Motion

Cal. Super. - 5th Dist.November 12, 2014

© © NN ON Wh bh Ww W N e N O N O N N N N N N N e m e e s e s E e e s e s o 9 A& A h h B A W N = © V v u N n h W D = O JOHNNA J. HANSEN (SBN 112631) Law Offices of Johnna J. Hansen 12405 Venice Blvd. #394 Los Angeles, CA 90066 Telephone: (310) 439-1001 Facsimile: (310) 943-2476 Email: johnnajhansen@hotmail.com Associated Attorneys for Plaintiff JOVANY PANIAGUA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF KERN JOVANY PANIAGUA, Plaintiff, V. CHRISTOPHER SALOMON; etc., et. al. Defendants. CASE NO: S-1500-CV-283449 DRL Assigned For All Purposes to Dept. 11 The Honorable David R. Lampe NOTICE OF MOTIONAND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHNNA J. HANSEN Date: May 17,2016 Time: 8:30 a.m. Department: 11 [Reservation ID# 15850] Complaint Filed: November 12,2014 Trial Date: March 14, 2016 Verdict Date: March 18, 2016 TO: THE HONORABLE COURTAND TO ALL PARTIES, AND T O THEIR ATTORNEYS OF RECORD: 1 NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORA NDUM OFPOINTS AND AUTHORITIES; DECLARATION OF JOHNNA J. HANSEN © 0 N N O N w n ob s W N N O N O N D N N N N N e e e m e e e s e s e e e m 0 9 O N A W N = D Y e N N n s W N O o PLEASE TAKE NOTICE THAT on May 17, 2016 at 8:30 a.m, or as soon thereafter as counsel may be heard, in Department 11 of the above entitled Court, the Honorable David R. Lampe, Judge Presiding, located at 1415 Truxtun Avenue, Bakersfield, CA, 93301, Plaintiff JOVANY PANIAGUA intendsto and hereby does move the Court to tax costs or otherwise reduce the cost bill submitted by Defendant Christopher Salomon on or about April 4, 2016. This motion is made pursuant to California Code of Civil Procedure § 1033.5 and California Rules of Court, Rule 870 on the grounds that the requested costs are (i) not permitted by statute and/or(ii) excessive, unreasonable and unnecessary. The Motion To Tax Costs will be based on the within Notice, the Memorandum of Points and Authorities herewith filed and served; the pleadings, papers and records in this action; the minutes of the Court; arguments to be presented at hearing; any additional papers that will be filed prior to the date ofthe hearing; and the attached declaration of Johnna J. Hansen, and such other and further argument that may be presented at or before the hearing ofthe matter. DATED: April A ,2016 2 NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHNNA J. HANSEN © © 0 I O N w n h s W N N O N N N N N N N e e e m e e e e e e p e ® u O a N RA R W N R D O N N N R E W D = O o MEMORANDUM OF POINTS AND AUTHORITIES I. Introductory Statement In this civil lawsuit arising out of an auto accident on November 14, 2012 on SR 119/Taft, just west ofTank Farm Road, the Defendant Christopher Salomon admitted that he was responsible for rear-ending plaintiff Jovany Paniagua, The case was tried before Judge Lampe, beginning on March 14, 2016. The jury reached a verdict on March 18, 2016 and awarded past economic damages of $7,963.00. However, the jury awarded zero dollars in past general damages (pain and suffering). Plaintiff's Motion For New Trial or alternatively, an Additur is pending before the Court and set for hearing on May 10, 2016. I. Determination of Defendant’s Cost Memorandum Should Be Staved P ending Resolutions of Plaintiff’s Motion for New Trial/Additure and/or Appeal. As Defendant filed his cost memorandum after Plaintiff’s Notice ofMotion For New Trial or Additur wasfiled (which,, if denied will result in an appeal), the most efficient process would be to stay determination of the issue until the Motion is heard and/or appealis concluded. In that context, unnecessary time and effort will be avoided should Plaintiff succeed on the motion and/or appeal. The sameefficiencies will result even if Defendant prevails on appeal, because Defendant, and this Court, can then determine,in a single memorandum ofcosts, the exp enses Defendant properly incurred in total. Additionally, it should be noted that the defense cost bill is not even finalat this juncture, as it was submitted to the court with numerousentrieslisted as “pending”. Thus, in addition t o the grounds stated above, resolution ofthe cost bill cannot be completed at this tim e, as the cost bill itself is not complete. I" / 3 NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHNNA J. HANSEN © 0 N N O N w n h k W N N O N ON N N R ON ND ON mm em m e m e m m m N N R NM R B N R E Z R I I S E R G E IIL. In the Alternative, Defendant Should Only Be Reimbursed a Maximum of $ 13.685.50 . A. Legal Standard A party subject to the payment of costs may oppose the recovery of costs by filing a motion to tax costs. See, Rule 870(b). In deciding a motion to tax costs, the court's first determination is whether CCP § 1033 and the Cal Rules of Court expressly allowsthe particular item, and whetherit appears proper onits face. If so, the burden is on the objecting party to show the costs to be