Motion To Tax CostsMotionCal. Super. - 2nd Dist.March 3, 2017Electronically FILED by Superior Court of California, County of Los Angeles on 02/26/2019 03:44 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Thomas,Deputy Clerk A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 DAMIAN M. MOOS, Bar No. 240030 damian.moos @bbklaw.com DANIEL L. RICHARDS, Bar No. 315552 daniel.richards@bbklaw.com BEST BEST & KRIEGER LLP 18101 Von Karman Avenue, Suite 1000 Irvine, California 92612 Telephone: (949) 263-2600 Facsimile: (949) 260-0972 Attorneys for Defendant B&O LOGISTICS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES SOUTH JUDICIAL DISTRICT - LONG BEACH JOON RHEE, an individual, Case No. NS033496 Plaintiff, UNLIMITED JURISDICTION V. DEFENDANT B&O LOGISTICS, INC.’S NOTICE OF MOTION AND MOTION TO B&O LOGISTICS, INC., a California TAX COSTS; MEMORANDUM OF Corporation, POINTS AND AUTHORITIES Defendant. [Filed concurrently with Declaration of Damian M. Moos in support of Motion to Tax Costs] Hearing Date: Date: June 20, 2019 Time: 8:30 a.m. Dept. S27 Trial Date: June 22, 2018 Reservation ID: 318182029392 55503.00001\31823377.3 B&O LOGISTICS, INC.”S MOTION TO TAX COSTS L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 18 10 1 V O N K A R M A N A V E N U E , SU IT E 10 00 IR VI NE , C A L I F O R N I A 92 61 2 A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on June 20, 2019 at 8:30 a.m., or as soon thereafter as the matter may be heard, in Department S27 of the Los Angeles Superior Court, located at 275 Magnolia Ave. Long Beach, California 90802, Defendant B&O Logistics, Inc. (“Defendant”) will, and hereby does, move for an order striking and/or taxing certain costs set forth in the Memorandum of Costs (“Memorandum”) submitted by Plaintiff Joon Rhee (“Plaintiff”). The motion to tax and/or strike costs is for a total of $3,214.58 in costs. It is made on the following grounds: 1. The Court already awarded costs to Plaintiff in connection with the only motions he filed in this matter (Item 1 on Memorandum of Costs); 2. Plaintiff fails to submit any evidence to support his claim of $688.20 in costs associated with “Court reporter fees as established by statute” (Item 11 on Memorandum of Costs); 3. Plaintiff improperly seeks $1,500.00 in non-existent translation costs for the deposition of Kevin Park (which was in English), which Plaintiff miscategorizes in his Memorandum of Costs as costs incurred for “Models, enlargements, and photocopies of exhibits.” (Item 12 on Memorandum of Costs; see also Declaration of Gregory S. Kim at {4 [clarifying that $1,500.00 in Item 12 is for translation costs].); 4. Plaintiff seeks unrecoverable costs for postage and “court messenger fees” in the amount of $906.38 (Item 16 on Memorandum of Costs). Defendant requests an order that the above-listed costs be taxed in whole or in part. This motion is based on this notice, the attached memorandum of points and authorities in support thereof, the pleadings and file of this matter, the declaration of Damian Moos concurrently filed in support thereof, and upon such other argument and evidence as may be properly presented at the hearing on this motion. 55503.00001\31823377.3 -2- B&O LOGISTICS, INC.”S MOTION TO TAX COSTS L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 18 10 1 V O N K A R M A N A V E N U E , SU IT E 10 00 IR VI NE , C A L I F O R N I A 92 61 2 A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Dated: February 26, 2019 55503.00001\31823377.3 BEST BEST & KRIEGER LLP Ge - By: Ar eee DAMIAN M. MOOS DANIEL L. RICHARDS Attorneys for Defendant B&O LOGISTICS, INC. -3- B&O LOGISTICS, INC.”S MOTION TO TAX COSTS L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 18 10 1 V O N K A R M A N A V E N U E , SU IT E 10 00 IR VI NE , C A L I F O R N I A 92 61 2 A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Joon Rhee seeks to recover $3,853.58 in improper costs. He seeks to recover numerous unrecoverable costs (including $1,500.00 in “translation” costs for a deposition that was taken in English) as well as costs for which he provides no evidence or explanation. Plaintiff should be awarded no more than $639.00 in costs. II. LEGAL ARGUMENT A. Legal Standard for Recovery of Costs The right to recover costs is exclusively statutory. (Cal. Code Civ. Proc., § 1032; Moss v. Underwriters’ Report, Inc. (1938) 12 Cal.2d 266, 274 [“right to recover costs is entirely