Motion_to_tax_costs

Motion

Cal. Super. - 2nd Dist.August 15, 2014

Electronically FILED by Superior Court of California, County of Los Angeles on 03/21/2019 03:36 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk S U T T O N & M U R P H Y A T T O R N E Y S AT L A W 2 6 0 5 6 A C E R O M I S S I O N V I E J O , C A L I F O R N I A 92 69 1 T E L E P H O N E : 9 4 9 . 2 0 6 . 0 5 5 0 s u t t o n m u r p h y . c o m OW © 2 Oo Wn HH WwW Nh N O N N N N N N N O N m= o r m md op e m e m pe d p d e d e s 00 ~~ O N U 1 B R A W N = O Y N N Y N RE E W N R O SUTTON & MURPHY Thomas M. Murphy, SBN 132283 tmurphy@suttonmurphy.com Krisann K. Aquino, SBN 252890 kaquino@suttonmurphy.com 26056 Acero Mission Viejo, CA 92691 Telephone: (949) 206-0550 Facsimile: (949) 206-0560 Attorneys for Defendant, TOYOTA MOTOR SALES, U.S.A., INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT VAHID KHOSHNEVIS, Case No. BC554887 Plaintiff, DEFENDANT’S NOTICE OF MOTION AND MOTION TO STRIKE Vs. PLAINTIFF'S MEMORANDUM OF COSTS, OR, IN THE ALTERNATIVE TO TOYOTA MOTOR SALES, U.S.A, INC; TAX COSTS and DOES 1through 10, inclusive, DATE: May 2, 2019 Defendants. TIME: 8:30 a.m. Dept.: 68 Assigned to Judge Mark Mooney Dept.: 68 Complaint Filed: August 15,2014 Trial Date: December 17, 2018 TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 2, 2019, at 8:30 a.m., or as soon thereafter as counsel may be heard in Department 68, of the above-referenced Court, Defendant TOYOTA MOTOR SALES, U.S.A., INC. (hereinafter “Defendant/TMS”), will move the Court for an order striking Plaintiffs, VAHID KHOSHNEVIS, (hereinafter “Plaintiff”’), Memorandum of Costs (Summary) and Memorandum of Costs (Summary and Worksheet) dated March 7, 2019 in their entirety, or in the alternative, taxing said costs on the grounds set forth in the accompanying Memorandum of Points and Authorities. This Motion is made pursuant to California Rules of Court Rule 3.1700(b); Code of Civil -1- DEFENDANT’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFE’S MEMORANDUM OF COSTS, OR, IN THE ALTERNATIVE TO TAX COSTS S U T T O N & M U R P H Y A T T O R N E Y S AT L A W 2 6 0 5 6 A C E R O M I S S I O N V I E J O , C A L I F O R N I A 92 69 1 T E L E P H O N E : 9 4 9 . 2 0 6 . 0 5 5 0 s u t t o n m u r p h y . c o m © 0 uN Oo Wn Br L N = N O N N O N N N O N N O N m e m e m p m ed pe d p d b d e d pe d 0 NN O N i B R A W N R O L N N PR E LW N Y = OO Procedure sections 998 and 1033.5. This Motion is made on the grounds that Plaintiff’s claimed costs are unreasonable and unnecessary. These items include the following: ITEM 1: Motion and Filing Fees - $60.00 ITEM 4: Deposition Costs - $9,112.05 ITEM 5: Service of Process - $2,832.11 ITEM 11: Court Reporter Fees - $11,490.48 ITEM 16: Other - $9,919.09 This Motion will be based on this Notice, Memorandum of Points and Authorities filed and served herewith, Declaration of Thomas M. Murphy and such other and documentary evidence as may be presented at the hearing DATED: March 21, 2019 SUTTON & MURPHY By: Thomas M. Krisann K. Aquino Attorneys for Defendant, TOYOTA MOTOR SALES, U.S.A, INC. -2- DEFENDANT’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFF'S MEMORANDUM OF COSTS, OR, IN THE ALTERNATIVE TO TAX COSTS S U T T O N & M U R P H Y A T T O R N E Y S AT L A W 2 6 0 5 6 A C E R O M I S S I O N V I E J O , C A L I F O R N I A 92 69 1 T E L E P H O N E : 9 4 9 . 2 0 6 . 