unnecessary or unreasonable. See Nelson v. Anderson (1999) 72 Cal App. 4th 111, 131. If a defendant’s requested costs appear to be proper on their face, a party subject to liability for costs may seek to reduce the claimed items or the amount of the claimed costs, based on the circumstances under which the costs were incurred. For example, costs recoverable under CCP § 1032 are restricted to those that are (1) reasonably necessary to the conduct ofthe litigation and (2) reasonable in amount. See CCP § 1033.5(c)(2); Nelson v. Anderson (1999) 72 Cal. App. 4th 111, 130. The total costs claimed may include unreasonable or unnecessary costs; and may therefore be reduced to cost claims that are reasonable and necessary to the litigation. Id If a defendant’s costs are not expressly allowed and do not appear to be proper on their face, the burden ofproof is on the party claiming them as costs. Ladas v. California State Auto. Assn (1993) 19 Cal. App. 4th 761, 774. Defendant cannot meet that burden because all but a maximum of $ 13,685.50 of his requested costs are inappropriate and objectionable. B. Deposition Costs Defendant requests $ 500 in deposition costs for the deposition of percipient witness, ER physician Jadipek Heer, MD, who testified in deposition as compelled by service of a defense subpoena. (see, Hansen Declaration, para. 4.) There is no showing that a deposition cost of $500 (not including transcription fees) waseither reasonable or necessary. It is well settled that where a claim is made for a disbursement the necessity for which is doubtful, and the item is properly challenged by motion to tax costs, the burden is on the claimantto establish nece ssity for the disbursement; its allowance is within the discretion ofthe trial court a nd if no abuse of 4 NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHNNA J. HANSEN © 0 N N a Ww » k e Ww W o N N O N R N N N N N N m e e e e e e s e e e s R X 9 A N h B R L N m = O C N N Y n W Y = O discretion is shown the action ofthe trial court will not be disturbed. See, Stenzor v. Leon (1955) 130 Cal. App. 2d 729. C. Witness Fees The defense requests four days of witness fees at $50.00 per day for Defendant Christopher Salomon. As per the declaration of attorney Hansen at paragraph 5, defendant Salomon was only present for two days of very brief testimony, as liability was admitted. Thus, at a maximum, only $100 of regular witness fees should be permitted in this regard. D. Expert Fees Defendant first seeks a total of $11,300 for the fees of Geoffrey Miller, MD (defense orthopedic surgeon), based on a total of 17 hours. However, 8 hours ofthis amount is billed at $875 per hour which Miller testified was his fee for “record review”. Thisis, on its face, unreasonable - especially in light of the fact that 7 hours (for unspecified activity) are only bille d at $450 per hour (line item 2 ofthe cost bill section for Miller). If Miller indeed bills some tim e at $450 per hour,there is no reason that record review time should be billed at nearly twice that amount. Even is the 17 hour figure is accepted for Miller (again, there is no specificatio n of what that time was for), 17 hours at $450 per hour totals $ 7,650. This amount would only be owed if such fees are to be allowed at all, as Defendant has shown no entitlement to expert witness fees at all, as plaintiff's Motion for New Trial and/or Additur is still pending. E. Attorney Mileage, Meals and Hotel The total sum of $936.00 is requested in this category, again with no specification or other statement of necessity. The costs as claimed forthese items are not “reasonably neces sary to the conduct ofthe litigation.” Rather, these costs were “merely convenient or be neficial” to the Defendant. See Nelson, above, 72 Cal. App. 4th at 132. F. Court Reporter and Jury Fees The Court is respectfully requested to note that plaintiff Jovany Panigua has a fee wa iver in this matter. Thus, jury fees and court reporter fees as paid in total by the defens e - as plaintiff 5 NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHNNA J. HANSEN © © N N O o w n k e W N N O N N N N R N N e e e m e s e e e s p e e e e ® » J A BR A L N = © V v N w R W N D = O is not required to pay - should be cut in half. The Court Reporter fee of $2400 for Ms. Gu m is requested at $2400 and should be reduced by plaintiff's fee waiver to $1200. On the same basis, jury fees totaling $1,143 should be reduced to $571.50. IV. CONCLUSION It is respectfully submitted that a determination as to Defendant's cost bill should be stayed until such time as this matter's resolution is final and the defense cost memo randum is final. Alternatively, a maximum of $13,685.50 should be allowed - and only $6,035.50 permit ted if Dr. Miller's fees are disallowed in their entirety. Respectfully submitted, LAWOFFICES OFJO A HANSEN, DATED: April A, 2016 PANIAGUA 6 NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHNNA J. HANSEN © 0 ~~ ON Wn hs W N N O N R N N N N N e m e e e e e e e s e s e s © 9 O& A U h ER E W N = O V N N N N R L N = O DECLARATION OF JOHNNA J. HANSEN I, JOHNNA J. HANSEN,declare and state as follows: 1. I am an attorney at law, duly licensed to practice before all of the Courts of the State of California and have been so licensed since 1983. I am the principal of the Law Offices of Johnna Hansen,trial counsel of record for plaintiff JOVANY PANIAGUA herein. Iam personally participated daily in the trial of this matter and familiar with this action and have personal knowledge of the matters set forth herein and if called upon to testify to the facts set forth here in, could and would competently do so. 2. The verdict was rendered and entered in this matter on March 18, 2016 in the to tal amount of $7,963.00 for past economic damages. As no lost earnings or wages were claimed and no othercategory ofspecial damages was claimed,this award must, by reason and logic, be medical bills. It appears that the total is some combination ofthe bills incurred on the day ofthe accident - ambulance, Kern Medical Center and ER physician Heer. No award was made for past pain and suffering. Plaintiff's Motion For New Trial or alternatively, an Additu r is pending before the Court and set for hearing on May 10, 2016. 3. The defense cost bill is not even final at this juncture, as it was submitted to the court with numerous entries listed as “pending”- see item #5 - Service of Process. 4. I was personally present for the deposition of percipient witness, ER physic ian Jadipek Heer, MD. Dr. Heertestified in deposition as compelled by service of a defense s ubpoena, which wasattached as an Exhibit to the transcript. 5. This was a short 5 daytrial. Defendant Salomon was not present for j ury selection and was only present for two days ofhis very brief testimony as liability was admitted. He was not a witness on any other day of trial. 6. Geoffrey Miller, MD, the defense orthopedic surgeon expert, testi fied at trial that $875 7 NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHNNA J. HANSEN O O 0 N N N W n h s W N R O N D O N R R mm em e e es me m Rm e e ® 9 & Uh BE A B L N =m S& S © ® 9 0 Um oA W N = Oo per houris his fee for “record review”. I declare under penalty ofperjury under the lawsofthe State of California that the foregoing is true and correct. Executed this 19th day ofApril, 2016 at Los Angeles,XV F 8NOTICE OF MOTIONAND MOTION TO TAX COSTS; MEMORANDUM OFPOINTS ANDAUTHORITIES; DECLARATION OF JOHNNA J. HANSEN © 0 N o n w n b h Ww W N e N O N R N N N N E e e e e e B ® J a L E L N Rm 2 V e N N R W N D = O PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over th e age of 18 years and not a party to the within action. My business address is 12405 Venice Boulevard #394, Los Angeles, CA 90066. On April 19, 2016, I served the foregoing document described as NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHNNA J. HANSEN on the interested parties in this action b y placing the original and/or a true copy thereof enclosed in (a) sealed envelope(s), addressed as foll ows: SEE ATTACHED SERVICE LIST xxx BY REGULAR MAIL: I deposited such envelope in the mail at 1240 5 Venice Boulevard #394, Los Angeles, CA 90066. The envelope was mailed with postage th ereon fully prepaid. I am “readily familiar” with the firm’s practice of collection and process ing correspondence for mailing. It is deposited with the U.S. Postal Service on that same da y 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 (1) da y after date of deposit for mailing in affidavit. BY FACSIMILE MACHINE: I transmitted a true copy ofsaid docume nt(s) by facsimile machine, and no error was reported. Said fax transmission(s) were directed a s indicated on the service list. BY OVERNIGHT MAIL: I deposited such documents at the UPS Dro p Box located at 12405 Venice Boulevard, Los Angeles, CA 90066. The envelope was de posited with delivery fees thereon fully prepaid. 0 BY PERSONAL SERVICE: I caused such envelope(s) to be de livered by hand to the above addressee(s). X (State) I declare under penalty ofperjury under the laws oft he State of California that the foregoing is true and correct. Cl (Federal) I declare that [ am employed in the office of a mem ber of the Bar ofthis Court, at whose direction the service was made. I declare under penalty of perjury u nder the laws of the State of California that the foregoing is true and correct. Executed on April 19, 2016, at Los Angeles, Californi PROOF OF SERVICE a N W n A ~ J 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Craig E. Johnson, Esq. Law Offices of Craig E. Johnson 5401 Business Park South, Suite 206 Bakersfield, CA 661 631 1713 Daniel Sullivan MANNING & KASS ELLROD, RAMIREZ, TRESTER, LLP 801 S. Figueroa Street, 15" Floor Los Angeles, CA 90017 Facsimile: (213)624-6999 SERVICE LIST Co-Attorneysfor PlaintiffJovany Paniagua Attorneysfor Defendants PROOF OF SERVICE