Talya Nevo-Hacohen vs. Adam HorowitzMotion to Strike or Tax CostsCal. Super. - 4th Dist.September 29, 201710 Jil 12 13 14 15 16 187 18 9 20 21 22 23 24 25 26 27 28 James J. Orland, Esq. (State Bar No.161937) jim@orlandlawgroup.com Sheila A. Baker, Esq. (State Bar No. 195877) sheila@orlandlawgroup.com ELECTRONICALLY FILED Superior Court of California, County of Orange 02/01/2019 at 11:56:00 AM Clerk of the Superior Court By Olga Lopez, Deputy Clerk ORLAND LAW GROUP, A Professional Corporation 1334 Parkview Avenue, Suite 100 Manhattan Beach, CA 90266 Telephone: 310-492-5705 Facsimile: 310-598-3141 Attorneys for Defendants/Cross-Complainants ADAM HOROWITZ and ALLAN HOROWITZ SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE TALYA NEVO-HACOHEN, an individual; and WILLIAM J. SCHENKER, JR., an individual Plaintiffs, VS. ADAM HOROWITZ, individually and d/b/a Brixton Developers & Co; ALLAN HOROWITZ, individually; and DOES 1 THROUGH 20, inclusive, Defendants. Defendants. AND RELATED CROSS-ACTION Case No. 30-2017-00947246-CU-OR-CJC Assigned to Hon. Ronald L. Bauer, Dept. CX103 NOTICE OF MOTION AND MOTION TO STRIKE AND/OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF JAMES ORLAND DATE: March 4, 2019 TIME: 9:00 a.m. DEPT: CX 103 Case filed: September 29, 2017 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on March 4, 2019 at 9:00 a.m., or as soon thereafter as counsel may be heard in Department "CX 103" of the above-entitled court located at 751 W. 1. MOTION TO STRIKE AND/OR TAX COSTS 10 11 2 13 14 15 16 37 18 1.9 20 21 22 23 24 25 26 21 28 Santa Ana Blvd., Santa Ana, CA 92701, Defendants/Cross-Complainants ADAM HOROWITZ and ALLAN HOROWITZ (“Defendants”), will, and herby do, move the court for an order to tax and/or strike the costs submitted by Plaintiffs TALYA NEVO-HACOHEN and WILLIAM J] SCHENKER, JR. (“Plaintiffs”) in this action. This motion is brought pursuant to Civil Code section 1033.5 and California Rule of] Court 3.117, and on the grounds that the majority of costs being requested are precluded by statute, facially excessive and unreasonable in amount, and completely unnecessary to the litigation in violation of Code of Civil Procedure § 1033.5(c)(2)-(3). Plaintiffs have failed to demonstrate why it is entitled to certain costs referred to in the Memorandum of Costs submitted to the court and have failed to provide specific details to substantiate certain costs allegedly] incurred in the instant lawsuit. This motion is based upon the Notice of Motion and Motion, upon the Declarations fil herewith, upon the Memorandum of Points and authorities attached hereto, on the pleadings and records on filed herein, and upon such other and further oral and documentary evidence as may be presented at the hearing. DATED: February 1, 2019 ORLAND LAW GROUP or Ne Beale JAMES J. ORLAND, ESQ. SHEILA A. BAKER, ESQ. Attorneys for Defendants ADAM HOROWITZ and ALLAN HOROWITZ MOTION TO STRIKE AND/OR TAX COSTS 10 11 12 13 14 £5 16 17 1:8 19 20 21. 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L. INTRODUCTION This motion is being brought by Defendants ADAM HOROWITZ and ALLAN HOROWITZ (“Defendants”) to contest the costs being claimed by the Plaintiffs TALYA NEVO-HACOHEN and WILLIAM J. SCHENKER, JR. (“Plaintiffs”) herein. The costs arg inappropriate, exorbitant, not allowed by statute or otherwise, and are completely unsupported by any documents, or the court file and trial, in this matter. Defendants seek to have the cost stricken and/or taxed. II. BRIEF FACTUAL SUMMARY This action arises out of a dispute between two adjacent property owners. On September 29, 2017, Plaintiffs TALYA NEVO-HACOHEN and WILLIAM J. SCHENKER, JR (“Plaintiffs”) filed a lawsuit against Defendants ADAM HOROWITZ, individually and d/b/a Brixton Developers & Co., and ALLAN HOROWITZ (“Defendants”). The Complaint was amended on October 24, 2017 and alleged Trespass, Permanent Injunction, Nuisance, Negligence and Declaratory Relief. Trial commenced on November 27, 2018 and a Jury Verdict was rendered on December] 10, 2018 awarding Plaintiffs $175,000 as to their Negligence cause of action. No monetary award was awarded based upon Plaintiffs’ negligence per se, trespass, private nuisance of punitive damages claims. The Court signed the Proposed Judgment on December 31, 2018. (Note: Defendants have filed a Motion to Vacate the Judgment, which is set for hearing on February 11, 2019.) Plaintiff mailed served the Memorandum of Costs on January 14, 2019. III. THIS MOTION TO TAX/STRIKE COSTS IS TIMELY. 