Opposition_to_plaintiffs_motion_to_strike_cost_or_tax_costsMotionCal. Super. - 2nd Dist.July 17, 2017Electronically FILED by G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 63 3 We st Fi ft h St re et , 52 nd fl oo r Lo s An ge le s, C A 90 07 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 D Craig J. Mariam (SBN: 225280) cmariam @ grsm.com John P. Cogger (SBN: 172808) jcogger@grsm.com GORDON REES SCULLY MANSUKHANI, LLP 633 West Fifth Street, 52™ floor Los Angeles, CA 90071 Telephone: (213) 334-7146 Facsimile: (213) 680-4470 Attorneys for Defendant and Cross-Defendant WILLDAN ENGINEERING GABRIEL RAMIREZ, NADIA RAMIREZ, EFRAIN RAMIREZ, ALEX RAMIREZ and JASON ANDREW RAMIREZ, individuals, and LIVIER RAMIREZ, individually and as successor in interest to Decedent ROSA MARIA SALAZAR Plaintiffs, Vv. ASUNCION GARCIA, an individual; CITY OF PARAMOUNT, an entity; STATE OF CALIFORNIA; WILLDAN ENGINEERING, a California Corporation; and DOES 2-50, inclusive. Defendants. N r N e N e N e N e N e N e N e N e N e N e N e N e N N N e N e N N buperior Court of California, County of Los Angeles on 06/11/2020 12:23 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. J ohnson,Deputy Clerl SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES, SOUTH CENTRAL DISTRICT CASE NO. BC668662 Judge: Honorable Gary Tanaka Dept.: A DEFENDANT WILLDAN ENGINEERING’S OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE COSTS OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Concurrently Filed: Declaration of John P. Cogger Date: June 25, 2020 Time: 9:00 am Action Filed: 7/17/2017 Trial Date: 10/5/2020 DEFENDANT WILLDAN ENGINEERING’S OPPOSITION TO PLAINTIFFS” MOTION TO STRIKE COSTS OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 63 3 We st Fi ft h St re et , 52 nd fl oo r Lo s An ge le s, C A 90 07 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 PLEASE TAKE NOTICE that Defendant Willdan Engineering (hereinafter, “Willdan™) hereby submits this brief in support of its opposition to Plaintiffs’ Motion to Strike or Tax Costs. MEMORANDUM OF POINTS AND AUTHORITIES IL. INTRODUCTION AND BACKGROUND Willdan having prevailed in this matter resulted from Plaintiffs’ inability and subsequent failure to bring claims against Willdan in compliance with established law. This matter arises out of a fatal motor vehicle collision that occurred on June 28, 2016 in Paramount, California. The heirs of decedent Rosa Salazar (Plaintiffs) filed their original Complaint against Defendant Asuncion Garcia (the driver of the vehicle involved in the collision with decedent), Defendant City of Paramount (“the City”), and numerous DOE defendants. The asserted claim against Garcia was for negligent operation of his vehicle. With respect to the City, Plaintiffs asserted a dangerous condition of public property cause of action and alleged engineering negligence as to the design and construction for the intersection where the accident occurred. While the Complaint alleged negligence in engineering related to the intersection, specifically against engineers working on behalf of the City, Plaintiffs failed to file and serve a certificate of merit at that time as required by law. Over two years later, after the expiration of the applicable statute of limitations, Plaintiffs named Willdan as a Doe Defendant, as part of Plaintiffs’ claims arising from engineering design defects, asserting that the actions of Willdan employee William Pagett (who also holds the title of City Engineer for the City) gave rise to liability on Willdan’s part. Again, Plaintiffs failed to file and serve the required certificate of merit at that time, necessitating a demurrer from Willdan due to Plaintiffs’ failure following meet and confer efforts by counsel for Willdan to counsel for Plaintiffs regarding Plaintiffs’ failure to comply with the law. Plaintiffs refused, instead filing an amended complaint after the expiration of the statute of limitations, and including an untimely certificate of merit in express violation of Code of Civil Procedure section 411.35. Thus, despite repeated efforts to notify Plaintiffs’ of their obligation to plead their claims in compliance with the law, Willdan was forced to defend itself from these defective claims. Further, Willdan continues to do so, as Plaintiffs have filed another certificate of merit and additional Doe 1 DEFENDANT WILLDAN ENGINEERING’S OPPOSITION TO PLAINTIFFS” MOTION TO STRIKE COSTS OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 63 3 We st Fi ft h St re et , 52 nd fl oo r Lo s An ge le s, C A 90 07 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Defendant amendments, specifically naming Willdan’s employee William Pagett and Willdan’s parent company in a last-gasp effort to revive their claims against Willdan. After forcing Willdan to defend this action, Plaintiffs now contend that Willdan’s involvement was “very limited” (Motion to Strike Costs, Page 3, Line 18.), that discovery was “extremely limited” (/d., Page 3, Line 19.), and that Willdan attended a deposition “that had no relevance whatsoever” to Willdan (/d., Page 3, Line 20.). The simple reality here is that Plaintiffs repeatedly asserted claims against Willdan that were and remain deficient as a matter of law and subsequently lost, and thus, Plaintiffs are responsible for costs incurred by Willdan. Plaintiffs’ initial DOE amendment presented numerous problems from its outset. First, Plaintiffs asserted a cause of action pertaining to public entities while Willdan was a private one. Second, Plaintiffs delayed in naming Willdan until after the applicable statute of limitations ran. Critically, Plaintiffs failed to submit a required certificate of merit attesting that they had consulted with an engineer prior to filing a suit alleging engineering negligence. While Plaintiffs have repeatedly sought to write-off such failure as a mere technicality, applicable case law and legislative history clearly demonstrates California’s strong concern in mitigating the filing of frivolous engineering negligence cases by imposing the certificate of merit requirement, and providing that any failure to adhere shall be grounds for demurrer. The law is clear and unequivocal. Counsel for Willdan initially met and conferred with counsel for Plaintiffs on these issues soon after Plaintiffs substituted Willdan as a Doe Defendant. Willdan was forced to file a demurrer to Plaintiffs’ initial complaint, as Plaintiffs’ counsel was unwilling to acknowledge the certificate of merit requirements. Months later, in advance of the timing for filing an opposition to the demurrer, Plaintiffs filed their First Amended Complaint (“FAC”) which asserted a negligence cause of action against Willdan. With their FAC, Plaintiffs filed a certificate of merit for the first time, long after naming Willdan as a party and years after claiming engineering deficiencies in their Complaint. Counsel for Willdan reiterated to Plaintiffs’ counsel that the same deficiencies remained as part of the meet and confer process in preparation for filing another demurrer. The still applicable statutory and case law provided that a certificate of merit needed to be filed prior to or concurrent with the original action, otherwise the certificate of merit requirement would not be a requirement at 2 DEFENDANT WILLDAN ENGINEERING’S OPPOSITION TO PLAINTIFFS” MOTION TO STRIKE COSTS OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 63 3 We st Fi ft h St re et , 52 nd fl oo r Lo s An ge le s, C A 90 07 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 all. Counsel for Plaintiffs nevertheless refused to budge on the issue and Willdan Engineering filed yet another demurrer. This Court issued its tentative ruling sustaining Willdan’s demurrer to the FAC, without leave to amend, on January 22, 2020. Plaintiffs submitted to the tentative ruling, and this Court entered a Judgment of Dismissal in favor of Willdan on February 28, 2020. Willdan now seeks its reasonable costs in having to defend the matter, which entailed Willdan’s entering the case more than two years after it began, the filing of two demurrers, defense against related cross-actions against Willdan, attendance at status conferences and depositions, and the normal day-to-day work inherent to any civil case. Willdan’s claimed costs are more than reasonable for the amount of time Willdan was forced to remain in this action. II. DISCUSSION A. WILLDAN IS ENTITLED TO COSTS AND HAS PROPERLY REQUESTED COSTS 1. Willdan is Unequivocally the Prevailing Party The right to recover costs is wholly dependent upon statute. (Williams v. Atchison, Topeka & Santa Fe Ry. Co. (1909) 156 C. 140, 14; Turner v. East Side Canal & Irr. Co. (1918) 177 C. 570, 573; Estate of Johnson (1926) 198 C. 469, 471; Perko’s Enterprises v. RRNS Enterprises (1992) 4 C.A.4th 238, 241) “[A] prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Cal Code Civ Proc § 