0 5 5 0 s u t t o n m u r p h y . c o m © 0 NN O N wn kA W d N N N N N N N N N m e e e e s e e e e 00 N N A n t BA W N R O VW N N N RE E W N = Oo MEMORANDUM OF POINTS AND AUTHORITIES IL INTRODUCTION On December 21, 2018, a verdict was reached in this matter in the amount of $17,259.19 in favor of Plaintiff. This represents the down payment and all lease payments made on the subject vehicle. The Plaintiff did not recover any incidental or consequential damages. Prior {o trial, On September 17, 2015, Defendant served on Plaintiff a C.C.P. § 998 Offer to settle/compromise this action with respect to all claims asserted against TMS pursuant to the following terms: a) restitution to Plaintiff in the amount of $20,857.27; b) incidental damages recoverable under Civil Code § 1793.2; ¢)$10,000.00 in attorney’s fees and costs, or fees pursuant to a noticed Motion; and €) to pay off the balance of Plaintiff’s lease according to proof in the approximate amount of $19,500.00. Plaintiff did not accept TMS’s offer and failed to obtain a more favorable judgement or award at Trial. Accordingly, TMS is entitled to all its costs from the time of the offer and Plaintiff is not entitled to recover any post-offer costs. See C.C.P. § 998(c)(1) (If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her post offer costs and shall pay the defendant's costs from the time of the offer.) On March 7, 2019, Plaintiff served a Memorandum of Costs (Summary), claiming costs in the amount of $35,251.01. TMS now brings its Motion to Strike and/or Tax Costs and contends that Plaintiff should only be seeking to recover $4,460.06 in costs, the total amount of costs incurred from the date of filing through the expiration of the TMS’ CCP 998 offer. TMS further, contends that Plaintiff is only entitled to recover $2,611.25 of those costs. II. ARGUMENT A. Plaintiff’s Recovery Renders the Award of Costs Discretionary Code of Civil Procedure $1033 (a) provides that “[c]osts or any portion of claimed costs shall be as determined by the court in its discretion in a case other than a limited civil case in accordance with Section 1034 where the prevailing party recovers a judgment that could have been _5. DEFENDANT’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFFS MEMORANDUM OF COSTS, OR, IN THE ALTERNATIVE TO TAX COSTS S U T T O N & M U R P H Y A T T O R N E Y S AT L A W 2 8 0 5 6 A C E R O M I S S I O N V I E J O , C A L I F O R N I A 92 69 1 T E L E P H O N E : 9 4 9 . 2 0 6 . 0 5 5 0 s u t t o n m u r p h y . c o m OW 0 JN Oo wn t Bx Ww o N 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 rendered in a limited civil case.” Chavez v. City of L.A., 47 Cal. 4th 970, 971, (2010). In other words, “section 1033(a) applies when a plaintiff has obtained a judgment for money damages in an amount (now $25,000.00 or less) that could have been recovered in a limited civil case, but the plaintiff did not bring the action as a limited civil case and thus did not take advantage of the cost - and time - saving advantages of limited civil case procedures. In this situation, even though a plaintiff who obtains a money judgment would be otherwise entitled to recover litigation costs as a matter of right, section 1033(a) gives the trial court discretion to deny, in whole or in part, the plaintiff’s recovery of litigation costs.” Chavez at 971. In Chavez, plaintiff filed his action as an unlimited civil case, recovered $11,500 and sought $870,935.50 in attorney fees and costs. The Chavez court concluded that “in light of plaintiff's minimal success and grossly inflated attorney fee request, the trial court did not abuse its discretion in denying attorney fees.” Id. at 978. Here, Plaintiff filed this action as an unlimited civil case, obtained a minimal recovery of $17,259.19, unequivocally less than the jurisdictional limit for an unlimited civil case, and is seeking to recover over double his recovery, nearly $36,000.00 in grossly inflated costs. Accordingly, like in Chavez, this Court should use its discretion and deny Plaintiff’s Motion in its entirety. This case is the perfect example of why section 1033 (a) was created, and why it is so necessary for Court’s to apply their discretion to deny costs when it is appropriate. B. Plaintiff is Not Entitled to Recover Costs On September 17, 2015, Defendant served on Plaintiff a C.C.P. § 998 Offer to settle/compromise this action with respect to all claims asserted against TMS pursuant to the following terms: a) restitution to Plaintiff in the amount of $20,857.27; b) incidental