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 service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost 3 MOTION TO STRIKE AND/OR TAX COSTS 10 rl 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 217 28 memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4). Here, the Plaintiffs’ Memorandum of Costs was mail served on January 14, 2019. This Motion will be filed and served on February 1, 2019, well within the window of time to file and serve said motion pursuant to Rules of Court, rule 3.1700(b) IV. LEGAL STANDARD Code of Civil Procedure § 1032 provides for recovery of costs by a prevailing party, However, the prevailing parties’ right to recover costs is not absolute. Wegner, Fairbank, Epstein & Chernow, California Practice Guide: Civil Trials and Evidence (The Rutter Group 2015) § 17:99. Section 1033.5(a) lists allowable costs and Section 1033.5(b) lists costs that are not allowable. 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 of Civil Procedure § 1033.5(¢)(2)-(3). In other words, “Only ‘allowable’ cost items, ‘reasonably necessary’ to the conduct of the litigation and ‘reasonable’ in amount are recoverable.” Id. The determination of whether a claimed cost is “reasonable” is within the discretion of the trial court. Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, 774. Indeed, the law does not contemplate that a litigant must pay all of the successful party's expenses in connection with the litigation, but only those expenses properly allowable as costs Wilson v. Board of Retirement (1959) 176 Cal.App.2d 320, 322. Furthermore, costs “merely convenient or beneficial to [Plaintiffs'] preparation” are disallowed. Code of Civil Procedure § 1033.5(c)(2); Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129; Ladas v. California State Automobile Association (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 4 MOTION TO STRIKE AND/OR TAX COSTS 10 LT: 12 1:3 14 15 16 1 18 19 20 21 22 23 24 25 26 27 28 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 costs not statutorily authorized because the right to costs is governed strictly by statute. Ladas, supra, 19 Cal.App.4th at 774 (citations omitted). Here, Plaintiffs claim $60,715.70 in costs according to their January 14, 2019 Memorandum of Costs. The mere fact that the costs sought are roughly one-third of the $175,000 judgment awarded to Plaintiffs demonstrates the unreasonableness of the claimed, costs. The following further demonstrates the unreasonableness of certain costs claimed by Plaintiffs. V. DEFENDANTS SEEK TO STRIKE AND/OR TAX COSTS A. Category 1: Filing and Motion Fees Amount Claimed $680.00 Amount Taxed $64.50 Amount Allowed $615.50 Plaintiffs seek recovery of costs in the amount of $62.25 in connection with the April 6, 2018 filing of a Motion to SLAPP. This Court should tax this amount because Plaintiffs had no justifiable grounds to bring this motion. Suezaki v. Superior Court (1962) 58 Cal.2d 166, 176 As set forth in para. 7 of the Declaration of James J. Orland, the subject anti-SLAPP motion was denied. Plaintiffs also seek $2.25 for the May 22, 2018 filing of a Notice of Errata. Defendants should not be required to pay for Plaintiffs’ counsel’s error. Therefore, $64.50 should be stricken from this Category of Costs sought by Plaintiffs. B. Category 2: Jury Fees Amount Claimed $1,284.23 Amount Taxed $1,284.23 Amount Allowed $0 Under Item No. 2, for “Jury fees,” Plaintiffs are claiming $1,284.23. Such costs must bg taxed as no supporting documentation or other evidence has been presented substantiating such costs. C. Category 4: Deposition Costs Amount Claimed $19,611.29 5 MOTION TO STRIKE AND/OR TAX COSTS 10 11 12 1:3 14 1:5 16 171 18 18 20 21 22 23 24 25 26 27 28 Amount Taxed $14,091.25 Amount Allowed $5,520.04 Plaintiffs seek deposition costs in an excessive and unreasonable amount. While the “taking, video recording, and transcribing” of “necessary depositions” is included as an) allowable cost according to Section 1033.5(a)(3), the necessity for costs of taking or videotaping 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 (193 8) 12 Cal.2d 266, 275-76; Engel v. Ehret (1913) 21 Cal.App. 112, 116 (upheld 