Reply To Motion To Strike Costs

Reply

Cal. Super. - 4th Dist.July 2, 2018

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Daniel Watts, Esq. SBN 277861 ELECTRONICALLY FILED G10 Galuppo Law Superior Court of California, 2792 Gateway Road, Suite 102 County of San Diego Cortabad, Ce or a 920d 07/23/2020 at 04:00:00 Ph one: = . Clerk of the Superior Court Fax: (760) 431-4579 By E- Filing. Deputy Clerk Attorneys for Defendant Eugene Swiech SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO CENTRAL DIVISION CURAMUS MANAGEMENT, INC, a Case No.: 37-2018-00032690-CU-DF- California corporation; AARON LEVINE, CTL an individual, Assigned: Hon. Richard S. Whitney Plaintiffs, Dept.: C-68 Vs. Reply in support of Defendant’s Motion to Strike or Tax Costs EUGENE SWIECH, an individual; and DOES 1 through 10, inclusive, Date: July 31, 2020 Time: 10:30 a.m. Def } Judge: Richard S. Whitney efendants Dept.: C-68 Reply ISO Defendant’s Motion to Strike/Tax Costs 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Reply ISO Defendant’s Motion to Strike/Tax Costs oO 0 3 a Un BA W N ND N D N N N N N N =m e e e m e s e e e e e m 0 N N L t A W D , O O N Y R W ND = O REPLY Plaintiffs’ opposition brief does not dispute any of the law Defendant cited explaining that appellate attorney’s fees are not available: a) for anti-SLAPP motions that were not frivolous and solely intended to cause delay, b) in a memorandum of costs, or ¢) when the party opposing the anti-SLAPP motion failed to give safe harbor notice under Code Civ. Proc. §128.5. The court should deem those arguments conceded and strike Item #9, the $5,830 in attorney fees, from the memorandum of costs. Plaintiffs’ opposition also admits that Item #1 for $421.15 on their memorandum of costs was a mistake and should be stricken. See Opp. at p. 2 (“The number $421.15 was a mistake”). The opposition argues that some of the $421.15 is proper, but supplies no evidence supporting those fees - not a declaration from new counsel, not a declaration from previous counsel, no receipts, nothing. On a motion to strike costs, “if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774. A party with the burden of proof on an issue must offer admissible evidence, not just argument, to prove its contentions. Plaintiffs failed to offer so much as a declaration from counsel attesting to the accuracy of the memorandum of costs. They failed to meet their (low) burden. They did not even try. The court cannot allow them to recover costs based on argument; only evidence can suffice, and they offered none. Conclusion The costs memorandum should be stricken in its entirety or, alternatively, items #1 ($421.15) and #9 ($5,830) should be taxed, stricken, and eliminated. Dated: July 23, 2020 LN Daniel Watts G10 Galuppo Law Attorneys for Defendant Eugene Swiech Reply ISO Defendant’s Motion to Strike/Tax Costs 1