Reply_in_support_of_motion_to_strike_andor_tax_costs

Reply

Cal. Super. - 2nd Dist.January 23, 2018

Electronically FILED by superior Court of California, County of Los Angeles on 07/13/2020 10:26 AM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 28 CHRISTOPHER LYON (243259) christopher.lyon@dinsmore.com DILLON D. CHEN (311190) dillon.chen@dinsmore.com SHELBY K. KROEGER (317612) shelby.kroeger@dinsmore.com DINSMORE & SHOHL LLP 655 West Broadway, Suite 800 San Diego, CA 92101 Ph: (619) 400-0500 Fx: (619) 400-0501 Attorneys for Defendant BMW OF NORTH AMERICA, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES ALI SADRAIESHAMLOO, Case No.: BC691315 Plaintiff, REPLY IN SUPPORT OF MOTION TO STRIKE AND/OR TAX COSTS BY V. DEFENDANT BMW OF NORTH AMERICA, LLC BMW OF NORTH AMERICA, LLC; BOB SMITH BMW, a business entity form Dept.: 96 unknown; and DOES 1 through 10, inclusive, Judge: Hon. Anthony Mohr Defendants. Complaint Filed: Jan. 23,2018 Trial: Oct. 23, 2019 Reservation ID: 339190749378 L INTRODUCTION Plaintiff’s Opposition relies on Jensen v. BMW of N. Am., Inc. (1995) 35 Cal. App. 4th 112 to support its argument that all costs and expenses in a Song-Beverly Consumer Warranty Act case are recoverable. Jensen, however, does not stand for such a broad proposition. Rather, Jensen narrowly held that reasonably incurred expert witness fees are recoverable. (See Jensen, 35 Cal. App. 4th at p. 138 [remanding the case to permit the trial court to determine whether the amount of expert witness fees sought by plaintiff were “reasonably incurred” and citing Cal. Code Civ. Proc., § 1794, subd. (d)].) Plaintiff has not sufficiently argued or demonstrated how the disputed costs and expenses are reasonably incurred. 1 BC691315 REPLY IN SUPPORT OF MOTION TO STRIKE AND/OR TAX COSTS BY DEFENDANT BMW OF NORTH AMERICA, LLC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 28 Further, Plaintiff asserts that he submitted prima facie evidence that his expenses and costs were both reasonably necessary to litigate the case and reasonable in amount. However, in its Motion, BMW disputes this assertion and objects to the costs and expenses sought, at which point the burden shifted to Plaintiff to establish reasonableness of costs and expenses he incurred. (Ladas v. California State Auto. Assn. (1992) 19 Cal. App. 4th 761, 774-76.) Plaintiff failed to meet his burden in his Opposition. Accordingly, the Court should grant BMW NA’s Motion to Strike and/or Tax Costs (“Motion”) and issue an Order striking items in Plaintiff's Memorandum of Costs (“MOC”) and taxing costs by $10,942.84 as set forth in more detail below. II. PLAINTIFF’S OPPOSITION IS PROCEDURALLY DEFECTIVE. Plaintiffs Opposition suffers from a procedural defect because it was not properly served. Pursuant to Code of Civil Procedure section 1005(c), “all papers opposing a motion ... shall be served by personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers ... are filed.” Here, Plaintiff served his Opposition by U.S. Mail on July 7, 2020, which was not reasonably calculated to ensure delivery, and was not delivered, by July 8, 2020. While Plaintiff did send a courtesy copy of his Opposition via email on July 7, 2020, at no point did the parties agree to electronic service of the pleadings related to the Motion to Strike and/or Tax Costs. III. THE COURT HAS NO DISCRETION TO AWARD PLAINTIFF'S COSTS AND EXPENSES THAT WERE NOT REASONABLY INCURRED AND, THEREFORE, ARE NOT AUTHORIZED BY STATUTE For the Court to award Plaintiff any of his requested costs or expenses, recovery of same must be authorized by statute. (Ladas, 19 Cal. App. 4th at p. 774 [“[A] court has no discretion to award costs not statutorily authorized.”].) For costs or expenses to be statutorily authorized, they must be reasonable in amount and reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (See Cal. Code Civ. Proc., § 1794, subd. (d); see also Cal. Code Civ. Proc., § 1033.5, subds. (¢)(2)-(3); see also Jensen, 35 Cal. App. 4th at p. 138.) 2 BC691315 REPLY IN SUPPORT OF MOTION TO STRIKE AND/OR TAX COSTS BY DEFENDANT BMW OF NORTH AMERICA, LLC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 28 Here, Plaintiff failed to show how various costs and expenses sought were reasonably incurred or reasonably necessary, as opposed to merely convenient or beneficial. A. Deposition Costs - Item 4 The Court should tax Plaintiffs requested deposition costs because, while he submits additional evidence identifying the invoices amounting to $9,319.90 in deposition costs, he does not justify or explain how paying $2,022.15 to have the two deposition transcripts of Joe Grijalva expedited within three and four days was “reasonably necessary.” (See Nguyen Decl., Ex. 1, at pp. 3-4.) Because Plaintiff failed to meet his burden of proof that the $9,319.90 in deposition costs was reasonably incurred, the Court should tax Plaintiff's requested deposition costs by at least $2,022.15. B. Service