Reply Jewish Vocational Services Reply To Opposition To Motion To Strike Andor Tax Costs Memorandum of Points And Authorities In Support

Reply

Cal. Super. - 2nd Dist.May 23, 2016

Electronically FILED by Superior Court of California, County of Los Angeles on 03/07/2019 09:36 AM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Brown,Deputy Clerk 1 ||SONALI OLSON o (sBN 180397) JOEL WITZMAN o (sBN 192430) 2 ||OLSON LAW GROUP, APC 3 21011 Warner Center Lane, Suite C Woodland Hills, CA 91367 4 || TEL (818) 960-0073 = FAX (747) 444-2232 5 || Attorneys for Defendant, JEWISH VOCATIONAL SERVICE 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF LOS ANGELES, SOUTH CENTRAL DISCTRICT 9 UNLIMITED CIVIL CASE 10 || THOMAS MARTIN, an individual, ) Case No.: BC621376 11 Plaintiff, ; [Assigned to Department “A"] 12 [log DEFENDANT JEWISH VOCATIONAL 5 ’ ) SERVICE’S REPLY TO OPPOSITION TO JEWISH VOCATIONAL SERVICE, a jy SARENEECEN 5% max SON 14 || California Corporation, JEWISH ) COSTS; MEM DUM NTS FEDERATION COUNCIL OF GREATER ~~) AND AUTHORITIES IN SUPPORT 15 ||LOS ANGELES, a California Corporation, : . . ’ Date: March 14, 2019 16 and Does 1 through 25, inclusive ) Time: 9:00 AM. Dept: A L# Uetendants, ; The Honorable Maurice A. Leiter 18 Complaint Filed: May 23, 2016 19 ) Trial Date: November 16, 2018 20 : RESERVATION NO: 220555557798 71 )_ 75 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORDS: 23 PLEASE TAKE NOTICE that defendant Jewish Vocational Service (“JVS”) submits 24 || this reply to the opposition to its motion to strike/tax costs. 25 || // 26 || // 27 || 28 1 JVS’s REPLY TO OPPOSITION TO MOTION TO TAX COSTS S O N N N n n B L N N N N ND N D N N N N ee ee e e e m e m e e e e e e 0 NN O N Wn BRE W D = O 0 N N N A W N REPLY MEMORANDUM OF POINTS AND AUTHORITIES I. JVS MORE THAN MET ITS BURDEN OF PROOF ON ITS MOTION TO STRIKE AND/OR TAX COSTS. Martin claims, without any support whatsoever, that JVS failed to meet its burden of proof on the motion. Nothing could be further from the truth. As the Court knows, Martin is restricted to recovery of costs that are both reasonable in amount and reasonably necessary to the conduct of the litigation. Cal. Code of Civ. Pro. § 1033.5(c)(2)(3). Litigation costs that are merely convenient or beneficial to its preparation are disallowed. Cal. Code of Civ. Pro. § 1033.5(c)(2). Regardless of Martin’s characterization of the simple factual underpinnings of this lawsuit as heavily contested, he cannot recover all costs he simply because he chose to incur them. Martin’s blanket statement that JVS failed to meet its burden is made in a vacuum without any support. JVS will not reiterate its moving papers here, rather it will give one example. Under Section 4 of his cost memorandum, Section 11.4 of the moving papers, Martin’s submitted documents showed only photocopy charges, many pre-litigation. Photocopy charges are not allowable cost items. Cal. Code of Civ. Pro. 1033.5(b)(3). Even if Martin asserted these costs were for exhibits, they should be disallowed. Costs for exhibits not actually used at trial are not recoverable under Cal. Code of Civ. Pro. § 1033.5(c)(13) because the exhibits are not reasonably helpful to aid the jury. Lada v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774. The Court, Martin, and JVS are all aware that the listed documents in the cost memorandum were not used as exhibits, thus those cost are not allowed. II. MARTIN’S OPPOSITION FAILS TO PROVIDE ANY BASIS NOT TO STRIKE OR TAX COSTS AS REQUESTED BY JVS. As the Court knows, once a particular cost item is properly challenged, it is the burden of the party seeking to recover that cost to prove it was reasonable and necessary. Ladas v. California State Auto Ass'n (1993) 19 Cal.App.4th 761, 774-776. Whether a contested item was reasonably necessary is a fact question for the trial court. Bender v. County of Los Angeles (2013) 217 Cal. App.4th 968, 989. Here, JVS properly challenged the various cost items in its moving papers with both legal issues and factual issues. Martin, on the other hand, has failed to 2 JVS’s REPLY TO OPPOSITION TO MOTION TO TAX COSTS OO 0 N N a N un Bs W N = N O N N N N N N N N m e ee e e e m e e ee e e 0 NN O N Wn RAR W N O O NN S Y RE WL W ND = O contradict JVS’ moving papers. JVS will also number the sections as Martin did in his opposition for convenience. 