Motion-Secondary: IDA CHRISTINA FUA CRUZ VS. JOEL ENRIQUE ANDINO SANCHEZ et al

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COLIN C. MUNRO (Bar No.: 195520)
CHRISTOPHER J. WEBER (Bar No.: 233998)
CARLSON, CALLADINE & PETERSON LLP
353 Sacramento Street, 16th Floor

San Francisco, CA 94111

Telephone: (415) 391-3911

Facsimile: (415) 391-3898

Attomeys for Defendants
TAXI EQUIPMENT LEASING LLC and YELLOW CAB
COOPERATIVE, INC.

D. DOUGLAS SHUREEN (Bar No.: 124613)
McMILLAN & SHUREEN LLP

50 Santa Rosa Avenue, Suite 200

Telephone: (707) 525-5400

Facsimile: (707) 576-7955

Attorneys for Defendant/Cross-Complainant
JOEL ENRIQUE ANDINO SANCHEZ

ELECTRONICALLY

FILED

Superior Court of California,
County of San Francisco

12/22/2015
Clerk of the Court
BY:VANESSA WU

Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO

IDA CRISTINA CRUZ FUA, CASE NO.: CGC-11-515542

Plaintiff, DEFENDANTS’ MEMORANDUM OF

POINTS AND AUTHORITIES IN SUPPORT

v. OF JOINT MOTION TO TAX COSTS

JOEL ENRIQUE ANDINO SANCHEZ, and

individual; CAROLINE MILLER, an Date: January 15, 2016

individual; TAXI EQUIPMENT LEASING — | Time: 9:30 a.m.

LLC, a Limited Liability Company; SAN Dept: 302
FRANCISCO INDEPENDENT TAXI

ASSOCIATION, a Corporation; YELLOW RESERVATION NO.: 12210115-10

CAB COOPERATIVE, INC., a Corporation;
and DOES 1 through 50, Inclusive,

Defendants.

Case No.: CGC-11-515542 _

“DEFENDANTS’ MPA IN SUPPORT OF JOINT MOTION TO TAX COSTSTABLE OF CONTENTS

I, INTRODUCTION

Ill, LEGAL AUTHORITY FOR MOTION TO TAX COSTS... .sccccccesceteeeneerncennenerneareneernanensens 1
A. Defendants Can Seek to Strike or Tax Costs v..cc..ccsssisssisseesssessenssevesseseneseuesenessnrsenisenneerseneenes b

B. Plaintiff Has the Burden of Establishing Her Claimed Costs

TV, LEGAL ARGUMENTS . wesscsssssessssterenesenesessneenecareneteneanenestenteneneereney
A. All Costs Must Be Reasonably Necessary to the Conduct of the Litigation.......esrsesene 2

B. Plaintiff's Request for Costs Is Unreasonable.

1. Plaintiff Cannot Recover for the Cost of Trial Transcripts Not Ordered by the

2. Plaintiff Cannot Recover “Ordinary” Witness Fees for Defense Expetts..........:1rsse 6

3. Plaintiff's Deposition Costs Are Overstated and, in Some Instances, not
Recoverable wsceatieabics

a) Plaintiff Cannot Recover Costs Beyond that for an Original Transcript and
One Copy .seersesssesssessrsssnsovesereserseessneeressseeenessneseanesonecanecareanessunrnssssseriseianasiensopasaransosies 7

b) Plaintiff Can Only Recover Costs for Reasonably Necessary Depositions .........00000 9
4, Plaintiff's Request for Filing and Motion Fees is Overstated: Plaintiff is not
Entitled to Recovery of Fees Charged by Attorney Services Firms for Filing
DOCUMENtS ....cscssessccsssvssueseeneseeceueseeseananeesersneaysncteansecaveeticevetssettnersersnetese sverige

5. Plaintiff's Costs for Models, Blowups and Photocopies of Exhibits are
Unreasonable...

6. Plaintiff's Costs for Service of Process Include Improper Charges... ld |

7. Nearly all of Plaintiff's Charges in the “Other” Category Are Not Recoverable .......... 11
Vv. CONCLUSION

i Case No.: CGC-11-515542

DEFENDANTS’ MPA IN SUPPORT OF JOINT MOTION TO TAX COSTSTABLE OF AUTHORITIES

Cases

Baker-Hoey et al., v. Lockheed Martin Corporation
(2003) 111 Cal.App.4th 592..

