Motion To Tax CostsMotionCal. Super. - 2nd Dist.August 31, 2016Electronically FILED by Superior Court of California, County of Los Angeles on 02/13/2019 12:16 PM Sherri R. Carter, Executive Officer/Clerk of Court, by C. Calagna,Deputy Clerk 1 | M. Alim Malik, Bar No. 145546 amalik@)jacksontidus.law 2 | Charles M. Clark, Bar No. 244535 cclark@jacksontidus.law 3 | Kathryn M. Casey, Bar No. 227844 kcasey@jacksontidus.law Brittany A. Ortiz, Bar No. 305775 bortiz@jacksontidus.law JACKSON TIDUS, A LAW CORPORATION 2030 Main Street, Suite 1200 Irvine, California 92614 (949) 752-8585 ~N O N W n Attorneys for Plaintiff 8 | Southern California School of Theology dba Claremont School of Theology 9 10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF LOS ANGELES 12 13 | SOUTHERN CALIFORNIA SCHOOL OF CASE NO. KC068691 THEOLOGY, a California corporation, dba 14 | CLAREMONT SCHOOL OF THEOLOGY, PLAINTIFF’S NOTICE OF MOTION 15 AND MOTION TO STRIKE OR TAX ie Plaintiff, COSTS 7 Vs. Judge: Gloria White-Brown CLAREMONT GRADUATE 18 | UNIVERSITY, a California corporation, Date: July 10,2019 CLAREMONT UNIVERSITY Time: 8:30 a.m. 19 | CONSORTIUM and DOES 1 to 50, Dept: J inclusive, 20 RESID: 691966671780 Defendants. 21 Complaint Filed: 22 August 31, 2016 23 First Amended Complaint Filed: November 30, 2016 24 25 26 27 28 -1- MOTION TO STRIKE AND/OR TAX COSTS wr B W W N D ~N ON 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on July 10, 2019, at 8:30 a.m., or as soon thereafter as the matter may be heard in Department J of the Los Angeles Superior Court, located at 400 Civic Center Plaza, Pomona, CA 91766, Plaintiff Southern California School of Theology dba Claremont School of Theology (“CST” or “Plaintiff”) shall and does hereby move for an order pursuant to California Rules of Court, Rule 3.1700 to strike or tax costs submitted by Defendants Claremont Graduate University (“CGU”) and Claremont University Consortium (“CUC”) (together, “CGU/CUC” or “Defendants”). Good cause exists for the Court to grant the requested relief. The cost memorandum should be stricken in its entirety because Defendants, identified as the “prevailing party” in the judgment, filed a notice of appeal of that judgment. Defendants appeal negates any right to costs as they cannot enforce the judgment to recover costs while they are appealing for the reversal of the same judgment. Alternatively, if the Court is not inclined to strike the costs in their entirety, the Court should, respectfully, tax certain requested costs because they are impermissible and/or were not reasonable in relation to the litigation under Code of Civil Procedure sections 1033.5(¢c)(2) and (©)(3). Specifically, in numerical order: eo Item 5 (Service of process). Defendants seek $1,187.50 in service of process costs, which include a $2,057.50 charge to serve an out of state subpoena on a rush basis to Dr. Jerry Campbell. This cost was unnecessarily incurred and unreasonably excessive in amount, as evidenced by the $100 charge to serve a prior out of state subpoena on Mr. Campbell, and as evidenced by Plaintiffs quotes received for like-services. As such, this cost should be taxed by $963.18, reducing the recoverable costs in Item 5 to $224.32. In the alternative, the cost should be taxed by $909.18, reducing the recoverable costs in Item 5 to $278.32, the quote Plaintiffs obtained for like-services on a rush basis. o Item 11 (Models, enlargements, copies of exhibits). Defendants’ request for $33,209.80 must be taxed in the amount of $24,363.55, reducing the costs for Item 11 to 2- MOTION TO STRIKE OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 $8,846.25, because the vast majority of the charges are either not recoverable under the statute or they are duplicative and, as such, they are unreasonable and unnecessary. As detailed more fully below, the photocopying costs requested improperly include charges for copies of exhibits that were not introduced as evidence at trial. (See, County of Riverside v. City of Murrieta (1998) 65 Cal.App.4th 616, 629 [request for recovery of trial exhibits and photocopies properly denied when items not reasonably helpful to trial court].) Also, Defendants’ costs ($17,125.71) for the hourly wages of a technical consultant and the rental of sophisticated presentation equipment are wholly unnecessary and were excessive for a short bench trial. (See Nelson v. Anderson (1999) 72 Cal.App.4th 111, 133 Thigh costs of technology should not automatically be passed to the other side]; See also Science Applications International Corp. v. Superior Court (1995) 39 Cal.App.4th 1095,°1104 [costs on an on-site technician and equipment for presenting exhibits to a jury are not