1. Items 4.c.-4.0. Deposition costs. (JVS will not, for the most part, re-list each cost for any of these subsections as each item of the challenged costs are contained in the moving papers.) Martin claims that this $490.16 in costs, which he admits are photocopy charges, should be allowed because it allowed him to respond to discovery, prepare for litigation, give to his experts, and “defend against [JVS’s]” defenses. But what he does not do is show how any of these charges are allowable. It is black letter law that photocopy charges are not allowable cost items. Cal. Code of Civ. Pro. 1033.5(b)(3). Martin does not attempt to claim that these were trial exhibits, accordingly the costs of $490.16 should be struck. 2. Items 4.p-4.q. Martin further asserts that his decision to depose JVS’s experts for extended periods of time for the simple facts of this case means that IVS must pay those costs. Martin is wrong. As the Court witnessed for itself during the videos played by Martin at trial, the depositions of both Dr. Wilson and Dr. Solomon were unnecessarily drawn out and covered wholly irrelevant issues at great length such as medical records for Dr. Solomon who had no medical opinions. At trial, neither Dr. Wilson nor Solomon approached 2 hours of testimony. Martin’s choice to depose each for about 4 hours is a choice he should have to pay for. Such lengthy depositions were neither reasonably necessary to prepare for trial nor during trial. California Code of Civil Procedure § 998(d). Thus, Wilson's $6,223.25 should be reduced to $2,200 and Solomon reduced to $1,400. Nor does Martin prove that the charges he is claiming for video are reasonable or necessary. 3. Items 4.p.-4.q. video costs. Martin does not dispute that costs incurred to edit video tapes for presentation to the jury have been deemed an unnecessary and unrecoverable expense. Science Applications Int'l Corp. v. Sup.Ct. (1995) 39 Cal.App.4th 1095, 1104. Further review shows that the costs of the depositions were: Wilson $436 video time and $162.50 video file charge, totaling $598.50, while Solomon was $447.50 video time and $212.50 video file, totaling $660.00. Thus, at best, Martin is entitled to these costs. But again, neither video was reasonable 3 JVS’s REPLY TO OPPOSITION TO MOTION TO TAX COSTS S W NN SS OO © NN Wn 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 or necessary for trial preparation and were certainly not useful at trial. If anything, the videos wasted the time of the jury, the Court, and the parties. Thus, the $3,755.75 in video editing should be struck, but at most plaintiff should be allowed $1,258.50 for actual video costs, striking the $2,497.25 for video synchronization and editing. 4. Items 5.f. though 5.m. Martin is simply not entitled to service costs for trial subpoenas| on JVS’s insurance company in the amount of $453.00. His speculation as to the effect of is improper subpoenas is just that - speculation. The Court never ruled on the various motions filed by JVS in this regard, holding its judgment for if and when an attempt to introduce the persons or documents were made. Martin never made such attempt, for the obvious reason - JVS’s insurance is absolutely irrelevant to an alleged chair collapse, its insurance company has no independent knowledge of this incident, and it certainly has no knowledge as to when JVS became aware of the alleged chair incident. Moreover, Martin’s claim that he attempted to serve the adjusters through the company because at the time he was not aware of their addresses is meaningless. Service of a subpoena is made by delivering a copy of the subpoena to the witness personally. Cal. Code Civ. Pro. § 1987(a). The statute does not state “unless at the time of service you do not know the address”. Martin should certainly not recover costs for his stunt in serving subpoenas on JVS’s insurance carrier. 