Opposition Other

Opposition

Cal. Super. - 4th Dist.October 30, 2018

10 11 12 13 14 1.5 16 17 18 19 20 21 22 23 24 25 26 27 28 ELECTRONICALLY FILED Brian R. Riley, Sag. (ar No. 118913) Superior Court of California, Steven W. Martin, Sd soa No. 265407) County of Jan Diego LAW SL oo B pe Bet 03/6/2020 at 03:24:00 PI 16466 Bernardo Center Drive, Suite Biprk 5F the Bussnar B San Diego, California 92128 By Log Me Ator Doty. Cleric (858) 487-5451 (858) 487-0579 fax Attorney for Plaintiff, CHERYL AMAYA SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO - CENTRAL DIVISION CHERYL AMAYA., ) CASE NO.: 37-2018-00055335-CU-PA-CTL ) Plaintiff, PLAINTIFF CHERYL AMAYA’S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS VS. Date: March 27, 2020 ) Time: 11:00 a.m. BRIAN SCOTT KELLY, ) Dept: C-70 ) Defendant. Judge: Hon. Randa Trapp Plaintiff, Cheryl Amaya submits the following opposition to Defendant, Brian Scott Kelly’s (“Defendant”) motion to tax costs. IL INTRODUCTION Plaintiff seeks to be reimbursed for costs necessitated by the instant litigation and recoverable under section 1033.5 of the California Code of Civil Procedure. Defendant has submitted a motion seeking a reduction of Plaintiff’s recoverable costs by $4,571.10 alleging the costs are unreasonable however Defendant submitted a Memorandum of Costs for more than double the costs the Plaintiff incurred in this matter. Defendant filed a Memorandum 1 PLAINTIFF CHERYL AMAYA’S OPPOSITION TO DEFENDANT’S MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 29 26 27 28 of Costs signed November 14, 2019 seeking recovery of $11,147.01, yet would have the court believe Defendant’s costs were reasonable and Plaintiff’s were not. In filing a verified memorandum of costs, Plaintiff established the reasonable necessity of the costs claimed. Merely objecting to a cost that appears proper on its face does not mean the party claiming the cost must prove that it was reasonable and necessary. IL FACTUAL BACKGROUND This matter involves an action for monetary damages arising out of an automobile collision on January 25, 2018 that resulted in over $16,000.00 in damage to Plaintiff's vehicle. The case went to trial on October 28, 2019, and was submitted to the jury for deliberations on October 30, 2019. On October 30, 2019, after deliberation the jury found that the motor vehicle collision was a substantial factor in causing harm to Plaintiff, CHERYL AMAYA. The jury’s verdict awarded Plaintiff her full medical expenses of $6,802.00, loss of earnings of $488.64, and past non-economic damages of $500.00. Despite Plaintiff being the prevailing party, Defendant by and through his attorney served upon Plaintiff, CHERYL AMAYA, via mail a Memorandum of Costs alleging total costs of $11,141.01 on or about November 14, 2019. IIL. ARGUMENT The prevailing party is entitled as a matter of right to recover costs of suit in any action or proceeding. (Cal. Code Civ. Pro. §1032(b); Santias v. Goodin (1998) 17 Cal.4th 599, 606.) Here, the jury’s verdict awarded Plaintiff $7,790.64, and therefore, it is undisputed Plaintiff is the prevailing party. As a result, the Court has no discretion to order each party to bear his or her own costs. (Mitchell v. Olick (1996) 49 Cal. App.4th 1194, 1198.) 2 PLAINTIFF CHERYL AMAYA’S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS 10 11 12 1.3 14 15 16 17 18 19 20 21 22 23 24 29 26 27 28 California Code of Civil Procedure Section 1033.5(¢)(1) sets forth the items that are allowable costs if incurred by the prevailing party. (Cal Code Civ. Proc. §1032(b).) Defendant would argue Plaintiff’s costs which are less than half of the costs Defendant alleges to have incurred are excessive and/or unreasonable. However, to obtain a costs award, the prevailing party must serve and file a memorandum of costs that is “verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of costs are correct and were necessarily incurred in the case.” (Cal. Rules of Court, Rule 3.1700(a)(1).) The verification under CRC 3.1700(a)(1) will suffice to establish the reasonable necessity of the costs claimed. (See Wilson v. Board of Retirement (1959) 176 Cal.App.2d 320, 323.) Supporting documentation is only required if costs have been put in issue by a motion to tax costs. (See Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308; Jones v. Dumrichob (1998) 63 Cal. App.4th 1258, 1267.) If the items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show that they were not reasonably necessary. (Ladas v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774-776.) A. Item #1, Filing and Motion Fees of $555.00 Filing and motion fees are recoverable under CCP section 1033.5(a)(1). Plaintiff's verified statement under CRC 3.1700(a)(1) establishes the reasonable necessity of the filing and motion fees (item #1) claiming in the amount of $555.00. (Cal. Code Civ. Proc. §1033.5(a)(1).) Supporting documentation for these costs were attached to Plaintiff's Memorandum of Costs as Exhibit 1. B. Item #5, Service of Process Costs of $50.00 Service of process costs are allowable under CCP section 1033.5(a)(4). (Cal Code Civ. Proc. §1033.5(a)(4).) Plaintiff's verified statement under CRC 3.1700(a)(1) establishes the reasonable necessity of the service costs (item #5) claimed in the amount $50.00. Supporting documentation for these costs were attached to Plaintiff’s Memorandum of Costs as Exhibit 5. 