Reply_in_support_of_motion_to_tax_costsReplyCal. Super. - 2nd Dist.December 24, 2014Electronically FILED by Supetibr Court of California, County of Los Angeles on 02/20/2019 12:34 PM Sherri R. Carter, Executive Officer/Clerk of Court, by J. So,Deputy Clerk ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Raymond P. Boucher, State Bar No. 115364 ray@boucher.la Hermez Moreno, State Bar No. 72009 moreno @boucher.la Milin Chun, State Bar No. 262674 Chun@boucher.la Brian M. Bush, State Bar No. 294713 bush@boucher.la BOUCHER LLP 21600 Oxnard Street, Suite 600 Woodland Hills, California 91367-4903 Tel: (818) 340-5400 Fax: (818) 340-5401 Michael J. Libman, Esq., SBN 222353 LAW OFFICES OF MICHAEL J. LIBMAN, APC. 18321 Ventura Boulevard, Suite 700 Tarzana, CA 91356 Tel.: 818-995-7300 Fax: 866-644-6764 Attorneys for Plaintiff MICHAEL SHABSIS SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES MICHAEL SHABSIS, an individual, Plaintiff, Vv. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA; RESNICK NEUROPSYCHIATRIC HOSPITAL AT UCLA; an organization, form unknown; PHILIP COGEN, M.D., an individual; COUNTY OF LOS ANGELES, a local public entity; LOS ANGELES COUNTY SHERIFF'S DEPARTMENT, a local public entity; LEROY BACA, Former Sheriff; PFIZER, INC., a Delaware Corporation; and DOES 1 through 200, inclusive, Defendant. Case No. BC567668 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO TAX COSTS Date: February 27, 2019 Time: 8:30 am Dept... 32 Reservation 1.D.: 118110736821 The Hon. Daniel S. Murphy, Dept. 32 Action Filed: Trial Date: December 24, 2014 February 11, 2019 Case No. BC567668 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO TAX COSTS ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION Ignoring $10,807.51 in costs Plaintiff seeks to strike, Defendant argues that $17,375.00 in costs should not be stricken. Defendant has simply not satisfied its burden of proof as to any of the items addressed in Plaintiff’s motion thereby justifying the striking of at least $28,182.51 from Defendant’s memorandum of costs. II. ARGUMENT A. BY FAILING TO ADDRESS ITEMS 12 AND 16, DEFENDANT FAILED TO SATISFY ITS BURDEN OF PROOF Plaintiff properly objected to the reasonableness of costs set forth in Items 12 and 16, and thus, the burden of proof was on Defendant claiming them as costs. (See Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 624 [stating that “where the items are properly objected to, they are put in issue, and the burden of proof is upon the party claiming them as costs” [emphasis added]].) Defendant does not argue that the court reporter fees in Item 12 and the discovery recovery costs in Item 16 are recoverable. In fact, Defendant disregards Plaintiff’s objections to these items entirely. Defendant’s silence should constitute a concession that these costs should be taxed. (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc./Obayashi Corp. (2003) 111 Cal.App.4th 1328, 1346 [stating that failure to address point in opposition brief “is equivalent to a concession’].) By failing to address these arguments, Defendant has not provided this Court any basis to reach a conclusion other than to tax these specific costs. Thus, $10,807.51 in costs identified in Items 12 and 16 should be taxed. B. DEFENDANT CANNOT MISCHARACTERIZE ANY COST AND DEEM IT RECOVERABLE (ITEM 8) Defendant conflates investigation expenses in preparation for trial and what the Code permits as allowable costs. Before a court can deem a cost reasonable or necessary, the item appearing in a cost bill must be a proper charge. (See Ladas v. California State Auto. Assn. (1993) 19 Cal. App.4th 761,774.) This Court must first determine “whether the statute expressly allows the particular item, and whether it appears proper on its face.” (Id. at pp. 774-76.) 