statutory and the measure of the statute is the measure of the right]; Posey v. State of California (1986) 180 Cal.App.3d 836, 852 [“The right to an award of costs is governed wholly by statute”].) Absent statutory authority, parties engaged in civil litigation must bear their own expenses in a lawsuit. (Benson v. Kwikset Corp. (2007) 152 Cal.App.4th 1254, 1279.) “Certainly the statute does not contemplate that a defendant must pay all of the successful plaintiff's expenses in connection with the litigation.” (Moss v. Underwriters’ Report, Inc., supra, 12 Cal.2d at 274.) The cost statute is to be strictly construed, and courts have no discretion to award costs not statutorily authorized. (Sequoia Vacuum Systems v. Stransky (1964) 229 Cal.App.2d 281, 289; Ladas v. California State Auto Assn. (1993) 19 Cal. App.4th 761, 774.) Section 1033.5 “specifies which costs are ‘allowable’ (id, subd. (a)), which are ‘not allowable ..., except when expressly authorized by law’ (id, subd. (b)), and which may be allowed or denied in the court’s discretion (id, subd. (c)).” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71, quoting Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, 441.) Even specifically allowable costs must be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Cal. Code Civ. Proc., §1033.5(c)(2).) Moreover, any costs claimed must also be reasonable in amount. (Cal. Code Civ. Proc., §1033.5(c)(3).) As such, the court has the power to disallow even costs allowable as a matter of right, and to reduce the amount of any cost item to that which is “reasonable.” (Perko’s 55503.00001\31823377.3 “4 - B&O LOGISTICS, INC.”S MOTION TO TAX COSTS L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 18 10 1 V O N K A R M A N A V E N U E , SU IT E 10 00 IR VI NE , C A L I F O R N I A 92 61 2 A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal. App.4th 238, 244-45.) Courts have no discretion under subdivision (c) of Section 1033.5 to award costs expressly disallowed under subdivision (b). (See Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1558-60; see also Ladas, supra, 19 Cal. App.4th at 774.) A party claiming statutory costs under Section 1032 must file a memorandum of costs (Cal. Rules of Court, rule 3.1700(a)(1).) “If the items appearing in a costs 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, supra, 19 Cal.App.4th at 774; Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698; Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1380.) B. Unrecoverable Costs Claims by Rhee 1. $1,500 in Item 12 [Models, enlargements, and photocopies of exhibits] is not recoverable In Rhee’s Memorandum of Costs, he seeks $1,500.00 for “Models, enlargements, and photocopies of exhibits.” However, as this Court may recall, Plaintiff did not use any models, enlargement or photocopies at trial. (Decl. Damian M. Moos Supp. Mot. Tax Costs [“Moos Decl.’] 4.) A review of Plaintiffs actual evidence makes clear that he miscategorized the $1,500.00 expense in his Memorandum of Costs. In the Declaration of Gregory Kim in Support of Plaintiffs’ Motion for Attorney’s Fees (“Kim Decl.””), Mr. Kim identifies one $1,500.00 expense, which was in fact for interpreter costs in connection with the deposition of Kevin Park, who is B&QO’s President. (Kim Decl. {3-4.). However, there was no interpreter at the deposition of Mr. Park, much less a “certified or registered interpreter.” Mr. Park speaks fluent English and was deposed in English. (Moos Decl. 92 and Ex. 1.) Indeed, at trial, Mr. Park testified in English. (Moos Decl. {2.) In sum, whatever Plaintiff purportedly spent $1,500.00 on, it was not for “Models, enlargements, and photocopies of exhibits”-there were none-nor was it for a translator at Mr. 55503.00001\31823377.3 -5- B&O LOGISTICS, INC.”S MOTION TO TAX COSTS L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 18 10 1 V O N K A R M A N A V E N U E , SU IT E 10 00 IR VI NE , C A L I F O R N I A 92 61 2 A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Park’s deposition-there was no interpreter. Therefore, the Court should strike Item 12 from Plaintiff’s total cost recovery. 