Motion To Tax CostsMotionCal. Super. - 2nd Dist.February 11, 201620 21 22 23 24 25 26 27 28 Law Offices of Angel J. Horacek Angel J. Horacek (SBN 245680) angel@horaceklaw.com Barbara DuVan-Clarke (SBN 259268) of counsel 5701 West Slauson Avenue, Suite 210 Culver City, CA 90230 310-774-0323 310-774-3945 fax Attorneys for Plaintiff Lorna Young SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES - UNLIMITED JURISDICTION LORNA YOUNG, an individual, Plaintiff, v DEPARTMENT OF PUBLIC SOCIAL SERVICES, a governmental agency, COUNTY OF LOS ANGELES, a governmental entity, DOES 1 to 20, Defendants. Case No.: BC 609911 PLAINTIFF'S NOTICE OF MOTION AND MON TO STRIKE AND/OR TAX COST Complaintfiled: February 11,2016 Judgment entered October 29, 2018: Filed concurrently with: 1. Declaration of Angel J. Horacek 2. [Proposed] Order 3. Request for Judicial Notice 4. Proof of Service Assigned to the Honorable Richard E. Rico, Department 17 Hearing Date: March 20, 2019 Time: 8:30 a.m. Location: Dept. 17 Reservation: 181129369593 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE AND/OR TAX COSTS r o PLEASE TAKE NOTICE THAT ON March 20, 2019 at 8:30 a.m., in Department 17 of the above-titled court located at 111 N. Hill Street, Los Angeles, California 90012, Plaintiff Lorna Young (“Plaintiff”) will move the Court to strike and/or tax costs sought by Defendant County of Los Angeles (“Defendants.”) This motion is made pursuant to California Rule of Court 3.1700(b) and Code of Civil Procedure §1033.5 on the grounds that the claimed costs are not allowable under FEHA,that the claimed costs were not “necessarily incurred in this case,” and that the claimed costs are not allowable under the Code of Civil Procedure, and/or were unreasonable, unnecessary, or excessive. This motion is based upon this Notice, the attached Memorandum ofPoints and Authorities, the declaration of Angel J. Horacek, on the pleadings and other papers filed in this action, and on any further oral or documentary evidence or argument presented at the time ofthe hearing. Dated: December 3, 2018 Respectfully submitted, LAW OFFICES OF ANGEL J. HORACEK Bc Angel J. Horacek Barbara DuVan-Clarke Attorneys for Plaintiff Lorna Young PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE AND/OR TAX COSTS 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Plaintiff Lorna Young (“Plaintiff”) commenced an action against Defendants County of Los Angeles and Department of Public Social Services on February 11, 2016, alleging racial segregation and retaliation for reporting and opposing this segregation. Plaintiff’s causes of action generally sounded in the California Fair Employment and Housing Act and the California Labor Code. See Request for Judicial Notice (“RJN, Exh A”). On June 15, 2018, Defendants filed a motion for summary adjudication, which was argued on August 30, 2018 and taken under submission. Summary adjudication was granted by this Court on September 6, 2018. Plaintiff dismissed the remaining cause of action against other unnamed defendants and this Court entered judgment on October 29, 2018. By mail, Defendants served a Memorandum of Costs on Plaintiff on or around November 18, 2018. Defendants now seek an award of costs in the amount of $7,775.70. Except as otherwise expressly provided by statute, a prevailing party is entitled to recover, costs in an action. Cal. Civ. Proc. §1032(4)(b). However, Government Code section 12965(b) is an express exception to Code of Civil Procedure section 1032(b), and as a result, Defendants are not entitled to costs. Once a prevailing party has filed a memo ofcosts, the opposing party may contest the claimed costs by filing a motion to tax costs. Cal. Rule of Court 3.1700(b)(1). Allowable costs are set forth in Cal. Civ. Proc. §1033.5, and must be reasonable in amount and reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. Cal. Civ. Proc. §1033.5(c)(2) and (3); see also Williams v. Chino Valley Independent Fire Dist., (2015) 61 Cal.4th 97, 100. Trial courts have a duty to determine whether a cost is reasonable in need and amount. Thon v. Thompson (1994) 29 Cal. App. 4th 1546, 1548. Defendant may not recoverits costs from Plaintiff; but even if costs were recoverable from Plaintiff, Defendants seek far more in costs than is allowable, reasonable or appropriate. Because Plaintiff has objected to these costs, the burden of proofnow shifts to Defendants. See, Ladas v. California State Auto. Assn., (1993) 19 Cal.App.4th 761, 774. nn nn 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO TAX DEFENSE COSTS 10 11 13 14 15 16 17 18 19 20 21 22 . 