3 PLAINTIFF CHERYL AMAYA’S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS 10 1.1 12 13 14 15 16 17 18 19 20 21 22 £3 24 29 26 27 28 D. Item #12, Models, enlargements, and photocopies of exhibits of $83.46 Photocopies of exhibits are allowable costs under CCP section 1033.5(a)(13). Plaintiff’s verified statement under CRC 3.1700(a)(1) establishes the reasonable necessity of the photocopies of exhibits (item #12) in the amount of $83.46. Although costs for exhibits not actually used at trial are not automatically recoverable, the Court has discretion to allow such costs pursuant to CCP §1033.5(c)(4). (Applegate v. St. Francis Lutheran Church (1994) 23 Cal.App.4th 361, 364 [court properly exercised discretion to allow exhibit costs where action was dismissed by opposing party on day of trial]; Benach v. County of Los Angeles (2007) 149 Cal. App4th 836, 856 [finding that although the Department did not use majority of its exhibits at trial, nothing indicates it could have anticipated they would not be used, and it would be “inequitable to deny as allowable costs exhibits any prudent counsel would prepare in advance of trial.””]) Supporting documentation for these costs were attached to Plaintiff’s Memorandum of Costs as Exhibit 12. F. Item #16, Other Costs fo $265.00 An item neither specifically allowable under CCP section 1033.5(a) nor prohibited under scetion 1033.5(b) may be recoverable in the Court’s discretion. (Cal. Code Civ. Proc. §1033.5(c)(4); Ladas v. Cal. State Auto Ass’n, 19 Cal.App.4th at 773-774.) Plaintiff’s verified statement under CRC 3.1700(a)(1) establishes the reasonable necessity of the $425.29 in other costs (item #16). These costs should be recoverable because they were costs for Mediation of this matter with Debra Dominski. Mediation was agreed to by the parties at the Case Management Conference on April 26, 2019 and ordered by the court. The parties did not proceed through private mediation but rather the courts panel. Supporting documentation for these costs were attached to Plaintiff's Memorandum of Costs as Exhibit 16. Defendant requests the court deny costs asserting the action could have been brought in small claims division or limited jurisdiction. Under CCP 1033(b)(1) the court may, in its discretion, allow or deny costs to the prevailing party, or may allow costs in part in any amount as it deems proper. 4 PLAINTIFF CHERYL AMAYA’S OPPOSITION TO DEFENDANT’S MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The fact the jury’s verdict fell below the unlimited jurisdiction does conclusively establish the matter should have been filed in the small claims division and/or limited jurisdiction. Again the injuries from this matter arose from an automobile collision in which the property damage exceeded $16,000.00. Plaintiff’s claimed special damages exceeded the small claims jurisdictional amount alone without consideration of general damages. At trial Plaintiff asked the jury for an award that exceeded both small claims and limited jurisdictional limits and it was certainly conceivable the Plaintiff could have been awarded an amount that exceeds both jurisdictional limits. Furthermore, if Defendant seriously considered the case was filed in the wrong court, Defendant could have filed a motion to reclassify the case. However, Defendant did not, rather proceeded with the matter in unlimited jurisdiction. IV. CONCLUSION Pursuant to CCP 1033.5 the court should at a minimum award the plaintiff the fees as discussed above. Plaintiff incurred: filing and motion fees of $555.00, service of process costs of $50.00, exhibit copy costs of $83.46, and court panel mediation costs of $265.00. All costs during litigation incurred by Plaintiff were reasonable in amount and reasonably necessary to bring Plaintiff’s case as allowed under CCP section 1033.5. Dated: 3 / (0 2010 LAW OFFICES OF BRIAN R. RILEY Hon WJ Steven W. Martin, Esq., Attorney for Plaintiff, CHERYL YA 5 PLAINTIFF CHERYL AMAYA’S OPPOSITION TO DEFENDANT’S MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CHERYL AMAYA v. BRIAN SCOTT KELLY CASE NO.: 37-2018-0005533-CU-PA-CTL PROOF OF SERVICE C.C.P. Section 1013a I, Linda K. Elsner, declare as follows: I am over the age of eighteen years and not a party the case. I am employed in the County of San Diego, State of California, where the mailing occurs; and my business address is 16466 Bernardo Center Drive, Suite 106, San Diego, California 92128. On March 16, 2020, I served the foregoing document(s) described as: PLAINTIFF CHERYL AMAYA’S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed to the addressee as follows: Attorney for Defendant Mark Serino, Esq. Raffalow, Bretoi & Adams 9635 Granite Ridge Dr., Ste 210 San Diego, CA 92123 (858) 694-4180 fax / mserino/@mercuryinsurance.com (X) U.S. MAIL: I am readily familiar with the firm's practice of collection and processing of correspondence for mailing with the United States Postal Service, and that the comespandonce shall be deposited with the United States Postal Service this same day in the ordinary course of business pursuant to Code of Civil Procedure Section 1013(e). (X) ELECTRONIC TRANSMISSION: In addition to service by mail as set forth above, a copy of said document(s) also were delivered by electronic transmission, I caused the documents to be sent on the date shown below to the e-mail addresses of the persons listed above. I did not receive within a reasonable time after the transmission any electronic message or other indication that the transmission was unsuccessful. Both counsel agreed to accept service via e-mail in lieu of personal service. Executed on March 16, 2020, at San Diego. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. / k mda K. glsner