Memorandum_of_points__authorities_in_reply_to_ali_defendants_opposition_to_motion_to_tax_and_strike_costsReplyCal. Super. - 2nd Dist.July 12, 2013Electronically FILED by Super H O W OO 0 3 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 33 23 24 25 26 27 28 r Court of California, County of Los Angeles on 06/08/2020 08:09 PM Sherri R. Carter, Executive Officer/Clerk of Court, by E. Salcido,Deputy Clerk Robert F. Vaage, Esq. (SBN 106437) Elizabeth H. Teixeira, Esq. (SBN 259788) LAW OFFICES OF ROBERT F. VAAGE 110 West “A” Street, Suite 1075 San Diego, California 92101-3910 Telephone: (619) 338-0505 Facsimile: (619) 338-0588 E-mail: rfvaage@vaagelaw.com E-mail: eteixeira@vaagelaw.com Kathryn B. Meadows, Esq. (SBN 131786) LAW OFFICE OF KATHRYN B. MEADOWS 550 West “C” Street, Suite 1155 San Diego, California 92101-3569 Telephone: (619) 231-9460 Facsimile: (619) 231-9095 Attorneys for Plaintiffs SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, SOUTH DISTRICT WALTER H. O'ROURKE and ) Case Number: BC514989 WENDY L. O'ROURKE, ) ) PLAINTIFFS’ MEMORANDUM OF Plaintiffs, \ NAYYER Z. ALI, M.D.; NAYYER ALI, M.D., INC.; CHARLES B. O’BRIEN, M.D.; CBO, A MEDICAL CORPORATION; and EMERGENCY PHYSICIANS MEDICAL ASSOCIATES OF LONG BEACH, Defendants. ) POINTS AND AUTHORITIES ) SUBMITTED IN REPLY TO ) DEFENDANTS NAYYER Z. ALI, ) M.D.’S AND NAYYER ALI, M.D., ) INC.’S OPPOSITION TO MOTION ) TO TAX AND STRIKE SAID ) DEFENDANTS’ COSTS ) ) Date: November 3, 2020 ) Time: 8:30 a.m. ) Dept.: S-27 ) Judge: Honorable Mark C. Kim ) ) Complaint Filed: ) ) Reservation ID: 995643976536 ) July 12, 2013 ) Plaintiffs’ Memorandum of Points and Authorities Submitted in Reply to Defendants Nayyer Z. Ali, M.D.’s and Nayyer Ali, M.D., Inc.’s Oppositon to Motion to Tax and Strike Said Defendants” Costs © 3 ON Oo 10 11 12 13 14 IS 16 17 18 19 20 21 22 a3 24 25 27 28 TABLE OF CONTENTS Page ARGUMENT ....ooitiieitetietetesteierie restenosis testes sae sre sae sates sass ens s sas e sabes ases ssa sss sas en ssn aaeas 1 A. Defendants Have the Burden of Establishing That the Costs Are Recoverable Under Statute and Were Reasonable and Necessary, Not Merely Convenient. .........c.cocvvvrumvreniniennnncsienninen 1 B. Costs Incurred for the Joint Benefit of Multiple Defendants Must Be Apportioned, Especially Those Incurred for the Joint Benefit of the ALI Defendants and the Vasilomanolakis Defendants ..........cccoceevcevreinniiiniiiiinmiinnienennens 2 C. $60.00 Should Be Taxed From Item 1 - - Filing Fees, L2avitg $3,052.58 ..... consi inessonsis ssnsissi sess sess im snss sas sss yas ss ness see masa y amines my gave 3 D. Only $9,189.91 of the Deposition Costs Set Forth in Item 4 Are Properly RecoVerable ..........ccccoimiiniininnniinnncc 3 1. Fees Paid to Plaintiffs’ Experts and for Plaintiff's Travel to Attend the Defense Medical Examination Totalling $24,712.54 Must Be Taxed..........cocovurirecrimnneennessninniiesicnns 3 2 Deposition Transcript Costs Which Were for the Mere Convenience of Counsel Totalling $15,030.35 Must Be StriCKen. .....voveeveeviniiiiiiiiiieice ene 4 3. Recoverable Deposition Costs of $2,937.08 Must Be Apportioned to Defendant Vasilomanolakis ANA TAXEA.....covviereeiiiireerreeerresteesrresese esses eseessstaesbn estes sane snssrsassassassassrsessanas 4 4. Undisputed COStS......ewoewomimmsss ssiissssmnsrasssmssasesssasm sys pigs segs oevomss oon 5 E. The Entirety of the Expert Witness Fees Sought By Way of Item Number 8 Totalling $84,602.87 Must TRC ETCETERA UE EO vrs comccmsmcamnod amnnhsiod 5 1, Defendants’ C.C.P. § 998 Offers Were Defective in Their Misstatement of the Law and Uncertain and Thus Did Not Invoke the Costs Provisions of CIEL. § BI8(E) css nswisssassssmssssmssmsmsrviamenames sy gw sosmmsssimeninsiinmiii 5 2. The ALI Defendants’ Token Offers Were Not in Good Faith Under the Circumstances and Had No Reasonable Prospect of ACCEpance ........oovvvveerirerenencninniineicinnenn. 