Benach v. Co. of Los Angeles
(2007) 149 Cal. App.4th 836.....:.ccsscsssusvescsnsssssenssescecsssensnsssseccessanennersseeanannnanasrseesenensensis Dy 10

Foothill-De Anza Community College y, Emerich
(2007) 158 Cal.App.4th 11... 7 Sicllwead abel tala aed alata eltalatntnectta |

Gorman v. Tassajara Development Corp.
(2009) 178 Cal. App.4th 44... ccccsssecsssssecsnsssnessnssunscersennunrercnnnsmecssnsesestennersenasnesionsnnensstsnsiensesenssyse 7

Great Western Bank y. Converse Consultants, Inc.
(1997) 58 Cal.App.4th 609

Hogan v. Ingold
(1952) 38 Coal:2d-802......-usiscsneansieearinnenithenn lsc diiiiesaeivitn ogden pagebstoanintcien 2

Ladas y. California State Auto Assn
(1993) 19 Cal.App.4th 761 .sccscsssssssssanissensenenaessstnnsennsttigritsrsseseeeieeenansetn 2,9, 10, 13

Lubetzky v. Friedman
(1991) 228 Cal.App.3d 35.

Melnyk v. Robledo
(1976) 64 Cal.App.3d 618

Moss v. Underwriters' Report
(1938) 12 Cal.2d 266..sccsscssccssssssesasesnesnstsnesisntenscnssnstnsssetesissenvotnnivsesnpvonseeirenevenn 4

Murphy v. FD, Cornell Co.
(1930) 110 Cal App. 452 ..ccssccsssrscesrssrenestesseesssnensersconesserestianeenconnneceosnarstsesenccesssensiueseesnananies 3

Nelson v. Anderson
(1999) 72 Cal.App.4th 111......

Oak Grove School District v. City Title Ins. Co.
(1963) 217 Cal.App.2d 678 Beetle areola alee da erate

Perko's Enterprises, Inc. v. RRNS a Eerie
(1992) 4 Cal.App.4th 238... tee asevnggeanyncertsnsnrnesvennoragnnysansbedbiD)AVOSG GAN MATER ESTEE D

Rappenecker v. Sea-Land Services
(1979) 93 Cal.App.3d 256...

Ripley v. Pappadopoulos
994) 23 Cal.App.4th 1616.ssscsssssssesstenneesntntstetitveiernststisintsestsson

Sanchez v. Bay Shores Medical Cee
(1999) 75 Cal.App.4th 946... Ce ee eee ee te elit aS

ii 4 CGC: 11-515542

DEFENDANTS’ MPA IN SUPPORT OF JOINT MOTION TO TAX COST!Sunny Slope Water Co. v. ¥ City af Pe Pasadena |
(1934) 1 Cal.2d 87... mele hindi ete RUN Kee in Mean Westin D

Thon v. Thompson
(1994) 29 Cal. App.4th 1546..cccssccssnecssnsenntersssneecssneensueerenaeennneeennecessnersnunsansncesounasninyessnssrsnseasssiers 3

Travelers Cas. and Sur. Co. v. Employers In Ins. eet Wausau
(2005) 130 Cal.App.4th 99... ae scab isiiaisaiteanaasninaisonbeatavinapaatascesmmmrienssenveanstegeee 12

Statutes
Code of Civil

Code of Civil Proc. § 1033.5(0) ....sssecssesessesseessesecraesntivetnercsbsassesteeussesscsevssncaussiesrersessessenneaianesanennes 3

Code of Civil
Code of Civi
Code of Civil
Code of Civi
Code of Civi
Code of Civi
Code of Civil

Code of Civi

Code of Civil Proc. § 1033.5(C)(2)...ssssssesseernsersseeneesnernstenirstseniecrnasnsisessssisesvesesssaaneneessnennesnnenne Dy

Code of Civi

Evidence Code § 500..
Government Code § 68093

Rules

California Rules of Court, Rule 3.1700(b) ..ccsssessscsssesssssesessssvsssssensesesssennsavasssesecscassecesssnsssnnunnses 2y 6

Proc. § 1033.5 ccccssesssssssssesecseevsseesteieseessnivessesnevessceveesereensnneceeennnseenenneneeeessesnsnesss PASSIM

Proc. § 1033,5(a)(8).......

