Opposition_plaintiffs_opposition_to_defendants_motion_to_tax_costsMotionCal. Super. - 2nd Dist.March 6, 2018Electronically FILED b 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Brian M. Brown, Esq. (State Bar No. 093570) Rachel Goldstein, Esq. (State Bar No. 198506) LAW OFFICES OF BRIAN M. BROWN 4000 Barranca Parkway, Suite 250 Irvine, California 92604 Tel: (949) 215-2700 Attorneys for Plaintiff SHIRIN BUCKMAN SHIRIN BUCKMAN, Plaintiff, VS. CITY OF LOS ANGELES, et. al., Defendant(s). N r N r ’ N r N r N r N w N w N w N w N w N a N w N w a N w N w a 1 [Superior Court of California, County of Los Angeles on 06/12/2020 11:36 AM Sherri R. Carter, Executive Officer/Clerk of Court, by R. Sanchez, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT Case No.: BC697003 PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES [Filed Concurrently with Request for Judicial Notice and Declarations of Brian M. Brown and Rachel Goldstein in Support Thereof] Assigned for All Purposes to: Hon. Susan Bryant-Deason Dept: 52 Hearing Date: June 25, 2020 Time: 10:00 a.m. Dept. 52 RESERVATION ID. NO: 400894047599 TO DEFENDANT CITY OF LOS ANGELES AND TO ITS ATTORNEYS OF RECORD: COMES NOW the Plaintiff, SHIRIN BUCKMAN (hereinafter “Plaintiff’), who hereby files the following Opposition to Defendant’s Motion to Tax Costs (hereinafter “Motion”) filed by Defendant the City of Los Angeles (hereinafter “Defendant” or “City”). PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS L TABLE OF CONTENTS DEFENDANT CANNOT MEET ITS BURDEN ON ITS MOTION TO TAX COSTS oie A. Item 1g: Filing and Motion Fees ................cooiiiiiiiii an. B. Item 8a: Ordinary witness fees (Melissa Bagwell, Charlene DuBose, Patricia Villasenor & the COR for the Engineers and Architects ASSN.) ...uuiiiiiiiii tiie eee C. Item 14: Electronic filing fees or service of documents through an Electronic Service Provider (“ESP”)... (2) 12/19/18: Reply briefs (2) - $14.15. ..oeovveeeoeeeeeeeee (b)03/05/19: Notice of Lodging - $9.95 ..........cooiiiiiiiiiint. (c) 03/20/19: E-service of reply - $2.00 ...........c.cooiiiiiiiinit. (d)04/02/19: Special Verdict - $15.64 .........ccooviiiiiiiiiiiin... (€)10/23/19: E-service of ex parte - $1.00 ................cooeenenan. D. Item 16: Other fees (bench/courtesy copies) ............ceevvenvennnnn. (a) 12/05/18: Reply to Opp. To MTC Re. Special Rogs Set TWo-$30.00 ...o.oiniii ee (b) 3/14/19: Reply brief Re. Motion for Terminating Sanctions - $30.00 .......oooiiiii (c) 4/01/19: Special verdict, jury instructions, etc. - $81.50 .......... (d) 4/03/19: Errata Re. Opposition to MIL No. 2 - $30.00 ............. (e) 10/22/19: E-service of trial brief - $1.00...........................ee. i 4 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS Page E. Costs associated with Plaintiff’s Ex Parte Application of Fehrwary 23; 2019 = STF 500m ons 008m 5 #500 2085155 0000 88805 508 5051 008 5k 803 5 10 1. This Ex Parte filing was necessary due to Defendant’s conduct... 10 2. Plaintiff is statutorily entitled to the costs associated with this ex parte application ...............cooviiiiiiiiiiiiii 11 (a) 2/25/2019: Ex parte application filing fee: $60.00 ....... 11 (b) 2/25/2019: Electronic filing & service fees re. ex parte application: $15.72 .........cooi 11 3.This ex parte application was reasonable and necessary, and Defendant has not provided any authority that its filing a Notice of Unavailability precludes the recovery of these costs .. 11 II. PLAINTIFF'S COUNSEL ARE ENTITLED TO RECOVER THEIR ATTORNEY'S FEES FOR THIS OPPOSITION AND SUPPORTING PAPERS .. 12 II, CONCLUSION i: ue nme mms me meen sos sms msm sms oom sms em sss aso 05m 12 il PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases Bach v. County of Butte (1989) 215 CalLAPP.3d 294 o.oo eee eee 2 Carl v. Superior Court (Coast Comm. College Dist.) (2007) 157 CA4th 73 ...ccoooovvveeiieciieiee, 11 County of Kern v. Ginn (1983) 146 Cal. App.3d 1107 ..cooiiiiiieiiieiieiee cece sees 2.3 7 Jones v. Dumrichob (1998) 63 Cal. App.4th 1258 ......ooiiiie eee eee eee 2 Ladas v. California State Auto. Ass'n (1993) 19 Cal. App.4th 761 ....ocoovviiiiiiiiiiiieee , 2,5,7 Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, ....ccoovviieiiieiiiiieiieeie eee 2 Serrano v. Unruh (1982) 32 Cal.3d 621 ...ccuiiiiiiiieeiie cece eects eeveeeeeteesraesebeeineeaae a 12 Tenderloin Housing Inc. V. Sparks (1992) 8 Cal APPA 299 uu usssansssnsssmsnsnsss snasmssasassnss snmsss 11 Thon v. Thompson (1994) 29 Cal. APP.Ath I1546.......cciiiiiiiiieiieeie eee eects s rs 5 Statutes GOP. §1032 (80) ers 65s smummuisss 155 ssmmmuens s 6555 womans ss 155 WEES 26 § 5 6 FUSERES TE¥ $5883 55 ESWWARSE £45 § 5 LAHORIS 03 2 CoCoP.