6 i Plaintiffs’ Memorandum of Points and Authorities Submitted in Reply to Defendants Nayyer Z. Ali, M.D.’s and Nayyer Ali, M.D., Inc.’s Oppositon to Motion to Tax and Strike Said Defendants’ Costs A O O W L N NO 0 3 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS (Continued) Page 3 Defendants Seek Expert Fees Which Are Not Reasonable and Were Not Fully Apportioned Amongst the Parties ........cceceeivereinininiiiniiiiiiicec eee 10 F. Defendants’ Exhibits and Blowups Costs Under Item 12 in the Amount of $9,975.06 Should Be Reduced to $350.00 .......ccovveevecneencne 10 II CONCLUSION... titer eteeeteeere steers ereese sae saesse ste ssassesse sree seesaesasssesassae sae sbesissassstnssesasan 10 ii Plaintiffs’ Memorandum of Points and Authorities Submitted in Reply to Defendants Nayyer Z. Ali, M.D.’s and Nayyer Ali, M.D., Inc.’s Oppositon to Motion to Tax and Strike Said Defendants’ Costs + Oo 0 1 O N Win 10 11 12 13 14 15 16 17 18 19 20 21 2d. 23 24 25 26 ZT 28 Plaintiffs WALTER H. O'ROURKE and WENDY L. O’ROURKE hereby submit the following Memorandum of Points and Authorities in Reply to Defendants NAYYER Z. ALL, M.D. and NAYYER ALL M.D., INC.’s (hereinafter the "ALI Defendants’) Opposition to Plaintiffs’ Motion to Tax and Strike Costs. I ARGUMENT A. Defendants Have the Burden of Establishing That the Costs Are Recoverable Under Statute and Were Reasonable and Necessary, Not Merely Convenient. Plaintiffs’ moving papers set forth the burden of proof as it relates to the costs which have been challenged by way of this Motion. The ALI Defendants in their opposition, however, have blatantly misstated their burden as it relates to the pending Motion. It is undisputed that the right to recover costs is strictly limited by statute. In the absence of statutory authority, each party is required to pay his or her own costs. See Davis v. KGO-TV, Inc., 17 Cal. 4" 436, 439 (1998). C.C.P. § 1033.5(c)(2) specifically states: “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation”. CCP. § 1033.5(c)(3) mandates: “Allowable costs” shall be “reasonable in amount”. California courts have unequivocally held that these provisions apply to even those costs claimed as a “matter of right” under § 1033.5(a). See Perko's Enterprises, Inc. v. RRNS Enterprises, 4 Cal. App. 4th 238 (1992). This Court has the obligation to ensure that only costs necessary and reasonable in amount are allowed. See Serrano v. Stefan Muli Plastering Co. Inc., 160 Cal. 4" 214, 1039 (2008). The ALI Defendants erroneously assert that it is plaintiffs’ burden to demonstrate that the defendants’ costs are not reasonable. However, it is well-settled that, once the items of costs are properly objected to, they are put into issue and the burden of proof is on the party claiming them as costs. The party seeking the costs has the burden to establish that they were reasonable, necessary, and actually incurred, providing appropriate declarations and copies of appropriate receipts. Where no substantiation exists - - only mere argument, the costs must be disallowed. Id; See also Oak Grove School Dist. v. City Title Ins. Co., 217 Cal. App. 2d 678, 698 (1963). Defendants’ own authority, Jones v. Dumrichob, 63 Cal. App. 4" 1258, 1265 (1998), 1 Memorandum of Points and Authorities in Reply to Defendants Nayyer Z. Ali, M.D. and Nayyer Ali, M.D., Inc’s Opposition to Plaintiffs’ Motion to Tax and Strike Costs NO 0 0 ON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 expressly held that this burden of proof applied to all costs, including C.C.P. § 998 costs, stating: Appellants are correct that because they properly objected to respondent’s verified Memorandum of Costs, the burden shifted to respondent to prove his costs. (Ladas v. California State Auto. Ass'n (1993) 19 Cal. App. 4th 761, 774). Once costs claimed in the Memorandum are challenged via a motion to tax, “[dlocumentation must be submitted” to sustain the burden. (Bach v. County of Butte (1989) 215 Cal. App. 3d 294, 308). Whether an item of costs is reasonable and necessary is a question of fact to be decided by the trial court, not to be disturbed by the Court of Appeal absence an abuse of discretion. Id. B. Costs