damages recoverable under Civil Code § 1793.2; ¢)$10,000.00 in attorney’s fees and costs, or fees pursuant to a noticed Motion; and €) to pay off the balance of Plaintiff’s lease according to proof in the approximate amount of $19,500.00. (See Declaration of Thomas M. Murphy, hereinafter “Murphy Decl.” at § 2; See also Exhibit B attached thereto.) Plainti[f did not accept TMS’s offer and failed to obtain a more favorable judgment or award at Trial. (Id.) -4- DEFENDANTS NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFF'S MEMORANDUM OF COSTS, OR, IN THE ALTERNATIVE TO TAX COSTS S U T T O N & M U R P H Y A T T O R N E Y S AT L A W 2 6 0 5 6 A C E R O M I S S I O N V I E J O , C A L I F O R N I A 92 69 1 T E L E P H O N E : 9 4 9 . 2 0 6 . 0 5 5 0 s u t t o n m u r p h y . c o m OO 0 NN A N nt RA W N = N N N N N N N N N m e e e e e e e a C0 ~~ O N Wn Bh W N = O V e N N YN R W NY DN = O Plaintiff is not entitled to recover any post-offer costs. Code of Civil Procedure § 998(c)(1) states that “if an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her post offer costs and shall pay the defendant's costs from the time of the offer.” The policy behind this penalty is to “encourage settlement by providing a strong financial disincentive to a party-whether it be a plaintiff or a defendant-who fails to achieve a better result that that party could have achieved by accepting his or her opponent’s settlement offer.” Bank of San Pedro v. Superior Court (1992) 3 Cal.4™ 797, 804. Stated another way, the statute is “a cost-shifting statute which encourages the settlement of actions by penalizing parties who fail to accept reasonable pretrial settlement offers.” Heritage Engineering Const. Inc. v. City of Industry (1998) 65 Cal. App.4™ 1435, 1439. Here, Plaintiff let TMS’ Code of Civil Procedure §998 Offer lapse without responding. He then failed to beat the offer at trial. 1. Plaintiff Did Not Beat TMS’ CCP §998 Offer The jury award of $17,259.19 in damages did not beat TMS’ C.C.P. §998 offer as it is $3,598.08 less than the $20,857.27 that TMS offered. (See Exhs. A and B attached to Murphy Decl.) In addition, TMS offered to pay incidental and consequential damages recoverable under Civil Code § 1793.2 and pay of the remaining lease balance estimated to be $19,500.00. (See Id.) It is therefore indisputable that Plaintiff did not beat TMS’ 998 offer. Accordingly, Plaintiff is not entitled to recover any costs incurred after September 17, 2015. 2. Plaintiff is Not Entitled to Prejudgment Interest As fully articulated in TMS’ Opposition to Plaintiff’s Motion for Prejudgment Interest, Plaintiff is not entitled to prejudgment interest. TMS incorporates its arguments herein. In many ways, this case is like Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4™ 718, where a losing plainti(f sought to acquire prejudgment interest and add it onto the judgment to beat the CCP §988 Offer. Like the Court in Duale, this Court should also reject Plaintiff’s argument for prejudgment interest because liability and damages were disputed and uncertain. As such, there is no basis for prejudgment interest in this case. Accordingly, TMS contends that Plaintiff is not entitled to recover any costs incurred after -5- DEFENDANT’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFF'S MEMORANDUM OF COSTS, OR, IN THE ALTERNATIVE TO TAX COSTS S U T T O N & M U R P H Y A T T O R N E Y S AT L A W 2 6 0 5 6 A C E R O M I S S I O N V I E J O , C A L I F O R N I A 92 69 1 T E L E P H O N E : 9 4 9 . 2 0 6 . 