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 (upheld the court's disallowance of the costs of depositions which were not necessary for the protection of the party's rights). Here, Plaintiffs seek recovery of deposition costs in the amount of $19,611.29 for thirteen] witnesses. This is excessive and unreasonable. Indeed, of the 13 deponents, 7 of the witnesses (Daniel Herc, Rick Morales, David Hamilton, Marshall Shelton, James Goeth, Duane Curtis, and John Tran) never testified at trial and their depositions were not presented to the jury, (Declaration of James J. Orland, para. 7). The claimed costs of the seven deponents’ depositions is $7,735.85. Further, it appears that Plaintiffs may be seeking to recover the costs paid to Defendants’ experts Kabo and Houseal - to take their deposition. (It is unclear from Plaintiffs” worksheet if the costs claimed are totally related to each expert’s deposition transcript or if the amount claimed includes the payment of the expert’s fees.) A party desiring to depose an expert must pay the expert's fee for the time required for the deposition. Code of Civil Procedure § 2034.430(b). In other respects, the compensation of the expert remains the responsibility of the party who hired the expert. Code of Civil Procedure § 2034.430 et seq. does not provide for the recovery of the expert witness expenses in a cost award. Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1624; Gorman v. Tassajara (2009) 178 Cal.App.4th 44, 73-74 (fees paid by prevailing plaintiff to compensate defense experts for their time while being deposed were not recoverable costs, absent evidence that the defense experts were ordered by the court). To the 6 MOTION TO STRIKE AND/OR TAX COSTS 10 LL 12 13 14 15 16 17 18 iE) 20 21 22 23 24 25 26 27 28 extent the costs claimed include fees paid to the defense experts ($6,355.40), said amounts should be stricken. Unless shown otherwise, only $5,520.04 is allowable as costs of deposition and $14,091.25 should be taxed. D. Category 5: Service of Process Amount Claimed $7,442.10 Amount Taxed $5,896.20 Amount Allowed $1,545.90 Plaintiffs seek recovery of the costs of service for 15 separate service events. However) the costs related to the subpoenas of 11 of these events should be taxed because such costs werg not reasonably necessary to the litigation. For example, the trial subpoenas for Duane Curtis, Daniel Herc, Rick Morales, David Hamilton and Mike Bell should be taxed as these individuals did not testify at trial. (Declaration of James J. Orland, para. 7). Additionally, the subpoena of Andy Fathollahi should be taxed as he was never deposed or called as a witness. (Declaration of James J. Orland, para. 7). Finally, the subpoenas of Defendants experts to appear for deposition and trial were unnecessary expenses as Defendants are required to produce their experts for deposition per the Code of Civil Procedure and Defendants case would have no expert opinions/support if the experts had not appeared at trial. As such, the Court should tax $5,896.20 for these unnecessary and unreasonable service of process costs. E. Category 11: Court Reporter Fees Amount Claimed $10,862.01 Amount Taxed $10,862.01 Amount Allowed $0 There is no statutory support for this demand. Plaintiff could only recover court reporter fees as established by statute. (Code of Civil Procedure section 1033.5(a) (11). According to California Rules of Court, Rule 2.956(c), it is the responsibility of the party who arranges for the presence of a certified shorthand reporter to pay for that shorthand reporter. In fact, Defendants agreed to the use of a court reporter and have paid its share of the Court Reporter Fees. (See, Declaration of Jim Orland, para. 5.) 7 MOTION TO STRIKE AND/OR TAX COSTS 10 als 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff has offered no statutory basis for being entitled to recover the cost of the court reporter fees given that the parties agreed to split the costs and Defendants have paid their share, For this reason, the demanded $10,862.01 should be stricken. F. Category 12: Models, enlargements and Amount Claimed $10,746.87 photocopies of exhibits Amount Taxed $5,373.43 Amount Allowed $5,373.44 Code of Civil Procedure § 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 reasonable in amount. Plaintiffs’ Memorandum of Costs includes $10,746.87 in costs categorized, as “blowups/technician/exhibits.” The only description provided by Plaintiffs is “Blowack printing of all exhibits including indexing, tabs, creating trial notebooks, Color Prints, DVD duplications, large size prints.” No further information has been provided by Plaintiffs breaking down these excessive and unreasonable costs. As such, Defendants are left guessing as to the amounts incurred and their purpose. A recoverable cost must be reasonable in need and amount. It also must have assisted the trier of fact. Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1380 (citing Ross v. Super. Ct. (1977) 19 Cal.3d 899, 913 (“[T]rial courts have a duty to determine whether a cost is reasonablé in need and amount.”) Here, most of the claimed costs were not necessary to the litigation and cannot be shown] to have helped the trier of fact. Defendants acknowledge that the cost for trial exhibits is an allowable cost, yet as presented by Plaintiffs in the Memorandum of Costs Worksheet, the actual cost related to trial exhibits is unknown. Moreover, the majority of exhibits Plaintiffs identified pre-trial, were never used nor presented to the jury. As set forth in the Declaration of Jim Orland para. 6, Plaintiffs, at best, used 50% of their exhibits. Plaintiffs have a duty to show how many pages, which exhibits/photographs were helpful to the trier of fact at trial and they have failed in this burden. Therefore, Plaintiffs should not bg able to recover anything for these claimed costs. However, if the Court disagrees, Defendants 8 MOTION TO STRIKE AND/OR TAX COSTS 10 11 12 13 14 15 16 17 18 1:9 20 21 22 23 24 25 26 27 28 would ask that Plaintiffs be limited to recovering for the pieces of paper used as exhibits for the trier of fact. Based upon the percentage of exhibits use, Defendants contend 50% of the claimed cost is the maximum the Plaintiffs should be entitled to, if the Court allows them to assert this cost despite failing in their burden of proof. G. Category 14: Fees for electronic filing or service =~ Amount Claimed $412.70 Amount Taxed $412.70 Amount Allowed $0 Under Item No. 14, for “Fees for electronic filing or service,” Plaintiffs are claiming $412.70. Defendants are left to guess what documents was e-filed and/or e-served. Moreover, such costs must be taxed as no supporting documentation or other evidence has been presented substantiating such costs. H. Category 16: Other Amount Claimed $9,676.50 Amount Taxed $9,676.50 Amount Allowed $0 Here, Plaintiffs seek to recover costs for their trial technician, Lynne Nadeua of Trial Assets, and related costs. The costs of an on-site technician at trial to present documentary] evidence and graphic exhibits to the jury and electronic storage of documents and graphic exhibits are not recoverable. Science Applications International Corporation v. Superior Courf (1995) 39 Cal. App.4th 1095, 1104-05 (holding costs of equipment and on-site technician to help counsel present documents to jury were not recoverable as they were akin to the cost of a “high tech” paralegal, and costs of editing videotaped depositions for “effective presentation of the testimony to the jury,” rather than reading depositions, was merely convenient and nof reasonable necessary or recoverable); see also El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc. (2007) 150 Cal.App.4th 612, 620 (“...the electronic and labor costs rejected in Science Applications ... were more expensive methods of doing things that could be done by less expensive, low-tech means, and therefore they were not reasonably necessary to the conduct of the litigation but were ‘merely convenient or beneficial to its presentation.”). Accordingly, the costs claimed by Plaintiffs related to the trial technician should be taxed in full. 9 MOTION TO STRIKE AND/OR TAX COSTS 10 1 12 13 14 Lo 16 17 18 19 20 21 22 23 24 25 26 27 28 VI. CONCLUSION For all of the foregoing reasons, Defendants respectfully requests that the Court issue an order taxing Plaintiffs’ costs in the amount of $47,660.82. DATED: February 1, 2019 ORLAND LAW GROUP “JAMES J. ORLAND, ESQ. SHEILA A. BAKER, ESQ. Attorneys for Defendants ADAM HOROWITZ and ALLAN HOROWITZ MOTION TO STRIKE AND/OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JAMES J. ORLAND I, JAMES J. ORLAND, declare: ls [ am an attorney at law licensed to practice in all the courts of the State of California and am the principal of the Orland Law Group, counsel for Defendants/Cross Complainants ADAM HOROWITZ and ALLAN HOROWITZ (“Defendants”) in the above referenced matter. 