Motion_to_tax_costsMotionCal. Super. - 2nd Dist.April 5, 2017Electronically FILED by Superipr Court of California, County of Los Angeles on 03/04/2019 10:46 AM Sherri R. Carter, Executive Officer/Clerk of Court, by A. Trinh,Deputy Clerk 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 John T. Farmer (SBN 089168) Tiffany L. Steward (SBN 279978) FARMER CASE & FEDOR 402 W. Broadway, Suite 1100 San Diego, California 92101 (619) 338-0300 / (619) 338-0180 (Fax) Attorneys for Defendant ESTATE OF JOSE HOLGUIN (DECEASED) SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - COMPTON KEVIN NELSON, an individual, CASE NO.: BC656538 Plaintiff, DEFENDANT'S NOTICE OF MOTION AND MOTION TO TAX COSTS V. Jose Holguin; and DOES 1 through 50, inclusive, Complaint Filed: April 5,2017 Dept: 5 Defendants. Trial Date: January 28, 2019 DATE: April 2,2019 TIME: 9:09 a.m. DEPT: A RES ID: 382997767187 e e N e N e N e N e S e a S N TO THE PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 2, 2019, at 9:09 a.m., or as soon thereafter as the matter may be heard in in Department A of the Los Angeles County Superior Court located at 200 W. Compton Blvd, Compton, CA, Defendant ESTATE OF JOSE HOLGUIN (DECEASED) moves the court for an order reducing or taxing costs that are improper, unreasonable, and/or not reasonably necessary as listed in Plaintiff KEVIN NELSON’s Memorandum of Costs. This motion is based on this notice, the attached memorandum of points and authorities, Declaration of Tiffany L. Steward, along with the pleadings, files and records in this action. The G:\89\9769-Nelson\Post Trial\mtn.to.tax.doc 1 DEFENDANT’S NOTICE OF MOTION AND MOTION TO TAX COSTS Oo o o 3 10 1 12 13 14 15 16 17 18 19 20 21 w 23 24 25 26 27 28 motion will also be based upon any oral and documentary evidence that may be presented at the hearing on the motion. Dated: February Cg, 2019 FARMER CASE & FEDOR By: JOHNT. FARMER TIFFANY L. STEWARD Attorneys for Defendant ESTATE OF JOSE HOLGUIN (DECEASED G:\89\9769-Nelson\Post Trial\mtn.to.tax.doc 2 DEFENDANT’S NOTICE OF MOTION AND MOTION TO TAX COSTS 10 1 12 13 14 15 16 17 18 19 20 21 59 23 24 25 26 77 28 MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff KEVIN NELSON seeks to recover $15,298.55 in costs, most of which are neither authorized under Code of Civil Procedure, section 1033.5 nor reasonable and necessary. Defendant ESTATE OF JOSE HOLGUIN (DECEASED) submits the following memorandum of points and authorities in support of its motion to tax costs by striking specific items: I. IT IS PROPER FOR THE COURT TO TAX COSTS BY STRIKING ITEMS FROM THE COST BILL WHICH ARE NOT BASED ON STATUTE NOR NECESSARILY INCURRED The right to recover costs is entirely statutory, with the measure of the statute as the measure of the right. (Ladas v. California State Auto. Ass'n. (1993) 19 Cal.App.4th 761; Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 241; Moss v. Underwriters’ Report, Inc. (1938) 12 Cal.2d 266, 274.) The courts have strictly construed the statutes permitting costs and only those items specifically authorized are recoverable. (Perko's, 4 Cal. App.4th at 243; Sequoia Vacuum Sys. v. Stransky (1964) 229 Cal. App.2d 281, 289.) Items in a cost bill must be correct and must have been necessarily incurred. The necessity of incurring items is within the trial court's sound discretion. (Perko's, 4 Cal.App.4th at 243; Moss, supra.) Expenditures that are merely convenient and beneficial to the prevailing party, but not essential to the conduct of the proceeding, are not recoverable as costs. (See, Murphy v. Cornell Co. (1930) 110 Cal.App.452, 455.) A verified memorandum of costs is prima facie evidence the items claimed were proper and necessary, but when properly challenged by a motion to tax costs the burden of establishing the necessity of the items is on the party claiming them as costs. (Perko's, 4 Cal. App.4th at 242-243; Rappenecker v. Sea-Land Services, Inc. (1979) 93 Cal. App.3d 256, 266; Stenzor v. Leon (1955) 130 Cal.App.2d 729, 735.) Code of Civil Produced, Section 1033.5 enumerates the costs that are and are not recoverable. Costs that are not recoverable include: (1) Fees of experts not ordered by the court; (2) Investigation expenses in preparing the case for trial; (3) Postage, telephone, and photocopying charges, except for exhibits; (4) Costs in investigation of