2 Case No. BC567668 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO TAX COSTS ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It is undisputed that medical records are not expressly allowed by the Code, which is made apparent by Defendant’s attempt to shoehorn this cost under “ordinary witness fees”. Defendant does not cite to a single relevant statute nor case law that provides that obtaining medical records with a custodian of records certificate constitutes “ordinary witness fees”. Citing to sections of the Evidence Code relating to business records in no way addresses whether the cost of obtaining medical records are statutorily permitted under Section 1033.5(a)(7) as ordinary witness fees. It is clear that these costs clearly constitute “investigation expenses in preparing the case for trial”, which are explicitly prohibited by the Code. (Code Civ. Proc. § 1033.5, subd. (b)(2).) The cost of $1,395.00 to obtain medical records does not constitute “ordinary witness fees” under section 1033.5(a)(7) and should, therefore, be taxed. C. DEFENDANT DOES NOT ADDRESS THE TIMELINESS OF ITS 998 OFFER A reasonable settlement offer is that which is realistically reasonable under the circumstances of the particular case and with the understanding that there be some reasonable prospect of acceptance. (See Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1483.) An important factor in deciding whether a section 998 offer is unreasonable or in bad faith is whether the offeree was given a fair opportunity to intelligently evaluate the offer. (See Najera v. Huerta (2011) 191 Cal.App.4th 872, 878.) Rather than address Plaintiff’s actual argument regarding the reasonableness of Defendant’s 998 offer, Defendant creates straw-man arguments that are irrelevant to the facts here. Plaintiff has not argued that the 998 offer was unreasonable because the offer was modest (see Nelson v. Anderson (1999) 72 Cal.App.4th 111); that Plaintiff did not know the value of the waiver of costs at the time of the offer (see Melendrez v. Ameron Internat. Corp. (2015) 240 Cal. App.4th 632, 647); that Plaintiff was required to waive appellate rights as to a particular cause of action (see Harline v. Kaiser Foundation Hospitals (2005) 132 Cal. App.4th 458, 471); or that the costs of the expert fees themselves were unreasonable (see Stiles v. Estate of Ryan (1985) 173 Cal.App.3d 1057). Rather, Plaintiff maintains that Defendant’s 998 offer was unreasonable because at the time the offer was made, Plaintiff could not intelligently evaluate the offer given that discovery was in its infancy. (See Najera v. Huerta (2011) 191 Cal. App.4th 382, 390). Defendant’s opposition, however, is absent any 3 Case No. BC567668 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO TAX COSTS ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 argument that addresses Plaintiff’s fundamental position. Defendant does not dispute that its offer was made at a time when the parties “just initiated [the] investigation and discovery.” Defendant does not dispute that no pertinent depositions had taken place, including that of Dr. Cogen. Defendant does not dispute that, at the time of the offer, searching for Dr. Cogen on internet search engines resulted in at least nine websites evidencing Dr. Cogen’s affiliation with Defendant. Defendant does not dispute that Dr. Cogen’s declaration was not provided to Plaintiff until after the 998 offer expired. Defendant does not dispute any of this. Notably, in Melendrez, a case upon which the Defendant relies, the court noted that the offer was found to be reasonable “because it was made after a significant portion of discovery had been conducted and because [the defendant] succeeded on its summary judgment motion.” (Melendrez, 240 Cal.App.4th at p. 651 [emphasis added].) Here, in contrast, at the time of the offer, discovery had just begun, and Defendant was a year away from filing its motion for summary judgment. There were no circumstances in this case to show that at that early (and time-critical) juncture in the case, Plaintiff had access to information or a reasonable opportunity to evaluate Defendant’s offer within the 30-day period. A good faith requirement requires that “the settlement offer be realistically reasonable under the circumstances of the particular case.” (Najah v. Scottsdale Ins. Co. (2014) 230 Cal. App. 4th 125, 143.) While Defendant seeks to focus on the ultimate result and the evidence that came to light after discovery concluded, the focus must be on what Plaintiff knew at the time of the offer, on February 26, 2016. The circumstances here simply do not warrant a finding that Defendant’s 998 offer was made in good faith. III. CONCLUSION Defendant has offered no concrete rationale for why the costs identified by Plaintiff should not be taxed. Defendant entirely ignored $10,807.51 in costs and the arguments set forth as to the other $17,375.00 are without merit. For the foregoing reasons, and the reasons articulated in Plaintiff’s Motion, Plaintiff respectfully requests that this Court grant Plaintiff’s Motion to Tax Costs and reduce any award for total reasonable costs by $28,182.51. 