Proc, § 1033.5(a)(9)
Proc, § 1033.5(Aa)(1 1) ..sssnsssissnaesstntasteensntnerenianiounensnscanionannenenegansesaes 5
Pr0G, § 1033.5(0) sovssssestsiesnstsseinsnitnnesetetsteebenebintbisietssnissnstnntinssiseisestenseens 3
Proc. § 1033.5(b)(1)
Proc, § 1033.5(b)(2) ..
Proc. § 1033.5(b)(3)
Proc. § 1033.5(C)(1) sssesesseecssitersesesscoeeniseseatessvesonvesssnessesecesbinssvananensscessnabenensens

Proc. § 2034.430(b)

iii Case No.:_ CGC-11-515542

DEFENDANTS MPA IN SUPPORT OF JOINT MOTION TO TAX COSTS.B win

L INTRODUCTION
Plaintiff's Memorandum of Costs seeks costs which are unreasonable, unrecoverable, and
unrelated to her claims. Plaintiff makes a demand for costs totaling $150,653. However, a

number of the costs requested are either not allowed by the relevant statutory authority and case

law, or were not reasonable or reasonably necessary to conduct the litigation. (Code Civ. Proc., § |

1033.5(c)(1)). As such, Defendants request that this court tax the costs as set forth below.
I. FACTUAL SUMMARY
This case arises from a traffic collision involving a taxi driven by Defendant Joel Sanchez.
Plaintiff was a passenger in Mr. Sanchez’s taxi and claims personal injuries when Mr. Sanchez
rear-ended a vehicle. The jury returned a verdict on June 10, 2015, finding that Defendant Sanchez
was responsible for Plaintiff's injury, and that Defendant Yellow Cab Cooperative, Inc. (“Yellow
Cab”) was vicariously liable as the ostensible employer of Mr. Sanchez. Thereafter, Plaintiff
sought to establish that various other entities were the alter egos of Yellow Cab. Following a
bench trial, the Court held that Plaintiff failed to meet her burden on the alter ego claims and
entered judgmentit in favor of the alter ego defendants. Plaintiff now sees costs as the prevailing
party on her negligence claims as against Yellow Cab and Mr. Sanchez. In addition, Plaintiff
seeks to include costs related to her unsuccessful alter ego claims as against the alter ego
defendants.
Ill. LEGAL AUTHORITY FOR MOTION TO TAX COSTS
A. Defendants Can Seek to Strike or Tax Costs
California Rules of Court, Rule 3.1700(b) provides:
Any notice of motion to strike or to tax costs must be served and
filed 15 days after the service of the cost memorandum. If the cost

memorandum was served by mail, the period is extended as
provided by Code of Civil Procedure Section 1013.

Plaintiff served her Memorandum of Costs on December 7, 2105, by electronic mail. As
such Defendants have fifteen (15) days from the service of the Memorandum of Costs in which to
file a motion to strike or to tax costs. Accordingly, Defendants’ motion was timely filed on

December 22, 2015, pursuant to Code of Civil Procedure section 1033.5 and California Rules of

ao 1. ___ Case No,; CGC-11-515542
DEFENDANTS’ MPA IN SUPPORT OF JOINT MOTION TO TAX COSTS13

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Court, Rule 3.1700(b).

B. Plaintiff Has the Burden of Establishing Her Claimed Costs

Because the right to costs is governed strictly by statute, the Court has no discretion to |
award costs not statutorily authorized. (Hogan v. Ingold (1952) 38 Cal.2d 802.) Where the items
are properly objected to, they are put in issue, and the burden of proof is upon the party claiming
them as costs. (Rappenecker v. Sea-Land Services (1979) 93 Cal.App.3d 256; Oak Grove School |
District v, City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698-699.)