allowed].) Plaintiff’s counsel effectively utilized the Elmo projector to highlight aspects of the exhibits, which was equally as effective, and cost nothing. Item 12 (Court reporter fees by statute). Defendants seek $13,366.70 in court reporter fees for four day trial. The statutory provisions for recovery of court reporter fees are set forth in Government Code sections 68086 and 69953.5 and the Superior Court af California, Los Angeles Civil Fee Schedule. The costs in Item 12 and Attachment 12.c. appear to vastly exceed the recoverable statutory fees, particularly for trial, and may improperly include transcript costs that are not recoverable unless requested by the Court. (See Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58-59; Code Civ. Proc., § 1033.5(b)(5).) As such, Plaintiff seeks to tax the costs for Defendants’ court reporter fees for trial by at least $12,057.30, reducing the recoverable costs in Item 12 to $1,309.40 (which is the amount Plaintiff paid for trial transcripts). Item 16 (Mediation fee). Plaintiff seeks to strike $4,450 in costs, listed in Item 16, relating to a private mediation. These costs are not identified as recoverable costs under 3 MOTION TO STRIKE OR TAX COSTS © 0 NN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Code of Civil Procedure section 1033.5. These costs were also not were not reasonably necessary to the conduct of the litigation. This Motion is based on Code of Civil Procedure section 1032 et seq., the Declaration of Charles M. Clark and all exhibits thereto, and other such laws as presented in the concurrently filed Memorandum of Points and Authorities, and upon such other argument, evidence and law presented at the hearing on this Motion. Respectfully Submitted, DATED: February 13, 2019 JACKSON T artes M. Cladk- / Attorneys for Plaintiff Southg¢rn California School of Theology, a California corpdration, dba Claremont School of Theology Bs MOTION TO STRIKE OR TAX COSTS 0 NN O N Wn bs Oo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION. Plaintiff Southern California School of Theology dba Claremont School of Theology (“CST”) requests that the Court strike and/or tax certain categories of costs included in Defendants’ Claremont University Consortium (“CUC”) and Claremont Graduate University (“CGU), (collectively “Defendants”) Memorandum of Costs. Defendants were identified as the “prevailing party” in the Judgment, over CST’s objections. Yet, since the designation, Defendants have appealed, seeking reversal of this judgment (not CST). Defendants cannot enforce a judgment in seeking to recover costs as the prevailing party when they are simultaneously attempting to reverse the same judgment. Alternatively, the amount of costs should be taxed because they are not recoverable by statute or unreasonable and unnecessary in amount. These costs are included in Item 5 (service of process), Item 11 (models, enlargements, and photocopies of exhibits), Item 12 (court reporter fees as authorized by statute), and Item 16 (mediation fees), as specifically discussed below.! Defendants attempt to recover over $13,000 in transcript costs for a four day frisils and over $17,000 for both the hourly wages of an in-court technical/media consultant and sophisticated presentation equipment for a four day bench trial. Defendants seek over $8,000 in copying cost when they only admitted approximately 100 exhibits. The costs are unreasonable, unbelievable or wholly unnecessary. In total, Plaintiff respectfully requests an order striking all costs or alternatively, taxing the costs requested by at least $41,834.03. Defendants should be required to provide further information to determine whether additional costs should be taxed. 2. LEGAL ARGUMENT A. The Cost Memorandum Should Be Stricken In Its Entirety. Costs can only be awarded to a prevailing party in the litigation. (CCP § 1032(b.) The ' To avoid confusion, it is worth noting that Defendants’ Memorandum of Costs form on page 1 identifies “court reporter fees as established by statute” identified as Item 11 and “models, enlargements, and photocopies of exhibits” identified as Item 12. However, on page 3 of Defendants” Memorandum of Costs form, these two Item numbers are reversed with “models, enlargements, and photocopies of exhibits” identified as Item 11 and “court reporter fees as established by statute” identified as Item 12. Plaintiff identifies each Item using page 3’s identifications. 