Reply Plaintiffs Reply To Defendants Opposition To Her Motion To Tax CostsReplyCal. Super. - 2nd Dist.October 28, 2016Electronically FILED by Superior Court of California, County of Los Angeles on 12/04/2018 03:47 PM Sherri R. Carter, Executive Officer/Clerk of Court, by L. Coreas,Deputy Clerk 1 Joshua H. Haffner, SBN 188652 (jhh@haffnerlawyers.com) 2 | Graham Lambert, SBN 303056 (gl@haftnerlawyers.com) 3 | Michael K. Teiman, SBN 319524 (mt@haffnerlawyers.com) 4 | HAFFNER LAW PC 445 South Figueroa Street, Suite 2325 5 | Los Angeles, California 90071 Telephone: (213) 514-5681 6 | Facsimile: (213) 514-5682 7 Tigran Martinian, Esq. | SBN 247638 3 (tm@martinianlaw.com) Suzanna Abrahamian, Esq. | SBN 285453 9 | (sa@martinianlaw.com) MARTINIAN & ASSOCIATES, INC. 10} 2801 Cahuenga Blvd. West Los Angeles, CA 90068 HI Telephone (323) 850-1900 12 Facsimile (323) 850-1943 13 Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 15 COUNTY OF LOS ANGELES - CENTRAL DISTRICT 16] IRMA YOLANDA MUNOZ SOTO, Case No.: BC638956 Judge: Hon. Christopher K. Lui 17 Plaintiff, Dept.: 4 Complaint Filed: October 31, 2016 Vv. 18 PLAINTIFEF’S REPLY TO DEFENDANT’S 19] UNION PACIFIC RAILROAD OPPOSITION TO HER MOTION TO TAX COMPANY; ROBERT FINCH; SCOTT DEFENDANTS UNION PACIFIC, KING, and DOES 1 TO 100, ROBERT FINCH, AND SCOTT KING’S 20 COSTS 21 Defendants. Date: December 11, 2018 22 Time: 1:30 p.m. Location: 111 North Hill Street 23 Los Angeles, California 900012 24 RESERVATION ID: 181022358578 25 MEMORANDUM OF POINTS AND AUTHORITIES 26] IL INTRODUCTION 27 Plaintiff Irma Yolanda Munoz Soto (“Plaintiff” or “Ms. Soto”) filed a motion to tax (the 28] “Motion”) defendants Union Pacific, Robert Finch, and Scott King’s (“Defendants”) costs -1- PLAINTIFF'S MOTION TO TAX DEFENDANTS UNION PACIFIC, ROBERT FINCH, AND SCOTT KING’S COSTS Oo 0 3 On 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2d 28 because some of Defendants’ claimed costs are not authorized under Code of Civil Procedure section 1033.5. Defendants oppose the Motion (the “Opposition™); asserting that their costs, with the exception of two, are proper. Plaintiff respectfully requests that the Court grant the Motion based on the foregoing; in reply to the Opposition. IL. THE OPPOSITION IS NOT TIMELY Pursuant to Code of Civil Procedure section 1005, subdivision (c), “all papers opposing a motion . . . shall be served [by means] reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day.” (/bid. [emphasis added].) Opposing papers shall be served at least nine court days prior to the hearing on the motion. (Id., § 1005, subd. (b).) The hearing on the Motion is December 11, 2018, and nine court days prior to this date is November 28, 2018. Defendants served the Opposition by regular mail on November 28, 2018. Thus, while the proof of service reflects a timely date, the mode of service was improper to effectuate the required notice. As a result, Plaintiff has been prejudiced by not having the required time to make a reply to the opposition, which is in contravention to the purpose of the notice requirements. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 828- 830.) Therefore, Plaintiff requests that the Court disregard the opposition or provide other relief as the Courts deems just and prudent. II. ARGUMENT It is upon the Court to determine “whether the statute expressly allows the particular item, and whether it appears proper on its face.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, (“Nelson”) as modified on denial of reh'g (June 14, 1999).) Where a cost facially appears unreasonable or unnecessary, the burden is upon the party seeking its costs to provide evidence that the costs are reasonable and/or necessary. (/d., at pp. 132-133; see Ladas v. California State Auto. Assn. (1993) 19 Cal. App.4th 761, 774.) 11 2 PLAINTIFF’S MOTION TO TAX DEFENDANTS UNION PACIFIC, ROBERT FINCH, AND SCOTT KING’S COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The sole evidence provided by Defendants are merely that such costs existed and provides no support (other than argument) as to whether these costs are reasonable or reasonably necessary to litigate this case. A. Defendants’ “Filing and Motion Fees” Should Not Be Allowed Defendants assert that the $60.00 filing fee for its ex parte application for protective order are proper by noting this ex parte would “avoid the costs” of attending a deposition that would be suspended and doing so avoided sanctions. (Opposition, 2:1-15.) Defendants’ argument fails because it is premised on the proposition that the deposition was never going to take place; however, the issue between the parties did not involve the wholesale inability to produce a deponent but that certain categories required explanation. (Motion, Ex. B, 2:21-22 [“I cannot identify a witness on some of the categories”].) Thus, the deposition could have taken place as to the uncontested topics and been continued as to the others. Moreover, Defendants provided no evidence to support this $60.00 charge. No invoice. No testimony. As it is facially unreasonable or unnecessary and Defendants failed to show otherwise, the Court should not allow this charge. (Ladas v. California State Auto. Assn. (1993) 19 Cal. App.4th 761, 774 [burden on non-moving party to prove reasonableness.) Clearly, this isa cost Defendants incurred simply because it was merely convenient or beneficial, which is expressly disallowed. (Code of Civ. Proc., § 1033.5, subd. (c)(2).) B. Defendants’ “Deposition costs” Should Not Be Allowed Defendants are only allowed to have those costs that are specifically authorized by statute. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Regarding deposition costs Defendants may only recover as follows: “(A) Taking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed. (B) Fees of a certified or registered interpreter for the deposition of a party or witness who does not proficiently speak or understand the English language. (C) Travel expenses to attend depositions.” (Code of Civ. Proc., § 1033.5, subd. (a)(3).) Additionally, where deposition costs are provided for in the statute, a court has no discretion to award a party costs in excess thereof - even when 3 PLAINTIFFS MOTION TO TAX DEFENDANTS UNION PACIFIC, ROBERT FINCH, AND SCOTT KING’S COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reasonably necessary. (Id., §1033.5, subd. (c)(4) [“[i]Jtems not mentioned in this section . . . may be allowed”]; see Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1559.) I Deposition costs Defendants did not “take” should not be allowed Defendants mis-read the applicable statute to read that they are entitled to all deposition costs that were taken (i.e., noticed) by Plaintiff. (Opposition, 3:24-4:8.) An appropriate reading of Code of Civil Procedure section 1033.5, subdivision (a)(3)(A) is that a party is entitled to the deposition costs in (1) taking, (2) video recording, and (3) transcribing depositions including , (4) an original copy and (a) one copy of those taken by the claimant (here, Defendants) and (b) one copy of depositions taken by the party against whom costs are sought (here, Plaintiff). (Code of Civ. Proc., § 1033.5, subd. (a)(3).) At the very most, Defendants are entitled to the costs of a transcript of the deposition taken by Plaintiff. Here, Defendants’ costs asserted go beyond that of merely ordering a copy of the deposition transcript and should therefore be taxed or stricken. (Opposition, Ex. b, C, D, E, and F.) For example, there are multiple charges that contain no explanation (e.g., “litigation package,” “Veritext Exhibit Package”; see e.g. Opposition, Ex. E), and multiple charges for exhibits; however, only exhibits the aided the trier of fact are recoverable. (Code of Civ. Proc., § 1033.5, subd. (a)(12).) ii. The Frank Ferraro deposition costs should not be allowed Plaintiff affirms that this deposition was not reasonably necessary and the costs are completely unreasonable. Defendants provide multiple reasons why this deposition was necessary, but its sole support is that it served as to support half of its undisputed material facts in its motion for summary judgment. (Opposition, 4:18-19.) Simply because Defendants used the deposition does not necessarily speak to the deposition’s necessity. Defendants argue that the costs were reasonable because it had to adhere to a motion for summary judgment deadline. (Id., at 4:21-5:2.) Assuming, in arguendo, that this is the case, then what prevented Defendants from taking the deposition earlier? Defendants argues on the one 4 PLAINTIFF’S MOTION TO TAX DEFENDANTS UNION PACIFIC, ROBERT FINCH, AND SCOTT KING’S COSTS Oo 0 3 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 hand that this was a crucial deposition but on the other hand make an implicit statement that is waited too long to take the deposition. It seems that Plaintiff is being made to pay for Defendants’ delay, which is completely unreasonable. Defendants also provide multiple statements about the “reasonable costs of an expedited transcript.” (Opposition, 5:27-6:8.) Again, Defendant provides no declaration or other evidence to support the reasonableness of these charges. Therefore, Defendants cannot properly recover these costs as they are not allowable or reasonable. iii. The videotaping costs of Plaintiff should not be allowed This cost is not reasonable and unnecessary. First and foremost, Defendants provide no declaration statements or exhibits to support these costs. As Defendants have failed in their burden of proving reasonableness and necessity they should not prevail on this costs. (Nelson v. Anderson (1999) 72 Cal. App.4th 111, 132-133.) Defendants also unmeritoriously fault Plaintiff for citing to Nelson v. Anderson (1999) 72 Cal. App.4th 111. One, Plaintiff cited to Nelson in support of the proposition that the burden is on Defendants to show this costs was reasonable or necessary (Motion, 6:1-2); not for assessing appropriateness. (Opposition, 6:14-16.) Two, the case is distinguishable because the Nelson court’s statement that the need for a deposition should be assessed “from the pretrial vantage point of a litigant” was expressly about whether that litigant knew “whether or not to oppose the expert’s opinions.