of Process - Item 5. Much like the deposition costs, the Court should tax Plaintiff’s requested service of process costs because he fails to justify or explain how paying $75 for “special rush service” of every single subpoena was reasonably necessary for the conduct of the litigation. (See Nguyen Decl., Ex. 2.) Therefore, the Court should tax Plaintiff's requested service of process costs by at least $1,275." C. Models, Enlargements, and Photocopies of Exhibits - Item 11. California case law is explicitly clear that costs of trial exhibits, blowups, and transparencies and expenses associated with binding and tabbing exhibits are not recoverable where they were not actually used at trial and/or where the case was dismissed before trial. (See Ladas, 19 Cal. App. 4th at p. 775.) Plaintiff makes zero effort to explain how these costs were reasonably incurred for the conduct of this litigation, as is required under either Code of Civil Procedure section 1033.5 or 1794(d). Nor does Plaintiff provide any evidence supporting these costs, whether they were reasonably incurred or not. Accordingly, the Court must strike the $839.38 in costs sought in Item 11 of Plaintiff’s MOC in its entirety. / I" I" 117 subpoenas x $75.00 = $1,275. (See Nguyen Decl., Ex. 2.) 3 BC691315 REPLY IN SUPPORT OF MOTION TO STRIKE AND/OR TAX COSTS BY DEFENDANT BMW OF NORTH AMERICA, LLC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 28 D. Other - Item 16. (i) The Court Must Strike the Requested $846.13 Filing Fee Plaintiff’s conclusory argument that he is entitled to recovery of a non-existent filing fee under Code of Civil Procedure section 1794(d) is unavailing. Whether Plaintiff categorizes it as a cost or an expense, it is evident that this $46.13 was not reasonably incurred given this Court’s own fee schedule stating there is no fee for filing a case management statement. Plaintiff does not attempt to dispute this in his Opposition. Therefore, the Court must strike the $46.13 filing fee from Plaintiffs MOC in its entirety. (ii) The Court Must Strike the Requested $3534.98 in Service Costs and Travel Expenses Plaintiff’s arguments supporting his requested service costs and travel expenses are also unsupported by any evidence. Because BMW objects to the service and travel “expenses” sought, the burden shifted to Plaintiff to establish reasonableness of costs and expenses he incurred. (Ladas, 19 Cal. App. 4th at pp. 774-76.) While Plaintiff states that he is entitled to recover the costs and that the costs and expenses were reasonably incurred, Plaintiff has offered no invoices, receipts, or other evidence supporting the service and travel costs and/or expenses sought in his MOC. In other words, Plaintiff has failed to meet his burden of proof. Therefore, the service costs and travel expenses sought in item 16 must be stricken entirely or taxed in an amount resting within the Court’s discretion. (iii) The Court Must Strike the 33,224.20 in Vehicle Inspection, Expert Fees, and Research Even assuming these expenses are properly recoverable, Plaintiff once again fails to provide any evidence supporting his requested expenses associated with the vehicle inspection, expert fees, and research, and therefore fails to meet his burden of proof to demonstrate the $375 paid to Frank Galassi was reasonably incurred, the $2,449.20 was reasonably incurred, or that $400 in legal research was reasonably incurred. Notably, Plaintiff does not explain why it was necessary to pay two separate individuals to conduct and/or review the vehicle inspection. Nor does Plaintiff provide any invoices or receipts from Mr. Galassi or Barnett Automotive Engineer to support the $375 and 4 BC691315 REPLY IN SUPPORT OF MOTION TO STRIKE AND/OR TAX COSTS BY DEFENDANT BMW OF NORTH AMERICA, LLC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 28 $2,449.20 sought. Finally, Plaintiff does not explain what the legal research was for, why the research was necessary for the conduct of the litigation, or any receipt or invoice supporting the $400 it requests for such research. Accordingly, Plaintiff’s itemization of costs or expenses related to the vehicle inspection, expert fees, and research is unreliable and should be stricken or taxed in an amount the Court deems just and reasonable. IV. CONCLUSION Because Plaintiff failed to meet his burden of proof to demonstrate that the foregoing costs were reasonable in amount and reasonably necessary for the conduct of the litigation, BMW of North America, LLC respectfully requests the Court grant its Motion to Strike and/or Tax Costs and issue an Order striking items in Plaintiff’s Memorandum of Costs (“MOC”) and taxing costs by $10,942.84. Respectfully submitted, Dated: July 13,2020 DINSMORE & SHOHL LLP o CNN Christopher Lyon Dillon D. Chen Shelby K. Kroeger Attorneys for Defendant BMW OF NORTH AMERICA, LLC 5 BC691315 REPLY IN SUPPORT OF MOTION TO STRIKE AND/OR TAX COSTS BY DEFENDANT BMW OF NORTH AMERICA, LLC