§ 1032. eee eee eee 2 COP § 1UB2(10): commoner 15's namomomna s 3.3 55 commons v <1 55 somone 035 55 Bemus £5 ¥ 5 SmowAtes SOmnies § § 3 § 5 SREEEA 4 §1 § BOGIERS 2 C.CP. § 1033.5 (2) (14) eect sree sree eat eae ete see sae sree 11 CoCoP. § 1033.5(C) (4); evita settee ett ste ett eee see shee ebsites tessa see sues eaes 5 Coll; § 2025, 62 0(E (2) IE sina sno nsnion sn ava. scones 1055.6. 58585 563008565 5515 5 50585555 543543 SI 5 SH ESHA 55 5 CCP. §1033.5(A)(1) cuvettes cesta eee see sree caesar eas 4,11 CCP: § ITE A) sonreonmmmmesmsnsuormmanssmomsrssn es es isms s somes ers sess 05 as SS Ss 35 + Government Code § 68096.1(D)......ccuuiiiiuiiieieieeeiie cesta eee eevee eee e saree sabe ee erae aera es 4 Government Code § 08007 .........eu eee eee eee eerste eee e eee e essa ae eee ae ae ee tar ae ae eaarae ae aan 4 Giavarrmmant Curie BOS R veessumnsess osmosis, oon sn, sss mss 5 ss sess a ass amsss sos d iii PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Other Authorities W.E. Wegner, et al., Cal. Prac. Guide Civil Trials & Evidence, (The Rutter Group, Sept, 2019).... U.S. Supreme Court Cases Hensley v Eckerhart (1983) 461 U.S. 424,434, 103 8. Ct: 1933 vcs cssmsis ness sussmmsisonsos ssassmsswssspsonss Federal Cases Copeland vs. Marshall (D.C. Cir. 1980) 641 F.2d 880, ....ccovieiiieeiiieeeieceeeeeeeeeee e Moreno v City of Sacramento (9th Cir. 2008) 534 F.3d 1106 .......ccoooevieeiiiieeiieeeeeeeeeee 1v PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES. I. DEFENDANT CANNOT MEET ITS BURDEN ON ITS MOTION TO TAX COSTS. Code of Civil Procedure §1032 (a)(4) defines “prevailing party” as “the party with a net monetary recovery.” Given this Court’s Judgment, it is undisputed that Plaintiff is the prevailing party in this case. C.C.P.§ 1032. C.C.P. § 1032(b) provides: “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.” Plaintiff timely submitted her Memorandum of Costs on February 7, 2020 following the issuance of this Court’s Statement of Decision and Judgment. It is critical to note that Plaintiff is not required to submit proof of costs with her cost memorandum as verification of costs because a cost bill is sufficient to establish the reasonable necessity of the costs claimed. There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308. In fact, supporting documentation must be submitted only if costs have been put in issue by a motion to tax costs. Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267. If the items on their face appear to be proper charges, the verified Memorandum of Costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. Ladas v. California State Auto. Ass'n (1993) 19 Cal. App.4th 761, 774: "[1]t is not enough for the losing party to attack submitted costs by arguing that he thinks the costs were not necessary or reasonable. Rather, the losing party has the burden to present evidence and prove that the claimed costs are not recoverable." Id., at p. 774. See also Jones, supra, 63 Cal. App.4th at 1266 citing Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266 (mere statements in points and authorities and declaration of counsel challenging costs insufficient to rebut prima facie showing). Factual recitals rather than mere conclusions are required for Defendant to challenge Plaintiff’s costs. For example, where 'reasonableness' of a particular item is challenged, conclusory allegations that the item was "neither necessary nor reasonable’ do not satisfy the objecting party's burden. County of Kern v. Ginn (1983) 146 Cal. App.3d 1107, 1113-1114; Jones, supra, 63 Cal.App.4th at 1266. Where the objections are based on factual matters (e.g., disputes as to nature 2 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or amount of particular costs), the motion must be supported by declarations under penalty of perjury. County of Kern, supra, 146 Cal.App.3d at 1113-1114. Here, Defendant’s Motion does not state any supportable facts or arguments to showing that the subject costs were unnecessary and/or not reasonable. The City has not met its moving burden as to those matters for which a declaration is