As stated in Ladas v. California State Auto Assn (1993) 19 Cal.App.4th 761:

If the items appearing in a cost bill appear to be proper charges, the
burden is on the party seeking to tax costs to show that 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.

(Id. at p. 774, citing to Meinyk v. Robledo (1976) 64 Cal.App.3d 618, 624; Oak Grove School
District v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698-699.)

Whether a cost item was reasonably necessary to the litigation presents a question of fact
for the trial court and its decision is reviewed for abuse of discretion. (Lubetzky v. Friedman
(1991) 228 Cal.App.3d 35, 39.) In this case, a majority of the costs requested are not recoverable
by Plaintiff because they are not provided for in the applicable statutes, are expressly made
unrecoverable by the applicable statutes, and/or were not reasonably necessary to the conduct of
the litigation and were merely for convenience.

IV. LEGAL ARGUMENTS
A. All Costs Must Be Reasonably Necessary to the Conduct of the
Litigation

Code of Civil Procedure §1033.5 specifies the items allowable as costs, Code of Civil
Procedure § 1033.5(b)(2) provides: “Allowable costs shall be reasonably necessary to the conduct
of the litigation rather than merely convenient or beneficial to its preparation.” Additionally, Code |
of Civil Procedure § 1033.5(b)(3) dictates that “Allowable costs shall be reasonable in amount.” |

Prior to awarding costs to a prevailing party, trial courts have a duty to determine whether
a claimed cost is reasonable in need and amount. To be reimbursable as a cost, the expense must

|
2 Case No.:_ CGC-11-515542 |

DEFENDANTS’ MPA IN SUPPORT OF JOINT MOTION TO TAX COSTSbe reasonably necessary to the litigation and reasonable in amount. (Thon v. Thompson (1994) 29
Cal.App.4th 1546.) Additionally, the Court has the power to strike even costs “allowable as a
matter of right” if they were not “reasonably necessary”, and to reduce the amount of any cost
item to that which is “reasonable.” The “intent and effect [of Code of Civil Procedure §
1033.5(c)(2)] is to authorize a trial court to disallow recovery of costs, including filing fees, when
it determines the costs were incurred unnecessarily.” (Perko's Enterprises, Inc. v. RRNS
Enterprises (1992) 4 Cal.App.4th 238.)
B. Plaintiff's Request for Costs Is Unreasonable
Plaintiff submitted a Memorandum of Costs seeking to recover $150,653 in costs allegedly
resulting from this litigation. Code of Civil Procedure section 1033.5(a) provides that the
following items are allowable costs if incurred by the prevailing party: (1) filing and motion fees;
(2) jury fees, food and lodging; (3) transcripts and videotape of necessary depositions plus
reasonable travel expenses to attend depositions; (4) service of process; (S) “ordinary” witness
fees; (6) court reporter fees established by statute; and (7) models, blowups of exhibits, and
photocopies of exhibits if “reasonably helpful to aid the trier of fact. (Code Civ. Proc. §
1033.5(¢)(1).)
Further, Code of Civil Procedure section 1033.5(b) also delineates costs that are not
allowable except when expressly authorized by law:
(1) Fees of experts not ordered by the court;
(2) Investigation expenses in preparing the case for trial;
(3) Postage, telephone, and photocopying charges, except for exhibits,
(4) Costs in investigation of jurors or in preparation for voir dire;
(5) Transcripts of court proceedings not ordered by the court.
Costs recovered under Code of Civil Procedure section 1033.5 are restricted to those that

are both reasonable in amount and reasonably necessary to the conduct of the litigation. (Code

Civ. Proc., § 1033.5(c) (1)(2) & (3).) Costs merely convenient or beneficial to its preparation are |

disallowed. (Nelson v, Anderson (1999) 72 Cal.App.4th 111, 129.) Plaintiff must show that the
costs requested are reasonable. (Murphy v. F.D. Cornell Co. (1930) 110 Cal.App. 452, 455 [where

3 Case No.:_ CGC-11-515542

DEFENDANTS” MPA IN SUPPORT OF JOINT MOTION TO TAX COSTSBR WwW oN

an item of costs or disbursements is not necessarily incurred, it will not be allowed, and in the

absence of a showing of its necessity it will be stricken]; Evid. Code, § 500; Moss v. Underwriters’ |

Report (1938) 12 Cal.2d 266, 275 (“But the right to reimbursement for expenses depends upon the

statutory provisions concerning costs and not upon the necessity”).

