Reply_defendant_kkars_incs__to_plaintiff_robert_lee_johnsons_opposition_to_defendants_motion_to_strike_or_tax_costs

Reply

Cal. Super. - 2nd Dist.March 24, 2016

Electronically FILED by Superior Court of California, County of Los Angeles on 02/14/2019 10:38 AM Sherri R. Carter, Executive Officer/Clerk of Court, by C. Coleman,Deputy Clerk M A D I S O N L A W , A P C 17 70 2 Mi tc he ll No rt h, Ir vi ne , CA 92 61 4 Te l (9 49 ) 75 6- 90 50 - Fa x (9 49 ) 75 6- 90 60 OO 00 NN A nn bh W N N O N N N N O N N N N N m m mk m b mk md e m p m e d e d e d 0 N N AN U r A W N = O O N N N Bh W N = O Ali Parvaneh, SBN 218320 aparvaneh@madisonlawapc.com James S. Sifers, SBN 259105 jsifers@madisonlawapc.com Eric J. Bautista, SBN 194847 ebautista@madisonlawapc.com MADISON LAW, APC 17702 Mitchell North Irvine, California 92614 Telephone: 949-756-9050 Facsimile: 949-756-9060 Attorneys for Defendant K-Kars, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES -- STANLEY MOSK COURTHOUSE ROBERT LEE JOHNSON, an individual, Case No. BC614749 Plaintiff, ASSIGNED FOR ALL PURPOSES TO Hon.: Judge Samantha Jessner Vv. Dept: 31 K-KARS, INC. a California corporation; DEFENDANT K-KARS, INC.’S REPLY TO .c . [PLAINTIFF ROBERT LEE JOHNSON’S CALIFORNIA REPUBLIC BANK, a California OPPOSITION TO DEFENDANT'S MOTION 9 COMPANY, a Texas corporation; and DOES 1 MEMORANDUM OF POINTS AND through 19, inclusive, AUTHORITIES Defendants. Hearing: Date: February 22,2019 Time: 8:30 am. Dept: 31 Reservation No. 311623337470 Action Filed: March 24, 2016 Trial Date: Post-Trial 1 1" DEFENDANT K-KARS, INC.’S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE OR TAX COSTS -1- MA DI SO N LA W, AP C 17 70 2 Mi tc he ll N or th , Irv ine , CA 92 61 4 Te l (9 49 ) 75 6- 90 50 - Fa x (9 49 ) 75 6- 90 60 OO 0 9 O Y Wn RA W N = N N N N N N N N N O N m m b m em p m p e d e m e d p m es RX NN A LL A W N = O OC N N N B R A W N = o MEMORANDUM OF POINTS AND AUTHORITIES IL. INTRODUCTION On or about March 14, 2018, the arbitrator of this action awarded Plaintiff Robert Lee Johnson (“Plaintiff”) damages against Defendant K-Kars, Inc. (“Defendant”) deeming Plaintiff the prevailing party. (Motion to Strike or Tax Costs [“Motion”], Exhibit “1”’].) On November 20, 2018, the Court used a locally approved form to enter the Notice of Entry of Judgment (“Notice”). (Motion, Exhibit “2.”) On or about January 7, 2019, Plaintiff, through his counsel, filed a Memorandum of Costs (“Memo of Costs”), requesting reimbursement of costs totaling $3,200.26. (Opposition, p.2:1.) Subsequently, Defendant filed its Motion as Plaintiff failed to timely file his Memo of Costs and requested costs that he is not entitled to recover under the law. Plaintiff now alleges that he is entitled to recover the disputed costs because they were reasonably incurred for purposes of litigation. As herein discussed, the costs should be stricken and/or taxed because they were not reasonably incurred for purposes of litigation and Plaintiff provides absolutely no basis as why they should be allowed despite the untimely filing. IL LEGAL ARGUMENTS A. THE COURT SERVED A PROPER NOTICE OF ENTRY OF JUDGMENT Plaintiff failed to file his Memorandum of Costs (“Memo”) within 15 days from the date the Notice of Entry of Judgment (“Notice”) was filed and served. Plaintiff contends that the 15-day deadline never started to run because the Court did not serve the Notice with a copy of the judgment. (Opposition, p. 1:2-17.) Plaintiff failed to cite to any case law or statutes to prove that a “proper” service of a notice of entry of judgment means that you must serve the notice of entry of judgment with a copy of the judgment. Rather, Plaintiff states that the judicial council form for a notice of entry of judgment requires a copy of the judgment to be attached to the notice. (Opposition, p. 1:10-11.) However, the Court used a locally approved form to provide the Notice which does not require a copy of] the judgment to be attached to the Notice. (Motion, Exhibit “2.”) The locally approved form used by the Court is governed by Cal. Code Civ. Proc. § 664.5 which states that “the clerk of the court shall serve notice of entry of judgment to all parties [...] and shall execute a certificate of service [...]” (Cal. Code Civ. Proc. § 664.5(c).) Here, the clerk of the court filed and served the Notice with a certificate of DEFENDANT K-KARS, INC.’S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE OR TAX COSTS 5 M A D I S O N LA W, AP C 17 70 2 Mi tc he ll No rt h, Ir vi ne , C A 92 61 4 Te l (9 49 ) 75 6- 90 50 - F ax ( 94 9) 75 6- 90 60 Oo «0 9 O&O n n A W N = N N N D N N N N N N = e m e