Opposition To Motion To Tax Costs

Motion

Cal. Super. - 2nd Dist.September 15, 2017

Electronically FILED by Super © 0 3 O N Wn hx W N = NN ND N N N N N N ND m= E e e e e m e e c o NI OA nm hr W I N D = DO VO N N N R A W = O r Court of California, County of Los Angeles on 02/11/2019 03:51 PM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk Toni Y. Long (Bar No. 217585) Randy A. Lopez (Bar No. 253996) The Long Law Group, PC 30 North Raymond Avenue, Suite 402 Pasadena, California 91103 Telephone: (213) 631-3993 Facsimile: (213) 631-3873 Email: randy@tyllaw.com Attorneys for Defendant ARCADIA ADULT DAY HEALTH CARE CENTER, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - CENTRAL DISTRICT MARCELO CASTRO, an individual, Plaintiff, VS. ARCADIA ADULT DAY HEALTH CARE CENTER, LLC, a California Limited Liability Company, ARCADIA OF HOLLYWOOD ADULT DAY HEALTH CARE CENTER, an unknown entity, JEFF VALLANDINGHAM, an individual; and DOES 1 THROUGH 100, inclusive, Defendant. Case No. BC675871 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO TAX COSTS; DECLARATION OF RANDY A. LOPEZ IN SUPPORT THEREOF Hearing Date: February 26, 2019 Time: 8:30 a.m. Dept.: 45 Defendant Arcadia Adult Day Health Care Center, LLC (erroneously sued as Arcadia of Hollywood Adult Day Health Care Center) hereby submit its opposition to Plaintiffs Motion to Tax Costs. 1 - DEFENDANTS OPPOSITION TO MOTION TO TAX COSTS © 0 3 O N Wn hx W N = NN ND N N N N N N ND m= E e e e e m e e c o NI OA nm hr W I N D = DO VO N N N R A W = O MEMORANDUM OF POINTS AND AUTHORITIES IL. INTRODUCTION The Court entered a Judgment of Dismissal in favor of Defendant after the Court sustained Defendant’s Demurrer to Plaintiff’s First Amended Complaint (“FAC”) in its entirety without leave to amend. As a result, Defendant is the prevailing party who is entitled to recover costs pursuant to Cal. Code Civ. Proc. §§1032 and1033.5. The costs incurred are for filing and motion fees, which include courier and messengers costs (from the filing company used by Defendant’s counsel) for the filing of pleadings. Therefore, Defendant is entitled to its costs in the amount of $1,320.55. Defendant incurred the fees set forth herein and were reasonably necessary to the conduct of the litigation. The several motions and other filings were necessary to defend against the legally deficient claims that Plaintiff filed and pursued. Plaintiff, by and through his counsel of record, was aware of the legally deficient claims by means of the Labor Commissioner (prior to the initiation of the lawsuit) and the meet-and-confer efforts (both prior to and after the initiation of the lawsuit) of Defendant’s counsel. Yet, Plaintiff continued to pursue claims that were not only time barred but legally lacked merit. Here, Plaintiff’s argument against the recovery of fees is twofold: (a) the Court should limit the recovery to two fee entries (initial filing and successful demurrer), and (b) the costs are excessive. However, Plaintiff cites no authority to justify limiting the recovery of costs to the initial filing fee and the “successful” motion/demurrer. To limit in such a manner would be unjust and completely contradict Cal. Code Civ. Proc. §§ 1032 and 1033.5. Further, as demonstrated herein and by and through the Declaration of Randy A. Lopez, Defendant’s counsel, the costs incurred by Defendant were not excessive. On a side note, Defendant’s Memorandum of Costs also sought the recovery of attorneys’ fees, however, said issue will be determined based upon Defendant’s Motion for Attorneys’ Fees as that is the appropriate mechanism for the awarding of attorneys’ fees in this circumstance. Fo DEFENDANTS OPPOSITION TO MOTION TO TAX COSTS © 0 3 O N Wn hx W N = NN ND N N N N N N ND m= E e e e e m e e c o NI OA nm hr W I N D = DO VO N N N R A W = O RELEVANT FACTS Defendant is the prevailing party in this matter because it obtained a Judgment of Dismissal as a result of the Court sustaining Defendant’s Demurrer to Plaintiffs FAC without leave to amend. (Decl. Lopez at 4-5.) A Judgment for Dismissal was entered in favor of Defendant on December 6, 2018 and a Notice of Entry of Judgment was filed on December 14, 2018. (Id. at 6.) Thereafter, Defendant filed a Memorandum of Costs listing the costs that are now being taxed by Plaintiff. (/d.) Plaintiff filed his original Complaint on September 15, 2017. (Decl. Randy A. Lopez, § 3.) The causes of action asserted were: Breach of Written Employment Agreement; Breach of the Covenant of Good Faith and Fair Dealing; Unpaid Overtime; Unpaid Meal and Rest Periods; Failure to Provide Proper Pay Stubs; and Waiting Time Penalties. (/d.) Between the original filing of this action