARY OF ARGUMENT Defendants and Cross-Complainants UHC 00558 Oxnard, L.P., UHC 00558 Oxnard Holdings, LLC, UHC 00539 Yucaipa, L.P., and HPI Horizons at Yucaipa, LLC (collectively, "UHC") file this motion for an order striking, or alternatively, taxing, the Memorandum of Costs filed by Plaintiff and Cross-Defendant Trevor Rizzuto dba TCR SWPPP Inspections ("Rizzuto"). As will be discussed in detail throughout this motion, Rizzuto has not submitted the requisite evidence to support his costs. Accordingly, UHC's motion should be granted. II. PERTINENT BACKGROUND FACTS This case came before this Court on October 15, 2018, and trial ran for 4.5 days, from October 16-19, 2018, with closing arguments heard on October 23, 2018. (Declaration of Rosemary K. Nunn ["Nunn Decl."], § 3.) The case was argued and submitted for decision. (Nunn Decl., 43.) On January 11, 2019, the Court entered a ruling in favor of Rizzuto. (Nunn Decl., 4.) On February 1, 2019, Rizzuto filed a Memorandum of Costs. (Nunn Decl., 9 5.) III. LEGAL ARGUMENT A. Motion to Strike or Tax Costs Is Appropriate A motion to strike or tax costs is appropriate pursuant to California Rules of Court, rule 3.1700(b). Even where an item is otherwise allowable, a claimed cost may only be recovered where it is both (1) "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation,” and (2) "reasonable in amount." (Code Civ. Proc., § 1033.5(c)(2)-(3).) The determination of whether a claimed cost is "reasonable" is within the discretion of the trial court. (Ladas v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774.) Further, where items included in a verified cost bill are properly objected to, they are put at issue and the burden shifts to the party claiming the costs to prove they were reasonable and necessary. (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 624.) Where costs are not expressly allowed by statute, the burden is always on the party claiming the cost to show that the charges were reasonable and necessary. (Foothill De-Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.) In the absence of such a showing, a court has no discretion to award 1144943.1 1 MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 9 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP costs not statutorily authorized, because the right to costs is governed strictly by statute. (Ladas, supra, 19 Cal.App.4th at 774 [internal citations omitted].) B. Costs UHC Seeks to Strike and/or Tax 1. Item No. 1: Filing and Motion Fees Rizzuto claims he is owed reimbursement in the about of $916.15 for filing and motion fees. However, there is zero evidence to substantiate the lump sum he is claiming. Indeed, Rizzuto failed to even fill out the Judicial Council Memorandum of Cost Worksheet, which would itemize his claimed costs. (Nunn Decl., § 5.) Given the dearth of information supporting this line item, this request should be stricken altogether. Moreover, none of Rizzuto's filed motions in this lawsuit were granted - they were all denied. (Nunn Decl., 46.) Ergo, any motion fees he expended were not reasonable and/or necessary because they were incurred to raise motions rejected by the Court. The cost to file a complaint in Orange County Superior Court is $435. (Nunn Decl., § 7.) Rizzuto has not offered any evidence or explanation to justify an award above this amount, and therefore, this line item should be taxed in the amount of $481.15. 2, Item No. 4: Deposition Costs Rizzuto's claimed $3,577.24 in deposition costs is excessive and unreasonable. While the taking of "necessary depositions" is included as an allowable cost according to Section 1033.5(a)(3), the costs of taking depositions which were not used at trial is always a question of fact for the trial judge to determine. (Ladas, supra, 19 Cal. App.4th at 774; see also Moss v. Underwriters’ Report (1938) 12 Cal.2d 266, 275-76; Engel v. Ehret (1913) 21 Cal. App. 112, 116 [upholding the court's disallowance of costs for taking depositions of witnesses that were not used at trial]; Lomita Land & Water Co. v. Robinson (1908) 