Reply Plaintiff Gloria Jean Malabedveronas Reply To Defendants Opposition To Plaintiffs Motion To Tax Costs

Reply

Cal. Super. - 2nd Dist.April 17, 2014

Electronically FILED by Su Oo 0 NN S N nt A W N NN O N N N N N N N e m m e em pm p m em e d R N N R W N S e NN N N T R W DN = O erior Court of California, County of Los Angeles on 03/11/2019 02:58 PM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Guladzhyan,Deputy Clerk Todd E. Verbick, Esq. [SBN: 183731] Dena M. Gappy, Esq. [SBN: 249407] GAPPY & VERBICK LLP 411 Camino del Rio South, Suite 202 San Diego, CA 92108 T: (619) 537-0031 F: (619) 550-4680 E: Todd@Gappylaw.com, Dena@Gappylaw.com Attorneys for Plaintiff, GLORIA JEAN MALABED-VERONA SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES, NORTHWEST DISTRICT GLORIA JEAN MALABED-VERONA, VALENTINO AGUCAY VERONA, REBECCA JEAN VERONA, Plaintiffs, VS. CRAIG HOLLAWAY, and DOES 1 to 20, Defendants. Case No.: BC542893 ASSIGNED TO DEPARTMENT T (VAN NUYS COURTHOUSE EAST) Date Filed: April 17,2014 Trial Date: June 14, 2016 PLAINTIFF'S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX COSTS; DECLARATION OF T. VERBICK; EXHIBITS; AND PROOF OF SERVICE Hearing Date: March 18, 2019 Hearing Time: 8:30 a.m. Department: TT RESERVATION #: 965174818018 TO THE COURT, ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: Plaintiff GLORIA JEAN MALABED-VERONA (hereinafter “Plaintiff”’) hereby submits here Reply to Defendant CRAIG HOLLAWAY’S Opposition to Plaintiff’s Motion to Tax Costs claimed by Defendant to have been incurred on appeal, as follows: 111 PLAINTIFF’S REPLAY TO DEFENDANT’S OPPOSITIN TO PLAINTIFF'S MOTION TO STRIKE OR TAX COSTS; DECLARATION OF T. VERBICK; AND PROOF OF SERVICE oe 0 N N tn A W N = NN O N N N N N N N e m m e em pm p m em e d R N N R W N S e NN N N T R W DN = O I. SUMMARY OF ARGUMENTS Plaintiff’s Motion challenges two items of cost claimed by Defendant as recoverable costs incurred in defending the appeal of this case. In summary, Plaintiff argued the following two points: (1) the documentation provided to support alleged costs for the claimed task of binding the brief does not have a vendor identified or a date of service listed, rather it merely is a copy of numbers adding up to $310.66; and (2) the claimed $567.92 for “DDS-Fees Due to the Clerk of the Court” were not clearly supported by the documentation as it appeared such fees were included in another entry. In order to avoid the need to file this Motion, Plaintiff’s counsel asked for additional documentation and/or clarification of those two relatively small items prior to the deadline to file the Motion. Defendant’s counsel did not provide anything in response, not even an email trying to provide clarity or to further the dialogue toward the end of eliminating the need for the Motion. Instead, Defendant was content with wasting Plaintiff’s and the Court’s time by requiring Plaintiff to file the Motion. Defendant opposes Plaintiff’s Motion on two bases. First, Defendant’s Opposition does not include documentation supporting the claimed brief-binding expense, rather Defendant’s counsel chooses to lash out at Plaintiff’s counsel suggesting that counsel is “feigning ignorance” to the nature of the cost. Finally, Defendant’s counsel presents an additional page supporting the $567.92 that was never provided to Plaintiff’s counsel [Exhibit C - 001 to Defendant’s Opposition], and accuses Plaintiff’s counsel of redacting that information from the documentation provided to the Court in its Motion. So, in summary, it is Defendant’s position that Plaintiff’s counsel is making a sham argument to the Court on one hand, and presenting an outright lie on the other. II. RESPONSE TO DEFENDANT’S ARGUMENTS IN OPPOSITION A. Defendant Fails To Support The Claimed Kinkos/Fedex (Copying/Binding Of RB) Expense Of $310.66 With