23 24 25 26 27 28 II. DEFENDANTS ARE NOT ENTITLED TO COSTS [CAL. GOV'T CODE §12965(b) A prevailing defendant in a FEHA action may only obtain costs in a case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation. See Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 865. Indeed, an unsuccessful FEHA plaintiff should not be ordered to pay the defendant’s fees or costs unlessthe plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit. Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal. 4th 97 (holding that defendant employer was notentitled to costs in FEHA action despite prevailing at summary judgment). The reason that these costs do not automatically shift to the defendantis that “[iJn FEHA cases, even ordinary litigation costs can be substantial, and the possibility oftheir assessment could significantly chill the vindication of employees’ civil rights.” Id. at 114. “A prevailing defendant, however, should not be awarded fees and costs unless the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate afterit clearly became so.” Id. at 115 (emphasis in original). Three is no question here that Plaintiff's lawsuit contained three FEHA-based causes of action and concerned allegations ofracial segregation and retaliation for complaining of said segregation. Plaintiff’s action sounds in FEHA. The Court never ruled that Plaintiff’s lawsuit wag objectively without foundation. Because Defendants have not demonstrated that the Court found that Plaintiff’s FEHA action was objectively groundless when it was brought, Plaintiff should not be forced to bear any of Defendants’ costs. III. DEFENDANTS’ REQUESTED COSTS SHOULD BE TAXED AS NON- RECOVERABLE, UNREASONABLE, UNNECESSARY, OR EXCESSIVE Even if the Court were to find that Defendants may recover some costs from Plaintiff, Defendants may not recover from Plaintiff costs that are non-recoverable under CCP 1033.5,are unreasonable, unnecessary, or excessive. CCP §1033.5 narrowly defines the categories of costs that are recoverable by a prevailing party. Some costs that are specifically designated in §1033.5(a) are presumptively recoverableifreasonable and necessary. Costs designated in CCP §1033.5(b) are nonrecoverable. Under CCP §1033.5(c), all other costs are recoverable at the 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO TAX DEFENSE COSTS 20 21 22 23 24 25 26 27 28 discretion ofthe trial court. All costs, even those allowable, must be “reasonably necessary to the conduct ofthe litigation rather than merely convenient or beneficialto its preparation,” and must be “reasonable in amount”to be recoverable. CCP §1033.5(c)(2) & (3); Perko’s Enters. Inc. v. RRNSEnters. (1992) 4 Cal.App.4th 238, 244-45. Defendant seeks $1,181.20 in filing and motion, fees; $7,775.70 in deposition costs; $410.60 in service of process costs, and; $116.00 for other, totaling $9,483.50. Plaintiff seeks to tax all these categories ofcosts. 1. Filing and Motion Fees Defendants seeks $1,181.20 in filing and motion fees. 1. Filing and motion fees Paper filed Elling e 8. Dsmumer to 3rd Amended Complaint $ 85.90 b. Notice of Posting of Jury Fees $ 40.95 ©. Stipulation and Order to Continue Trial $ 49.80 d. Stipulation and Orderto Fite 2nd Amended Complaint $ 89.95 ©. Reply in Support of Demurer to 2nd Amended Complaint $ 44.90 f. Notice of Errata $ 4am 9. [X] Information about additional filing and motion fees is contained in Attachment 1g. TOTAL 1. Defendants’ Memorandum of Costs, p. Attachment 1g Stipulation and Orderto Continue Due Date for $2 4.95 Demurrer and MotiontoStrike 2°Amended $119.90 Jaadme}rom a + tm - Reply in Support ofDemurrer to 3% Amended $94.95 support ofMotion for Memorandum of Costs (Worksheet), p. 1, 11}. 