m p m p e d p m he d p m e d p m 0 N A Un A W N = O YO N N N RA W N - = Oo service per code on November 20, 2018. (Motion, Exhibit “2;” Cal. Code Civ. Proc. § 664.5(c).) It is not required for a copy of the judgment to be attached to a notice of entry of judgment because the Court used a locally approved form. As such, Plaintiff had 15-days from November 20, 2018, to file a memorandum of costs, making his deadline to file a memorandum of costs December 10, 2018. (Cal. Rules of Court 3.1700(a)(1).) The Memo was not filed until January 7, 2019, beyond the deadline prescribed in Cal. Rules of Court 3.1700(a)(1) and should be stricken in its entirety. The Court should not grant Plaintiff a retroactive extension to file a memorandum of costs. Plaintiff contends that if the Court grants him a 30-day extension to file the Memo per Cal. Rules of Court 3.1700(b)(3), then the Memo was filed timely because it was filed on January 7, 2019, within 30 days from December 10, 2019. (Opposition, p. 2:1-4.) Plaintiff cites to Cardinal Health 301, Inc. v. Tyco Electronics Corp., (2008) 169 Cal. App.4th 116, 155, to persuade this Court to grant Plaintiff a 30- day extension per Cal. Rules of Court 3.1700(b)(3). There, the court granted the moving party a 30-day extension because the moving party filed its memorandum of costs within two weeks of the statutory deadline, only one day late, and the objecting party did not raise the issue of timeliness in its motion to tax or its reply in support of its motion to tax. (/bid.) Here, Plaintiff filed his Memo four weeks after the statutory deadline and Defendant raised the issue of timeliness in its Motion. As such, the Court should not grant Plaintiff a retroactive 30-day extension to file the Memo. B. PLAINTIFF’S VARIOUS COSTS REQUESTED FOR TRAVEL EXPENSES AND MEALS MUST BE STRICKEN Plaintiff’s claims for hotel and lodging expenses for his counsel to attend an arbitration status conference ($254.00), counsel’s mileage for attendance at the September 24, 2018, hearing on petition to confirm arbitration ($66.00), and for counsel’s unidentified travel expenses, tips, and meals for attendance at the September 24, 2018, hearing on petition to confirm arbitration ($33.00) are not authorized under law. In Ladas, the Court held that the trial court erred in failing to strike costs for local travel expenses unrelated to depositions, including parking fees, cab fares, and "mileage/parking" fees for attorneys and paralegals. (Ladas, supra, 19 Cal App 4th 761.) Ladas held that the only travel expenses authorized by the statute are those incurred to attend depositions (Ibid; Cal. Code Civ. Proc. § DEFENDANT K-KARS, INC.’S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE OR TAX CGSTS 3 MA DI SO N LA W, AP C 17 70 2 Mi tc he ll No rt h, Ir vi ne , CA 92 61 4 Te l (9 49 ) 75 6- 90 50 - F ax (9 49 ) 75 6- 90 60 OO 0 NN O N Wn RA W N BN O N N D N N N N N N O N = o m em m d e m e b e m e m e m p m 0 NN A n h A W N = O O 0 N N S Y N W N = O 1033.5(a)(3).) Moreover, the only meal expenses recoverable under Cal. Code Civ. Proc. § 1033.5 are those for jurors during trial and deliberation. While Cal. Code Civ. Proc. § 1033.5(a)(3) permits travel expenses to attend depositions, it does not permit meals eaten while attending depositions. Nor can meal expenses be justified as “necessary to the conduct of litigation” since attorneys and parties have to eat whether they are conducting litigation or not. (See Ladas, at 774-775.) Plaintiff cites Thon v. Thompson, (1994) 29 Cal. App.4th 1546, 1548, for the proposition that the law provides that a prevailing party is entitled to hotel costs to stay in the jurisdiction where the case is filed. However, Plaintiff failed to recognize that in Thon, the Court awarded the prevailing party travel expenses and hotel costs because the prevailing party incurred such costs to attend a deposition. (Thon at 1549; Cal. Code Civ. Proc. § 1033.5(a)(3).) Here, Plaintiff incurred travel expenses and hotel costs attend an arbitration status conference, not a deposition. Plaintiff failed to cite to any case law or statutes indicated that he is entitled to costs for other travel expenses and meals. Accordingly, all such costs should be stricken. C. PLAINTIFF’S REQUESTED COSTS FOR ADVANCED ATTORNEY SERVICES FEES MUST BE STRICKEN Plaintiffs request for reimbursement of $874.45 for advanced attorney services fees are not authorized under law because such services were not reasonably necessary to the conduct of litigation. Plaintiff does not dispute Defendant’s contention that such services were used to file pleadings and/or motions in person