Documentation Supporting This Cost The receipts and invoices attached as Exhibit “2” constitute all of the documentation provided by Defendant supporting the alleged costs prior to the filing of this Motion. [See, Exhibit 2 PLAINTIFF’S REPLAY TO DEFENDANT’S OPPOSITIN TO PLAINTIFF'S MOTION TO STRIKE OR TAX COSTS; DECLARATION OF T. VERBICK; AND PROOF OF SERVICE oe 0 N N tn A W N = NN O N N N N N N N e m m e em pm p m em e d R N N R W N S e NN N N T R W DN = O “2” attached to Plaintiff’s Motion; see also, Declaration of Todd Verbick in Support of Plaintiff’s Motion to Tax Costs, 6.] If the items are properly objected to, those are put in issue and the burden of proof is on the party claiming those as costs. [Ladas v. California State Auto. Assn. (1993) 19 Cal.App.,4"™ 761, 774.] Once costs claimed in the memorandum are challenged by motion to tax, documentation must be submitted to sustain the burden. [Emphasis added] [Jones v. Dumrichob (1998) 63 Cal. App.4® 1258, 1265; see also, Oak Grove Sch. Dist. v. City Title Ins. Co. (1963) 217 Cal. App.2d 678, 698; Ladas v. Cal. State Auto. Assoc., supra, 19 Cal. App.4™ at 774.] Defendant’s argument that Plaintiff’s counsel is not accepting the representation of counsel that Defendant may have incurred a cost to bind a brief is irrelevant. In fact, that was not the argument being made by Plaintiff. The argument, as Defendant knows, is that the documentation is nothing more than a collection of numbers. The fact remains the supposed receipt for this cost without a vendor or a date does not satisfy Defendant’s burden. B. Defendant’s Misrepresentation To The Court That Counsel Redacted Information And That Documentation Was Provided When Requested By Plaintiff Should Be Grounds For The Court To Exercise Its Discretion To Deny The $567.92 In Claimed “DDS-Fees Due To Clerk Of Court.” Defendant presents an order confirmation from DDS in its Opposition that was never provided to Plaintiff’s counsel. [See, Defendant’s Exhibit C - 001; See also, Declaration of Todd Verbick in Support of this Reply herein below (hereinafter “Verbick Reply Dec.”); {2.] As a preliminary matter, Plaintiff’s counsel takes great offense at Defendant’s counsel outright lie that the DDS order confirmation attached as Exhibit C to the Opposition was ever provided to Plaintiff’s counsel, and further that Plaintiff’s counsel affirmatively endeavored to hide it from the court by “redacting” it. [Verbick Reply Dec.; q 3.] Support for this flawed (and fabricated) position is basic logic. Given that Plaintiff accepted the other costs properly supported by documentation, it stands to reason Plaintiff would have also accepted the additional documentation now presented to the Court for this $567.92 cost as reasonable support for this expense. Instead of accurately reporting that this documentation was obtained by Defendant’s counsel after the Motion to Tax was filed with the Court, Defendant’s counsel has taken it upon himself to make up 3 PLAINTIFF’S REPLAY TO DEFENDANT’S OPPOSITIN TO PLAINTIFF'S MOTION TO STRIKE OR TAX COSTS; DECLARATION OF T. VERBICK; AND PROOF OF SERVICE oe 0 N N tn A W N = NN O N N N N N N N e m m e em pm p m em e d R N N R W N S e NN N N T R W DN = O a story to support its position by painting Plaintiff’s counsel as a liar. Given this wrongful conduct, the Court should exercise its discretion to tax this cost. III. CONCLUSION Based on the foregoing Plaintiff respectfully requests that Defendant’s costs on appeal be taxed in the amount of $878.58. DATED: March 11, 2019 GAPPY & VERBICK LLP BY: . TODD E. VERBICK, ESQ. DENA M. GAPPY, ESQ. Attorneys for Plaintiff GLORIA JEAN MALABED-VERONA DECLARATION OF TODD E. VERBICK I, Todd E. Verbick, declare as follows: I. I am an attorney for Plaintiff/Appellant GLORIA JEAN MALABED-VERONA (hereinafter referred to as “Plaintiff”) in this action and I have personal knowledge of each fact stated in this declaration. If called up to testify about these matters, I could and would competently testify to the following based upon my personal knowledge of the facts. 