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO TAX DEFENSE COSTS 10 11 12 13 14 20 21 22 23 24 25 26 27 28 However, none ofthe documentsfiled for which Defendantis claiming costs has a court filing fee associated with it except for stipulations. See Cal. Gov’t Code §70617(c)(2); See RIN, 9B. Further, the costs forfiling a stipulation is twenty dollars. Id. Additionally, as a government entity, Defendants are exempt from paying statutory filing fees and did not incur any costs for filing. Cal. Gov’t Code §6103. Defendant’s claimed costs forfiling fees are not sounded in statute, and therefore are unreasonable, unnecessary and excessive. 2. Deposition Costs In item 4, Defendant claims deposition costs of $7,775.70 for three volumes of Plaintiffs deposition and associated videotape. These costs are excessive. Plaintiff ordered transcripts of Plaintiff’s depositions volumes I, 11, and III. Each transcript was billed as follows: Transcript Cost Billed Plaintiff, V. I $798.50 Plaintiff, V. II $682.00 Plaintiff, V. III $858.00 See Horacek Dec. q 3, Exhibits A, B, and C. Defendants should have been billed at the same rate as Plaintiff for these depositions. See Cal. Gov't Code §69954(a). For this reason, Defendants claimed costs for three volumes of Plaintiff's deposition transcript are excessive Additionally, it was not reasonably necessary for Defendants to videotape Plaintiff’s deposition, Forthis reason, these costs should be disallowed. 3. Service of Process Here, Defendants claim $202.80, $103.90 and $103.90 for same day personal service upon Plaintiff’s named experts, presumably for the deposition subpoenas it served on them on or about August 28, 2018. While service costs are recoverable, same day personal service upon these experts was not “reasonably necessary”in thislitigation as Defendants were not up against any deadline at the time ofservice. These costs should be disallowed, or at least taxed to the rate of civil service process by the Los Angeles Sheriff’s Department at Forty Dollars per service. See Horacek Decl. 14. 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO TAX DEFENSE COSTS IV. CONCLUSION For all of the foregoing reasons, Plaintiff's Motion to Tax Costs should be granted as Defendants are not entitled to recover any of their costs pursuant to Cal. Gov't Code §12965(b), and because even if such costs were recoverable, the costs claimed were not reasonably necessary] 20 21 22 23 24 25 26 27 to the conduct ofthe litigation. Dated: December 3, 2018 5 Respectfully submitted, LAW OFFICES OF ANGEL J. HORACEK a Angel J. Horacek Barbara DuVan-Clarke Attorneys for Plaintiff Lorna Young MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO TAX DEFENSE COSTS THIS IS YOUR CRS RECEIPT INSTRUCTIONS Please print this receipt and attachit to the corresponding motion/documentas the last page. Indicate the Reservation ID on the motion/document face page (see example). The document will not be accepted withoutthis receipt page and the Reservation ID. ALIORNIA, COUNTY OF LOS ANGELEN ) CASE NO: DOBIHROH NOTICE OF MOTION AMD TO COMPELANSWE ATE ng P21 Yr. + 131112001085 - = = = = - - ¢ < m E RESERVATION INFORMATION Reservation ID: Transaction Date: Case Number: Case Title: Party: Courthouse: Department: Reservation Type: Date: Time: 181129369593 November 29, 2018 BC609911 LORNA YOUNG VS DEPARTMENT OF PUBLIC SOCIAL SERVICES ET AL YOUNG LORNA (Plaintiff) Stanley Mosk Courthouse 17 Motion to Tax Costs 3/20/2019 08:30 am FEE INFORMATION (Fees are non-refundable) First Paper Fee: Party asserts first paper was previously paid. Description Fee Motion to Tax Costs $60.00 Total Fees: Receipt Number: 1181129K5470 $60.00 PAYMENT INFORMATION Name on Credit Card: Credit Card Number: A COPY OF THIS RECEIPT MUST BE ATTACHED TO THE CORRESPONDING Angel J Horacek XXXX-XXXX-XXXX-2965 MOTION/DOCUMENT AS THE LAST PAGE AND THE RESERVATION ID INDICATED ON THE MOTION/DOCUMENT FACE PAGE.