4 Case No. BC567668 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO TAX COSTS A N nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: February 22, 2019 BOUCHER LLP RAYMOND P. BOUCHER HERMEZ MORENO MILIN CHUN BRIAN M. BUSH Attorneys for Plaintiff MICHAEL SHABSIS 5 Case No. BC567668 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO TAX COSTS ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 21600 Oxnard Street, Suite 600, Woodland Hills, CA 91367-4903. On February 20, 2019, I served true copies of the following document(s) described as PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO TAX COSTS on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY ELECTRONIC SERVICE: Pursuant to Code of Civil Procedure section 1010.6 and California Rule of Court 2.251, or pursuant to the Court’s order authorizing electronic service, or by an agreement of the parties, I electronically served the document(s) described above on the person(s) listed in the Service List by submitting an electronic version of the document(s) to One Legal, LLC, through the user interface at www.onelegal.com. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 20, 2019, at Woodland Hills, California. /s/ Sharon Gordillo Sharon Gordillo 6 Case No. BC567668 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO TAX COSTS ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Michael Shabsis v. The Regents of The University of California, et al. Case No. BC567668 Stephen C. Fraser John Aitelli Evan A. Guze FRASER WATSON & CROUTCH LLP 100 W Broadway, Ste 650 Glendale, CA 91210-1201 Tel: 818.543.1380 Fax: 818.543.1389 Email: sfraser@fwcllp.com jaitelli @fwcllp.com eguze @fwcllp.com Attorneys for Defendant, THE REGENTS OF THE UNIVERSITY OF CALIFORNIA and RESNICK NEUROPSYCHIATRIC HOSPITAL AT UCLA Kent T. Brandmeyer Elizabeth Evans LAW + BRANDMEYER, LLP 2 N Lake Ave., Ste 820 Pasadena, CA 91101 Tel: 626.243.5500 Fax: 626.243.4799 Email: kbrandmeyer @lawbrandmeyer.com eevans @lawbrandmeyer.com Attorneys for Defendant PHILIP H. COGEN, M.D. Matthew A. Holian, Esq. Jessica Wilson, Esq. DLA Piper, LLP. (US) 33 Arch Street, 26th Floor Boston, Massachusetts 02110-1447 Tel: (617) 406-6000 Fax: (617) 406-6100 Email: matt.holian@dlapiper.com jessica.wilson@dlapiper.com Attorneys for Defendant, Pfizer, Inc. Curtis A. Cole Lauren Hudecki COLE PERDOZA LLP 2294 Huntington Drive San Marino, CA91105 Tel: (626) 431-2787 Fax: (626) 461-2788 Attorneys for Defendant, THE REGENTS OF THE UNIVERSITY OF CALIFORNIA and RESNICK NEUROPSYCHIATRIC HOSPITAL AT UCLA Rickey Ivie Chandler A. Parker Ivie McNeil & Wyatt IVIE McNEILL & WYATT 444 S. Flower St., Ste 1800 Los Angeles, CA 90071 Tel: 213.489.0028 Fax: 213.489.0552 Email: rivie@imwlaw.com cparker@imwlaw.com Attorneys for Defendants COUNTY OF LOS ANGELES, COUNTY OF LOS ANGELES SHERIFF'S DEPT., and LEROY BACA Heidi Hubbard (pro hac vice) Andrew Rudge (pro hac vice) Jessica Rydstrom, Esq. WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, DC 20005 Tel: (202) 434-5000 Fax: (202) 434-5029 Email: hhubbard @wc.com arudge @wc.com jrydstrom@wc.com Attorneys for Defendant, Pfizer, Inc. Case No. BC567668 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO TAX COSTS A N nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Brooke Killian Kim, Esq. Allexandria Veridan, Esq. DLA PIPER LLP (US) 401 B Street, Suite 1700 San Diego CA 92101 Tel: (619) 699-2700 Fax: (619) 699-2701 Email: ryan.hansen@dlapiper.com Katherine.page @dlapiper.com Attorneys for Defendant, Pfizer, Inc Michael J. Libman LAW OFFICES OF MICHAEL J. LIBMAN, APC 18321 Ventura Blvd., Ste 700 Tarzana, CA 91356 Tel: 818.995.7300 Fax: 866.644.6764 Email: mjl@libmanlaw.com julieb@libmanlaw.com Attorney for Plaintiff, MICHAEL SHABSIS Case No. BC567668 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO TAX COSTS