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132 [emphasis added].) Three, Nelson did not assess the appropriateness of videotaping costs, as is here. Defendants set the burden too high by requiring that there be a guarantee that Plaintiff would appear at trial. (Opposition, 6:16-18.) If this were the case then every deposition would need to be videotaped. Indeed, if anyone is going to show up to trial it would be Ms. Soto, as her daughter was run over and killed by Defendants’ train. No one has more vested interest in seeing the case through than she. 11 11 5 PLAINTIFFS MOTION TO TAX DEFENDANTS UNION PACIFIC, ROBERT FINCH, AND SCOTT KING’S COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 9 28 C. Defendants’ “Service of Process” Fees Should Not Be Allowed Defendants are correct to cite to Ladas v. California State Auto. Assn. (1993) 19 Cal. App.4th 761, 774, but misinterprets the burden. (Opposition, 6:25-7:3.) If costs do not appear proper it is on the claimant to show the costs are reasonable or necessary. (/bid.) Here, Defendants’ memorandum of costs did nothing to substantiate the service of process costs. (Motion, Ex. A.) This is particularly important for these types of costs because they are only allowed in specific situations. (Code of Civ. Proc., 1033.5, subd. (a)(4)(A)-(D).) Thus, Defendant has the burden of proof as Plaintiff properly objected to these costs. (Ladas, supra, 19 Cal.App.4th at p. 774.) Defendants now provide support for their service of process costs by attaching the invoices and assert that these costs are recoverable under Code of Civil Procedure section 1033.5 subdivision (a)(4)(B). (Opposition, 7:4-14, Ex. 1.) These charges should still be taxed or stricken. First, the invoice for Perry, Westerfield, and Holwager reflects that Defendants are attempting to collect a “chk. charge” from Plaintiff. (/d., Ex. I.) This is a charge that Defendants incurred because it did not provide a check to the attorney service company for the advance it made to Defendants. (Declaration of Michael K. Teiman (“Teiman Decl.”), § 2.) This is not an allowable cost and it is not a reasonable amount nor necessary to conduct this litigation. (Code of Civ. Proc., § 1033.5, subd. (a)(4), (c).) Again, Defendants are attempting to pass on the costs it incurred for its own mere convenience or lack of diligence in avoiding such costs. Second, Defendants’ memorandum of costs attempts to collect $288.94 for service on Gary Juarez. (Motion, Ex. A, attachment 5d.) Now, it comes to light that Defendants only incurred $40.25 for such service. (Opposition, Ex. I.) Surely, the $288.94 should be stricken as it is now facially incorrect. Third, these service invoices reflect that Defendants are attempting to pass the costs of mailing to Plaintiff, but this cost is not allowable under Code of Civil Procedure section 1033.5 subdivision (a)(4)(B). (Opposition, Ex. I [there is a $3.00 charge for what appears to be mailing the POS].) 11 6 PLAINTIFF'S MOTION TO TAX DEFENDANTS UNION PACIFIC, ROBERT FINCH, AND SCOTT KING’S COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 28 Last, there are drastically different base rates that this attorney service is charging Defendants. Indeed, Mr. Perry and Mr. Westerfield appear to be served at the same location, yet the attorney service charged more than three-times the amount for service on Mr. Perry. (Opposition, Ex. I.) Simply because an attorney service makes a certain charge does not make that reasonable. Here, there is a significant discrepancy in the base rates charged that calls those charges into question, which Defendants fail to substantiate. Therefore, these service of process charges should be taxed or stricken. D. Defendants’ “Court Reporter Fees” Should Not Be Allowed Defendants admit that even if these costs are recoverable that the most it could be entitled to is $98.90. (Opposition, 7:15-20.) Again, Defendants attempted to charge well over that amount - almost seven times as much. (Motion, Ex. A.) As stated in the Motion, these costs should be taxed as they are expressly disallowed by Code of Civil Procedure section 1033.5 subdivision (b)(5) because the Court did not order this transcript. Therefore, the court reporter charges should be taxed or stricken. E. Defendants’ “Other Costs” Should Not Be Allowed i. Records Defendants submitted multiple invoices in support of the $659.73 for what it called “records.” (Opposition, Ex. J.) Defendant now takes the position that these charges are not authorized by Code of Civil Procedure section 1033.5 subdivision (a)(16) for other items but under subsection (a)(3) for depositions. (Id., 7:25-8:9.) Defendants base this assertion upon Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 578. As Defendant takes this position it can only recover such costs as are allowed under Code of Civil Procedure section 1033.5 