at the filing window and to deliver courtesy copies. Plaintiff only contends that these services were reasonably necessary to the conduct of litigation because his counsel’s office is not located in the same jurisdiction as this Court. (Opposition, p. 4:19-27.) However, Plaintiff’s counsel could have avoided these costs by electronically filing its pleadings and motions as is common in the modern-day practice of law. Furthermore, it is not necessary to deliver courtesy copies to the court. Hence, the term courtesy. Plaintiff cites to Ladas and Sanford v. Rasnick (2016) 246 Cal. App.4th 1121, 1133 (recognizing attorney service fees were permitted in Ladas) for the proposition that that the law provides that he is entitled to reimbursement of $874.45 for advanced attorney services fees. However, in Ladas, the court awarded the prevailing party “courier and messenger charges” because said costs were incurred to file documents with the court, comply with the opposing party’s document demands, DEFENDANT K-KARS, INC.'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE OR TAX COSTS 4- M A D I S O N LA W, AP C 17 70 2 Mi tc he ll No rt h, Ir vi ne , CA 92 61 4 Te l (9 49 ) 75 6- 90 50 - Fa x (9 49 ) 75 6- 90 60 OO ce 9 a nn RA W N = N O N N N N N N N N N N N O N D mm o m e m e m p m e k p m e m e m NN N N nh hk W N = O OO 0 NN D R A W N D = OD and transport exhibits to and from the courtroom. (Ladas at 818.) Here, Defendant’s counsel did not make any such demands to Plaintiff and neither did Plaintiff use such services to transport exhibits to and from the courtroom. Rather, Plaintiff chose to not electronically file documents with the Court and delivered courtesy copies to the Court on his own accord. Plaintiff could have mitigated his costs by electronically filing documents with the Court as it is modern day practice to do so and by not delivering courtesy copies to the Court. Therefore, all such costs should be stricken. III. CONCLUSION Based on the forgoing, Defendant respectfully requests that Plaintiff’s request for costs related to travel/meal expenses in the amount of $287.00, parking/mileage expenses in the amount of $66.00, and advanced attomey services fees in the amount of $874.45 under item 16 of Plaintiff’s Memo of Costs be stricken and/or taxed. Respectfully submitted on this 14" day of February, 2019, by: MADISON LAW, APC 1x Eric J. Bautista, ~~ f~- Attorney for Defendant K-Kars, Inc. DEFENDANT K-KARS, INC.'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE OR TAX COSTS -5- © 0 9 S Y wn Ww BR O N N N N N N N mm mm em mb e d e b e m p d p m ~N O n A W N = O w N N N R A W NY = Oo 2 0 PROOF OF SERVICE STATE OF CALIFORNIA ) ) SS COUNTY OF ORANGE ) I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action, my business is located at 17702 Mitchell North, Irvine, CA. On February 14, 2019, I served the foregoing documents: DEFENDANT K-KARS, INC.’S REPLY TO PLAINTIFF ROBERT LEE JOHNSON’S OPPOSITION TO DEFENDANTS MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: See Attached Service List. [X] [] [X] [] [X] I am readily familiar with the firm’s practice of collecting and processing of documents and correspondence for mailing with the United States Postal Service. Under that practice, on the above date, the envelope was sealed and placed for collection and mailing following the ordinary business practices of our office. This results in the envelope being delivered to the United State Postal Service that same day, with postage thereon fully prepaid. I caused such envelope to be delivered by hand to the office of addressee. Executed at Irvine, CA. I sent the attached documents via email to addressees’ office: hal@rbblawgroup.com, arlyn@rbblawgroup.com; richard@rbblawgroup.com, grh@grhattorney.net, mdl@severson.com; jtc@severson.com By delivering such documents to an overnight mail service or an authorized courier in an envelope or package designated by the express service courier addressed to the person(s) on whom it is to be served: I declare under penalty of perjury under the laws of the State of California that the foregoing Executed on February 14, 2019, at Irvine, California. is true and correct. 0 AL] / 1 / a0 Starlet Zambrano / = H O W Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 IR Service List Mr. Mark D. Lonergan, Esq. Severson & Werson, APC One Embarcadero Center, 26™ Floor, San Francisco, CA 94111 Mr. Hallen D. Rosner, Esq. Rosner, Barry & Babbit, LLP 10085 Carroll Canyon Rd., Ste 100, San Diego, CA 92131 Mr. Geoffrey R. Hudson, Esq. Law Offices PO Box 2547, Napa, CA 94558 Casa MBZ 16830 Ventura Blvd., Suite 360, Encino, CA 91436