Order_proposed_order_denying_defendants_motion_to_tax_costs

Motion

Cal. Super. - 2nd Dist.March 6, 2018

El ec tr on ic al ly Re ce iv ed O F O E M 2 0 2 0 10 :1 3 Ab d EFS-020 ATTORNEY OR PARTY WITHOUT ATTORNEY STATE BAR NO: 93570 NAME: Brian M. Brown, Esq. FIRM NAME: LAW OFFICES OF BRIAN M. BROWN STREET ADDRESS: 4000 Barranca Parkway, Suite 250 cry: Irvine STATE: CA 2IP CODE: 92604 TELEPHONE NO: (949) 215-2700 FAXNO. (949) 743-3000 E-MAIL ADDRESS brianbrown@oclaborlawyer.com ATTORNEY FOR (name). Plaintiff SHIRIN BUCKMAN SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES STREET ADDRESS: 111 N. Hill St MAILING ADDRESS ’ CITY AND ZIP CODE: Los Angeles, CA 90012 BRANCH NAME: Stanley Mosk FOR COURT USE ONLY CASE NUMBER PLAINTIFF/PETITIONER: SHIRIN BUCKMAN BC 697003 DEFENDANT/RESPONDENT: CITY OF LOS ANGELES JUDICIAL OFFICER: OTHER: Hon. Susan Bryant-Deason DEPT PROPOSED ORDER (COVER SHEET) 52 NOTE: This cover sheet is to be used to electronically file and submit to the court a proposed order. The proposed order sent electronically to the court must be in PDF format and must be attached to this cover sheet. In addition, a version of the proposed order in an editable word-processing format must be sent to the court at the same time as this cover sheet and the attached proposed order in PDF format are filed. 1. Name of the party submitting the proposed order: Plaintiff SHIRIN BUCKMAN 2. Title of the proposed order: ORDER DENYING DEFENDANT'S MOTION TO TAX COSTS 3. The proceeding to which the proposed order relates is: a. Description of proceeding: DEFENDANT'S MOTION TO TAX COSTS b. Date and time: June 25, 2020 10:00 a.m. c. Place: Department 52 L.A. County Superior Court 111 N Hill St, Los Angeles, CA 90012 4. The proposed order was served on the other parties in the case. BRIAN M. BROWN (TYPE OR PRINT NAME) tT \ (SIGNATURE OF PARTY OR ATTORNEY) Form Adopted for Mandatory Use PROPOSED ORDER (COVER SHEET) Cal. Rules of Court, Judicial Council of California “ a rules 2.252, 3.1312 EFS-020 [Rev. February 1.2017) (Electronic Filing) ; WWwW.COurts. ca.gov Page 1 of 2 EFS-020 CASE NAME: : CASE NUMBER: Buckman vs. City of Los Angeles BC 697003 PROOF OF ELECTRONIC SERVICE PROPOSED ORDER 1. | am at least 18 years old and not a party to this action. a. My residence or business address is (specify): 4000 Barranca Parkway, Suite 250, Irvine, CA 92604 b. My electronic service address is (specify): brianbrown@oclaborlawyer.com 2. electronically served the Proposed Order (Cover Sheet) with a proposed order in PDF format attached, and a proposed order in an editable word-processing format as follows; . a. On (name of person served) (If the person served is an attorney, the party or parties represented should also be stated.): Susan J. Rim, Esq. Attorney for Defendant City of Los Angeles ‘ b. To (electronic service address of person served): susan.rim@lacity.org c. On (date): July 6, 2020 [J Electronic service of the Proposed Order (Cover Sheet) with the attached proposed order in PDF format and service of the proposed order in an editable word-processing format on additional persons are described in an attachment. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: July 6, 2020 : BRIAN M. BROWN ) /s/ (TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT) EFS-020 [Rev. February 1, 2017] PROPOSED ORDER (COVER SHEET) Page2of 2 (Electronic Filing) ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT SHIRIN BUCKMAN, Case No.: BC697003 Plaintiff, [PROPOSED] ORDER DENYING DEFENDANT’S MOTION TO TAX COSTS VS. CITY OF LOS ANGELES, et. al., Assigned for All Purposes to: Hon. Susan Bryant-Deason Dept: 52 Defendant(s). Hearing Date: June 25, 2020 Time: 10:00 a.m. Dept. 52 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 e N e N e N e N e N e N e N e On June 25, 2020 a hearing was held on Defendant CITY of LOS ANGELES’s (hereinafter “Defendant”) Motion to Tax Costs. Brian M. Brown and Rachel Goldstein appeared in person on behalf of Plaintiff SHIRIN BUCKMAN’s (hereinafter ‘“Plaintiff””). Susan J. Rim appeared telephonically on behalf of Having reviewed the evidence, having heard oral argument and good cause appearing therefor, the Court ruled and orders as follows: 1 [PROPOSED] ORDER DENYING DEFENDANT'S MOTION TO TAX COSTS ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs Request for Judicial Notice. As part of her Opposition to Defendant’s Motion to Tax Costs, Plaintiff requested that the Court take judicial notice of the following: A. The joint witness list in this case’s trial; B. Joint Notice of Intent to Introduce Portions of the Videotaped Deposition of Patricia Villasenor at Trial; C. Los Angeles Superior Court First Amended General Order; and D. Relevant portions of this case’s Register of Actions. Evidence Code section 452, subdivision (d) provides for judicial notice of records of any court of this state, which includes these documents. The Plaintiff’s Request for Judicial Notice is GRANTED. Defendant’s Motion to Tax Costs. Defendant’s Motion to Tax Costs was DENIED, for the reasons set forth on pages 4-5 of the Court’s Minute Order of June 25, 2020. Accordingly, IT IS HEREBY ADJUDGED, ORDERED AND DECREED that Plaintiff is hereby awarded her costs in the amount of $18,663.13, payable by Defendant to Plaintiff within thirty (30) days. The Court also DENIES Plaintiff’s request for attorney’s fees in connection with the preparation of Plaintiff’s Opposition papers, for the reasons set forth on page 5 of the Court’s Minute Order of June 25, 2020. Attached hereto as Exhibit A is a copy of the Court’s June 25, 2020 Minute Order in which the Court adopted its Tentative Ruling as the Final Ruling of the Court on Defendant’s Motion to Tax Costs. Dated: Honorable Susan Bryant-Deason JUDGE OF THE SUPERIOR COURT 2 [PROPOSED] ORDER DENYING DEFENDANT'S MOTION TO TAX COSTS SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES Civil Division Central District, Stanley Mosk Courthouse, Department 52 BC697003 June 25, 2020 SHIRIN BUCKMAN VS CITY OF LOS ANGELES 10:00 AM Judge: Honorable Susan Bryant-Deason CSR: Saba McKinley, CSR#9051 Judicial Assistant: Maria C. Faune ERM: None Courtroom Assistant: M. Isunza Deputy Sheriff: None APPEARANCES: For Plaintiff(s): Brian M. Brown; Rachel Goldstein For Defendant(s): Susan J. Rim (Telephonic) NATURE OF PROCEEDINGS: Hearing on Motion for Attorney Fees; Hearing on Motion to Tax Costs; Hearing on Motion - Other For Award of Expert Witnes Fees After Judgment Per Cov't Code 12965(b) Pursuant to Government Code sections 68086, 70044, and California Rules of Court, rule 2.956, Saba McKinley, CSR#9051, certified shorthand reporter is appointed as an official Court reporter pro tempore in these proceedings, and is ordered to comply with the terms of the Court Reporter Agreement. The Order is signed and filed this date. The matters are called for hearing. The Court adopts its tentative ruling as the final ruling of the court. The court rules as follows: Judicial Notice Buckman’s request to take judicial notice of the existence of the State Bar’s licensing information for attorney Michelle Reinglass (with whom counsel Rachel Goldstein used to work) is GRANTED under Evidence Code section 452, subdivision (d). Buckman’s request to take judicial notice of the existence of other trial courts’ rulings on motions for attorney’s fees involving the City’s expert Gerald Knapton, Exhibits 1-7, is GRANTED under Evidence Code section 452, subdivision (d). (See Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 [rate determinations in other cases are relevant evidence of the market rate].) Buckman’s request to take judicial notice of the existence of expert Gerald Knapton’s declaration in another case, Exhibit 8, is GRANTED under Evidence Code section 452, subdivision (d). Minute Order Page 1 of 5 EXHIBIT "A" SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES Civil Division Central District, Stanley Mosk Courthouse, Department 52 BC697003 June 25, 2020 SHIRIN BUCKMAN VS CITY OF LOS ANGELES 10:00 AM Judge: Honorable Susan Bryant-Deason CSR: Saba McKinley, CSR#9051 Judicial Assistant: Maria C. Faune ERM: None Courtroom Assistant: M. Isunza Deputy Sheriff: None Buckman’s request to take judicial notice of a minute order and the statement of decision in this case, Exhibits 9-10, is GRANTED. Attorney’s Fees The court grants Brian Brown fees at the hourly rate of $500 for time prior to 2020 and $600 for time during 2020. The court grants Rachel Goldstein fees at the hourly rate of $375 for time prior to 2020 and $400 for time during 2020. The court reduces the lodestar for time spent commuting to and from trial because the requested four to eight hours per day are included in overhead. Brown’s lodestar is reduced by 91 hours and Goldstein’s lodestar is reduced by 112 hours. The court also reduces the lodestar by the duplicative time entries highlighted by the City and acknowledged by Buckman. (Knapton Decl., q 19, Ex.2; Brown Reply Decl., 428.) Brown’s hours are reduced by an additional 56.50 hours. Plaintiff’s counsel seek additional time for drafting the Reply. Brown seeks 43.70 hours plus six hours for attending the hearing, of which four hours are travel time. (Brown Reply Decl., 9 30- 31.) Goldstein seeks 35.70 hours plus 5.5 hours for attending the hearing, of which 4.5 hours are travel time. (Goldstein Reply Decl., 99 4-6.) The hours sought for preparing the Reply are excessive and duplicative. The court finds it reasonable to award Brown eight hours and Goldstein six hours for drafting the Reply. The court also awards an additional two hours for Brown and for Goldstein to attend the hearing, although these additional hours include any compensation for travel time. (See California Rule of Court 3.670, acknowledging “the general policy favoring telephone appearances in civil cases.”) The court also finds that Buckman has failed to show that a multiplier is appropriate, given that the recovery of this case primarily benefits Buckman and not the public. (See Weeks v. Baker & McKenzie (1998) 63 Cal. App.4th 1128, 1173.) The court finds that apportionment is not appropriate and will not reduce the lodestar because of Buckman’s unsuccessful claims. The issues and facts for the successful retaliation claim and the unsuccessful discrimination claims were intertwined. (See Wysinger v. Automobile Club of Southern California (2007) 157 Cal. App. 4th 413.) The motion is GRANTED IN PART. The court reduces the lodestar from $1,065,358.75 by Minute Order Page 2 of 5 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES Civil Division Central District, Stanley Mosk Courthouse, Department 52 BC697003 June 25, 2020 SHIRIN BUCKMAN VS CITY OF LOS ANGELES 10:00 AM Judge: Honorable Susan Bryant-Deason CSR: Saba McKinley, CSR#9051 Judicial Assistant: Maria C. Faune ERM: None Courtroom Assistant: M. Isunza Deputy Sheriff: None $106,550 and does not apply a multiplier and therefore awards Buckman reasonable attorney’s fees against defendant City of Los Angeles in the sum of $958,808.75, payable to Buckman within 10 days. Expert Witness Fees Under FEHA, Buckman may recover expert witness fees. (Gov. Code, § 12965, subd. (b).) The requested expert witness fees are reasonable and unopposed. Buckman’s motion for expert witness fees is GRANTED in the amount of $12,558.27, payable to Buckman within 30 days. DEFENDANT CITY OF LOS ANGELES’S MOTION TO TAX PLAINTIFF SHIRIN BUCKMAN’S MEMORANDUM OF COSTS The court having read the papers rules as follows: Judicial Notice With plaintiff’s Opposition, plaintiff requests judicial notice of: A. The joint witness list in this case’s trial; B. Joint Notice of Intent to Introduce Portions of the Videotaped Deposition of Patricia Villasenor at Trial; C. Los Angeles Superior Court First Amended General Order; and D. Relevant portions of this case’s Register of Actions. Evidence Code section 452, subdivision (d) provides for judicial notice of records of any court of this state, which includes these documents. The request for judicial notice is GRANTED. Tax Costs In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP § 1032, subd. (b); Scott Co. of California v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) “Prevailing party” includes a party with a net monetary recovery. (CCP § 1032, subd. (a)(4).) “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (CCP § 1033.5, subd. (c)(2).) “If the items appearing Minute Order Page 3 of 5 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES Civil Division Central District, Stanley Mosk Courthouse, Department 52 BC697003 June 25, 2020 SHIRIN BUCKMAN VS CITY OF LOS ANGELES 10:00 AM Judge: Honorable Susan Bryant-Deason CSR: Saba McKinley, CSR#9051 Judicial Assistant: Maria C. Faune ERM: None Courtroom Assistant: M. Isunza Deputy Sheriff: None in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” (Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 774.) “[I]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.” (Seever v. Copley Press, Inc. (2006) 141 Cal. App.4th 1550, 1557.) Defendant seeks to tax $859.86 of plaintiff's claimed costs. First, defendant challenges $180.00 in fees for motions that were not filed. The City argues that fees for motions that were not filed are not recoverable. Code of Civil Procedure section 1033.5, subdivision (a)(1) provides for recovery of “[f]iling, motion, and jury fees.” Though plaintiff ultimately may not have filed the motions, she still incurred the reservation fees required to reserve hearing dates in advance. Defendant has made no showing that reserving the hearing dates for the anticipated motions was not reasonably necessary. Second, defendant seeks to tax $449.00 in witness fees for four witnesses who did not actually attend trial. Section 1033.5, subdivision (a)(7) provides for recovery of “witness fees pursuant to Section 68093 of the Government Code,” which in turn provides for fees “for each day’s actual attendance, when legally required to attend a civil action ... .” Even if the witnesses did not attend trial, plaintiff did incur fees for them by issuing subpoenas that legally required them to attend. Defendant has not shown that it was not reasonably necessary for plaintiff to require the witnesses to attend in case she chose to have them testify. Third, defendant seeks to tax $42.74 in electronic filing fees for documents it asserts were not actually filed or served. Defendant provided no admissible evidence showing the documents were not filed or served; plaintiff provided a declaration explaining when and for what she incurred each of the subject costs. (Brown Decl., 9 6.) Defendant has not met its burden of showing these costs were not reasonably necessary. Fourth, defendant seeks to tax $172.50 in other costs because they are duplicate requests and therefore unnecessary. The $1.00 cost for e-service of the trial brief on October 22, 2019, was erroneously listed in Section 16, rather than in Section 14, where it belonged. (Brown Decl., 7(e).) It was still reasonably necessary. Plaintiff also explains that the other fees were not duplicates of the filing fees but were necessarily incurred for delivering courtesy copies as required by the Los Angeles Superior Court’s First Amended General Order. (Brown Decl., § 7.) Minute Order Page 4 of 5 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES Civil Division Central District, Stanley Mosk Courthouse, Department 52 BC697003 June 25, 2020 SHIRIN BUCKMAN VS CITY OF LOS ANGELES 10:00 AM Judge: Honorable Susan Bryant-Deason CSR: Saba McKinley, CSR#9051 Judicial Assistant: Maria C. Faune ERM: None Courtroom Assistant: M. Isunza Deputy Sheriff: None Finally, defendant seeks to tax $75.62 (the $60 filing fee and $15.62 electronic filing or service fee) in costs associated with Buckman’s February 25, 2019 Ex Parte Application for an Order Shortening Time on Motion for Evidentiary and/or Terminating Sanctions. The City claims the costs were not reasonably necessary because defense counsel had filed a Notice of Unavailability for February 19 to March 1, 2019. Seeking to shorten time to hear the motion was reasonably necessary. The trial was scheduled for April 3, 2019, and the first available hearing date for Buckman’s Motion for Evidentiary and/or Terminating Sanctions was May 1. (Brown Decl., § 17.) For any hope of relief, Buckman needed an order shortening time to hear the motion. The fact that the City filed a Notice of Unavailability that included the day of the Ex Parte Application did not make the application unreasonable or unnecessary. In the opposition, plaintiff requests recovery of 28 hours of attorney’s fees. Attorney’s fees allowed by statute generally must be fixed “(i) upon a noticed motion, (ii) at the time a statement of decision is rendered, (iii) upon application supported by affidavit made concurrently with a claim for other costs, or (iv) upon entry of default judgment.” (CCP § 1033.5, subd. (c)(5)(A).) The court does not award attorneys’ fees requested only in the opposition to a motion to tax costs. The Motion to Tax Costs is DENIED. The court awards $18,663.13 in costs, payable to Buckman within 30 days. Plaintiff is ordered to give notice. Minute Order Page 5 of 5