1032(b)) “’Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Cal Code Civ Proc § 1032(a)(4)) On January 23, 2020, this Honorable Court sustained Willdan’s demurrer to Plaintiffs’ First Amended Complaint, without leave to amend. (January 23, 2020 Minute Order.) On February 28, 2020, this Court entered Judgment in favor of Wildan. (February 28, 2020 Judgment of Dismissal) On April 28, 2020, Notice of Entry of Judgment was served on all parties. (Ex. A to Cogger Decl.) 1 3 DEFENDANT WILLDAN ENGINEERING’S OPPOSITION TO PLAINTIFFS” MOTION TO STRIKE COSTS OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 63 3 We st Fi ft h St re et , 52 nd fl oo r Lo s An ge le s, C A 90 07 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Costs are to be awarded to a prevailing party as a matter of right: ‘Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.’ This means that the prevailing party is entitled to all of his costs unless another statute provides otherwise. Absent such statutory authority, the court has no discretion to deny costs to the prevailing party. Nelson v. Anderson, (1999) 72 Cal. App. 4th 111, 128-29 (internal citations omitted, emphasis added). The burden is upon the party seeking to tax costs to affirmatively demonstrate that any claimed costs are not reasonable and necessary: [I]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party]. Nelson, supra, at 131 (internal citations omitted.) See also Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal. App.3d 256, 266. 2. Willdan is Entitled to its Allowable Costs On April 28, 2020, Willdan filed a verified Memorandum of Costs seeking the following costs incurred in the defense of Plaintiffs’ claims: Filing and motion fees $508.61 Deposition costs $134.38 Court reporter fees as established by statute $557.00 Fees for electronic filing or service $180.85 Other $570.16 TOTAL COSTS $1,951.00 Of those items, Plaintiffs seek to challenge the $557.00 in court reporter fees and the $570.16 in “Other” costs. (Motion to Strike, Page 4, Lines 13-15.) These are addressed in turn. A. $557 Court Reporter Fees Court reporter fees as established by statute are allowable as costs. (Code Civ. Proc. § 1033.5(a)(11)) Plaintiffs seek to tax the $557.00 in court reporter fees based upon the asserted authority that “[u]nder Code of Civil Procedure section 1033.5(b)(5), ‘Transcripts of court proceedings not ordered by court” are explicitly not recoverable as costs.” (Pltfs Motion, Pg. 4, Lines 21-22.) However, parties must pay court reporter fees regardless of whether anyone orders a 4 DEFENDANT WILLDAN ENGINEERING’S OPPOSITION TO PLAINTIFFS” MOTION TO STRIKE COSTS OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 63 3 We st Fi ft h St re et , 52 nd fl oo r Lo s An ge le s, C A 90 07 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 transcript of any proceeding. As noted in Chaaban v. Wet Seal, Inc. (2012) 203 Cal. App. 4th 49, 58, court reporter fees are recoverable. In Chabaan, prevailing party defendant Wet Seal sought to recover court reporter fees, the trial court allowed such recovery, and the Court of Appeals affirmed: Wet Seal asked for $2,250 in court reporter fees. Section 1033.5, subdivision (a)(11) includes “[c]ourt reporter fees as established by statute” among the items allowable as costs. Chaaban argues that this amount should not have been allowed because section 1033.5, subdivision (b)(5) does not permit charges for “[t]ranscripts of court proceedings not ordered by the court” as costs. These charges are not for transcripts. They are for court reporter fees, an entirely different expense. The parties have to pay the court reporter regardless of whether anyone orders transcripts.” (Id., at 58.) Here, the court reporter fees were incurred for the January 23, 2020 hearing on Willdan’s demurrer to Plaintiffs” First Amended Complaint. (Decl. of Cogger, J] 5-8.) On the day before the hearing, the tentative ruling indicated the Court’s intent to sustain the demurrer. (Decl. of Cogger, | 6.) Counsel for Willdan inquired as to whether the parties would submit on the tentative ruling. (Decl. of Cogger, {7.) Initially, counsel for the Plaintiffs was unwilling to submit on the tentative ruling. (/d.) Later that afternoon, Plaintiffs’ counsel reversed course and agreed to submit on the tentative ruling. (/d.) The court reporter fees were incurred nonetheless, due to the reporting service’s policy and the late hour of cancellation. (/d. Ex