jurors or in preparation for voir dire; and (5) Transcripts of court proceedings not ordered by the court. G:\89\9769-Nelson\Post Trial\mtn.to.tax.doc 3 DEFENDANT’S NOTICE OF MOTION AND MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Additionally, the court in Ladas provided further clarification regarding recovery of costs. (Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761, 775-777, 23 Cal. Rptr.2d 810.) In Ladas the court determined that local travel expenses not associated with depositions were not recoverable. The court also recognized that the costs of obtaining records is clearly not recoverable because it constitutes investigation in preparation of trial which is explicitly precluded under section 1033.5. Moreover the court felt that said costs could be considered expert fees where the records are necessary for the experts review and therefore not recoverable. a. Plaintiff’s Claim For Deposition Costs Is Not Recoverable And Excessive Plaintiff seeks recovery of $4,510.27 in deposition costs. Included under Section 4 is $494.25 attributed to the deposition of Andrew Holguin. Andrew Holguin is neither a party to the case nor a percipient witness. This lawsuit was brought pursuant to Probate Code, section 554, and thereby limiting recovery to the available insurance policy limits because Jose Holguin was deceased at the time of filing the complaint. As a result, Mr. Holguin’s auto insurance carrier answered the complaint on the decedent’s behalf and representatives of the insurance carrier executed verifications to discovery. Andrew Holguin was not a witness to the accident and therefore any testimony regarding the matters at issue in the case, liability and damages, was pure speculation and hearsay. Andrew Holguin had nothing to offer of relevance to the case and would have been an inadmissible witness at the time of trial. The deposition of Andrew Holguin was not reasonable and certainly was not necessary to the litigation of this case. Accordingly, Plaintiff should not be allowed to recover the cost expended on this deposition. Section 4 should be reduced to $4,016.02. b. Plaintiff’s Claim For Service Of Process Costs Is Not Recoverable And Excessive Plaintiff seeks recovery of $2,353.40 in Service of Process. Allowable cost for service of process are amounts incurred to serve the pleadings and trial subpoenas. Whether and in what amount the expenses for service of process are allowed depends upon who served the process 1033.5, subd. (a)(4).) In Nelson, the court rejected a request for costs for service of process U\BY\Y /0Y-INEISON\POST | rialmtn.1o.tax.aoc 4 DEFENDANT'S NOTICE OF MOTION AND MOTION TO TAX COSTS 10 11 12 14 15 16 17 18 19 20 il pe 23 24 25 26 27 28 where the memorandum of costs did not state how the subpoenas were served, because the court could not determine from the face of the cost bill whether the items were proper. (Nelson v. Anderson (1999) 72 Cal. App. 4th 111, 84 Cal. Rptr. 2d 753.) In the present action, Plaintiff fails to identify what was served. The memorandum is entirely deficit as to the nature of service and it is impossible to determine if the cost were reasonably necessary for the litigation of this matter. The questionable nature of these alleged costs is further illustrated by looking at the item breakdown: Samuel Cooke - $216.50: Mr. Cooke was the driver of the vehicle Plaintiff was riding in. Mr. Cooke did not appear for deposition and was not called as a witness at the time of trial. Mitra Razipour, DC - $92.00: Dr. Razipour was not deposed and not a trial witness. Furthermore, Plaintiff designated Dr. Razipour as an expert witness and this would constitute expert fees. Nature’s Remedy Chiro - $72.00: This is Dr. Razipour’s clinic. Erick Balderama, MD - $79.50: Dr. Balderama was not deposed and called at trial pursuant to a subpoena by Defendant Balderrama Clinic - $49.50: This is Dr. Balderrama’s clinic. Officer Todd Fatta - $107.00: The officer was not deposed and not identified as a trial witness. Officer Randy Lloyde - $151.50: The officer was not deposed and not identified as a trial witness. Officer Henry - $49.50: The officer was not deposed and not identified as a trial witness. City of Burbank - $124.50: There was no deposition and not identified as a trial witness. Glendale Memorial Hospital - $124.50: There was