0 5 5 0 s u t t o n m u r p h y . c o m OW © NN ao nn Ar w D = N N N N N O N N N N em ma e e p a p m pe ee C 0 N N NN h h B A W N O V N N N E W N Oo September 17, 2015 and should only be seeking to recover $4,460.96 in costs. TMS further contends that Plaintiff is only entitled to recover $2,611.25 of those costs, consisting of the initial filing fee ($43 5), jury fees ($115), and deposition of TMS’ persons most knowledgeable ($1,967.15). C. A Party May Seek to Strike And/Or Tax Costs Rule 3.1700 of the California Rules of Court allows a party to contest costs sought by a party in a Memorandum of Costs. Rule 3.1700 (b) provides: “1. Striking and taxing costs Any notice of motion to strike or to tax costs must be served and filed with 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; 2. Form of motion Unless objection is made to the entire cost memorandum, the motion to strike or'tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” Here, despite the simple nature of this case, Plaintiff’s counsel is claiming over $35,251.01 in costs. Defendant hereby objects to the items contained in the Memorandum of Costs, and the burden is now on Plaintiff to establish that the charges were reasonable and necessary. In Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761, the court stated: If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they put in issue and the burden of proof is on the party claiming them as costs. (citation). Whether a cost item was reason-ably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (citation) However, because the right to costs is governed strictly by statute (citation) a court has no discretion to award costs not statutorily authorized. (citation) (page 774) Accordingly, the burden now rests with Plaintiff to establish that the items defendant now seeks to tax are reasonable, necessary, or authorized by statute. Code of Civil Procedure section 1033.5 defines items allowable as “costs.” The mere filing of a motion to tax costs may be a “proper objection” to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. Nelson v. Anderson, (1999), 72 Cal.App.4th 111, 131. Whether a cost item was reasonably necessary to the litigation presents a -6- DEFENDANT’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFF'S MEMORANDUM OF COSTS, OR, IN THE ALTERNATIVE TO TAX COSTS S U T T O N & M U R P H Y A T T O R N E Y S AT L A W 2 6 0 5 6 A C E R O M I S S I O N V I E J O , C A L I F O R N I A 92 69 1 T E L E P H O N E : 9 4 9 . 2 0 6 . 0 5 5 0 s u t t o n m u r p h y . c o m © © NN OO wn hh W N D N D N N N N N N N N m e p m e m p m em pe e d RX NN A N nn P W N = O OO N N O Y R W N - = oO question of fact for the trial court and its decision is reviewed for abuse of discretion. Foothill-De Anza Community College Dist. v. Emerich, (2007) 158 Cal.App.4th 11, 26-30. In addition, Code of Civil Procedure $1033.5 sets forth the items that are and are not allowable as the costs recoverable by a prevailing party under §/032(b), “as a matter of right.” A party seeking to recover costs bears the burden of demonstrating that the claimed costs are reasonable in amount and reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. Code of Civil Procedure § 1033.5(c)(2) and (5); Ladas v. California State Auto Assn. (1993) 19 Cal.App.4™ 761; Nelson v. Anderson (1999) 72 Cal. App.4™ 111. Accordingly, the following items were not reasonably necessary to this litigation and must now be taxed. 1. ITEM 1: Filing and Motion Fees Plaintiff seeks to recover $815.55 in filing and motions fees. TMS concedes that Plaintiff is entitled to recover for $435.00 for the initial filing fee and $150.00 for jury fees which were costs incurred prior to TMS’ CCP 998 offer. TMS contends Plaintiff is not entitled to recover any further filing and motion fees as Plaintiff did not beat TMS* CCP 998 offer. However, if the Court disagrees with TMS’ position regarding the CCP 998 offer, TMS TMS contends that $60.00 for the ex parte application to compel the deposition of Pamela Boyd was unnecessary. Prior to the hearing, Plaintiff’s counsel was advised that Ms. Boyd was out of the office due to a death in her family. Despite this information, Plaintiffs counsel insisted on appearing ex parte. By the time the matter was called the parties were able to advise the court that dates for Ms. Boyd’s deposition were being discussed. Accordingly, the ex parte and association $60.00 filing fee, was undoubtedly unnecessary and should be taxed. 