2. $906.39 in Item 16 [Other] is not recoverable Plaintiff seeks $906.39 in “Other” costs, which presumably represents the $835.00 in “Court Messenger Fees” and $71.38 in “Postage Fees” referenced in the Kim Declaration. (See Kim Decl. |] 3, 5.) Postage fees are expressly not recoverable. (Code Civ. Proc. § 1033.5(b)(3).) Costs are only recoverable if express authorization for recovery exists, and there is no provision in Code Civ. Proc. Section 1033.5 authorizing recovery for “Messenger Fees.” (See Code Civ. Proc § 1033.5(a)(1-16).) Therefore, Plaintiff’s request for $906.39 in ‘Other” costs should be denied, and Item 16 should be stricken. 3. $120 in Item 1 [Filing and motion fees] is not recoverable Plaintiff requests $120.00 in filing and motion fees. Plaintiff does not specify what motions these fees were incurred in connection with, but the only two motions that either party filed in this case were Plaintiff’s two motions to compel. However, the Court already awarded Plaintiff monetary sanctions in connection with these motions. In particular, the Court specifically awarded sanctions representing the amount of filing fees that Plaintiff’s counsel represented that Plaintiff incurred to file the motions to compel. (Moos Decl. | 3.) Plaintiff should not be permitted a double recovery, and the request for $120.00 should be denied. 4, $688.20 in Item 11 [Court reporter fees as established by statute] is not recoverable Plaintiff seeks $688.20 in “court reporter fees as established by statute.” However, he fails to identify any hearing in which a court report was required, and fails to provide any documents or evidence demonstrating that this is a recoverable cost. While there was a court reporter present at the trial in this matter, B&O arranged for and paid the court reporter. (Moos Decl. {5 & Ex. 2.) In the absence of evidence demonstrating that this cost is indeed recoverable, this request should be denied and Item 11 should be stricken. 55503.00001\31823377.3 -6- B&O LOGISTICS, INC.”S MOTION TO TAX COSTS L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 18 10 1 V O N K A R M A N A V E N U E , SU IT E 10 00 IR VI NE , C A L I F O R N I A 92 61 2 A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 III. CONCLUSION For the reason stated herein, Defendant requests the Court grant its motion to tax, and award Plaintiff no more than $639.00 in costs. Dated: Tuesday, February 26, 2019 BEST BEST & KRIEGER LLP By: 2 DAMIAN M. MOOS DANIEL L. RICHARDS Attorneys for Defendant B&O LOGISTICS, INC. 55503.00001\31823377.3 =] = B&O LOGISTICS, INC.”S MOTION TO TAX COSTS L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 30 0 S O U T H G R A N D A V E N U E , 25 TH F L O O R LO S A N G E L E S , C A L I F O R N I A 90 07 1 A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 PROOF OF SERVICE BY OVERNIGHT DELIVERY I am a citizen of the United States and employed in Orange County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 18101 Von Karman Ave., Suite 1000, Irvine, CA 92612. On February 26, 2019, I deposited with United Parcel Service, a true and correct copy of the within documents: DEFENDANT B&O LOGISTICS, INC.’S NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES in a sealed envelope, addressed as follows: James K. Beck Attorneys for Plaintiff, Gregory S. Kim JOON RHEE Law Offices of Greg S. Kim 3440 Wilshire Blvd., Suite 850 Los Angeles, CA 90010 Following ordinary business practices, the envelope was sealed and placed for collection by United Parcel Service on this date, and would, in the ordinary course of business, be retrieved by Federal Express for overnight delivery on this date. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 26, 2019, at Irvine, California. Ysabel Grubbs 55503.00001\31823377.3 -8- PROOF OF SERVICE Court Reservation Receipt | Journal Technologies Court Portal Journal Technologies Court Portal Page 1 of 1 Court Reservation Receipt Reservation Reservation ID: Status: 318182029392 RESERVED Reservation Type: Number of Motions: Motion to Tax Costs 1 Case Number: Case Title: NS033496 Filing Party: B&O LOGISTICS INC. ( DEFT/APPEALANT) (Defendant) Date/Time: June 20th 2019, 8:30AM Fees Description Motion to Tax Costs Credit Card Percentage Fee (2.75%) TOTAL Payment Amount: $61.65 Account Number: XXXX8959 JOON RHEE VS B&O LOGISTICS INC. Location: Long Beach (Governor George Deukmejian) Courthouse - Department S27 Confirmation Code: CR-IQEJMKGKSHGGAPVOO Fee Qty 60.00 1 1.65 1 Amount 60.00 1.65 $61.65 Type: Visa Authorization: 094933 < Back to Main = Print Page Copyright © Journal Technologies, USA. All rights reserved. https://portal-lasc.journaltech.com/public-portal/?q=calendar/receipt/318182029392/48028 2/26/2019