no deposition and not identified as a trial witness. G:\89\9769-Nelson\Post Trial\mtn.to.tax.doc S DEFENDANT’S NOTICE OF MOTION AND MOTION TO TAX COSTS 10 11 1.2 13 14 15 16 17 18 9 20 21 22 23 24 25 26 27 28 e George Rappard - $84.00: This was Plaintiff's own retained designated expert witness and constitutes expert fees. e Dynamic Upright MRI - $84.00: There was no deposition and not identified as a trial witness. e Arash Dini, MD - $81.50: Dr. Dini was not deposed and not a trial witness. Furthermore, Plaintiff designated Dr. Dini as an expert witness and this would constitute expert fees. e Hawthorne Radiology - $114.50: There was no deposition and not identified as a trial witness. e Anthony Bledin, MD - $79.50: Dr. Bledin was not deposed and not identified as a trial witness e Glendale Memorial Hospital - $83.50: There was no deposition and not identified as a trial witness. e Universal Imaging Center - $126.50: There was no deposition and not identified as a trial witness. e Farmer Case & Fedor - $54.95: This is counsel of record for defendant and appears to be messenger fees which are not recoverable. e Farmer Case & Fedor - $54.95: This is counsel of record for defendant and appears to be messenger fees which are not recoverable. e Defendant Jose Holguin - $74.50: Defendant was deceased at the time of filing and counsel of record agreed to accept service on the estate’s behalf It is unclear from the face of the memorandum of cost for what purpose the above individuals or entities were subpoenaed. As detailed above, the majority of subpoenas were not for testimony as the entity or witness was neither deposed nor identified as a trial witness. Thus, it is believed that Plaintiff is attempting to recover the cost of record subpoenas under this section. Which the Ladas court held were costs of investigation in preparation for trial and therefore not permitted as a recoverable costs. The costs for the above-identified service of G:\89\9769-Nelson\Post Trial\mtn.to.tax.doc 6 DEFENDANT'S NOTICE OF MOTION AND MOTION TO TAX COSTS S S oO 0 9 11 12 13 14 15 16 17 18 19 20 21 78 23 24 25 26 27 28 process does not appear reasonable nor necessary for the litigation of this case. Accordingly Section 5 should be reduced to $449.00. c. Plaintiff’s Claim For Witness Fees Is Not Recoverable And Excessive Plaintiff seeks recovery of $704.00 in Witness Fees. A party has the right to recover ordinary witness fees incurred to compel the attendance of a witness at a deposition or trial. However, the identified witness fees are inconsistent with the facts of the case. In actuality it appears that the majority of “witness fees” are amounts paid to obtain medical records which again are not recoverable costs under CCP 1033.5. e Officer Todd Fatta - $275.00: Officer Fatta was not deposed and was not identified as a trial witness. e Officer Randy Lloyd - $275.00: Officer Lloyd was not deposed and was not identified as a trial witness. eo Custodian of Record George Rappard - $15.00: Dr. Rappard was Plaintiff's designated retained expert. This fee makes absolutely no sense. e Custodian of Record Dynamic Upright MRI - $45.00: There was no deposition and not identified as a trial witness. e Custodian of Record Arash Dini, MD - $15.00: There was no deposition and not identified as a trial witness. e Custodian of Record Elite Surgery Center - $49.00: There was no deposition and not identified as a trial witness. e Custodian of Record Glendale Memorial Hospital - $15.00: There was no deposition and not identified as a trial witness. e Custodian of Record Universal Imaging Center - $15.00: There was no deposition and not identified as a trial witness. Section 8 witness fees pertain to amounts paid to percipient witnesses for their testimony pursuant to the government code, such a fee would be reasonable for Stuart Schreiber. However, here Plaintiff is attempting to mask medical record fees which are not otherwise recoverable. Therefore, Section 8 should be reduced to $0. G:\89\9769-Nelson\Post Trial\mtn.to.tax.doc 7 DEFENDANT’S NOTICE OF MOTION AND MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 a 23 24 a3 26 27 28 d. Plaintiff’s Claim For Models, Enlargements And Photocopies Of Exhibits Is Not Recoverable And Excessive In the present action, Plaintiff seeks $2,115.46 for “models, enlargements and photocopies