Incurred for the Joint Benefit of Multiple Defendants Must Be Apportioned, Especially Those Incurred for the Joint Benefit of the ALI Defendants and the Vasilomanolakis Defendants. Defendants have ignored the mandate of Code of Civil Procedure § 1032(a)(4) that requires the apportionment of costs between parties on the same or adverse sides and related precedent holding that the Court should apportion or prorate costs to be assessed against a losing party in multi-party cases. See Heppler v. JM. Peters Co., Inc., 73 Cal. App. 4th 1265 (1999). Such is especially appropriate where the prevailing party who remains has been represented by the same legal counsel who has incurred those costs jointly on behalf of a co-defendant such as herein. In Fennessy v. DeLeuw-Cather Corp., 218 Cal. App. 3d 1119 (1990), the Court held that where one party prevailed on summary judgment and incurred costs jointly with other parties, the party who remained during the pendency of the litigation and ultimately prevailed was only entitled to recover those specific costs incurred on its behalf, requiring that the costs be apportioned. Jones also recognized that apportionment of the expert costs shared between the parties is proper. See 63 Cal. App. 4" at 264-265. The Stipulation to Dismiss Dr. Vasilomanolakis executed by all parties, including counsel for the ALI Defendants, agreed that Dr. Vasilomanolakis’ dismissal was to be considered as if a motion for summary judgment had been filed and granted and that he would bear his own costs. (See Exhibit “30”). The ALI Defendants maintain that they should not be required to apportion ordinary costs incurred jointly on behalf of the ALI Defendants and Vasilomanolakis Defendants during the time that ALI’s counsel jointly represented these parties - - a period which extended for approximately three years, from October 2, 2013 through May 25,2016. Defendants have no legal basis for refusing to apportion these costs, merely arguing that Dr. ALI would have been required to incur these costs even 2 Memorandum of Points and Authorities in Reply to Defendants Nayyer Z. Ali, M.D. and Nayyer Ali, M.D., Inc’s Opposition to Plaintiffs’ Motion to Tax and Strike Costs oO 0 0 AN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 if he was not represented by the same firm. Conversely, Dr. Vasilomanolakis would have been required to incur these costs, even if he was not represented by the same firm and expressly agreed that plaintiffs’ responsibility for these costs would be waived as an integral part of his dismissal. C. $60.00 Should Be Taxed From Item 1 - - Filing Fees, Leaving $3,052.58. As set forth in the Meadows Reply Declaration at Paragraphs 47 through 48, $120.00 of the filing fees sought by the ALI Defendants represents joint costs as evidenced by the invoices furnished and thus $60.00 should be taxed from the total amount sought. D. Only $9,189.91 of the Deposition Costs Set Forth in Item 4 Are Properly Recoverable. The Meadows Reply Declaration addresses the deposition costs sought by defendants in Item 4 totalling $51,894.42 at Paragraphs 49 through 60. To assist the Court, counsel has prepared a chart which is attached to the Declaration and lodged as Exhibit “65” which identifies the invoices produced by defendants as part of Exhibit “2” in support of their deposition costs and those costs which are truly reasonable, recoverable deposition costs and those to which plaintiffs have objected. 