1. Plaintiff Cannot Recover for the Cost of Trial Transcripts Not Ordered |

by the Court

Under item 9 (Court-Ordered Transcripts), Plaintiff seeks $61,386 for a variety of charges
billed by First Legal Deposition Services. (See Plaintiffs Memorandum of Costs
(“Memorandum”), Item 9, Attachment 9, Weber Decl. 2; Exh. A.). The costs identified in
Attachment 9 are described in different ways, with many entries labelled “Trial Transcripts” or
“Trial Per Diem.” Plaintiff has not provided sufficient information in her Memorandum to fully
evaluate the costs sought in Item 9, What is clear, however, is that none of the charges referenced
in Item 9, Attachment 9, are recoverable as “Court-Ordered Transcripts” because Plaintiff has
failed to establish that any transcript was ordered by the Court. Further, Attachment 9 has a
number of other entries that either do not belong in this category (for example, the 6" item from
the top is for a deposition transcript of Dr. Bubanja, a defense expert, and the 9" item from the top
is for the service of a trial and deposition subpoena) or are otherwise unexplained (for example,
the first item from the top for “Fua Trial Prep” and the 234 and 24" items from the top for “trial
technician costs.”)

Code of Civil Procedure § 1033.5(a)(9) allows as recoverable costs “transcripts of court
proceedings ordered by the court.” Likewise, under Section 1033.5(b)(5), transcripts of court

proceedings not ordered by the court are NOT recoverable. This formulation of Section 1033.5’s

allowable/not allowable costs mirrors the language of the statute as it relates to expert witness |

fees: if they are ordered by the court they are recoverable; if not so ordered they are not
recoverable. (See Code of Civil Procedure § 1033.5(a)(8) and (b)(1).) While there is little, ifany,
case law interpreting Section 1033.5 in the context of transcripts, several courts have upheld the
requirement of a court order for an expert fee to be recoverable. (See, for example, Sanchez v. Bay

Shores Medical Group (1999) 75 Cal.App.4th 946, 949-950 and Baker-Hoey et al, v. Lockheed

oe 4 Case No.:_CGC-11-515542_

DEFENDANTS’ MPA IN SUPPORT OF JOINT MOTION TO TAX COSTSMartin Corporation (2003) 111 Cal.App.4th 592.) In Sanchez the court discussed the legislative
history of Section 1033.5 and noted that Section 1033.5 was intended to codify existing law and
eliminate confusion by specifying which costs are recoverable and which are not. (Sanchez,

supra, at p. 949.) In the case of transcripts, the law prior to the enactment of Section 1033.5

generally required that to be recoverable, the transcript must have been ordered by the court. |

(Sunny Slope Water Co. v. City of Pasadena (1934) 1 Cal.2d 87, 100)

Here, because this Court did not order that a transcript be prepared, none of the items listed
in Plaintiffs Memorandum under Item 9 are recoverable costs.

This is not to say that none of the costs under Item 9h are recoverable. In fact, Defendants
recognize that some of costs identified under Item 9 might be recoverable as Court Reporter fees
established by statute. (Code of Civil Procedure § 1033.5(a)(11). (See Declaration of D. Douglas
Shureen (“Shureen Decl.”), 2, Exh 1 copies of court reporter invoices showing reporter per diem
charges that might be recoverable as costs.)

Nor do Defendants object to the recoverable deposition costs for the deposition of Dr.
Bubanja (Attachment 9, 6th item from the top “Inv. 7263 3.3.15 Depo Diana Bubanja PD BY

CC”), although the amount sought is incorrect. (See §3 of this memorandum relating to

| “Deposition Costs.”).

Defendants object to the charges shown on Attachment 9 relating to Fua Trial Prep (Ist
from top, in the amount of $11,375). Plaintiff has failed to identify this charge with any
information that would support an argument that this is a recoverable cost. There is no reason to
believe that this charge is for a transcript ordered by the court, and no other grounds for its
treatment as a recoverable cost is apparent. In fact this charge is more likely to relate to non-
recoverable investigation expenses incurred in preparing for trial. (See Code of Civil Procedure
§1033.5(b)(2)).