required as to the factual underpinnings of City's objections and support for its contention that the identified costs were unreasonable and/or unnecessary. Id. Indeed, Defendant’s counsel’s half page declaration does not address any of these issues at all, and instead merely references exhibits in support of conclusory allegations in the motion itself. Plaintiff will address each cost item contested by using Defendant’s ordering of the cost items at issue listed in the summary on page 2 of its Motion. A. Item 1g: Filing and Motion Fees. Defendant is seeking a reduction of either $120.00 or $180.00 for filing and motion fees, improperly claiming that these filing fees were incurred for motions that were never filed. This argument suffers from a number of flaws. First, it is unclear from the Motion as to the amount of filing and motion fees Defendant seeks to tax. In its initial summary of costs, it states the total sum of $180.00 is sought to be taxed. Opp. 2:19-21. Yet, when it later itemized these costs, it only identified two (2) filings totaling $120.00 in costs. Opp. 5:7-10. Second, Defendant has failed to meet its burden in this regard, which required providing admissible evidence that these two (2) items of costs were not reasonable or necessary. The only declaration submitted in support of this motion does not address these costs, nor has the Defendant provided a copy of the Court’s “Online Case Summary,” which is identified in the body of the motion (Opp. 5:5), in either the declaration, or by way of a Request for Judicial Notice. Third, despite the evidentiary failings of Defendant’s motion in this regard, the filing fee expenses that Plaintiff has included in her memorandum of costs were related to the costs for reserving dates for anticipated motions. Declaration of Brian M. Brown (“Brown decl.”) filed concurrently herewith, q 2. 3 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant improperly claims - without any legal support- that filing fees for reserving dates for motions that are not ultimately filed are not a recoverable cost. C.C.P. § 1033.5 (a)(1) allows for “Filing, motion, and jury fees.” C.C.P. §1033.5(a)(1) does not state - nor has Defendant provided any authority to the contrary - that fees incurred in reserving motion hearing dates are not allowable. To the contrary - and as this Court is aware - a moving party is required to reserve a hearing date on all motions in advance of the filing of that particular motion. Such a reservation also requires the paying of the required reservation fees in advance, and any delay in reserving those dates pushes out the hearing date by days or weeks, depending on the court’s individual calendar. As such, reservation fees for motion hearing dates are both reasonable and necessary, regardless of whether the underlying motion is ever filed. B. Item 8a: Ordinary witness fees (Melissa Bagwell, Charlene DuBose, Patricia Villasenor and the COR for the Engineers & Architects Assn.). Defendant is seeking a reduction of $449.00 for ordinary witness fees involving four (4) witnesses, improperly claiming that witness fees for witnesses who did not actually attend trial are not recoverable. Defendant’s argument is flawed both factually and legally. Each of these individuals was listed on Plaintiff’s witness list as a percipient witness. In order to secure their trial testimony, if needed, it was necessary for Plaintiff to serve them with trial subpoenas, and provide them with their statutory witness fees. (Brown decl., 99 3-5; [Proposed] Joint Trial Witness List [Ex. “A” to Plaintiff’s Request for Judicial Notice (“RIN”) concurrently filed in support of her Opposition to Defendant’s Motion to Tax Costs].) It is often impossible to tell prior to trial - and even during trial - exactly how a trial will proceed, and whether a particular witness will need to testify. C.C.P. § 1033.5 (a)(7) authorizes the recovery of ordinary witness fees “incurred to compel attendance of a witness at deposition or trial.” (Emphasis added.) W.E. Wegner, et al., Cal. Prac. Guide Civil Trials & Evidence, (The Rutter Group, Sept, 2019) §17.310. That includes witness fees and mileage for one day if demanded. See C.C.P. §1987(a), Government Code § 68097. If the party to whom the subpoena is issued is a city, county or state employee, the sum of 4 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 $275.00 must be tendered for “... each day that the employee is required to remain in attendance pursuant to the subpoena.” (Emphasis added.) Government Code § 68096.1(b). ! Defendant improperly claims that the term “actual attendance” in Government Code §68093 precludes the recovery of witness fees for witnesses who did not actually testify at trial. However, Defendant has provided no case law or any other authority to support this argument, and instead attempts to ascribe a meaning to this phrase to which it is not reasonably susceptible. See Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548: "[w]e may not construe a statute to add a restriction it does not contain." Defendant does not challenge that these witness fees were incurred, or that any of these witnesses were “unnecessarily subpoenaed.” Id. Indeed, two (2) of the four (4) witnesses did travel to court to appear. In one instance, the COR for the Engineers & Architects Assn. in fact came to court and provided documents in response to a trial subpoena issued by Plaintiff. Brown decl., 9 5. In the other instance, City employee Charlene DuBose was served with a subpoena, was paid her statutory witness fee of $275.00, and was in attendance at the courthouse ready to appear if called. Brown decl., 9 3, 4. However, a strategic decision was made by Plaintiff not to call her to testify. Brown decl., § 4. Two other witnesses (Bagwell and Villasenor) did not testify at trial, although each was served with a trial subpoena. Brown decl., 4.2 Moreover, even assuming arguendo that these witness fees are not otherwise allowable, such costs may nevertheless be recoverable in the court's discretion. C.C.P. § 1033.5(c)(4); Ladas, supra, 19 Cal.App.4th at 773-774. The Court should exercise its discretion and allow for the costs of issuing subpoenas to these witnesses, since doing so is a necessary and unavoidable task in that, especially in the case of Ms. Villasenor (who was previously deposed), her unavailability was confirmed after the issuance of the trial subpoena, at which point her deposition transcript could then be used in lieu of her personal appearance. See C.C.P. § 2025.620(c)(2)(E). The charges for witness fees were reasonable and necessary, and Defendant provides no case law or any other authority to support its argument that witnesses need to actually testify at trial ! This would apply to witness Charlene Dubose, a City employee, who was paid this statutory witness fee to appear. Brown decl., 3. . 2 However, based on Ms. Villasenor’s unavailability the parties stipulated to use portions of her deposition testimony in lieu of her appearance at trial. Brown decl., § 4; RIN, Ex. “B.” 5 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in order for Plaintiff to recover witness fees incurred in compelling their attendance. It is often impossible to tell how a trial will proceed, and whether or not a witness will need to testify during trial. As such, Defendant’s motion seeking to strike Plaintiff’s recovery of these witness fees should be denied. C. Item 14: Electronic filing fees or service of documents through an Electronic Service Provider (“ESP”). Defendant is seeking a reduction of $42.74 for electronic filing fees (which include Electronic Service Provider (“ESP”) fees for the electronic filing and service of documents), improperly claiming just as it did with respect to Section 1g, that these fees were incurred for “... motions and applications that were not filed...” Motion 5:1-3, 12-18. (Emphasis in original.) Five (5) separate cost entries are being challenged. Pursuant to C.C.P. § 1033.5 (a)(14), fees for the electronic filing or service of documents through an ESP are expressly authorized by statute so long as the court requires the electronic filing or service of such documents. Electronic service of documents became mandatory in Los Angeles County Superior Court by litigants represented by attorneys as of January 2, 2019. See Plaintiff’s RIN, Ex. “C”. Each of these costs was incurred by Plaintiff in connection with a particular filing from Plaintiff’s counsel’s ESP, One Legal (Brown decl., 9] 6): (a) 12/19/18: Reply briefs (2) - $14.15: This invoice (actually dated 12/17/18) relates to the electronic filing of two (2) reply briefs filed on 12/4/18 regarding Plaintiff’s Motions to Compel Further Responses to RFP Nos. 2 and 3. * Brown decl., § 6(a). (b) 