5A and 5B. Item 8 Plaintiff expert fees. Martin concedes that Avrit’s first three invoices are not recoverable as they are clearly before the July 12, 2018 Section 998 offer. Nor does Martin’s irrelevant discussion re Dr. Solomon’s billing help him. As the Court is aware, the defense has to prepare for all possibilities, while the plaintiff is fully aware of and can focus on what he intends to present at trial. Thus, comparing the two is apples and oranges. More importantly, Martin’s opposition does not clarify when Avrit billed what was his first invoice, 3425.1.1R was revised November 14, 2018 and resent. It would not be very beneficial in any event as Avrit’s invoices do not list an amount of time spent on each item in his bills. Thus, it is effectively block billing. JVS agrees that the Court should employ its discretion and limit the recovery of Avrit’s expenses to a reasonable and necessary amount of $6,000.00, 4 JVS’s REPLY TO OPPOSITION TO MOTION TO TAX COSTS © © NN Oo Ww» BH Ww Nn = N N N N N N N N N e e e e e e e e e e ee e e e e 0 NJ O N wn BRA W N = O N Y E W N Y - Oo Dr. Kasimian’s bills should also be reduced. JVS challenged only the block fee of $5,000 per day of trial testimony, totaling $10,000, not his entire bill. Martin utterly failed to address the fact that Dr. Kasimian testified for about 4 hours, thus a reasonable amount for his testimony at $1,500.00 per hour is $6,000.00, not the $10,000.00 Martin is claiming. 6. Item 11. Models, enlargements, and photocopies of exhibits. As an initial matter, JVS has no idea what Martin is talking about with the Bates stamping, JVS took that burden on for the parties. Martin was unhappy with the numbering used, so JVS did it again. Nor does this irrelevant sniping gain anything for Martin. Martin admits that the vast majority of his charges are for things not used at trial. His admission is fatal to his claim for costs. Costs for exhibits not actually used at trial are not recoverable under Cal. Code of Civ. Pro. § 1033.5(c)(13) because the exhibits are not reasonably helpful to aid the jury. Lada v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774. Martin is entitled to reasonable costs for 59 photocopies and 3 blows. 7. Item 14. Fees for electronic filing or service required or ordered by court. Martin admits that electronic filing and service was not order by the Court, thus he cannot recover them. III. CONCLUSION. Martin’s cost memorandum of $83,660.65 contains impermissible and unreasonable costs. Based on the foregoing facts and authorities, JVS requests that the Court enter an order striking and taxing the costs claimed by Thomas Martin in the amount of $26,645.71 as specified above and in the declaration served herewith. Dated: March 4, 2019 OLSON LAW GROUP, APC - By: SONAILI OLSON JO ITZMAN Attorneys for Defendant, JEWISH VOCATIONAL SERVICE JVS’s REPLY TO OPPOSITION TO MOTION TO TAX COSTS OO 0 J O N Wn BA W O N N O N N N N D N N N N mm e m e m e m e e p d e d p e e d pe RX N Y Un BRA L O N D = O D N D Y E W N ~~ Oo PROOF OF SERVICE BY OVERNIGHT MAIL (Cal.Civ.Proc. Code §1013c) I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to the within action; my business address is 21011 Warner Center Lane, Suite C, Woodland Hills, California 91367. On March 7, 2019, I served the foregoing document described as DEFENDANT JEWISH VOCATIONAL SERVICE’S REPLY TO OPPOSITION TO MOTION TO STRIKE AND/OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT by deposited them into a sealed envelope(s), with the United Parcel Service, Next Day Mail postage paid, and depositing said envelope(s) into a mailbox, subpost office, substation, mail chute, or other like facility regularly maintained by the United Parcel Service for receipt of Next Day Mail, at Woodland Hills, California. The foregoing envelope(s) were addressed as follows: Attorneys for Plaintiff Attorneys for Defendant Nina P. Brahman, Esq. Griselda S. Rodriguez, Esq. The Brahman Law Office, APC RODRIGUEZ & TRAN, LLP 5009 Topanga Canyon Boulevard 631 S. Olive Street, Suite 820 Woodland Hills, CA 91364 Los Angeles, CA 90014 Tel: (310) 859-8638 griselda@rodrigueztran.com Fax: (310) 932-9035 nina@brahmanlaw.com I am readily familiar with this firm's practice of collecting and processing correspondence for mailing. It is deposited with the United Parcel Service on that same day in the ordinary course of business. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 7, 2019, at Woodland Hills, California. Rachel Robledo 1 PROOF OF SERVICE