2. ITEM 4: Deposition Costs Plaintiff submitted $9,112.05 in deposition-related costs. TMS concedes that Plaintiff is entitled to recover for the deposition transcript costs of TMS’ Person Most Knowledgeable depositions of Gregory J. Ball ($1,011.25) and Steven Silbiger ($955.00) which were conducted prior to TMS’ CCP 998 offer. TMS contends Plaintiff is not entitled to recover any further deposition costs as Plaintiff did not beat the CCP 998 offer. ~ DEFENDANT’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFF’S MEMORANDUM OF COSTS, OR, IN THE ALTERNATIVE TO TAX COSTS S U T T O N & M U R P H Y A T T O R N E Y S AT L A W 2 6 0 5 6 A C E R O M I S S I O N V I E J O , C A L I F O R N I A 92 69 1 T E L E P H O N E : 9 4 9 . 2 0 6 . 0 5 5 0 s u t t o n m u r p h y . c o m OW 0 J O&O Wn h h Ww N N = N O N N N N N N N O N m m E e R E e e e e e m C0 ~~ O Y Wn RR W N = O VU N N S Y R W = Oo However, if the Court disagrees with TMS’ position regarding the CCP 998 offer, TMS concedes that Plaintiff is also entitled to recover costs incurred for the expert deposition of Gregory J. Ball. However, TMS objects to the added expense of $745.80 to have the transcript expedited. Accordingly, the cost for the expert deposition should be $1,287.05, making Plaintiff’s total recoverable deposition costs $3,251.30. TMS contends that Plaintiff has failed to meet his burden of proof that any other depositions taken by Plaintiffs counsel were reasonably necessary to the conduct of the litigation. TMS contends that a substantial amount of time and money was spent on unnecessary depositions, including nine (9) dealership depositions. Plaintiff’s burden of proof in this case was minimal and could have been established with very little, if any discovery, and certainly without the need for nine (9) depositions of dealership personnel. TMS provided all repair records with respect to the subject vehicle from Cerritos Autonation Toyota and Penske Toyota. The fact that these repair visits occurred, and Plaintiff reported complaints with his vehicle was uncontested, yet Plaintiff’s counsel insisted on taking the nine (9) lengthy depositions. These needless depositions merely confirmed what was already stated in the repair records. Accordingly, the costs associated with the depositions of Jason S. Vong, John Ngyugen, Ronnie M. Ramos, Kyle M. Maxwell, Steven B. Smith, Sheila M. Vazquez, Jose Murrillo, Rommell Salvador and the dealership’s PMK in the amount of $4,525,42 must be taxed. It is clear, that the sole purpose of these depositions was to increase the time spent on the tase in hopes of increasing the fee award. This was only further confirmed when Plaintiff failed to call even one of the dealership personnel as a witness to testify at Trial. Similarly, the deposition of Pamela J. Boyd was equally unnecessary. Ms. Boyd signed TMS’ verifications to the propounded written discovery responses. Plaintiff gained no pertinent information from Ms. Boyd’s deposition and the costs associated with the deposition in the amount of $586.60 should also be taxed. oe ITEM S: Scrvice of Process Plaintiff submitted $2,832.11 in service of process fees. TMS contends that Plaintiff is entitled to recover none of these costs as not only did they occur after the expiration of TMS’ CCP 998 offer, but they are comprised of deposition and trial subpoenas served on dealership personnel. -8- DEFENDANT’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFE’S MEMORANDUM OF COSTS, OR, IN THE ALTERNATIVE TO TAX COSTS S U T T O N & M U R P H Y A T T O R N E Y S AT L A W 2 6 0 5 6 A C E R O M I S S I O N V I E J O , C A L I F O R N I A 92 69 1 T E L E P H O N E : 9 4 9 . 2 0 6 . 