5 MOTION TO STRIKE OR TAX COSTS co NN O N Wn Be W N Oo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Judgment designates Defendants as the prevailing party. (Declaration of Charles M. Clark (“Clark Decl.”), Exh. A.) This designation was initially listed in the proposed statement of decision, and CST objected on the basis that the Court’s decision provides a net benefit to CST of approximately $36,000,000 because CST can now sell its property for fair market value. (Id, Exh. B.) The Court disagreed with this fact and still designated Defendants as the prevailing party in the Statement of Decision and the Judgment on the conclusion that Defendants achieved their litigation goal. (/d., Exh. C.) Tellingly, Defendants appealed the Judgment, not CST. (/d, Exh. D.) This fact alone illustrates the parties’ own understanding of who achieved their respective litigation goals. As Defendants have appealed for the reversal of the Judgment, they have waived any demand for costs. There is no authority that Defendants can simultaneously move to enforce a judgment to obtain costs and appeal for the reversal of the same judgment. Consequently, the cost memorandum should be stricken in its entirety. Defendants should not be able to recover costs based on a judgment they are appealing. B. Alternatively, the Court Should Tax Costs Identified by Defendants. Code of Civil Procedure section 1033.5 governs items that are allowable as costs to a prevailing party under Code of Civil Procedure section 1032. If a specific cost item is not specifically identified in Code of Civil Procedure section 1033.5, it may be awarded in the trial court’s discretion, provided it was both reasonable in amount and reasonably necessary to the conduct of the litigation. (Code Civ. Proc., §§ 1033.5(c)(2) & (¢)(3).) The Court can tax costs when its finds cost items were not reasonably necessary to the litigation, but merely convenient or beneficial to its preparation. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) 1. Item 5 - Service of Process. Defendants seek $1,187.50 in service of process costs, which inelndes a $1,057.50 charge to serve an out of state subpoena on a rush basis to Dr. Jerry Campbell. This cost was unnecessarily incurred and unreasonably excessive in amount as evidenced by the $100 charge reflected in Defendants’ Memorandum of Costs to serve a prior out of state subpoena on Dr. -6- MOTION TO STRIKE OR TAX COSTS 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Campbell. First, this cost could have been entirely avoided. Defendants were aware that Plaintiffs counsel was representing Dr. Campbell - and did so - at his deposition. (Clark Decl., Exh E.) Defendants requested that Plaintiff accept service of the subpoena, to Plaintiffs agreed. (Id.) Second, there is no reason that the subpoena needed to be served on a rush basis. Third, even if necessary, the amount is excessive as evidenced by the quote Plaintiff's obtained for like- services on a non-rush basis. (Clark Decl., Exh. F.) As such, this cost should be taxed by $963.18, reducing the recoverable costs for Dr. Campbell’s subpoena in Item 5 to $224.32. In the alternative, the cost should be taxed by $909.18, reducing the recoverable costs for Dr. Campbell’s subpoena in Item 5 to $278.32, the estimated quote Plaintiff's obtained for like- services on a rush basis. 2. Item 11 - Models, Enlargements, and Photocopies of Exhibits. Defendants’ request for $33,209.80 must be taxed in the amount of $24,363.55, reducing the costs for Item 11 to $8,846.25, because the vast majority of the charges are either not recoverable under the statute or they are duplicative and, as such, they are unreasonable and unnecessary to the conduct of the litigation. In the Memorandum of Costs, Defendants request $16,084.09 in photocopying costs for trial exhibits. Code of Civil Procedure section 1033.5(a)(13) provides that expenses for trial exhibits “may be allowed if they were reasonably helpful to aid the trier of fact.” (See, County of Riverside v. City of Murrieta (1998) 65 Cal.App.4th 616, 629 [request for recovery of trial exhibits and photocopies properly denied when items not reasonably helpful to trial court].) Costs for exhibits not actually used at trial are not recoverable under Code of Civil Procedure section 1033.5(a)(13) because the exhibits are not “reasonably helpful to aid the trier of fact.” (Ladas, supra, 19 Cal. App.4th at p. 774 [“fees are not authorized for exhibits not used at trial.”].) Thus, on its face, the statutory language “excludes as a permissible item of costs exhibits not used at trial, which obviously could not have assisted the trier of fact.” (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557-58.) Second, the cost descriptions in Attachment 11 of the cost memorandum demonstrate gL MOTION TO STRIKE OR TAX COSTS Oo ee 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the duplicative nature of these charges as there are nine