Motion_to_tax_costsMotionCal. Super. - 2nd Dist.November 3, 2017Electronically FILED by Supelbr Court of California, County of Los Angeles on 04/23/2020 04:53 PM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Lopez,Deputy Clerk EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Paul R. Kiesel, State Bar No. 119854 kiesel@kiesel.law Steven D. Archer, State Bar No. 63834 archer@kiesel. law D. Bryan Garcia, State Bar No. 216904 garcia@kiesel. law Nicole Ramirez, State Bar No. 279017 ramirez @kiesel. law KIESEL LAW LLP 8648 Wilshire Boulevard Beverly Hills, CA 90211-2910 Tel: 310-854-4444 Fax: 310-854-0812 Attorneys for Plaintiffs MARTIN CARLIN, CAROLYN CARLIN, LAURA MILES and DANIEL MILES SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, SPRING STREET COURTHOUSE MARTIN CARLIN, CAROLYN CARLIN, CASE NO.: BC682439 LAURA MILES and DANIEL MILES, Assigned to Hon. Mark A. Borenstein Plaintiffs, Department SSC-002 v. PLAINTIFFS’ MOTION TO STRIKE OR TAX COSTS RUDY BOROOMAND; and DOES 1 through 100, inclusive, Complaint filed: November 3, 2017 Defendants. Trial date: February 24, 2020 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that as soon as the matter can be heard in Department SSC-002 of the above entitled court located at 312 Spring Street, Los Angeles, California 90012, Plaintiffs MARTIN CARLIN, CAROLYN CARLIN, LAURA MILES and DANIEL MILES (“Plaintiffs”) will move the Court for an Order Taxing the costs claimed by Defendant in his Memorandum of Costs dated April 3, 2020, as set forth fully in Plaintiffs’ Proposed Order. This Motion is made pursuant to California Rules of Court, Rule 3.1700. This motion is based on this Notice of Motion, the accompanying Memorandum of Points PLAINTIFFS’ MOTION TO STRIKE OR TAX COSTS EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and Authorities, the complete file in this action and any other documentary and/or oral evidence as may be presented at the time of the hearing on this Motion. DATED: April 23, 2020 KIESEL LAW LLP Paul R. Kiesel Steven D. Archer D. Bryan Garcia Nicole Ramirez Attorneys for Plaintiffs MARTIN CARLIN, CAROLYN CARLIN, LAURA MILES and DANIEL MILES p PLAINTIFFS’ MOTION TO STRIKE OR TAX COSTS EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION On March 9, 2020, the trial of this case culminated. On March 25, 2020, counsel for Plaintiffs submitted to the Court a proposed judgment. See Declaration of Nicole Ramirez (“Ramirez Decl.”), q 2. As of the date of this filing, the Court has not yet entered judgment in this case. Id. q 3. Nevertheless, Defendant filed a Memorandum Of Costs seeking costs pursuant to California Code of Civil Procedure section 998(c)(1) in the total amount of $68,505.01. Id. q 4, Ex. 1. Defendant’s Memorandum Of Costs should be stricken or taxed because certain costs are unnecessary, unreasonable, and uncertain. See Civ. Proc. Code §§ 998(c)(1), 1033.5(c)(2), (3). Defendant has also failed to provide any information or documentation to allow Plaintiffs or this Court to analyze the “necessity” and “reasonableness” of Defendant’s costs. Plaintiffs therefore move the Court to strike or tax the following costs: ITEM TYPE OF COST DESCRIPTION OF COSTS OBJECTION COST REQUESTED 8.b. Expert fees David Krauss Phd-Record $4,994.50 Not Reasonably Review Necessary in Preparation for Trial/Unreasonable sum. Civ. Proc. Code §§ 998(c)(1), 1033.5(c)(2), (3). 8.b. Expert fees David Krauss Phd-Record $5,470.90 Not Reasonably Review Necessary in Preparation for Trial/Unreasonable amount. Civ. Proc. Code §§ 998(c)(1), 1033.5(c)(2), (3). 8.b. Expert fees Robert Wilson MD-Trial $9,000.00 Unreasonable Testimony amount. Civ. Proc. Code § 1033.5(c)(3). 11 Models, No description provided $9,502.54 Not reasonably enlargements, helpful to aid the photocopies of trier of exhibits fact/Unreasonable amount. Civ. Proc. PLAINTIFFS’ MOTION TO STRIKE OR TAX COSTS EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Code § 1033.5(a)(13). 16 Other Courier 7/31/19-3/13/20 $349.37 Not Reasonably Necessary in Preparation for Trial/Unreasonable amount. Civ. Proc. Code §§ 998(c)(1), 1033.5(c)(2). (3). II. ARGUMENT A. The Court should Tax Costs that Are not Reasonable in Amount and/or not Reasonably Necessary in Preparation for Trial Under California Rules of Court, Rule 3.1700, a party may challenge the requested costs by way of the filing of a motion to strike or tax costs. Where the items are properly objected to, they are put in issue, and the burden of proof is upon the party claiming them as costs. See Wagner Farms, Inc. v. Modesto Irrigation District, 145 Cal. App. 4th 765, 774-76 (2006). If the necessity of a charge appears doubtful, then the mere filing of a motion to tax costs is sufficient for the objecting party to satisfy its burden. See Nelson v. Anderson, 72 Cal. App. 4th 111, 131 (1999). This Court retains authority to determine whether Defendant’s requested costs are recoverable. The court has power to disallow even costs allowable as a matter of right, if they were 2 not “reasonably necessary,” and to reduce the amount of any cost item to that which is “reasonable.” Perko’s Enterprises, Inc. v. RRNS Enterprises, 4 Cal. App. 4th 238, 245 (1992) (intent and effect of 1033.5(c) (2) is to authorize trial court to disallow recovery of costs when it determines costs were incurred unnecessarily). Pursuant to California Code of Civil Procedure section 998(c)(1), “[i]f an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff . . . shall pay the defendant’s costs from the time of the offer.’ In addition, . . . the court or ! Plaintiffs note that Defendant lists costs related to the trial preparation and testimony by his expert Nancy Michalski to have occurred in March 2019, which is before the time of the 998 offer. However, Plaintiffs assume Defendant is mistaken as to the date on which such costs were incurred as the trial of this matter occurred in March 2020 (not 2019). p PLAINTIFFS’ MOTION TO STRIKE OR TAX COSTS EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover post-offer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant. (emphasis added). California Code of Civil Procedure section 998 augments the costs allowable under Code of Civil Procedure section 1032. Civ. Proc. Code § 998 (a). Defendant’s Memorandum of Costs fails to establish that certain cost items were necessary to the conduct of the litigation, necessary for the preparation of trial, and/or reasonable in amount. In addition, Defendant did not include any supporting documentation to support the costs claimed. For these reasons, Plaintiffs respectfully request that the Court tax Defendant’s cost bill for the reasons set forth more fully below. 1. Item 8.b. Expert Costs, David Krauss Phd--Record Review: $10,465.40 ($4,994.50 + $5,470.90) Costs related to David Krauss PhD’s record review are neither reasonable in sum nor reasonably necessary in preparation for trial as required by Code of Civil Procedure section 998(c)(1). In his Memorandum of Costs, Defendant seeks a total of $10,465.40 for 36.9 hours of record review by David Krauss PhD, Defendant’s human factors expert.” However, Defendant de- designated Dr. David Krauss as an expert and admitted liability in this case, obviating the need for Dr. Krauss’s testimony or testimony by any other human factors expert. Ramirez Decl., q 5, Ex. 2. In fact, at the time of trial, no testimony was provided by Dr. Krauss, nor was any testimony regarding human factors offered by any other expert witness at trial. Id. § 6. Therefore, it is clear that such costs were not reasonably necessary in preparation for trial. However, even if such costs are deemed by this Court to be reasonably necessary in preparation for trial, the sum sought by Defendant is not reasonable. Dr. Krauss spent 36.9 hours reviewing records in a simple case involving an automobile vs. pedestrians accident. Defendant * In his expert witness designation, Defendant states that, as a human factors expert, David Krauss PhD would testify as to “human perception and cognition, reaction time, attention, distraction, the effects of lighting conditions on vision, and how stress affects behavior, among other things . . ..” 3 PLAINTIFFS’ MOTION TO STRIKE OR TAX COSTS EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provides no explanation as to which records Dr. Krauss reviewed and why 36.9 hours of review was warranted. For these reasons, the total costs related to Dr. Krauss’s record review should be stricken. 2. Item 8.b. Expert Costs, Robert Wilson MD-Trial Testimony: $9,000.00 The costs requested by Defendant for Dr. Robert Wilson’s trial testimony should be taxed. In his Memorandum of Costs, Defendant claims to have incurred $9,000.00 in costs for the trial testimony of his expert Dr. Robert Wilson. Dr. Wilson’s Fee Schedule attached as Exhibit A to Defendant’s Designation of Expert Witnesses lists Dr. Wilson’s hourly rate for trial as $1,500.00 per hour. Ramirez Decl., § 7, Ex. 3. The court reporter who transcribed trial proceedings has indicated that the timestamps on the trial transcript indicate that Dr. Wilson took the stand on March 4, 2020, at 1:49 p.m., and got off the stand the same day at 2:54 p.m. Id. § 8. Dr. Wilson testified at trial for one hour and five minutes. Therefore, Defendant’s costs for Dr. Wilson's trial testimony should be no more than $1,650.00. It is unclear why Defendant requests $9,000 in costs for Dr. Wilson's trial testimony, seemingly claiming that Dr. Wilson testified at trial for six hours. The sum of costs sought is clearly unreasonable and should therefore be taxed. 