Defendants also object to the charges for “Trial Technician Costs” shown in Attachment 9

(the 22nd and 23rd items from the top). These costs clearly do not fall within the category of

|
“transcript costs ordered by the court” but were, instead, more likely to have been for the

technicians who assisted with the media technology during trial. There is no basis under the Code

5 Case No.: CGC-11-515542for the recovery of these charges as costs.

2. Plaintiff Cannot Recover “Ordinary” Witness Fees for Defense Experts

Under Item No. 8 (Witness Fees) Plaintiff seeks to recover the fees paid to Defendants’
retained experts to sit for their expert depositions. (See Memorandum, Item No. 8, at p. 8, Weber
Decl, $3; Exh. B.) These charges include $11,240.00 paid to defense experts Philip Alman, Tim |
Farrell, Alan Shonkoff, Tamera Rockholt, Mark Shattuck, Peter Casini, James Mason and Diana
Bubanja. The $11,240.00 sought appears to represent the total amount of these experts’ deposition
fees paid pursuant to Code of Civil Procedure § 2034.430(b).

A party has the right to recover as costs “ordinary” witness fees incurred to compel the
attendance of a witness at a deposition or trial pursuant to Government Code § 68093. (Code Civ.
Proc., § 1033.5(a)(7).) The fees enumerated in Government Code § 68093 are thirty-five dollars

per day plus mileage actually traveled. These “ordinary” witness fees do not include costs

incurred to take expert depositions. Under Code of Civil Procedure §1033.5(b)(1), fees of experts
not ordered by the Court are expressly NOT allowable as costs. Here, Plaintiff has not and cannot
prove that these experts’ fees were ordered by the Court.

This issue was discussed in Baker-Hoey et al., v. Lockheed Martin Corporation, supra,
111 Cal.App.4th 592. In Baker-Hoey, Plaintiff prevailed and sought witness fees paid to non-
retained health care providers as costs on the grounds that they were “ordinary” witness fees. |
Defendants filed a motion to tax costs, contending that Coded of Civil Procedure §1033.5(b)(1)
expressly precludes recovery for expert witness fees not ordered by the court, The court agreed
with defendants, holding that expert witness fees are not “ordinary” witness fees as described in
Section 1033.5(a)(7). (Baker-Hoey at p. 600.) The court noted that the fact that expert witness fees
must be paid under the former Code of Civil Procedure §2034(i)(2) (now §2034.430(b)) does not
make them recoverable as costs. (Id. See, also, Sanchez v Bay Shores Medical Group, supra, 75 |
Cal.App.4th 946, 949-950 [“in the absence of an order of the trial court appointing an expert
witness, the fees of an expert witness are not recoverable as costs under Code of Civil Procedure
section 1032.”])

These are not “ordinary” witness fees. They were not ordered by the Court and are thus

6 Case No.: CGC-11-515542

DEFENDANTS’ MPA IN SUPPORT OF JOINT MOTION TO TAX COSTS10
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not recoverable under Code of Civil Procedure §§1033.5(a)(8) and (b)(1). Item number 8 of
Plaintiff's Memorandum of Costs should be stricken in its entirety.

3. Plaintiff's Deposition Costs Are Overstated and, in Some Instances, not
Recoverable

Code of Civil Procedure §1033.5(3) allows for the recovery of costs for taking, video
recording and transcribing necessary depositions, and includes, among other things, costs for
travel expenses to attend depositions. Defendants do not object to the notion that Plaintiff is
entitled to recovery of legitimate deposition costs, but many of the costs are overstated. Moreover,
Plaintiff is not entitled to recover costs for taking the depositions of those witnesses whose
testimony was only relevant to the alter ego trial. First, the alter ego issue was not necessary to

establish Plaintiff's negligence claims. Secondly, Plaintiff was not the prevailing party on the

alter ego issue. These depositions include multiple volumes of Yellow Cab’s Jim Gillespie, Taxi
Equipment Leasing’s Nathan Dwiri and Taxi Property Co.’s Phillip Welch. Further, Plaintiff
cannot recover the deposition cost of former party Carolyn Miller, as Ms. Miller obtained
judgment as to Plaintiff’s claims against her by way of a motion for summary judgment.

a) Plaintiff Cannot Recover Costs Beyond that for an Original
Transcript and One Copy

Code of Civil Procedure section 1033.5 specifically permits the recovery of the costs

associated with taking and transcribing necessary depositions to include the original and one copy.