separate entries for photocopies of trial exhibits for the March 2018 trial, eight separate entries for the July 2018 trial, and eight separate entries for the September 2018 trial. It is unreasonable to request CST to pay for duplicative copies of the same sets of exhibits, and alsa duplicative copies of the same exhibits for the various witnesses, many of whom did not testify. CST notes that the two trial continuances were caused by Defendants; once following their filing of a writ and once based on their counsel’s unavailability, so the fact that the trial was continued was not a proper justification for the repetitive photocopies. (Clark Decl., § 8.) Also, while Defendants try to rationalize the duplicative copies by stating in their cost memorandum that exhibits had to be recopied because of changes to CST’s exhibits, Defendants conveniently omit that these were a minimal amount of additions that they too made changes to the exhibit list, and they refused to remove duplicative exhibits. (/d. 9; Exh. G.) Lastly, Defendants also neglect to acknowledge that the exhibits were exchanged electronically (Id) Defendants - not CST - should have to bear the costs of Defendants’ decision to unnecessarily make so many copies. In short, the only recoverable amount for photocopy charges is $8,846.25, which is the percentage of Defendants’ exhibits (approximately 55%) that were introduced at trial; the remainder of the charges should be taxed. (Clark Decl., Exh. G.) This is a very small percentage. Defendants also seek $17,125.71 for costs related to hourly wages for a technical consnlfant, rental of equipment, electronic formatting and electronic presentation of its trial exhibits in the courtroom during trial. These costs should be taxed as unreasonable and unnecessary. This was a four day bench trial, yet Defendants chose to retain a technical consultant to present evidence for them at trial and rented sophisticated trial management equipment when a simple Elmo would have sufficed. California courts have acted within their discretion in denying unwarranted costs relating to technology. (See Nelson v. Anderson (1999) 72 Cal.App.4th 111, 133 [high costs of technology should not automatically be passed to the other side].) The policy reason for this rationale is that “[i]f costs are routinely awarded for high-powered technology, most parties will _8- MOTION TO STRIKE OR TAX COSTS NO 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be unable to litigate.” (Science Applications International Corp. v. Superior Court (1995) 39 Cal. App.4th 1095, 1105.) Specifically as to the $14,737.50 charge for electronic presentation of exhibits in the courtroom during trial by RLM/Trial Graphix ($14,737.50), this cost is expressly not recoverable. (Id. at 1104 [costs on an on-site technician and equipment for presenting exhibits to a jury are not allowed].) Again, this case was a bench trial, not a jury trial. Plaintiff’s counsel effectively utilized the Elmo projector to highlight aspects of the exhibits, which was equally as effective, and cost nothing. 3. Item 12 (Court reporter fees by statute). Defendants seek $13,366.70 in court reporter fees for trial in September 2018. The statutory provisions for recovery of court reporter fees are set forth in Government Code sections 68086 and 69953.5 and the Superior Court of California, Los Angeles Civil Fee Schedule. (Clark Decl., Exh. H.) The costs in Item 12 and Attachment 12.c. appear to vastly exceed the recoverable statutory fees, particularly for trial, and may improperly include transcript costs that are not recoverable unless requested by the Court. (See Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58-59; Code Civ. Proc., § 1033.5(b)(5).) As such, Plaintiff seeks to tax the costs for Defendants’ court reporter fees for trial by at least $12,057.30, reducing the recoverable costs in Item 12 to $1,309.40 (or the difference between the $13,366.70 in court reporter fees sought by Defendants and the $1,309.40 for fees paid by Plaintiff for trial). (Clark Decl., Exh. I.) Further, it is not clear from Defendants’ Memorandum how loi the other hearings were, or whether the charges include transcript fees, but those charges should be taxed to align with the statutory fee schedule and to exclude transcript costs. 