0 5 5 0 s u t t o n m u r p h y . c o m OO 60 J OA Un pH WwW ND = N N N N N N N N N m e e e p e p d p d pe d pe d ed 0 N N O N nn A W N E = R O V N N O Y N R E W N = O As articulated above, the depositions of the dealership personnel were not necessary, and even if the depositions were deemed to be necessary, the service of the notices by subpoena were not. There is no justifiable reason for the service charges for the deposition subpoenas, particularly as TMS’ counsel worked with Plaintiff’s counsel to arrange these depositions with the dealerships. Furthermore, the trial testimony of the dealership personnel was not reasonable or necessary, given that they had already sat for deposition and provided redundant testimony merely confirming what is stated in the repair orders, and TMS had stipulated to the authenticity and foundation of all dealership service documents for purposes of trial. This is only further established by Plaintiff's failure to call any of the dealership personnel to testify at trial. The court must tax the $2,832.11 in service of process fees requested by Plaintiff. 4, ITEM 12: Court Reporter Fees TMS contends Plaintiff is not entitled to recover any court reporter associated costs as Plaintiff did not beat TMS’ CCP 998 offer. However, if the Court disagrees with TMS’ position regarding the CCP 998 offer, TMS concedes that Plaintiff is entitled to recuperate $6,892.00 in court reporter fees associated with the transcripts for the five (5) days of trial. TMS contends that Plaintiff's attempt to recuperate an additional $4,598.48 in “court reporter fees as required by statute” is misguided. The statute is quite clear on what types of fees are recoverable. Under Code of Civil Procedure §1033.5(b)(5) transcripts of court proceedings not ordered by the court are specifically listed as not allowable as costs. $4,598.48 of the court reporter fees were not associated with proceedings ordered by the court as they are for fees associated with six (6) law and motion proceedings and two (2) ex parte transcripts. These costs are specifically prohibited under Code of Civil Procedure §1033.5(b)(5). As such, Plaintiff cannot meet his burden to show that the transcripts were for court ordered proceedings and the court must strike $4,598.48 from Plaintiff’s claimed costs for court reporter fees. 5. ITEM 16: Other Line 16 of Plaintifl’s Memorandum of Costs (Summary) includes expenses assigned as “Other” that total $9,919.09. TMS contends Plaintiff is not entitled to recover any of these costs as Plaintiff did not beat TMS’ C.C.P. 998 offer. Furthermore, the accompanying Worksheet exposes -9-. g DEFENDANT’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFFS MEMORANDUM OF COSTS, OR, IN THE ALTERNATIVE TO TAX COSTS S U T T O N & M U R P H Y A T T O R N E Y S AT L A W 2 6 0 5 6 A C E R O M I S S I O N V I E J O , C A L I F O R N I A 92 69 1 T E L E P H O N E : 9 4 9 . 2 0 6 . 0 5 5 0 s u t t o n m u r p h y . c o m OO 0 9 a wn Ar WwW ND = N O N N N O N O N N N N E m a p e a a e R 0 NN O N n t B A R W O N =H D O V N N Y R W N = O Plaintiffs attempt to overreach, seeking costs that are expressly prohibited by statute. Code of Civil Procedure § 1033.5(b) expressly defines the following items as not being recoverable on a Memorandum of Costs: (1) Fees of experts not ordered by the court; (2) Investigation expenses in preparing the case for trial; (3) Postage, telephone, and photocopying charges, except for exhibits; (4) Costs in investigation of jurors or in preparation for voir dire; and (5) Transcripts of court proceedings not ordered by the court. Plaintiff seeks $650.70 in postage fees, $900 for expert inspections of the vehicle, $3,867.97 in travel expenses, $3,752.73 in costs associated with filing service providers, and $753.75 in mediation fees. Pursuant to C.C.P. §1033.5(b), the expert associated fees and the postage related costs are not recoverable. In addition, as mediation was not court ordered, the associated costs are also not recoverable. Similarly, the costs associated with filing service providers are not related to the service of process, which is expressly allowed. Rather these costs are simply overhead expense that