2 If called upon to testify as a witness in this matter, I could and would of my own personal knowledge competently testify to the facts hereinafter related. I would base my personal knowledge upon review of the litigation file in this matter and upon m participation ag counsel of record to date. 3. I am the trial counsel for Defendants. Trial commenced on November 27, 2018 and a Jury Verdict was rendered on December 10, 2018 awarding Plaintiffs $175,000 as to thei Negligence cause of action. No monetary award was awarded based upon Plaintiffs’ negligence per se, trespass, private nuisance or punitive damages claims. 4. The Court signed the Proposed Judgment on December 31, 2018. (Note: Defendants have filed a Motion to Vacate the Judgment, which is set for hearing on February 11, 2019.) Plaintiffs mail served the Memorandum of Costs on January 14, 2019. 5 With respect to the trial, I agreed to the use of a court reporter and have paid its share of the Court Reporter Fees. 6. Pretrial, Plaintiff’s Exhibits List identified over 200 exhibits. At best, only half of the Plaintiffs exhibits were used at trial. 7. During the course of the case, it is my recollection that: a. The Anti-Slapp Motion filed by Plaintiffs was denied. b. During trial, the following individuals were neither called as a witness nor was their deposition transcript introduced to the jury: Daniel Herc, Rick Morales, David Hamilton, Marshall Shelton, James Goeth, Duane Curtis, and John Tran. Further, Plaintiffs did no call Mike Bell as a witness and Andy Fathollahi was never deposed or called as a witness. 11 MOTION TO STRIKE AND/OR TAX COSTS 10 14; 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [ declare under penalty of perjury of the laws of the State of California thaf the foregoing is true and correct. Executed this 157 day of February 2019 at Manhattan Bealgh, California. J ames. hing MOTION TO STRIKE AND/OR TAX COSTS 10 11 12 13 14 15 16 17 18 1.9 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed in the County of Los Angeles, State of California. Iam over the age of 18 and not a party to the within action. My business address is 1334 Parkview Ave, Suite 100 Manhattan Beach, CA 90266. On the date set forth below, I served the foregoing documents described as NOTICE OH MOTION AND MOTION TO STRIKE AND/OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF JAMES ORLAND on all interested parties in said action: SEE ATTACHED LIST [1] By U. S. MAIL: The documents were placed in sealed, addressed envelopes on the above date and placed for collection and mailing at my place of business. I am “readily familiar” with the firm’s practice of collecting and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal service on that same day with postage thereon fully prepared at Manhattan Beach, CA 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. [1] BY ELECTRONIC TRANSMISSION: I caused the above-entitled document(s) to be served via electronic mail addressed to all parties appearing on the service list for the above-entitled case. [1] BY FACSIMILE: I faxed the documents to the persons appearing on the service list for the above-entitled case at the fax numbers listed. No error was reported by the fax machine that I used. 1X] BY PERSONAL SERVICE: I caused such envelope to be delivered by hand to the offices of the above-named addressee(s). [1] BY OVERNIGHT DELIVERY SERVICE: I served the foregoing document by FedEx, an express service carrier which provides overnight delivery, as follows. I placed true copies of the foregoing document in sealed envelopes or packages designated by the express service carrier, addressed to each interested party as set forth above, with fees for overnight delivery paid or provided for. [X] STATE - I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 1, 2019, at Manhattan Beach, California. 10 11 12 fis 14 5 16 17 18 19 20 21. 22 23 24 25 26 27 28 SERVICE LIST Vicki A. Nash, Esq. Douglas W. Abendroth, Esq. NORTH, NASH & ABENDROTH LLP 2 Park Plaza, Suite 1020 Irvine, CA 92614 949/752-2200; Fax 949/752-2230 vnash@north-nash.com; dabendroth@north-nash.com Attorney for Plaintiffs Tayla Nevo-Hacohen and William J. Schenker, Jr.