by Plaintiff until the filing of this Opposition to Tax Costs, there have been numerous filings and hearings that are a pertinent, relevant and necessary part of the litigation: 1. Defendant (March 2, 2018) filed a Demurrer to Plaintiff’s Original Complaint. The initial appearance fee was for some reason not charged and/or paid by One Legal when the Demurrer to the original complaint was filed, however, that was rectified when an initial appearance fee was charged at the time that Defendant filed its Opposition to Plaintiffs Motion to Tax Costs. This figure was not originally in the Memorandum of Costs as an oversight and without it being realized that the initial appearance fee had not been paid on behalf of Defendant.; 2. Defendant (April 16, 2018) filed a Motion for Sanctions against Plaintiff and Plaintiffs counsel pursuant to Cal. Code Civ. Proc. §128.7. This came for hearing on May 14, 2018, and included Defendant filing a Supplemental Declaration and Reply to Plaintiff’s Opposition to Motion for Sanctions. 3. On April 20, 2018, Defendant’s counsel filed and served a Notice of Continuance of the Case Management Conference (“CMC”) hearing. 3 DEFENDANTS OPPOSITION TO MOTION TO TAX COSTS © 0 3 O N Wn hx W N = NN ND N N N N N N ND m= E e e e e m e e c o NI OA nm hr W I N D = DO VO N N N R A W = O 10. 11. 12. Defendant’s counsel filed a CMC on April 27, 2018. On May 2, 2018, Plaintiff filed a First Amended Complaint (“FAC”). Defendant filed a Notice of Demurrer Taken-Off Calendar as a result of Plaintiff’s filing his FAC. On June 11, 2018, Defendant filed a Demurrer to Plaintiff’s FAC. This came for hearing on September 19, 2018 (continued from August 28, 2018), and included Defendant filing a Reply to Plaintiff’s Opposition to Demurrer. Defendant’s Demurrer was sustained in its entirety as to all of Plaintiff’s causes of action and the Court did not grant leave to amend. A Notice of Ruling regarding Defendant’s Demurrer was filed on September 27, 2018. A Judgment for Dismissal was thereafter filed, following the sustainment of Defendant’s Demurrer. The Judgment for Dismissal was filed by Defendant’s counsel on September 27, 2018. It was ratified and executed by the Court on December 6, 2018. A Notice of Entry of Judgment was filed on December 14, 2018. Defendant’s Memorandum of Costs was filed on December 19, 2018. Defendant will file this Opposition to Plaintiff’s Motion to Tax Costs on February 11, 2019 and will incur filing fees. (Defendant will supplement the Decl. of Lopez with the filing fees incurred for the filing of the Opposition.) (Decl. Lopez 4 8.) The above instances were hearings and/or filings that occurred during the course of litigation. (/d. at 49.) In addition to the above, Defendant will be filing a Motion for Attorneys’ Fees on or by at 10.) February 13, 2019 and will incur not only motion fees (approximately $60.00) but filing fees. (/d. Defendant incurred several motion filing fees (i.e., 2 demurrers and Motion for Sanctions), as well as incur the costs from courier/messenger service company for filing fees for file items 4 DEFENDANTS OPPOSITION TO MOTION TO TAX COSTS © 0 3 O N Wn hx W N = NN ND N N N N N N ND m= E e e e e m e e c o NI OA nm hr W I N D = DO VO N N N R A W = O such as the motions, notices, CMC statement, etc. (Id. at § 11.) The detailed costs as described above total $885.55. (Id. at 11.) IV. DEFENDANT IS ENTITLED TO THE RECOVERY OF COSTS PURSUANT TO CAL. CODE CIV. PROC. §§1032 & 1033.5. Cal. Code Civ. Proc. §1032(a)(4) states that a “prevailing party” includes a defendant in whose favor a dismissal was entered and a defendant as against a plaintiff who does not recover any relief against the defendant. In this instance, the Court upon reviewing and considering the moving papers regarding Defendant’s Demurrer to Plaintiff’s FAC, the Court sustained Defendant’s demurrer without leave to amend. As a result, the Court entered a Judgment for Dismissal in favor of Defendant. Therefore, Defendant is the prevailing party. Cal. Code Civ. Proc. §1033.5 allows for the recovery of filing, motion and jury fees. (Cal. Code Civ. Proc. §1033.5(a)(1).) Further, this section allows for the recovery of costs if incurred, reasonably necessary to the conduct of the litigation and reasonable. (Cal. Code Civ. Proc. §1033.5(c)(1-3).) Plaintiff challenges the costs sought to be recovered by Defendant and requests this Court to only allow the recover of initial appearance fee and the motion fee for the Defendant’s successful demurrer. However, there are other filings, motions, etc., that occurred in this matter that were not only incurred but are subject to recovery by Defendant and were necessary to the conduct of the litigation. To deny these costs would be unjust especially considering that the prevailing party is entitled to all of his costs unless another statute provides otherwise; and absent such authority, the court has no discretion to deny costs to the prevailing party. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.) The filings, demurrers, motions, etc., that took place in this case were necessary to the conduct of litigation. Each of the filings was done as a reasonable and necessary task to defend against the time barred and legally deficient claims being pursued by Plaintiff. Claims that, both 5 DEFENDANTS OPPOSITION TO MOTION TO TAX COSTS © 0 3 O N Wn hx W N = NN ND N N N N N N ND m= E e e e e m e e c o NI OA nm hr W I N D = DO VO N N N R A W = O prior to and during the course of the litigation, Defendant, by and through and its counsel of record, continuously informed Plaintiff, by and through his counsel of record, that his claims were not only legally deficient and meritless but also time barred by the applicable statute of limitations. Therefore each of the filings was necessary and the Court should not limit costs recovered to only the initial appearance and the successful demurrer. Plaintiff cites no authority that support this position. To limit the recovery of costs in the manner proffered by Plaintiff would completely contradict the costs recovery statutes. In this instance, not only is Defendant seeking the mandated Court fees but the fees incurred to file said pleadings and/or motions - including messenger/courier services (from One Legal) incurred to file said pleadings. A prevailing party may recover courier and messenger costs incurred for the purpose of filing documents with the Court pursuant to Cal. Code Civ. Proc. §1033.5. (See Ladas v. Cal. State Auto Assn. (1993) 19 Cal.App.4th 761, 766.) Plaintiff does not specifically seek to tax said costs but just generally, and improperly, requests the Court to limit the recovery to two items. However, all of the filings conducted in this case were essential and necessary to the conduct of the litigation. Therefore, the Court should award all costs sought. The costs incurred by Defendants were not only reasonable but necessary for the conduct of the litigation and the end result that occurred. Defendant is entitled to the recovery of its costs as the prevailing party. Therefore, Defendant respectfully requests that the Court grant Defendant $1,320.55 in costs. IV. CONCLUSION For the reasons set forth herein, Defendant respectfully requests that this Court order Plaintiff to pay $1,320.55 for the costs incurred by Defendant. Dated: February 11, 2019 THE LONG LAW GROUP A. Lopes Rapdy A. Lopez (J Attorneys for Defendant 6 -- DEFENDANTS OPPOSITION TO MOTION TO TAX COSTS © 0 3 O N Wn hx W N = NN ND N N N N N N ND m= E e e e e m e e c o NI OA nm hr W I N D = DO VO N N N R A W = O PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within entitled action, and my business address is 30 North Raymond Ave., Suite 402, Pasadena, California, 91103. On February 11, 2019, I served the foregoing documents described as DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO TAX COSTS; DECLARATION OF RANDY A. LOPEZ IN SUPPORT THEREOF: Stephen Padilla, Esq. Attorneys for Plaintifft PADILLA & ASSOCIATES 3020 Old Ranch Parkway, Suite 300 Seal Beach, California 90740 [] (BY MAIL) I am familiar with the practice of The Long Law Group, P.C. for collection and processing of correspondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the ordinary course of business. On this date, a copy of said document was placed in a sealed envelope, with postage fully prepaid, addressed as set forth herein, and such envelope was placed for collection and mailing at The Long Law Group, P.C., Pasadena, California, following ordinary business practices. [ X] (BY OVERNIGHT EXPRESS) I am familiar with the practice of The Long Law Group, P.C. for collection and processing of correspondence for delivery by overnight courier. Correspondence so collected and processed is deposited in a box or other facility regularly maintained by Overnight Express that same day in the ordinary course of business. On this date, a copy of said document was placed in a sealed envelope designated by Overnight Express with delivery fees paid or provided for, addressed as set forth herein, and such envelope was placed for delivery by Overnight Express at The Long Law Group, P.C., Pasadena, California, following ordinary business practices. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on February 11, 2019, a Pasadena, California. Tazo Vena Tragy V ena i DEFENDANTS OPPOSITION TO MOTION TO TAX COSTS