4. Item 16 - Mediation Fee. Defendants seek $4,450 for mediation costs, even though Code of Civil Procedure section 1033.5 does not include mediation fees in the list of items that may be recovered as costs. As explained above, the right to costs is governed strictly by statute. Items not mentioned in the statute are allowable only if they are “reasonably necessary to the conduct of ~ the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5(c).) Here, the Court should exercise its discretion to strike these costs because they 9. MOTION TO STRIKE OR TAX COSTS OO 0 9 AN 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 were not reasonably necessary to the conduct of the litigation. (Code Civ. Proc., §§ 1033.5(c)(2) & (c)(3).) CST and Defendants engaged in a private mediation before the Hon Carl J. West (Ret.) at JAMS. Each party paid an equal share of the mediation fees and there was no agreement that such fees could be recoverable as costs in the future. (Clark Decl., Exh. J.) Because there is neither a statutory basis nor a contractual basis for the recovery of mediation fees as costs, the Court should strike the requested cost of $4,450 in Item 16 of the Memorandum of Costs. 3. CONCLUSION. Based on the foregoing, and good cause having been shown, CST respectfully requests that the Court strike the requested costs in their entirety, or alternatively tax the costs in an amount of at least $41,834.03, subject to Defendants’ providing further documentation as discussed above, leaving a cost award of $33,141.87. A proposed order is concurrently filed. Respectfully submitted, DATED: February 13,2019 JAC Attorneys for Plaintiff Southern California School of Theology, a California corporation, dba Claremont School of Theology 9219-124703\1436116.2 -10- MOTION TO STRIKE OR TAX COSTS PROOF OF SERVICE Southern California School of Theology, etc., v. Claremont Graduate University, et al. LASC Case No. KC068691 I am employed in the County of Orange, State of California, am over the age of 18 and not a party to the within action. My business address is 2030 Main Street, Suite 1200, Irvine, California 92614. Iam readily familiar with the firm’s practice of collection and processing of correspondence for mailing. On February 13, 2019, I served the following document described as PLAINTIFF’S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS on the interested parties in this action as follows: W. Allan Edmiston, Esq. Attorneys for Defendants Claremont Graduate Matt Kugizaki, Esq. University, and Claremont University Loeb & Loeb LLP Consortium 10100 Santa Monica Blvd., Suite 2200 Los Angeles, CA 90067 E-Mail: aedmiston@loeb.com Oo wo 9 O&O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 mkugizaki@loeb.com Phone: (310) 282-2000 VIA ELECTRONIC MAIL WHERE INDICATED: Pursuant to C.R.C. 2.251, 1 served the foregoing document described by emailing it to each of the aforementioned electronic mail addresses and the transmission was reported as complete and without error. My email address is sdelaney@jacksontidus.law. BY MAIL: I caused such envelope, with postage thereon fully prepaid, to be placed in the United States mail at Irvine, California. Iam readily familiar with the firm’s practice for collection and processing correspondence for mailing. Under that practice, it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. BY MESSENGER SERVICE: I served the documents by placing them in an envelope or package addressed to the offices of the addressee(s) and providing them to a professional messenger service, FIRST LEGAL ATTORNEY SERVICE for service to the person(s) at the address(es) set forth herein. BY OVERNIGHT DELIVERY: I am readily familiar with the firm’s practice for the collection and processing of correspondence for overnight delivery and know that the document(s) described herein will be deposited in a box or other facility regularly maintained by the overnight delivery carrier. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 13, 2019, at Irvine, California. PROOF OF SERVICE 9219-124703\1387052.1 Make a Reservation | Journal Technologies Court Portal x4 Journal Technologies Court Portal Make a Reservation SOUTHERN CALIFORNIA SCHOOL OF THEOLOGY VS CLAREMONT GRADUATE Case Number: KC068691 Case Type: Civil Unlimited Category: Quiet Title Date Filed: 2016-08-31 Location: Pomona Courthouse South - Department J Reservation Case Name: SOUTHERN CALIFORNIA SCHOOL OF THEOLOGY VS CLAREMONT GRADUATE Type: Motion to Tax Costs Filing Party: Southern California School of Theology (Plaintiff) Date/Time: 07/10/2019 8:30 AM Reservation ID: 691966671780 Fees Description Motion to Tax Costs Credit Card Percentage Fee (2.75%) TOTAL Payment Amount: $61.65 Account Number: | ®4 Print Receipt =~ «+ Reserve Another Hearing Copyright © Journal Technologies, USA. All rights reserved. Case Number: KC068691 Status: RESERVED Location: Pomona Courthouse South - Department J Number of Motions: 1 Confirmation Code: CR-FXWRVQJRK7PJUONDF Fee Qty 60.00 1 1.65 1 Type: MasterCard Authorization: 098307 | 4 View My Reservations Amount 60.00 1.65 $61.65