03/05/19: Notice of Lodging - $9.95: This cost relates to a prior Notice of Lodging of a Proposed Order re. Plaintiff’s ex parte application, which was originally lodged on 02/12/19 and later rejected by the court on 03/05/19. However, Plaintiff incurred this charge, and Defendant has provided no authority that fees for the lodging of documents later rejected are not recoverable. Brown decl., q 6(b). I 1 3 Plaintiff has generally used the date of the invoice in her Memorandum of Costs rather than the date of the underlying filing, which is typically an earlier date. 6 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (c) 03/20/19: E-service of reply - $2.00: This E-service charge relates to the electronic service of various documents on 03/20/19, including a Statement of the Case and Witness List. Brown decl., § 6(c). (d) 04/02/19: Special Verdict - $15.64: This charge was incurred in connection with the electronic filing of Plaintiff's proposed Special Verdict, which was lodged with the Court on 03/25/19. (Brown decl., 9 6(d) and Ex. “1” thereto.) (e) 10/23/19: E-service of ex parte - $1.00: This cost was incurred in connection with the filing of Plaintiff’s Opposition to Defendant’s ex parte application to Quash Plaintiff’s Second Amended Notice to Appear, which was filed on 10/22/19. Brown decl. 9] 6(e). D. Item 16: Other fees (bench/courtesy copies). Defendant is seeking a reduction of $172.50 for five (5) separate items listed in Section 16 as “other fees” requested by Plaintiff under the heading of “Bench/courtesy copy.” The crux of Defendant’s argument is that these costs “have been previously been made in other sections, ...” and are therefore duplicative and unnecessary.” Opp. 5:23-24. That argument is also faulty. Pursuant to the LASC First Amended General Order (Plaintiffs RIN Ex. “C”), printed courtesy copies of any pleading or motion containing a points and authorities, or that are longer than 26 pages, are required to be delivered to the courtroom to which the matter is assigned. LASC First Amended General Order May 3, 2019, q 9(b)(i1)-(iii). (Plaintiff’s RIN, Ex. “C”)). As discussed above, a verified Memorandum of Costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary, and such motion must be supported by declarations under penalty of perjury. Ladas, supra., 19 Cal.App.4th at 761, County of Kern vs. Ginn, supra, 146 Cal. App.3d at 1113-1114. Defendant has not met its burden in this regard, as it has failed to provide admissible evidence that these five (5) items of costs were not reasonable or necessary. The declaration submitted in support of this motion does not address any of these particular costs, nor has the Defendant provided any indication as to what other “sections” contain duplicative entries. As shown below, nearly all of the costs listed in Section 16 were incurred by Plaintiff in connection with the delivery of a courtesy copy of a particular filing by his ESP, One Legal, or his 7 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 attorney service Janney & Janney. (See also, Brown decl., 97(a)-(d).) The last item sought to be taxed (the e-service of a trial brief on 10/22/19) was erroneously listed in Section 16, rather than in Section 14 where it should have been listed. (Brown decl., 4 7(e).) However, the fact that this cost was merely listed in the wrong section does not prevent the cost from being recoverable. Nor can Defendant show otherwise. (a) 12/05/18: Reply to Opp. To MTC Re. Special Rogs Set Two-$30.00: Defendant misrepresents the facts. According to the LASC Register of Actions, on 12/04/18 Plaintiff filed three (3) reply briefs in connection with her Motions to Compel (“MTC”), including a reply brief regarding her MTC further responses to Special Interrogatories, Set No. 2. See Plaintiffs RIN Ex. “D”. On 12/05/18, Plaintiff’s counsel was billed for the delivery of this - and presumably the 2 other reply briefs - delivered the same day. (Brown decl., § 7(a). Defendant has failed to identify where this duplicative fee entry was made. Nowhere in Section 14 of Plaintiff’s cost memorandum does any time entry for 12/05/18 appear. Since this was a pleading that contained a Points & Authorities, delivery of a bench copy of this reply brief was both reasonable and necessary under LASC’s First Amended General Order referenced above, and Defendant has provided no evidence to the contrary. (b) 