(Gorman y. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 72) [Emphasis added]. In
terms of allowable deposition costs, “real time” deposition transcripts are not specifically
authorized and therefore not allowable. Further, additional exhibit copies, color copies, and

additional black and white copies for deposition exhibits are not specifically authorized and

therefore should not be allowed absent a showing that such additional copies of deposition |

exhibits and tabs were necessary to the conduct of the litigation.
Plaintiff s summary of deposition costs, on its face, appears to include charges for far more

than just an original and one copy of a deposition transcript. By way of example, Plaintiff claims

$2,036.00 in costs for the deposition of Plaintiff's expert Lawrence Lievense (Plaintiff's

7 ____Case No... _CGC-11-515542
DEFENDANTS’ MPA IN SUPPORT OF JOINT MOTION TO TAX COSTSkW

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Attachment 4, Pg. 2, third item from the bottom, Weber Decl. 4; Exh. C). Mr. Lievense’s
deposition was taken at the behest of Yellow Cab. Based upon Yellow Cab’s invoice for the same
deposition, costs for the original and one copy of the deposition transcript totaled $822.12.
Although Plaintiff does not present the actual invoice as backup for her claimed cost, it is clear
that the discrepancy necessarily consists of Plaintiff claiming charges beyond the original and a
copy of the transcript. Similarly, Plaintiff claims $1,319 for the deposition of Plaintiff's expert
Thomas Braun, Yet the invoice amount to Yellow Cab for the deposition transcript and one copy
total only $748.50.

Instances where Plaintiff has claimed charges which exceed the invoiced amount for the
original and one copy of a deposition transcript are as follows:

. Robert Johnston: Claimed - $1,248. Actual Invoiced Amount: —_ $1,097.20

2. Odette Harris: Claimed - $1,028. Actual Invoiced Amount: $750.06

3. Deborah Doherty: Claimed - $1,140. Actual Invoiced Amount: $844.80

4, Karen Aznavoorian: Claimed - $677. Actual Invoiced Amount: — $520.00
5, Thomas Braun: Claimed-$1,319. Actual Invoiced Amount: $748.50

6. Lawrence Lievense: Claimed - $2,036. Actual Invoiced Amount: $822.12

7. Mark Shattuck: Claimed - $2,032. Actual Invoiced Amount: $994.30
8. Alan Shonkoff: Claimed - $1,294. Actual Invoiced Amount: $620.60
9. Peter Cassini: Claimed - $976. Actual Invoiced Amount: $695.05

10, Tamera Rockholt: Claimed - $1,302. Actual Invoiced Amount: $866.25

11. Tim Farrell: Claimed - $1,034. Actual Invoiced Amount: $811.55

12. Phillip Allman: Claimed - $857. Actual Invoiced Amount: — $510.26
(See Esquire and First Legal Invoices, attached to Weber Decl. 5; Exh. D).

To the extent that the disparity between Plaintiffs claimed amounts and the amount of the
actual invoice involves Plaintiff claiming costs for such things as duplicate exhibits, real time
transcripts, or other conveniences offered by the court reporting service, such are not allowed

pursuant to Section 1033.5 and should be taxed accordingly.