154 Cal. 36, 52 [affirming the Court's decision to disallow the costs of depositions which were not necessary for the protection of the party's rights].) Once again, because Rizzuto provides zero information at all to justify this $3,577.24 lump sum cost in his Cost Summary, UHC is unable to make a determination as to which deponent this cost refers to. Moreover, Rizzuto did not rely on deposition testimony at trial. As such, none of 1144943.1 2 MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 9 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP these costs were necessary. (Nunn Decl., 49 5, 8.) This line item should be stricken altogether. 3. Item No. 5: Service of Process Rizzuto seeks $453.41 in service of process fees. All four defendants had the same agent for service of process. (Nunn Decl., 9.) Service of a complaint, plus costs for four proofs of service, is $175.00 via UHC's attorneys' process server. (Nunn Decl., 4 10.) This line item should therefore be taxed in the amount of $278.41. 4. Item No. 11: Models, Blowups, and Photocopies Plaintiffs' Memorandum of Costs includes $1,314.72 in costs categorized as "blowups/technician/exhibits." Code of Civil Procedure, section 1033.5(a)(12) provides that "models and blowups of exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to aid the trier of fact." Such costs must nonetheless be reasonably necessary, rather than merely convenient, and also reasonable in amount. No further information has been provided by Plaintiff to break down this costs. UHC is therefore left guessing as to the amounts incurred and their purpose. Had Rizzuto filled out the Memorandum of Costs Worksheet, he would have seen that for this line item the form instructs one to "specify" the costs sought. (Nunn Decl., § 5.) Rizzuto failed to provide any specificity whatsoever, or receipts to justify this cost. Rizzuto did not use models or blowups in the trial. (Nunn Decl., § 11.) Are we to assume he spent $1,314.72 making two sets of exhibit binders, one for himself and the other for the Court? This seems excessive. Rizzuto did not make UHC's set of binders because counsel for UHC agreed to print the documents and organize their binders themselves. (Nunn Decl., § 12.) UHC incurred $246.80 for one set of exhibit binders, for their use at trial. (Nunn Decl., § 12.) Thus, at most, Rizzuto is entitled to $493.60 for two sets of binder - one for Rizzuto and the other for the Court. This line item should be taxed in the amount of $821.12. 5. Item No. 13: CourtCall and Parking Fees Plaintiff's Memorandum of Costs also seeks $546.00 for "other expenses." There is zero detail on how this amount was derived, and thus it is impossible to analyze the merits of this claimed number. Perhaps most importantly, the items in this category are not expressly allowable 1144943.1 3 MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 9 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP under Code of Civil Procedure, section 1033.5(a), and should be taxed in full. C. Summary of Total Allowed Costs and Total Taxed Costs For the Court's convenience, below is a summary of costs allowed and taxed: Cost Name of Cost Subsection | Requested i LS tl ECO Urs to be Amount Allowed Requested Taxed/Stricken Number 1. Filing and Motion § 916.15 $ 481.15 $435.00 Fees 2. Deposition Costs $3,577.24 $3,577.24 $ 0.00 5. Service of Process $ 453.41 $ 27841 $ 175.00 Models, blowups and 11. photocopies of $1,314.72 $ 821.12 $ 493.60 exhibits Other: CourtCall and 13. Parking Fees for Trial $ 546.00 $ 546.00 $ 0.00 TOTALS: $ 6,807.53 $5,703.92 $1,103.60 IV. CONCLUSION For the foregoing reasons, the costs sought by Rizzuto should be stricken altogether. In the alternative, Rizzuto's claimed costs should be taxed in the amount of $5,703.92. DATED: February 19, 2019 MUSICK, PEELER & GARRETT LLP |W w- y: Rosemary K. Nunn Attorneys for Defendants and Cross-Complainants UHC 00558 OXNARD, L.P., UHC 00558 OXNARD HOLDINGS, LLC, UHC 00539 YUCAIPA, L.P., HPI HORIZONS AT YUCAIPA, LLC 1144943.1 4 MEMORANDUM OF POINTS AND AUTHORITIES