3/14/19: Reply brief Re. Motion for Terminating Sanctions - $30.00: According to the LASC Register of Actions (RIN Ex. “D”), on 03/11/19 Plaintiff filed a reply brief in connection with her Motion for Evidentiary and/or Terminating Sanctions, a courtesy copy of which was delivered to the Court on 03/12/19. On 03/14/19, Plaintiff’s counsel was sent a confirmation of the delivery of this reply brief, which included the face page of the reply brief. (Brown decl., 4 7(b) and Ex. “2” thereto.) In Section 14 of Plaintiff’s cost memorandum, Plaintiff lists a charge of $15.64 dated 03/11/19 in connection with the electronic filing of a Reply Brief. This charge by its very nature and amount cannot be duplicative of the costs incurred in delivering a bench copy of that brief which, as discussed above, was mandatory. Since this was a pleading that contained a Points & Authorities, delivery of a bench copy of this reply brief was both reasonable and necessary, and Defendant has provided no evidence to the contrary. 1 8 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (c) 4/01/19: Special verdict, jury instructions, etc. - $81.50: According to the LASC Register of Actions, on March 20, 2019 Plaintiff electronically filed her (1) Proposed Statement of the Case (4 pages); and (2) Proposed Jury Instructions (73 pages). (RIN Ex. “D”.) On 3/25/19, Plaintiff electronically lodged her Proposed Special Verdict (16 pages). Thereafter, Plaintiff’s attorney service, Janney & Janney, delivered courtesy copies of these three (3) documents. (Brown decl., § 7(c) and Ex. “3” thereto.) (d) 4/03/19: Errata Re. Opposition to MIL No. 2 - $30.00: According to the LASC Register of Actions, on 4/02/19 Plaintiff filed an Errata to her Opposition to Defendant’s MIL No. 2 (Plaintiff’s RIN, Ex. “D”), which included a corrected copy of the Opposition brief. (Brown decl, 4 7(d).) A bench copy of this Errata and corrected Opposition were delivered to the Court on 04/02/19. (Id.) On 04/03/19 Plaintiff’s counsel was sent a confirmation of the delivery of this Errata and corrected Opposition (which includes the courtesy copy delivery charge of $30.00), which included the face page of the Errata and Corrected Opposition. (Brown decl, 4 7(d) and Ex. “4” thereto.) Section 14 of Plaintiff’s cost memorandum does not list any charge or cost dated 4/03/19, nor does there appear to be any electronic filing or service fees associated with this document. Here again, Defendant’s motion and supporting declaration do not provide any admissible evidence that this charge was duplicative of some other claimed cost, or where or what section contains that purported duplicative charge or cost. Since this was a pleading that contained a corrected Opposition that itself contained a Points & Authorities, delivery of a bench copy of this Errata and Corrected Opposition was both reasonable and necessary, and Defendant has provided no evidence to the contrary. (e) 10/22/19: E-service of trial brief - $1.00: This cost item was incurred for the electronic service of Plaintiff’s Trial Brief on 10/21/19, and was erroneously listed in Section 16, rather than in Section 14 where it should have been listed. Brown decl., § 7(e). Here again, Defendant’s motion and supporting declaration do not provide any admissible evidence that this charge was duplicative of some other claimed cost, or where or what section contains that purported duplicative charge or cost. Moreover, as discussed in § C above, electronic filing or service of documents is a recoverable cost. 9 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E. Costs associated with Plaintiff’s Ex Parte Application of February 25, 2019 - $75.62. Defendant is seeking a reduction of $75.62 for two (2) separate cost entries associated with the Plaintiff’s filing of an Ex Parte application for an Order Shortening time on 02/25/19, improperly claiming that the fees (which Defendant does not dispute were incurred) for this application should be denied because Defendant’s counsel had previously filed a Notice of Unavailability covering the period during which this application was filed. Defendant’s argument is flawed both factually and legally. 