subdivision (a)(3). Here, Defendants’ invoices ask for much more that costs allowed under Code of Civil Procedure section 1033.5 subdivision (a)(3). For example, there are multiple charges for “field trips.” “pages scanned,” “witness fee,” “research,” “storage retrieval,” and “postage/delivery” that have no explanation and do not seem allowable under Code of Civil Procedure section 1033.5 7 PLAINTIFF’S MOTION TO TAX DEFENDANTS UNION PACIFIC, ROBERT FINCH, AND SCOTT KING’S COSTS oc NN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 subdivision (a)(3). Additionally, there are charges for “subpoena preparation.” Plaintiff should not be allocated the costs of Defendants not preparing their own subpoena. In Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 576, the court allowed costs related to the “serving and processing” of deposition subpoenas. The Naser decision does not stand for the allowance of the multitude of costs Defendants assert. If Defendants can recover anything, it is for the “subpoena service” and possibly “basic charge” as there is no explanation for the latter. Therefore, the records charges should be taxed or stricken. il. Courtcall and conference room charges are withdrawn As Defendants have expressly withdrawn their attempt to charge Plaintiff with these costs, Plaintiff respectfully requests that the Court tax these costs ($86.00-courtcall; $122.50-conference room) in full. iii. Investigation services Defendants completely overlook that “[i]nvestigating expenses in preparing for trial” are expressly prohibited by statute. (Code of Civil Procedure section 1033.5 subdivision (b)(2).) The Court cannot allow Defendants to recover these costs as they are expressly disallowed, and “[t]he right to recover costs is purely statutory.” (Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 241.) Defendants cannot recover these costs under Code of Civil Procedure section 1033.5 subdivision (c)(4), no matter the reasonableness, because the Court cannot allow these costs as they have already been provided for by the statute. (Cf. Seever v. Copley Press, Inc. (2006) 141 Cal. App.4th 1550, 1558-1559 [this subsection only allows items not previously mentioned in the statute].) Defendants’ belated argument that these are allowable deposition costs under Code of Civil Procedure section 1033.5 subdivision (a)(3) is to no avail because there is nothing under the allowable deposition costs for investigation services. (Opposition, 8:16-17 [Defendants incorrectly cite to subdivision (a)(4).].) 11 1 8 PLAINTIFF’S MOTION TO TAX DEFENDANTS UNION PACIFIC, ROBERT FINCH, AND SCOTT KING’S COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv. Court cost/service (OneLegal) Defendants” memorandum of costs made no showing as to the reasonableness or necessity of these charges. Thus, as such charges are not expressly allowed, the burden in on Defendants in showing such reasonableness or necessity. (See Nelson, supra, 72 Cal. App.4th at pp. 132-133; Ladas v. California State Auto. Assn. (1993) 19 Cal. App.4th 761, 774.) First, Defendants simplify Plaintiff’s argument based upon the example Plaintiff provided regarding how Defendants’ memorandum of costs provides no basis for the reasonableness or necessity of these costs. (Opposition, 9:5-9; Motion, 8:26-9:3.) The Opposition does not do much better at showing the Court why these costs were reasonable or necessary and not just convenient or beneficial. Defendants’ declaration and exhibits just set forth that the costs exist and no basis for reasonableness or necessity. In Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 776, the court allowed “delivery charges” because the claimant submitted a declaration stating how those were related to trial preparation. Defendants make no such showing here. Second, these costs are essentially those created out of Defendants using a service to file their documents to the courthouse. As noted in the Motion, the Court should find weight in the fact that postage fees (i.e., the cost of getting the documents from one place to another) is expressly prohibited. (Code of Civ. Proc., S 1033.5 subdivision (b)(3).) Lastly, Defendants memorandum of costs assert $2,247.10, but a tally of their invoices account for approximately $3,622.10. Plaintiff and the Court deserves to know the actual amount Defendants are attempting to collect. It appears that Defendant is either not asserting a claim or has already asserted a claim to these costs. Plaintiff simply seeks clarity on what specific costs vis-a-vis the specific invoice Defendants are claiming. 1 11 11 1 11 9 PLAINTIFF’S MOTION TO TAX DEFENDANTS UNION PACIFIC, ROBERT FINCH, AND SCOTT KING’S COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. CONCLUSION Plaintiff respectfully request that the Court strike Defendants’ costs where they are found to be disallowed by statute and to tax, be it in the entirety or some portion thereof, those costs that are found to be unreasonable or unnecessary. DATED: December 4, 2018 HAFFNER LAW PC i pd “- ET a Nd By:
