Reply In Support of Motion To Tax Costs

Reply

Cal. Super. - 2nd Dist.May 14, 2018

Electronically FILED by [Superior Court of California, County of Los Angeles on 06/23/2020 03:35 PM Sherri R. Carter, Executive Officer/Clerk of Court, by A. Miro,Deputy Clerk | GLE< == 2 || GHOZLAND == LAW FIRM Michael F. Ghozland, Esq. (SBN 223032) michael@ghozlandlawfirm.com 4 GHOZLAND LAW FIRM, PC 626 Wilshire Boulevard, Suite 1170 5 |[Los Angeles, California 90017 Phone: (213) 334-4570 6 || Fax: (213) 334-4569 7 q Jonathan S. Dennis, Esq. (SBN 249554) JDennis@DennisLawGroup.com 9 DENNIS LAW GROUP, PC 19200 Von Karman Avenue, Suite 400 10 Irvine, California 92612 Phone: (949) 408-3000 11 || Fax: (949) 408-3001 12 || BISNAR | CHASE LLP ONE NEWPORT PLACE 13 |[ 1301 Dove St., Suite 120 Newport Beach, CA 92660 14 || Phone: (949) 752-2999 Facsimile: (949) 752-2777 15 || Brian D. CHASE, State Bar No.164109 Attorneys for Plaintiffs, 16 || JEREMIAH STROUD, MAIA HARRISON, STEVEN HARRISON, DANIELLE HARRISON, 17 JASON DANIELS, LAWRENCE BOYD 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 5 LOS ANGELES COUNTY - CENTRAL D E N N I S L A W G R O U P , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , C A L I F O R N I A 92 61 2 20 JEREMIAH STROUD, a minor by and) Case No. BC705872 through his Guardian Ad Litem; MAIA) 21 || HARRISON, an individual; STEVEN) ASSIGNED FOR TRIAL TO: HARRISON, an individual; DANIELLE) Judge Frederick C. Shaller 22 || HARRISON, an individual: JASON) Dept. SS-5 23 DANIELS, an individual, LAWRENCE) BOYD, an individual, ) PLAINTIFFS’ REPLY IN SUPPORT OF 24 ) MOTION TO TAX COSTS; SUPPORTING Plaintiffs, ) DECLARATION OF BRIAN D. CHASE 25 VS. ) 26 ) KIA MOTORS AMERICA, INC., a) Motion Hearing: 57 California corporation; KIA MOTORS) DATE: June 30, 2020 MANUFACTURING GEORGIA, INC., a) TIME: 8:30 am 28 Delaware corporation; KIA MOTORS ) DEPT: SS-5 DECLARATION OF BRIAN D. CHASE IN ACCORDANCE WITH LOCAL RULE 3.57 D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 CORPORATION, a South Korean entity;) HYUNDAI MOTOR AMERICA, a) Complaint Filed: May 14, 2018 California corporation; HYUNDAI MOTOR) Trial Date: January 13, 2020 COMPANY, a South Korean entity;) HYUNDAI MOTOR GROUP, a South) Korean entity; AVIS BUDGET GROUP,) INC., a Delaware corporation; AVIS) BUDGET CAR RENTAL, LLC, a Delaware) corporation; AVIS RENT A CAR SYSTEMS) LLC, a Delaware corporation, AVIS) BUDGET HOLDINGS, LLC, a Delaware) corporation; PV HOLDING CORP, a) Delaware corporation; AVIS BUDGET) RENT-A-CAR, an unknown entity; AVIS) BUDGET RENT-A-CAR HAWTHORNE) (H8C), an unknown entity; and DOES 1) through 100, inclusive, ) ) Defendants. ) ) TO THE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: Plaintiffs hereby reply to the Opposition filed by Defendant Kia Motors America and the other Kia Defendants to the Motion to Tax Costs. Argument I. DEFENDANTS DO NOT CONTEST THE TAXING OF CERTAIN “FILING FEES” CHALLENGED BY PLAINTIFFS. Plaintiffs moved to tax $530.00 of the amount the Kia Defendants claimed in their Memorandum of Costs for “filing fees”. In their Opposition to the Motion, the defendants concede that it is proper to tax these challenged amounts. Based on this concession, the Court should tax a total of $530.00 of the amount Kia claimed for “filing fees”. II. DEFENDANTS CANNOT RECOVER THE COURT REPORTER’S CHARGES FOR “LIVE” TRANSCRIPTS AND FOR “DAILY TRANSCRIPTS UNLESS ORDERED BY THE COURT. The Kia Defendants claimed $14,612.52 in court reporter costs. 2 PLAINTIFFS’ REPLY MEMORANDUM - MOTION TO TAX COSTS D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 The Plaintiffs demonstrated that the “per diem” compensation for the reporter, allowable under Code of Civil Procedure section 1033.5, subdivision (a)(11) and Government Code section 68086 subdivision a, was a total cost of the per diem per “side” of $8,150.00. The difference between that sum and the amount requested by the Kia Defendants includes the costs charged for “live” transcript service and/or “daily” transcripts. Under Code of Civil Procedure section 1033.5, subdivision (b)(5), the cost of transcripts is explicitly not recoverable unless the preparation of the transcript(s) was ordered by the Court. These transcripts were not so ordered. As is set out in the attached supporting declaration of Brian D. Chase, and as acknowledged by the defense, the Court did not order the preparation of transcripts. The defense argues that it was very helpful for everyone to have these transcripts. Plaintiffs acknowledge there may have been some de minimis help, but the helpfulness is not relevant here. Subdivision b of section 1033.5 explicitly denies the recovery of costs for transcripts. The Court should never get to a consideration of whether the live transcript system assisted in the trial because the costs are expressly not recoverable. (See, Ladas v. Cal. State Auto Assn. (1993) 19 Cal. App.4" 761,774.) Therefore, the remaining $6,462.52 claimed by the defendants is not allowable and must be taxed. III. THE DEFENSE SHOULD NOT BE ALLOWED TO RECOVER THE COST OF PREPARING (DUPLICATING) PAPER, DVD, and HARD DRIVE COPIES OF EXHIBITS WHICH HAD ALREADY BEEN PREPARED (A PROCESS FOR WHICH THE DEFENDANTS ARE RECOVERING $71,071.27). THESE ADDITIONAL PAPER COPIES DID NOT ASSIST THE TRIER OF FACT AND THEREFORE ARE NOT ALLOWABLE The Kia defendants seek to impose the obligation for the Plaintiffs to be responsible for $77,757.54 which the defendants say was their cost of preparing boxes of paper copies of exhibits, as well as the creation of hard drives, thumb drives, and DVDs storing copies of exhibits. The itemization of these charges is set out in the invoice which is attached as Exhibit “C” to Plaintiff’s Motion. These are expenses which the defense seeks to recover under the category of “Models and enlargements of exhibits and photocopies of exhibits” under Code of Civil Procedure section 1033.5 3 PLAINTIFFS’ REPLY MEMORANDUM - MOTION TO TAX COSTS D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 subdivision a(13). That subdivision allows such costs only “if they were reasonably helpful to aid the trier of fact.” It is very important for the Court to recognize that these charges were not for the creation of exhibits or demonstrations - the defense has already asked for $71,071.27 for the costs incurred to create the exhibits and to have those exhibits organized, indexed, and retrievable electronically for use at trial. The challenged cost is for the duplication of the exhibits - not the hard drives which were storing the electronic copies but the printing, copying, and binding paper copies of all exhibits. These boxes of paper records were not “helpful to aid the trier of fact.” These boxes and hard drives and thumb drives sat unopened and unused during trial, boxes which never entered the courtroom and may never have left whatever storage area the defendants chose to store the boxes after they were produced. The contents of these boxes were never shared with the jury. All presentation was by video screen except for some overhead projection - not paper. As set out in the attached Supporting Declaration of Brian D. Chase, the Court and the parties were more modern and tech-savvy than having all potential evidence handled by paper copies. As discussed by Mr. Chase, the parties exchanged exhibits or documents or demonstrations which were going to be used the next court day electronically the night before their use, and then printed what they shared and submitted paper copies of documents to the court’s exhibit binder. This process did not require the duplicated boxes of documents: just the electronically stored copies already prepared before Judge Orozco told the parties that they would not be sent for assignment to a trial court until they had paper copies of all of the possible exhibits. Since none of these copies were ever shown to or shared with the jury, were not shared with the Court or with counsel, the cost for the preparation for these copies should not allowable under Section 1033.5 subdivision a(13) and must be taxed. It would be unfair to force the Plaintiffs to pay for useless duplication of records, duplicates which were never used. The Kia defendants have shared the just-published opinion (filed June 15, 2020) in Segal v. ASICS America Corporation (2020) Cal. App.5™ 2020 WL 3169376. Paying attention to 4 PLAINTIFFS’ REPLY MEMORANDUM - MOTION TO TAX COSTS D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 