C. to Cogger Decl.) B. “Other” Costs Willdan’s claimed costs categorized as “Other” were reasonable and necessary for its defense, and the majority of which are recoverable. These ‘Other’ costs consist as follows: Outside Printing $5.11 Photocopying $128.00 10/10/2019 Status Conference Parking $7.00 10/10/2019 Status Conference Toll $7.48 10/10/2019 Status Conference Mileage $133.11 Messenger Fees $152.50 Client Meeting Mileage $136.96 Total $570.16 1" 5 DEFENDANT WILLDAN ENGINEERING’S OPPOSITION TO PLAINTIFFS” MOTION TO STRIKE COSTS OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 63 3 We st Fi ft h St re et , 52 nd fl oo r Lo s An ge le s, C A 90 07 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 (Ex. B to Cogger Decl.) $270.07 in “Other” costs disputed by Plaintiffs are comprised of mileage costs for Willdan Engineering’s counsel in order to attend a status conference and a client meeting in this case. This entry was included erroneously in the Memorandum of Costs and such is hereby withdrawn. Willdan additionally withdraws $7.00 in parking costs, $7.48 in toll costs, and $128.00 in photocopying costs as included in error. While these costs were reasonable and necessary for the defense of Willdan, in considering the objections of Plaintiff, Willdan acknowledges that such costs may nevertheless be unallowable. $152.00 of “Other” costs are incurred messenger fees. Messenger fees are recoverable in the trial court’s discretion if “reasonably necessary to the conduct of the litigation.” (Ladas v. California State Auto. Assn. (1993) 19 Cal. App.4th 761, 776.) Messenger services are routinely necessary in any litigation and well within a trial court’s discretion to award. (See, Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30 (“The trial court impliedly found the fees to be necessary and reasonable and not merely incurred for convenience. The trial court did not abuse its discretion in awarding these fees.”)) A messenger fee of $129.50 was incurred for use of a courier to deliver copies of Willdan’s FAC demurrer papers to chambers on December 13, 2019. (Decl. of Cogger, 9; Ex. D to Cogger Decl.) Messenger fees of $23.00 were incurred on January 24, 2020 to ensure appropriate delivery of Willdan’s reply in support of its demurrer to the FAC to Plaintiffs’ counsel. (Decl. of Cogger, q 10; Ex. E to Cogger Decl.) As a result, these fees should be awarded as allowable costs necessary to the conduct of the litigation. 3. Form MC-011 Worksheet is Not Required with the Initial Filing of the Memorandum of Costs Plaintiffs contend that Willdan’s memorandum of costs should be stricken in its entirety because Judicial Council Form MC-011 Worksheet was not included with the Form MC-010 Summary. California Rules of Court, Rule 3.1700(a)(1) provides, in pertinent part that, “[t]he memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” 6 DEFENDANT WILLDAN ENGINEERING’S OPPOSITION TO PLAINTIFFS” MOTION TO STRIKE COSTS OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 63 3 We st Fi ft h St re et , 52 nd fl oo r Lo s An ge le s, C A 90 07 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Form MC-010 Summary is the verified Memorandum of Costs while the Form MC-011 Worksheet is merely a tool to assist with creating the Form MC-011 and does not constitute the memorandum required by CRC 3.1700. Indeed, there is “...nothing...regarding prejudgment costs which prohibits reliance on the declaration of counsel as documentation of the items claimed.” Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265. It is only after a party properly objects to such claimed costs does the burden shift to the one claiming costs to prove such costs. (See Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 774.) Despite any requirement to do so, Willdan now submits Form MC-011 Worksheet, which was used to prepare the Form MC-010 Summary. (Ex. B to Cogger Decl.) III. CONCLUSION In light of the above, Willdan Engineering respectfully requests that this Honorable Court award it costs in the amount of $1,538.45, which is the original claimed amount of $1,951.00 less the $412.55 of costs withdrawn. Respectfully Submitted, GORDON REES SCULLY MANSUKHANI, LLP Craigq. MariAm\_J John P. Cogger Attorneys for Defendant/Cross- Defendant WILLDAN ENGINEERING Dated: June 11, 2020 7 DEFENDANT WILLDAN ENGINEERING’S OPPOSITION TO PLAINTIFFS” MOTION TO STRIKE COSTS OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