3. Item 11. Models, Enlargements, and Photocopies of Exhibits: $9,502.54 The costs requested by Defendant for models, enlargements, and photocopies of exhibits in the total amount of $9,502.54 should be stricken or taxed. Pursuant to California Code of Civil Procedure section 1033.5(a)(13), “[m]odels, the enlargements of exhibits and photocopies of exhibits . . . may be allowed if they were reasonably helpful to aid the trier of fact.” Defendant lists a total of $9,502.54 in costs for models, enlargements, and photocopies of exhibits, yet provides no documentation or explanation of such costs. Such costs should be subject to challenge considering the fact that, during the trial of this matter, very few exhibits were shown to the trier of fact and counsel for Defendant used markers and butcher paper for closing argument. It is unfathomable that the models, enlargements, and photocopies of exhibits used during trial cost $9,502.54. Furthermore, if exhibits were not used at trial, then their costs should not be recoverable as they cannot be said to have been helpful to the trier of fact. Therefore, this category of costs must be stricken. 4 PLAINTIFFS’ MOTION TO STRIKE OR TAX COSTS EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Item 16. Other, Courier 7/31/19-3/13/20: $349.37 Costs for courier fees are not specifically enumerated as allowable costs under Code of Civil Procedure section 1033.5(a), nor are they prohibited under section 1033.5(b). Thus, they may be recoverable in the trial court’s discretion if reasonably necessary to the conduct of the litigation. Civ. Proc. Code § 1033.5(¢c); Ladas v. Calif. State Auto Ass’n, 19 Cal. App. 4th 761, 776 (1993). In his Memorandum, Defendant states that courier costs were incurred from July 31, 2019, to March 13, 2020, but there is no indication why and what for such costs were incurred. Given the large time span, it is likely such costs were incurred for filing routine documents and were not reasonably necessary. While the Court has discretion to allow such costs, there is no detail in Defendant’s Memorandum of Costs that would allow the Court to exercise such discretion. Therefore, such costs should be stricken. III. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court strike or tax the costs noted above because they are not reasonable in amount nor were they reasonably necessary in preparation for trial. DATED: April 23, 2020 KIESEL LAW LLP By: FIKb 0 Paul R. Kiesel Steven D. Archer D. Bryan Garcia Nicole Ramirez Attorneys for Plaintiffs MARTIN CARLIN, CAROLYN CARLIN, LAURA MILES and DANIEL MILES 5 PLAINTIFFS’ MOTION TO STRIKE OR TAX COSTS EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF NICOLE RAMIREZ I, Nicole Ramirez, hereby declare as follows: L. I am an attorney at law licensed to practice before all courts of the State of California. I am an associate with Kiesel Law LLP, counsel for Plaintiffs, MARTIN CARLIN, CAROLYN CARLIN, LAURA MILES and DANIEL MILES (“Plaintiffs”) in this action. If called as a witness I could and would competently testify to the following: 2. On March 25, 2020, counsel for Plaintiffs submitted to the Court a proposed judgment. A As of the date of this filing, the Court has not yet entered judgment in this case. 4. Defendant filed a Memorandum Of Costs seeking costs pursuant to California Code of Civil Procedure section 998(c)(1) in the total amount of $68,505.01. Attached hereto as Exhibit 1 is a true and correct copy of Defendant’s Memorandum of Costs. 3 Defendant de-designated Dr. David Krauss as an expert and admitted liability in this case. Attached hereto as Exhibit 2 is a true and correct copy of Defendant’s De-Designation of Expert Witness David Krauss PhD. 6. At the time of trial, no testimony was provided by Dr. Krauss, nor was any testimony regarding human factors offered by any other expert witness at trial. 7. Dr. Wilson’s Fee Schedule attached as Exhibit A to Defendant’s Designation of Expert Witnesses lists Dr. Wilson’s hourly rate for trial as $1,500.00 per hour. Attached hereto as Exhibit 3 is a true and correct copy of Defendant’s Designation of Expert Witnesses, which includes Dr. Wilson’s Fee Schedule on the last page of Exhibit A. I] I] I] I] I] I] I] PLAINTIFFS’ MOTION TO STRIKE OR TAX COSTS EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. The court reporter who transcribed trial proceedings has indicated that the timestamps on the trial transcript indicate that Dr. Wilson took the stand on March 4, 2020, at 1:49 p.m., and got off the stand the same day at 2:54 p.m. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed, April 23, 2020, at Beverly Hills, California. I Nicole Ramirez p PLAINTIFFS’ MOTION TO STRIKE OR TAX COSTS EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE 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 8648 Wilshire Boulevard, Beverly Hills, CA 90211-2910. On April 23, 2020, I served true copies of the following document(s) described as PLAINTIFFS’ MOTION TO STRIKE OR TAX COSTS on the interested parties in this action as follows: Daniel C. Walsh Attorneys for Defendant Paul A. Bigley RUDY BOROOMAND FREEMAN MATHIS & GARY, LLP 550 South Hope Street, 22™ Floor Los Angeles, CA 90071 T: (213) 615-7000 F: (213) 615-7100 E: dwalsh@fmglaw.com pbigley@fmglaw.com BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the document(s) to be sent from e-mail address cosborne@kiesel.law to the persons at the e-mail addresses listed in the Service List. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on April 23, 2020, at Beverly Hills, California. / 4 Lo ‘olen 7, Cindy Osbérne 1 PROOF OF SERVICE