the “abuse of discretion” standard of review, the Court of Appeal held that the trial court’s allowance of $34,166.79 in costs claimed for the production of exhibit trial binders was not an abuse of discretion because, “costs associated with unused exhibits were awardable in the trial court’s discretion because ‘[a]n experienced trial judge could recognize that it would be inequitable to deny as allowable costs exhibits which a prudent attorney would prepare in advance of trial.” (Applegate [v. St. Francis Lutheran Church (1994)] 23 Cal.App.4th [361] at p.364, 28 Cal.Rptr.2d 436; Benach [v. County of Los Angeles (2007)] 149 Cal.App.4th [836] at p. 856, 57 Cal.Rptr.3d 363.).” Segal v. Asics America Corporation (June 15, 2020, No. B299184) 2020 WL 3169376, at *2.) “The trial court therefore did not err in refusing to tax the costs ASICS incurred in creating exhibit photocopies and closing argument demonstratives, even though many were not used at trial.” (Id. at *4.) The Court in Segal wrote extensively about how helpful it is to have paper copies of everything, so they are organized and easily accessible for the court, witnesses, and jury, and therefore how helpful it might be for the trial. But that is old-school trial methods. This opinion demonstrates the Court’s unfamiliarity with “the reality of how complicated cases are tried” (See *3) in 2020. Complicated cases are not tried with paper: cases are presented with PowerPoint presentations and videos and images displayed on a screen after retrieval from electronic storage through a scan code or other metadata. Complicated cases are tried with computers, hard drives, and projectors, not boxes of paper. The “paper-based” trial was not how this complicated case was presented. Since the defense is already recovering the cost of preparing its exhibits for presentation at trial, it should not also obtain double the recovery because it duplicated those exhibits on paper which then sat unused. The Court should tax the $77,757.54 claimed as the cost of preparing those boxes of unused paper. Conclusion While Plaintiffs do not challenge Defendants' rights to an award of costs under the circumstances that exist at this time, the costs recovered must be supported by law, and must be reasonably incurred in the prosecution of the case and to assist the trier of fact. These contested costs 5 PLAINTIFFS’ REPLY MEMORANDUM - MOTION TO TAX COSTS D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 did not serve that purpose. For all of the reasons set forth above, Plaintiffs request that the cost bill presented, in the amount of $255,589.72 be taxed as follows: A. Filing Fees - reduced by $530.00 from $4,065.00 to $3,535.00; B. Court Reporter Fees - reduced by $6,462.52 from $14,612.52 to $8,150.00; C. Models, enlargements, and photocopies of exhibits -reduced by $77.757.54 from $148,828.81 to $71,071.27; for a total reduction of $84,750.06. The total recoverable costs Defendants should be entitled to receive is $170,826.66. GHOZLAND LAW FIRM, P.C. DENNIS LAW GROUP, PC BISNAR| CHASE LLP /s/ Brian ©. Chase Dated: June 23, 2020 By: Brian Chase, Esq. Michael F. Ghozland, Esq. Jonathan S. Dennis, Esq. ATTORNEYS FOR PLAINTIFFS 6 PLAINTIFFS’ REPLY MEMORANDUM - MOTION TO TAX COSTS D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 SUPPORTING DECLARATION OF BRIAN D. CHASE I, BRIAN D. CHASE, do hereby state and declare as follows: I am an attorney at law duly admitted and licensed to practice before the courts of the State of California. I am one of the attorneys for the Plaintiffs in this action. The parties agreed to have a single court reporter serve to report the proceedings in this case. The parties agreed to pay a per diem fee of $900.00 for the reporter, and each side agreed to split that fee equally. I have calculated that the “per diem” fees for each side total $8,150.00. The Court did not order the preparation of “daily” transcripts, nor the provision of a “live” transcript. The main factual issue in the resolution of my clients’ motion to tax the costs claimed is whether or not the cost of the duplication of already created exhibits, producing three sets of copies of potential exhibits reflected in the $77,757.54 bill submitted as