counsel must absorb. No express provision provides for the recovery of mediation related expenses and filing service fees. Likewise, Plaintiff's travel related expenses, including hotel, mileage, and parking expenses must also be taxed. This case did not involve out-of-town travel, and the convenience of counsel does not equate to a necessary expense that is recoverable on a memorandum of costs. See e.g., Chaaban v. Wet Seal, Inc., (2012) 203 Cal.App.4th 49, 59 (court awarded travel expenses related to depositions in New Mexico and Texas, that were necessary to the litigation.) Plaintiff has not met his burden to establish that any of these costs were reasonable or necessary. III. CONCLUSION TMS respectfully requests this Court grant its Motion to Strike and/or Tax costs and deny Plaintiff recovery of any costs incurred after September 17, 2015, and award Plaintiff a recovery of $2,611.25 in costs. In the alternative, TMS respectfully requests the Court tax Plaintiff’s 111 Ir 111 111 -10- DEFENDANT’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFF’S MEMORANDUM OF COSTS, OR, IN THE ALTERNATIVE TO TAX COSTS S U T T O N & M U R P H Y A T T O R N E Y S AT L A W 2 6 0 5 6 A C E R O M I S S I O N V I E J O , C A L I F O R N I A 92 69 1 T E L E P H O N E : 9 4 9 . 2 0 6 . 0 5 5 0 s u t t o n m u r p h y . c o m OW 0 I OO Un ~~ WLW ND = N O N N N N N N N N mm e e ed em em ee e s e d 00 ~~ AA A Wn bh W N E O YU N N ND R W , Oo Memorandum of Costs in the amount of $24,352.16, and order that Plaintiff recover $10,898.80 in costs. DATED: March 21, 2019 By: SUTTON & MURPHY Thomas M. Murphy Krisann K. Aquino Attorneys for Defendant, TOYOTA MOTOR SALES, U.S.A., INC. -11- DEFENDANT’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFF’S MEMORANDUM OF COSTS, OR, IN THE ALTERNATIVE TO TAX COSTS PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a part to the within action; my business address: 26056 Acero, Mission Viejo, CA 92691. On March 21, 2019, I served the foregoing document described as: DEFENDANT’S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFF’S MEMORANDUM OF COSTS, OR, IN THE ALTERNATIVE TO TAX COSTS by placing the [ ] original [X] copy thereof enclosed in sealed envelopes addressed as stated on the attached mailing list. [ ]1By Mail Iam “readily familiar” with the firm’s practice of collection 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 prepaid at Mission Viejo, CA in the ordinary course of business. Iam 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. [ ]1By Overnight Delivery I caused such envelope to be picked up by Federal Express at the firm’s address listed above. Such envelope was marked “Overnight Delivery” and had a prepaid, addressed slip. [ 1By Personal Service I caused to be delivered such envelope by hand to the offices of the addressee. [ 1 By Facsimile I caused to be delivered such document by facsimile and envelopes via U.S. Mail to the offices of the addressees. [X] By Electronic Service I caused to be delivered such document by electronic service via e-mail to the offices of the addressees. [X] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [ ] (Federal) I declare that I am employed in the office of a member of the bar of the court at whose direction the service was made. Executed on March 21, 2019, at Mission Viejo, California Debra A\Bpyer PROOF OF SERVICE - (12/31/18) RE: VAHID KHOSHNEVIS VS. TOYOTA MOTOR SALES, U.S.A.. INC. Los Angeles County Superior Court Case No.: BC554887 Payam Shahian, Esq. Attorneys for Plaintiff Caitlin J. Scott, Esq. VAHID KHOSHNEVIS STRATEGIC LEGAL PRACTICES, APC 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Telephone: (310) 277-1040 Facsimile: (310) 943-3838 pshahian@slpattorney.com cscott@slpattorney.com Hallen D. Rosner, Esq. Co-Counsel for Plaintiff ROSNER, BARRY & BABBIT, LLP VAHID KHOSHNEVIS 10085 Carroll Canyon Road, Suite 100 San Diego, CA 92131 Telephone: (858) 348-1005 Facsimile: (858) 348-1150 hal@rbblawgroup.com