Reply To Plaintiffs Opposition To Motion To Tax Andor Strike Costs

Reply

Cal. Super. - 2nd Dist.December 28, 2016

Electronically FILED by Superior Court of California, County of Los Angeles on 03/21/2019 07:20 PM Sherri R. Carter, Executive Officer/Clerk of Court, by A. Brown,Deputy Clerk MESSNER REEVES LLP 1 | CRAIG A. HUMPHREY (SBN 150435) 11620 Wilshire Boulevard, Suite 500 Los Angeles, California 90025 Telephone: (310) 909-7440 Facsimile: (310) 889-0896 Email: chumphrey @messner.com Attorneys for Defendant MEE YONG PARK AN nn W N SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 COUNTY OF LOS ANGELES, CENTRAL DISTRICT, UNLIMITED JURISDICTION 9 SUNGIJIN PARK, an individual, Case No. BC645224 ) ) 10 Plaintiff, ) ) DEFENDANT MEE YONG PARK’S 11 v. ) REPLY TO PLAINTIFF’S OPPOSITION ) TO MOTION TO TAX AND/OR STRIKE 12° | MEE YONG PARK ) COSTS ) 13 Defendant. ) Hearing Date: March 26, 2019 ) Hearing Time: 8:30 a.m. 14 ) Department: I is ) Complaint Filed: December 28, 2016 16 ) Trial Date: December 3, 2018 17 ) 13 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 19 PLEASE TAKE NOTICE that on March 26, 2019 at 8:30am or as soon thereafter as 20 | counsel may be heard in Department I of the above-entitled Court, Defendant, MEE YONG 21 | PARK hereby submits the following Memorandum of Points and Authorities in Reply to 22 Plaintiff’s Opposition to Defendant’s Motion to Tax Costs of Plaintiff, SUNG JIN PARK, as 23 follows: 24 25 26 27 28 o1- DEFENDANT MEE YONG PARK’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO TAX AND/OR STRIKE COSTS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Reply is based upon this notice of motion, on the attached Memorandum of Points and Authorities served and filed herewith, on the records and file herein, and on such evidence and any oral argument that may be presented at the hearing on this matter. DATED: March 21, 2019 MESSNER REEVES LLP CRAIG A. HUMPHREY PAUL W. SANDE < / ey CRAIG ‘A. HUMPHREY Attorneys for Defendant MEE YONG PARK . DEFENDANT MEE YONG PARK’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO TAX AND/OR STRIKE COSTS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES A. PLAINTIFF’S OPPOSITION WAS UNTIMELY Plaintiffs Motion fails at the outset, yet again, for its untimeliness to the extent that it acts as an opposition to Defendant’s Motion to Tax Costs. An opposition must be filed and served no more than nine court days before the date of the motion's hearing. (Code of Civil Proc. § 1005.) Here, Plaintiff filed and served his Motion for Costs on February 26, 2019, setting the date of March 26, 2019 for the hearing. (See “Exhibit B” of Defendant’s Motion to Tax Costs). Nine court days before the March 26, 2019 hearing was March 13, 2019. Plaintiff served their Motion, which acts as a response and opposition to Defendant’s Motion to Tax Costs on Opposition on March 20, 2019, seven (7) calendar days late. Furthermore, Plaintiff’s tardiness in serving his opposition has caused extreme prejudice to Defendant as she received said motion on March 21, 2019, via FedEx Standard Overnight Delivery, the same exact day their Reply is to be due. (Code of Civil Proc. § 1005.) More importantly, this is directly contrary to Plaintiff’s assertion that he would serve via eService on March 20, 2019. (See (“Exhibit A”). As such, the Motion is untimely to the extent that it acts as an opposition to the Defendant’s Motion to Tax Costs. Thus, said opposition should be stricken in its entirety. B. SPECIFIC ITEMS OF COST Section 1033.5 mandates that the items that are allowable as costs must be “reasonably necessary to conduct the litigation rather than merely convenient or beneficial to its preparation.” Code of Civil Procedure Section 1033.5(c)(2). In addition, Section 1033.5 states that “[a]llowable costs shall be reasonable in amount.” Code of Civil Procedure Section 1033.5(c)(3). Costs that are not reasonably related to defending against claims made in litigation are not recoverable. See Vons Companies, Inc. v. Lyle Parks, Jr., Inc. (2009) 177 Cal. App.4th 823, 832. = Bes DEFENDANT MEE YONG PARK’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO TAX AND/OR STRIKE COSTS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 When cost items that are claimed are objected to in a motion to strike or tax costs, the burden of proof shifts to the party seeking costs. Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 624. Here, Plaintiff has the burden of proving that they are entitled to these costs. The objecting party is not required to submit specific evidence in order to rebut the prima facie case presented by the party claiming the costs. Rather, the “trial judge is entitled to take all of the circumstances [of the case] into account and is not bound by the itemization claimed in the attorney's affidavit.” Hadley v. Krepel (1985) 167 Cal.App.3d 677, 683. If the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774. Notwithstanding the above and assuming the Court determines that the Plaintiff is to be considered the “prevailing party” pursuant to CCP 998(c), the Defendant hereby moves to strike or tax each of the following items: Item 1 Filing and Motion Fees: Plaintiff argues that he is entitled to $879.95 under this section. He has provided a copy of his internal cost sheet. (See Exhibit A of Plaintiff’s Motion). Item 4 Deposition Costs: Plaintiff claims that he is entitled to $3,501.80 in deposition costs. Furthermore, he attempts to recover costs for the transcribing of Plaintiff’s own medical providers, Hamid Mir, Michael Lowenstein, and John Homan deposition. However, he does not cite to any authority that he would be entitled to such costs, especially given the fact that it was Defendant who took the deposition of said treaters. As such, the correct number for Item 4 should be $1,465.25. Item 5 Service of Process: As stated above, Plaintiff is not the prevailing party and has no right to pre-offer service of process costs. _4- DEFENDANT MEE YONG PARK’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO TAX AND/OR STRIKE COSTS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Item 12 Models, enlargements, and photocopies of exhibits: Plaintiff claims $5,458.05 under this section. Defendant will reassert each and every point of authority cited in its Motion to Tax Cost. However, assuming Plaintiff’s blanket assertion that “Plaintiff’s medical billing expert who went through each of these documents in the exhibit book” to be true, the cost of exhibits. ..prepared at the sole instance of the party introducing them at trial is not a proper item of costs (Simms v. County of Los Angeles (1950) 35 Cal. 2d 303, 319; Crabtree v. Houghton (1923) 191 Cal. 33, 34; City of Downey v. Gonzales (1968) 262 Cal. App. 2d 563, 570). It is still impossible to determine based on their explanation what exhibit, if any, was reasonably helpful to the trier of fact. Plaintiff simply lumps their entire exhibit book as evidence that it was necessary and reasonable to the Plaintiff’s conduct of the litigation, despite stating how it was helpful to the trier of fact. Although items in a verified cost bill which appear as proper charges are prima facie evidence that the costs were necessarily incurred, when such items are properly objected to, they are put in issue, and the burden of proof is on the party claiming them as costs (Hadley v. Krepel (1985) 167 Cal. App. 3d 677, 682; Melnyk v. Robledo (1976) 64 Cal. App. 3d 618, 624). Thus, the costs under this section should be stricken and taxed as such. 1" 1" 1" 1" 1" 1" 1" 1" -5- DEFENDANT MEE YONG PARK’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO TAX AND/OR STRIKE COSTS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION For the foregoing reasons, Defendant respectfully requests that this Court deny Plaintiffs claimed costs in their entirety. In the alternative, Defendant requests that the various pre-offer costs be stricken and/or taxed from Items 1, 4, 5, and 12 of the Plaintiff's Memorandum of Costs. DATED: March 21, 2019 MESSNER REEVES LLP CRAIG A. HUMPHREY PAUL W. SANDE CRAIG A! HUMPHREY Attorneys for Defendant MEE YONG PARK -6- DEFENDANT MEE YONG PARK’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO TAX AND/OR STRIKE COSTS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Sungjin Park v. Mee Yong Park Case No. BC645224 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 11620 Wilshire Boulevard, Suite 500, Los Angeles, CA 90025. On March 21, 2019, I served true copies of the following document(s) described as on the interested parties in this action as follows: Geoff Rill, Esq. KERR, & SHELDON, PLC 16480 Harbor Blvd., Suite 100 Fountain Valley, CA 92708 Telephone: ~~ 714-531-5900 Facsimile: 714-839-2635 Email: geoff @kerrlawfirm.com BY MAIL: Ienclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the practice of Messner Reeves LLP for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope was placed in the mail at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 21, 2019, at Los Angeles, California. ela 7 Erica Berkdwics = TF oe DEFENDANT MEE YONG PARK’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO TAX AND/OR STRIKE COSTS Kylee Ashmore From: Kylee Ashmore Sent: Thursday, March 21, 2019 7:10 PM To: Kylee Ashmore Subject: FW: Park vs. Park - Plaintiff's Opposition to Defendant's Motion to Tax etc. From: Sheri Cooper [mailto:sheri@kerrlawfirm.com] Sent: Wednesday, March 20, 2019 1:29 PM To: Craig Humphrey Subject: Park vs. Park - Plaintiff's Opposition to Defendant's Motion to Tax etc. Importance: High Mr. Humphrey, I will be eFiling Plaintiff's Opposition to Defendant's Motion to Tax and/or Strike Costs etc. today and would like your consent to serve you via eService rather than sending a courier. Please respond to this email at your earliest convenience. Thank you for your courtesy and cooperation in this regard. Sheri Cooper Kerr & Sheldon 16480 Harbor Blvd., Suite 100 Fountain Valley, CA 92708 714.531.5900 x222 714.839.2635 fax