Exhibit “C” to our Motion, should be imposed on the Plaintiffs. I agree with Mr. Lonnie that Judge Orozco told the parties that they would not be sent to Department 1 for assignment to a trial court unless we each had three “paper” sets of all exhibits. However, none of the boxes of documents and exhibits copied by the defense and invoiced in Exhibit “C” were used at trial. Not a single one of these boxes of documents, thumb-drives, or hard drives were turned over to Plaintiffs’ counsel or to the Court. During trial, at the Court’s direction and the agreement of the parties, each side was supposed to deliver an electronic copy of any documentary evidence the party expected to present during trial to the other side the evening before that evidence would be presented. Then, on the day it was going to be used, the offering party would add a paper copy of the exhibit to the Clerk for inclusion in the Court’s trial exhibit binder. The parties operated under this agreement and this Court order. The documents were presented electronically and displayed on screens for the jury or a few by Elmo overhead projection. As best as I can recall, there were no paper copies of exhibits were given or shared with the members of the jury. 1111 1111 7 PLAINTIFFS’ REPLY MEMORANDUM - MOTION TO TAX COSTS D E N N I S L a w G r o u p , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 It is unfair and unjust to attempt to impose the cost of the duplication of already created exhibits at the cost of $77,757.54 on the Plaintiffs when it was for no practical purpose for the actual trial. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated June 23, 2020. /8/ Brian D. Chase Brian D. Chase 8 PLAINTIFFS’ REPLY MEMORANDUM - MOTION TO TAX COSTS D E N N I S L a w G R O U P , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 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 ) ) ss COUNTY OF LOS ANGELES ) I am employed in the County of Orange County, State of California. I am over the age of 18 and not a party to the within action; my business address is: 1301 Dove Street, Suite 120, Newport Beach, CA 92660. On June 23, 2020, I served the foregoing document described as: PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO TAX COSTS; DECLARATION OF BRIAN D. CHASE on the interested parties in this action by placing a true copy thereof enclosed in sealed envelopes addressed as follows: SEE ATTACHED SERVICE LIST [] By Overnight Mail. [1] By Mail - [] BY FEDERAL EXPRESS. I enclosed the documents in an envelope or package Provided by an overnight delivery carrier and addressed to the person at the addresses listed above. I placed the envelope or package for collection and overnight delivery at an office or regularly utilized drop box of the overnight delivery carrier. [X] By Electronic Mail. I caused the document(s) to be sent to the person(s) at the e-mail address(es) listed on the Service List, with a courtesy copy to Judge Shaller’s chambers at FCShaller@lacourt.org and raquino@lacourt.org. I did not receive, within a reasonable time after transmission, any electronic message or other indication that the transmission was unsuccessful. [X] STATE I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 23, 2020. /s/ Edward Spilsbury Edward Spilsbury 9 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO TAX COSTS D E N N I S L a w G R O U P , PC 19 20 0 V O N K A R M A N A V E N U E , SU IT E 40 0 IR VI NE , CA LI FO RN IA 92 61 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JEREMAIH STROUD, et al. v. KIA MOTOR AMERICA, INC,, et al. Los Angeles Superior Court Case No. BC705872 Dommond E. Lonnie, Esq. dlonnie@dykema.com James P. Feeney, Esq. jfeeney@dykema.com DYKEMA GOSSETT, LLP 333 South Grand Avenue, Suite 2100 Los Angeles, CA 90071 Attorneys for Defendants KIA MOTORS AMERICA, INC., HYUNDAI MOTOR AMERICA, KIA MOTORS CORPORATION, and HYUNDAI MOTOR COMPANY Tel: (213) 457-1800 Fax: (213) 457-1850 Michael R. Carey, Esq. mcarey@dykema.com DYKEMA GOSSETT, LLP 90 South Seventh Street Minneapolis, Minnesota 55402 Attorneys for Defendants KIA MOTORS AMERICA, INC., HYUNDAI MOTOR AMERICA, KIA MOTORS CORPORATION, and HYUNDAI MOTOR COMPANY 10 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO TAX COSTS