1. Fees Paid to Plaintiffs’ Experts and for Plaintiff’s Travel to Attend the Defense Medical Examination Totalling $24,712.54 Must Be Taxed. Defendants have attempted to disguise costs which are not recoverable and are not deposition costs at all, including well in excess of $24,000.00 in expert fees within Item Number 4 of their costs bill. C.C.P. § 1033.5(a) allows the recovery of reasonable costs for deposition transcripts, travel expenses, and videotaping associated therewith. It does not provide for the recovery of expert witness fees, which are exclusively governed by C.C.P. § 998, if applicable, or reimbursement for paying plaintiff to travel to a medical examination not within 75 miles of his then residence, as required by C.CP. §2032.220(a)(2). In Attachment 4e, defendants have listed eight entries under “taking” which represent witness fees paid to plaintiffs’ experts, Schapira, Gavi, Simons, Hyland, and Johnson. These expert fees are not recoverable as deposition costs under C.C.P. § 1033.5. Hence, these costs which total $24,070.00 as detailed in the Meadows Reply Declaration at Paragraph 50 must be taxed. Defendants have further sought $642.54 by way of Item 4;, for “travel” for Session 3 of 3 Memorandum of Points and Authorities in Reply to Defendants Nayyer Z. Ali, M.D. and Nayyer Ali, M.D., Inc’s Opposition to Plaintiffs’ Motion to Tax and Strike Costs + Oo C d O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WALTER O’ROURKE’s deposition taken at counsel’s office. As the Meadows Reply Declaration addresses at Paragraphs 51 through 53, this was defendants’ pro rata share of fees associated with Mr. O’ROURKE’s travel from his daughter’s home where he was then recuperating from transplant surgery in Canada to California to attend the defense medical examination performed by Dr. Brown in Los Angeles on July 25, 2017. (See Exhibit “52”). Such is not a “deposition cost” nor is it recoverable under any statutory authority and thus this cost and the expert fees which total $24,712.54 must be stricken, leaving a remaining $27,181.88. 2. Deposition Transcript Costs Which Were for the Mere Convenience of Counsel Totalling $15,030.35 Must Be Stricken. The C.C.P. §§ 1033.5(c)(2) and (3) mandate that “[A]llowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “shall be reasonable in amount” applies to all costs, even deposition costs claimed pursuant to C.C.P. § 1033.5(a). See Perko's, supra. Plaintiffs do not contend that defendants did not need to take or attend these depositions, but that where defendants” counsel maintained the original deposition transcript, there was no need to incur costs for multiple copies. The ALI Defendants’ counsel do not dispute that they entered into an agreement to maintain the original transcripts of their own clients and experts and provide no indication as to why they would needed to order additional copies in addition to the originals which they maintained. These costs are identified in the Meadows Reply Declaration at Paragraph 54 and total $14,988.79 and must be taxed, including the cost associated with the transcript of C. Alan Brown, M.D. which defendants were ordered to pay as a condition of re-designating Dr. Brown in the amount of $4,741.24 - - an unreasonable and excessive expedited fee necessitated by defendants’ counsel’s own dilatory tactics. 3. Recoverable Deposition Costs of $2,937.08 Must Be Apportioned to Defendant Vasilomanolakis and Taxed. Of the total deposition costs sought, $10,192.92 represents costs associated with depositions taken when the ALI Defendants’ counsel represented both the ALI Defendants and Dr. Vasilomanolakis (Items 1a through 1h). Of those transcripts, as set forth in Paragraphs 54 and 59 of the Meadows Reply Declaration, three transcripts are the original transcripts of counsel’s clients, 4 Memorandum of Points and Authorities in Reply to Defendants Nayyer Z. Ali, M.D. and Nayyer Ali, M.D., Inc’s Opposition to Plaintiffs’ Motion to Tax and Strike Costs oS ~~ O Y W h 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dr. ALI and Dr. Vasilomanolakis, with those costs totalling $4,318.75, which should be taxed in their entirety as set forth above, leaving $5,749.97 associated with these transcripts (Items 1a through 1h), of which 50% should be assessed to dismissed Defendant Vasilomanolakis, leaving $2,874.99 of these costs properly awarded to the ALI Defendants. 4. Undisputed Costs. Paragraph 60 of the Meadows Reply Declaration details those deposition costs which have been properly sought and are supported by the invoices and California case law, which total $9,189.91. E. The Entirety of the Expert Witness Fees Sought By Way of Item Number 8 Totalling $84,602.87 Must Be Stricken. 1. Defendants’ C.C.P. § 998 Offers Were Defective in Their Misstatement of the Law and Uncertain and Thus Did Not Invoke the Costs Provisions of C.C.P. § 998(c). The ALI Defendants do not dispute that their C.C.P. § 998 Offers were defective or that they misstated the law, but argue that they are nonetheless enforceable; yet defendants” own authority absolutely refutes same. California courts place the burden squarely on the offering party, i.e., the ALI Defendants herein, to demonstrate that an Offer is valid. See Taing v. Johnson Scaffolding Co., 9 Cal. App. 4" 579, 585 (1992). Courts recognize that C.C.P. § 998 Offers must be strictly construed in favor of the party who is subject to its operation, in this case, the plaintiffs. See Garcia v. Hyster Co., 28 Cal. App. 4" 724, 732-33 (1994). In their opposition papers at page 9, lines 16-20, defendants concede that a valid C.C.P. § 998 Offer must be clear and specific in its terms and conditions. Quoting Berg v. Darden, 120 Ca. App. 4" 721, 726-27 (2004), defendants state: The offer must be sufficiently specific to permit the recipient meaningfully to evaluate it to make a reasoned decision, whether to accept it or reject it and bear the risk he may have to shoulder his opponent’s litigation costs and expenses. As set forth above, the certainty of the terms is absolutely crucial so that the offeree may evaluate his or her risk and the magnitude thereof. Although it should be patently obvious that C.C.P. § 998 Offers which misstate the law as part of their terms are not enforceable, an analysis of the underlying purpose of C.C.P. § 998 illustrates same. It is well-settled that the purpose of the statute is to encourage the settlement of litigation without trial. See Brown v. Nolan, 98 Cal. App. 3d 445, 449 (1979). To effectuate that purpose, as defendants 3 Memorandum of Points and Authorities in Reply to Defendants Nayyer Z. Ali, M.D. and Nayyer Ali, M.D., Inc’s Opposition to Plaintiffs’ Motion to Tax and Strike Costs © v 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 admit, C.C.P. § 998 Offers must clearly convey to the offeree the terms of the Offer and the potential liability for failing to accept so that the responding party may assess the value of the Offer. The ALI Defendants served C.C.P. § 998 Offers for waivers of their costs on May 27, 2016 in a case which had been pending since July, 2013. When these Offers were served, this matter was scheduled for trial for July 18, 2016, less than 2 months later. The Offers specifically stated that, if plaintiffs did not accept the Offers, they could be responsible for the entirety of defendants’ expert costs, including those incurred over the past three years, prior to the service of the Offers. The value of an Offer for a waiver of costs to date which would include expert witness fees (which as of the state of the law at that time would never be properly recoverable) would be very different than the value of an Offer which was seeking to waive only ordinary costs, i.e., filing fees, deposition fees, jury fees (which in this case, even approximately four years later, approximate $15,000.00). By conflating and misstating the status of the law in their Offers, the ALI Defendants put plaintiffs in a position wherein the Offers could not be properly valued. In accordance with the statute in effect in 2019, to be valid, the Offers should have appropriately advised plaintiffs that they could be held responsible for defendants’ post-Offer expert costs only. For defendants to assert that their error in misstating the law within the Offers themselves had no impact on plaintiffs’ ability to make a reasoned decision whether to accept or reject the Offers is simply disingenuous. Plaintiffs placed defendants on notice of the uncertainties and errors in their Offers, serving Objections to the subject Offers on July 1, 2016 which were met with no response. (See Exhibits “20” and “21”). 2. The ALI Defendants’ Token Offers Were Not in Good Faith Under the Circumstances and Had No Reasonable Prospect of Acceptance. It has been long held that a C.C.P. § 998 Offer must be made in “good faith” to be valid. See Wear v. Calderon, 121 Cal. App. 3d 818, 821 (1981). Good faith requires that the offer be “realistically reasonable under the circumstances of the particular case. Normally, therefore, a token or nominal offer will not satisfy the good faith requirement, . ...” Id Contrary to defendants’ assertion, the mere fact that a defendant obtained a judgment in his favor at trial does not establish that its pretrial offer was reasonable, as C.C.P. § 998 Offers must be evaluated “in light of the circumstances at the time of the offer” and “not by virtue of hindsight”. See Elrod v. Oregon Cummins Diesel, Inc., 195 Cal. App. 3d 6 Memorandum of Points and Authorities in Reply to Defendants Nayyer Z. Ali, M.D. and Nayyer Ali, M.D., Inc’s Opposition to Plaintiffs’ Motion to Tax and Strike Costs © 0 NN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 692, 699 (1987); Burch v. Children’s Hospital of Orange County Thrifi Stores, Inc., 109 Cal. App. JH 537, 548 (2003); Fortman v. Hemco, 211 Cal. App. 3d 241, 264 (1989). In evaluating whether an offer was in good faith, the Court may take into account the amounts paid by other similarly-situated defendants by way of settlement. See Adams v. Ford Motor Co., 199 Cal. App. 4" 1475, 1486 (2011). The litmus test for determining whether a C.C.P. § 998 Offer is in good faith requires that the Offer “must carry with it some reasonable prospect of acceptance”. See Elrod v. Oregon Cummins Diesel, Inc., 195 Cal. App. 3d 692, 698 (1987), cited with approval in Jones, 63 Cal. App. 4" at 1262. It is recognized that one having no expectation that his or her offer will be accepted will not be allowed the benefit from a “no-risk offer” made for the sole purpose of later recovering large expert witness fees. See Pineda v. Los Angeles Turf Club, Inc., 112 Cal. App. 3d 53, 63 (1980). California courts will not permit parties to “game the system”, offering token offers such as one for a waiver of costs on the eve of trial when it is known that there is no prospect for acceptance. See West American Bank v. MGB Industries, 158 Cal. App. 4" 109, 129-130 (2007). Although Jones recognizes that under certain extreme circumstances, a costs waiver may be reasonable, such is only where it is “absolutely clear that no reasonable possibility exists that the defendant will be held liable”. See Wear, 121 Cal. App. 3d at 821. The reasonableness of a C.C.P. § 998 Offer must be measured against the amount of money, if any, a defendant would have to pay following a trial based upon the information known or which reasonably should have been known to the offeree and the offeror. See Elrod 195 Cal. App. 3d at 699. Defendants’ defective Offers did not represent a reasonable prediction as of May 27, 2016 of the amount of money the ALI Defendants would have to pay plaintiffs following trial as then scheduled on July 18, 2016. The Meadows June 9, 2020 Declaration at Paragraphs 27 through 50 and Meadows Reply Declaration at Paragraphs 10 through 46 detail those matters known to the ALI Defendants related to the magnitude of the damages claimed and the strength of plaintiffs’ liability claims as of May 27,2016. (See Exhibits “43”, “45”, and “49”). Defendants knew that plaintiffs had ample expert support for their claims as against Dr. ALI, withdrawing their Motion for Summary Judgment on May 12, 2016 based upon same, that the opinions of their expert, Michael Eilbert, M.D., were based upon erroneous facts, i.e., the belief that Dr. ALI had made admitting orders at 8:00 a.m. after being 7 Memorandum of Points and Authorities in Reply to Defendants Nayyer Z. Ali, M.D. and Nayyer Ali, M.D., Inc’s Opposition to Plaintiffs’ Motion to Tax and Strike Costs S N Oo 0 3 O Y Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contacted by Dr. O’BRIEN, that Mr. O'ROURKE had suffered from a myocardial infarction after Dr. ALI had taken over, but well prior to him bothering to arrive at the Hospital, that Dr. ALI had been paged on multiple occasions, knew he needed to see Mr. O'ROURKE to rule out a myocardial infarction but nonetheless waited a period of over seven hours before examining Mr. O'ROURKE, that Mr. O'ROURKE suffered from a STEMI before being seen by a cardiologist, that Mr. O’ROURKE had required bypass surgery, was hospitalized for months and not expected to live, and had undergone cardiac procedures, culminating in a heart transplant procedure on April 25, 2016 and was claiming medical expenses estimated at $15,000,000.00, further claiming additional significant future earnings losses in the millions of dollars, a minimum of $3,000,000.00. Further, the ALI Defendants had never had any medical professional examine Mr. O’ROURKE to assess his condition, with trial being less than 60 days away. Based upon the facts then known, plaintiffs certainly could not conclude that there was a “significant likelihood that defendants would prevail at trial” as required in Culbertson v. R. D. Werner Co., Inc. 190 Cal. App. 3d 704, 710 (1987). There was clearly no “reasonable prospect of acceptance” as required for the Offers to be in good faith as noted by the Court in Hartline v. Kaiser Foundation Hospitals, 132 Cal. App. 4th 458, 471 (2005). Plaintiffs’ case is most akin to the case in Pineda, 112 Cal. App. 3d 53 (1980), where the defendant offered $2,500.00 one month before trial in a wrongful death case where the damages sought were $10,000,000.00, but liability deemed “tenuous”. Although trial resulted in a defense verdict against the heirs of a horse jockey who had died at the starting gate, the Court denied C.C.P. § 998 costs, holding: Although [defendants] liability was tenuous indeed, having in mind the enormous exposure the trial court could find that [defendant] had no expectation that its offer would be accepted. From this, it follows that the sole purpose of the offer was to make defendant eligible for the recovery of large expert fees at no real risk”. Id at 64. In Wear, there was a $1.00 offer in a case where the damages were determined to be $18,500.00. Denying C.C.P. § 998 costs, the Court noted that the plaintiff “may not reasonably be expected to accept a token or nominal offer from any defendant exposed to this magnitude of liability unless it is absolutely clear that no reasonable possibility exists that the defendant will be held 8 Memorandum of Points and Authorities in Reply to Defendants Nayyer Z. Ali, M.D. and Nayyer Ali, M.D., Inc’s Opposition to Plaintiffs’ Motion to Tax and Strike Costs EN ~N O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 liable”. See 121 Cal. App. 3d at 821. As recognized by the Court in Jones v. Dumrichob, the trial courts in both Wear and Pineda found that both offers did not satisfy the good faith requirement because it appeared that the defendants made the offers for the sole purpose of later recovering large expert witnesses in cases which had merit and where the potential exposure to the defendants was enormous. See 63 Cal. App. 4" at 1262-1264. The similarities to the case herein should be patently obvious. Conversely, Jones, is distinguishable. First of all, Jones was decided based upon former C.C.P. § 998, which afforded defendants the ability to recoup pre-Offer costs. Secondly, the plaintiff who challenged the defendant’s expert witness fees in Jones had not provided an appropriate record by which the Court of Appeal could evaluate whether the subject Offer carried with it a reasonable prospect of acceptance. Id at 1264. Jones merely reiterates that the well-established principles that a C.C.P. § 998 Offer “must carry with it some reasonable prospect of acceptance” and that “one having no expectation that his or her offer will be accepted will not be allowed to benefit from a no-risk offer made for the sole purpose of recovering large expert witness fees established by Wear, Elrod, and Pineda. Looking to these precedents for guidance, it is clear that the ALI Defendants’ potential liability in this case was certainly more than tenuous and their potential exposure enormous, with defendants’ Offers thereby failing the test of good faith. 