2. I was never provided with a copy of the DDS order confirmation attached to Defendant’s Opposition as Exhibit C - 001 prior to being served with the copy attached to Defendant’s Opposition. 3. I take great offense at Defendant’s counsel’s statement to the Court that the DDS order confirmation attached as Exhibit C to the Opposition was ever provided to me at any time prior to it being served as an Exhibit to Defendant’s Opposition. I declare under penalty of perjury under the laws of the State of California that the Mar: foregoing is true and correct. Executed this _ 11th day of , 2019. Todd E. Declarant 4 PLAINTIFF’S REPLAY TO DEFENDANT’S OPPOSITIN TO PLAINTIFF'S MOTION TO STRIKE OR TAX COSTS; DECLARATION OF T. VERBICK; AND PROOF OF SERVICE erbick, Esq. oe 0 N N U t A W N = ND N N N N N N N N N EE m m em p m em pm em em e d R N N R W N S N N N T R W DN = O Case Name: MALABED v. HOLLAWAY Los Angeles Superior Court Case No.: BC542893 PROOF OF SERVICE I hereby declare as follows: I'am, and was at the time of service of the papers referred to herein, over the age of eighteen years, not a party to the action, and am employed in the County of San Diego, California. My business address is 411 Camino del Rio South, Suite 202, San Diego, California 92108. On the date set forth below, I caused to be served the following documents: PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX OR STRIKE COSTS; DECLARATION OF T. VERBICK; and PROOF OF SERVICE of which the ORIGINAL DOCUMENT or a TRUE AND CORRECT COPY is attached hereto, addressed to each such addressee respectively as follows: SEE ATTACHED SERVICE LIST XXX BY E-MAIL: I caused said document(s) to be delivered via electronic mail (e-mail) to the person(s) so designated above. 0 BY U.S. MAIL: I placed each sealed, prepaid envelope, for collection and mailing at 411 Camino del Rio South, Suite 202, San Diego, CA 92108. I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service pursuant to which practice the correspondence will be deposited with the United States Postal Service this same day in the ordinary course of business XXX BY FACSIMILE: I caused said document(s) to be transmitted by facsimile transmission. The name(s) and facsimile machine telephone number(s) of the person(s) served are set forth above. The sending facsimile machine properly issued a transmission report confirming that the transmission was complete and without error. 0 BY OVERNIGHT MAIL: I caused said document(s) to be deposited in a box or other facility regularly maintained by an express service carrier providing overnight delivery in an envelope or package designated by the express service carrier with delivery fees paid or provided. 0 BY PERSONAL SERVICE: 1 caused such document(s) to be hand-delivered to the person(s) served hereunder at [address], [city], California on [insert date]. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 11, 2019. ee q. USY Todd E. Verbick 1 PROOF OF SERVICE oe 0 N N U t A W N = ND N N N N N N N N N EE m m em p m em pm em em e d R N N R W N S N N N T R W DN = O Case Name: MALABED v. HOLLAWAY Los Angeles Superior Court Case No.: BC542893 SERVICE LIST Brian S. Dewey, Esq. RAFFALOW, BRETOIL, LUTZ & STELE 2545 West Hillcrest Drive, #110 Thousand Oaks, CA 91320 ATTORNEY FOR: Defendant CRAIG HOLLAWAY T: (800) 942-5400 F: (888) 906-4936 E: bdewey@mercuryinsurance.com Cleidin Z. Atanous, Esq. LAW OFFICES OF CLEIDIN Z. ATANOUS 500 S. Kraemer Boulevard, Suite 205 Brea, CA 92821-6761 Attorney For Respondent CRAIG HOLLAWAY T: (714) 528-8226 F: (714) 528-8227 E: czatanous@ yahoo.com 2 PROOF OF SERVICE