of exhibits. Expenses for models, enlargements, photocopies, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, that are “reasonably helpful to aid the trier of fact” are recoverable costs. Costs for exhibits not actually used at trial are not recoverable under CCP § 1033.5(a)(13) because the exhibits are not “reasonably helpful to aid the trier of fact.” (Ladas at 774) As this Court will recall, Plaintiff did not at any time during trial present Models or Enlargements. Furthermore, Defense Counsel provided, at its own cost, copies of the Exhibits and Trial Binders as required by the court and the electronic equipment. This request is not consistent with the facts of the case and therefore does not appear to be necessary or reasonable. Accordingly, Section 12 should be reduced to $0. e. Plaintiff’s Claim For Other Is Not Recoverable And Excessive Under Section 16, Plaintiff seeks costs in the amount of $4,146.79 for “other”. Under Section 16, Plaintiff generally describes the services allocated to “other” as “investigator, nurse observer, private mediation, obtaining records, and mileage. Section 1033.5 specifically precludes recovery of the cost of investigation. Accordingly Plaintiff is not entitled to costs for “investigator and obtaining records”. Section 1033.5 further excludes the cost of experts. Here Plaintiff retained a nurse to attend the IME conducted by Dr. Feuerman. This observer was specifically selected for her special training, education and skill as a nurse. Her services constitute expert consultant fees and are precluded under section 1033.5. Similarly, such fees would not be recoverable if a paralegal or attorney attended the IME in lieu of the nurse. With regard to private mediation, Plaintiff voluntarily engaged in mediation in hopes of settling the matter in advance of trial. This mediation was not court ordered. The cost of mediation is not enumerated under section 1033.5 as a recoverable costs and should not be permitted under the Court’s discretion. ~~ Finally, the Ladas court held that local travel/mileage G:\89\9769-Nelson\Post Trial\mtn.to.tax.doc 8 DEFENDANT’S NOTICE OF MOTION AND MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not associated with a deposition is not recoverable. Here, Plaintiff is seeking recovery of unspecified mileage not associated with a deposition and such cost is not recoverable. Costs for “investigator, nurse observer, private mediation, obtaining records and mileage” are not recoverable costs under section 1033.5 and therefore Section 16 should be reduced to $0. II. CONCLUSION Defendant respectfully request that this Court grant its motion to tax by striking or greatly reducing costs that are not recoverable and/or unreasonable and excessive. In particular, the Court should reduce the memorandum of costs as follows: Costs Requested by Plaintiff Should be Ordered 9. Court-Ordered 12. Models, Enlargements $2,115.46 and photocopies of 14. Fees for electronic $178.75 $178.75 15. Fees for hosting - - As detailed more thoroughly above the recoverable costs should be $5,932.77. Dated: February ZX 2019 FARMER CASE & FEDOR By: YW / AA JOHN T° FARMER TIFFANY L. STEWARD Attorneys for Defendant ESTATE OF JOSE HOLGUIN (DECEASED) G:\89\9769-Nelson\Post Trial\mtn.to.tax.doc 9 DEFENDANT’S NOTICE OF MOTION AND MOTION TO TAX COSTS Make a Reservation | Journal Technologies Court Portal Journal Technologies Court Portal Make a Reservation KEVIN NELSON VS JOSE HOLGUIN Case Number: BC656538 Case Type: Civil Unlimited Category: Motor Vehicle - Personal Injury/Property Damage/Wrongful Death Date Filed: 2017-04-05 Location: Spring Street Courthouse - Department 5 Reservation Case Name: KEVIN NELSON VS JOSE HOLGUIN Type: Motion to Tax Costs Filing Party: Estate of Jose Holguin, Deceased (DOE 2) (Defendant) Date/Time: 04/02/2019 9:09 AM Reservation ID: 382997767187 Fees Description Motion to Tax Costs Credit Card Percentage Fee (2.75%) TOTAL Payment Amount: $61.65 Account Number: XXXX2810 4 Print Receipt ~~ = Reserve Another Hearing Copyright © Journal Technologies, USA. All rights reserved. Case Number: BC656538 Status: RESERVED Location: Compton Courthouse - Department A Number of Motions: 1 Confirmation Code: CR-G3QC79UUGFWHUAFQM Fee Qty 60.00 1 1.65 1 Type: MasterCard Authorization: 97406) A View My Reservations Amount 60.00 1.65 $61.65