3. Defendants Seek Expert Fees Which Are Not Reasonable and Were Not Fully Apportioned Amongst the Parties. As recognized in Jones, the burden is on defendants to establish that their expert witness fees were reasonable and necessary when sought pursuant to C.C.P. § 998, with the burden of proof being on “the party claiming them as costs”. See 63 Cal. App. 4" at 1266 citing Ladas, 19 Cal. App. 4th at 74. Defendants have submitted their expert witnesses’ invoices as Exhibit “3” and have maintained that these fees were reasonable, necessary, and have been properly apportioned amongst the parties. However, such is not the case. The Meadows Reply Declaration at Paragraphs 63 through 67 addresses those fees charged by defendants’ expert economist, Ted Vavoulis, M.S. all of which, contrary to defendants’ assertion, have not been apportioned amongst the parties. There is also the issue as to and whether those fees 9 Memorandum of Points and Authorities in Reply to Defendants Nayyer Z. Ali, M.D. and Nayyer Ali, M.D., Inc’s Opposition to Plaintiffs’ Motion to Tax and Strike Costs © 9 \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 were reasonable based upon Mr. Vavoulis® trial testimony. Plaintiffs submit that $18,411.73 of Mr. Vavoulis® fees must be taxed. The fees associated with the testimony of C. Alan Brown, M.D. and Linda Olzack, R.N. which must be taxed have been addressed in Ms. Teixeira’s Reply Declaration at Paragraphs 9 through 15 and total $12,501.15 ($5,329.28 as to Brown and $7,171.87 as to Olzack). Hence, of the expert witness fees sought totalling $84,602.17, plaintiffs submit that only $53,689.79 could be potentially recoverable but maintain that no expert witness fees may be awarded given defendants’ defective § 998 Offers which were not in good faith. F. Defendants’ Exhibits and Blowups Costs Under Item 12 in the Amount of $9,975.06 Should Be Reduced to $350.00. Defendants’ exorbitant “exhibit costs” are addressed in Ms. Teixeira’s Reply Declaration at Paragraphs 11 through 13. California law is clear that only costs for those exhibits utilized at trial reasonably helpful to aid the trier of fact may be recovered, with costs of photocopies expressly not recoverable pursuant to the mandate of C.C.P. § 1033(b)(3). II CONCLUSION Based upon the foregoing, plaintiffs submit that defendants costs must be taxed and limited to filing and motions fees of $3,052.58, jury fees of $2,405.59, deposition costs of $9,189.91 and reasonable fees for exhibits of $350.00, with defendants’ costs being limited as provided by C.C.P. § 1033.5 to $14,998.08, and no witness fees being awarded. Respectfully submitted, LAW OFFICE OF KATHRYN B. MEADOWS Dated: June 4, 2020 WALTER H. O'ROURKE and WENDY L. O’ROURKE 10 Memorandum of Points and Authorities in Reply to Defendants Nayyer Z. Ali, M.D. and Nayyer Ali, M.D., Inc’s Opposition to Plaintiffs’ Motion to Tax and Strike Costs 1 Journal Technologies Court Portal Make a Reservation WALTER H O'ROURKE ETAL VSNAYYER ZALIMDETAL Case Number: BC514989 Case Type: Civil Unlimited Category: Medical Malpractice - Physician s & Surgeons Date Filed: 2013-07-12 Location: Governor George Deukmejian Courthouse - Department S27 Reservation Case Name: WALTER H O'ROURKE ET ALVSNAYYER ZALIMD ET AL Type: Motion te Tax Costs Filing Party: WALTER H. O'ROURKE (Plaintiff) Date/Time: 06/11/2020 8:30 AM Reservation ID: 995643976536 Fees Description Motion to Tax Costs Credit Card Percentage Fee (2.75%) TOTAL Payment Amount: $61.65 Account Number: XXXX5642 = Print Receipt ++ Reserve Another Hearing Copyright € Journal Technologies, USA. All rights reserv ed. Case Number: BC514989 Status: RESERVED Location: Long Beach (Governor George Deukmejian) Courthouse - Department S27 Number of Motions: 1 Confirmation Code: CR-ZOHFHXSOSQAKCJRVK Fee Qty 60.00 1 1.65 1 Type: MasterCard Authorization: 00746P Amount 60.00 1.65 $61.65