1. This Ex Parte filing was necessary due to Defendant’s conduct. As discussed in more detail in the attached Declaration of Brian Brown, due to the initial April 3, 2019 trial date, Plaintiff intended to seek ex parte relief for an order shortening time to hear her Motion for Evidentiary and/or Terminating Sanctions, and reserved and scheduled the hearing on this motion for May 1, 2019. (Brown decl., 9 10-12.) That motion solely resulted from City’s failure to comply with this Court’s January 22, 2019 order compelling its further discovery responses, and providing only deficient amended responses, despite Plaintiff’s meet and confer efforts. (Id.) Plaintiff noticed her ex parte for February 13, 2019, but did not learn until appearing that the ex parte hearing was not on the court’s calendar that day. (Id.) During a conversation with Defendant’s counsel, Susan Rim, that day, Plaintiff understood that Ms. Rim’s office intended to go in ex parte at that time seeking a trial continuance in this matter due to an upcoming trial the following week. (Brown decl., q 13.) For that reason, Plaintiff elected to hold off rescheduling her ex parte, pending the outcome of Defendant’s ex parte. (1d.) Ms. Rim also indicated she intended to file a Stipulation for the continuance in advance of Defendant’s ex parte. (Id.) However, Plaintiff’s counsel objected to portions of the proposed stipulation, including the request that due dates for any Summary Judgment hearings track any continued trial date Brown decl., § 14. After Plaintiff’s counsel informed Defendant that she would not agree to that provision, and provided requested changes and then her own proposed Stipulation which Defendant rejected (Brown decl., 14-16), Defendant chose not to pursue the Stipulation. As of February 21, 2019, Defendant’s counsel was still indicating her intent to still go in ex parte, but had not yet filed it. (Id.) Having exhausted all other options to court intervention by then, Plaintiff had no other choice but to set another ex parte hearing, which was heard on February 26, 10 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2019, and at which Deputy City Attorney Karen Park also appeared. Brown decl., q 17. Plaintiff’s ex parte application was granted and the motion was set for March 25, 2019. (1d.) 2. Plaintiff is statutorily entitled to the costs associated with this ex parte application. (a) 2/25/2019: Ex parte application filing fee: $60.00: On February 25, 2019 Plaintiff incurred costs in the amount of $60.00 for the filing of Plaintiff’s ex parte application, which was ultimately heard on 2/26/19 and granted. C.C.P. § 1033.5 (a)(1) allows for “Filing, motion, and jury fees.” C.C.P. §1033.5(a)(1) does not state - nor has Defendant provided any authority to the contrary - that fees incurred for the filing an ex parte application are not allowable. To the contrary, a moving party is required to pay all fees associated with the filing of any ex parte application, including any requisite filing fees. (b) 2/25/2019: Electronic filing & service fees re. ex parte application: $15.72: In addition to her filing fees, Plaintiff also incurred costs in the amount of $15.72 for the electronic filing of her ex parte application on 2/25/19. As discussed above, pursuant to C.C.P. § 1033.5 (a)(14), fees for the electronic filing or service of documents through an ESP are expressly authorized by statute, so long as the court requires the electronic filing or service of such documents (electronic service of documents became mandatory in Los Angeles County Superior Court by litigants represented by attorneys as of January 2, 2019-Plaintiff’s RIN, Ex. “C”.). This cost was incurred by Plaintiff in connection with the electronic filing of this ex parte application by counsel’s ESP, One Legal (Brown decl., q 18). 3. This ex parte application was reasonable and necessary, and Defendant has not provided any authority that its filing a Notice of Unavailability precludes the recovery of these costs. Despite statutory authority to the contrary, Defendant claims - citing Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 CA4th 299 - that the filing of a Notice of Unavailability somehow precludes an award of the costs associated with the subsequent filing of Plaintiff’s ex parte application. However, California courts have held that the service of such a notice has no legal effect. See Carl v. Superior Court (Coast Comm. College Dist.) (2007) 157 CA4th 73, (dealing with practice in appellate courts, and disapproving of the Tenderloin case). 11 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 What is particularly troubling here is that Plaintiff's counsel made every attempt to obtain an advanced hearing date for this motion by stipulation, and part of the delay in seeking ex parte relief (after Plaintiffs original ex parte filing was rejected) was due to the representation by Defendant’s counsel that the City would be seeking its own ex parte relief to continue trial. Brown decl., qq 13-16. II. PLAINTIFF’S COUNSEL ARE ENTITLED TO RECOVER THEIR ATTORNEY'S FEES FOR THIS OPPOSITION AND SUPPORTING PAPERS. Time reasonably spent by attorneys during the course of litigation is generally compensable if it was the type and amount of work that would be billed to a fee-paying client. See Hensley v Eckerhart (1983) 461 U.S. 424, 434, 103 S. Ct. 1933; Moreno v City of Sacramento (9th Cir 2008) 534 F3d 1106, 1111. That is the case here with Plaintiff's having to defend Defendant’s motion to tax certain costs incurred, the vast majority of which this Opposition has sufficiently shown to have been reasonable and necessary in litigating this matter, and to which Plaintiff is statutorily entitled. While Plaintiff anticipates that Defendant will oppose any attorney’s fees award sought in connection with this Opposition, Defendant “cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response." Serrano v. Unruh (1982) 32 Cal.3d 621, 628 citing Copeland vs. Marshall (D.C. Cir. 1980) 641 F.2d 880, 904. III. CONCLUSION. As established above, Defendant’s Motion does not state any supportable facts or arguments showing that any of the subject costs were unnecessary or unreasonable. Indeed, in many instances the City’s motion ignores both case law and statutory authority which confirm Plaintiff’s entitlement to these costs. Plaintift’s verified Memorandum of Costs is prima facie evidence of their propriety. The City’s Motion to Tax failed to meet its burden, as it is not only based on unsupported conclusory objections, but its declaration also fails to show the costs at issue were not reasonable or necessary. As such, Plaintiff requests that the Court deny Defendant’s Motion to Tax Costs 12 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In addition, Plaintiff should be awarded her rotal attorney’s fees in the amount of $14,800.00 (18.00 hours x $600 per hour for Brian M. Brown, 10.00 hours x $400 per hour for attorney Rachel Goldstein), for the reasonable fees associated with opposing this motion to tax costs. See Brown decl., 9 19 and Ex. “10” thereto, Goldstein decl., q 3 and Ex. “1” thereto. Dated: June 12, 2020 LAW OFFICES OF BRIAN M. BROWN Brean WL. Brown By BRIAN M. BROWN, Attorney for Plaintiff, SHIRIN BUCKMAN 13 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS Oo 0 9 O N Wn hk W N = N N N N N N N N N mm e m e m e m e m e m e m e m e p co NN O N Un BAA W D = D O O N N RE W N = O PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the county of Orange, State of California. I am over the age of 18 and not a party to the within action my business address is 4000 Barranca Parkway, Suite 250, Irvine, California 92604. On June 12, 2020 I served the foregoing documents described as: PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; by transmitting the original X a true copy thereof as follows: Susan J. Rim, Esq. Email: susan.rim@lacity.org Audrey Egan, Esq. Email: audrey.egan@lacity.org Deputy City Attorney CITY OF LOS ANGELES City Hall East, 200 N. Main St.,7th Floor, Los Angeles, CA 90012 BY MAIL: I deposited such envelope in the U.S. mail at Irvine, California with postage thereon fully prepaid. BY FEDERAL EXPRESS: I deposited such envelope to be delivered via Federal Express in a box or other facility regularly maintained by the express carrier service, or delivered to an authorized courier or driver authorized by the express service carrier to receive documents for overnight delivery, at Irvine, California. X BY ELECTRONIC SERVICE: I caused such documents to be served electronically by my Electronic Service Provider ("ESP") One Legal to the above addressee(s) at the electronic notification address set forth on the service list provided. I did not receive, within a reasonable time after transmission, any electronic message or other indication that the transmission was unsuccessful. X ~~ STATE: Ideclare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 12, 2020 at Irvine, California. /s/ Brian M. Brown