8 Case No.:_ CGC-11-515542 _

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b) Plaintiff Can Only Recover Costs for Reasonably Necessary
Depositions

Plaintiff seeks to recover deposition costs for witnesses that were not reasonably necessary

to Plaintiff's negligence claims. In particular, Plaintiff deposed the person most knowledgeable |

for Taxi Equipment Leasing, Nathan Dwiry, twice. The examination of Mr. Dwiry focused upon
the legal relationship between Taxi Equipment and Yellow Cab relative to Plaintiff's alter ego
claims. Mr. Dwiry never testified at trial. In addition, Plaintiff deposed Phillip Welch as person
most knowledgeable on behalf Taxi Properties, LLC. While Mr. Welch testified in the alter ego
phase of trial, Plaintiff did not prevail on that claim. Likewise, although Plaintiff deposed Jim
Gillespie as person most knowledgeable on behalf of Yellow Cab on three occasions, only the first
deposition was related to Plaintiff's claims of ostensible agency. The latter two depositions
concerned only Plaintiff's alter ego claims. Again, Plaintiff did not prevail on those claims.
Similarly, while Plaintiff secks deposition costs for Carolyn Miller, Ms. Miller defeated Plaintiff's
claims against her on summary judgment. Accordingly, Plaintiff's costs for unnecessary
depositions should be disallowed. (See Plaintiffs claimed deposition costs, Weber Decl. §4; Exh.
©).

4, Plaintiffs Request for Filing and Motion Fees is Overstated: Plaintiff is

not Entitled to Recovery of Fees Charged by Attorney Services Firms
for Filing Documents

In Item No. 1, “Filing and Motion Fees,” Plaintiff seeks recovery for charges incurred in
filing documents with the court. Defendants do not object to the actual cost charged by the court
as filing fees. Defendants object, however, to the charges incurred by Plaintiff for an attorney
services firm, such as First Legal Network and One Legal LLC, to file documents. Such charges
are not generally reasonably necessary for the conduct of the litigation.

Several cases have dealt with the question of recoverability of messenger fees to file
documents. (See, for example, Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132; Ladas v.

California State Automobile Association, supra, 19 Cal.App.4th 761, 776; Benach y, Co, of Los

Angeles (2007) 149 Cal.App.4th 836, 381; and Foothill-De Anza Community College v. Emerich |
(2007) 158 Cal-App.4th 11, 30). While no cases have been identified. dealing specifically with |

9 Case No.:_ CGC-11-515542 _charges by attorney services firms, the “messenger” cases are analogous and should be considered
in evaluating Plaintiff's claim.

Generally, the “messenger” cases hold that messenger fees are not expressly authorized by
statute but may be allowed in the discretion of the court. (Nelson, supra, 72 Cal.App.4th 111,
132.) In Nelson, the court held that messenger fees are of doubtful necessity and unreasonable on
their face when compared to the cost of alternatives, such as mail or personal filing, (/d.) Courts
that have allowed messenger fees have done so only after a declaration has been provided
establishing reasonable necessity for such charges. (Ladas v, Cal. State Auto Assoc'n, supra, 19
Cal.App.4th 761, 776; Benach v. Co. of L.A,, supra, 149 Cal.App.4th 836, 857-858.) Here,
Plaintiff has provided no such declaration and has not shown that these costs were reasonably
necessary to the conduct of the litigation rather than merely convenient or beneficial to its
preparations, as required by Code of Civil Procedure §1033.5(c)(2) and the cases cited.

Defendants request that this Court strike all costs reflected on Plaintiff's Attachment 1
(See Memorandum, Item No. 1, at p. 2 and 3, Weber Decl. § 6; Exh. E.) listed under the ‘Source
Names’ First Legal Network LLC ($2,162) and One Legal LLC ($1,127) on the grounds that
Plaintiff has not established that these costs were reasonably necessary to the conduct of the
litigation. Defendants also request that the two charges for jury fees listed in Attachment 1 be
deleted, since they are duplicates of the charges shown on Attachment 2 (jury fees.)

5. Plaintiff's Costs for Models, Blowups and Photocopies of Exhibits are
Unreasonable

Under Item 11, Plaintiff seeks recovery of $11,372 as costs for a variety of “Models,
Blowups, and Photocopies of Exhibits.” (See Memorandum, Item No. 11, Weber Decl. 7; Exh.
F.) contains charges from Advance Discovery, Inc. for copying records to Dr. Osterweil and for

printing medical records. The Attachment also contains charges from Copy Tec Legal Services

for disk reproduction ($434) and “Fua Trial Binders” ($1,102), and from Desiree Butler for |

“copies of Docs for Trial” ($265). Finally, Attachment 11 contains charges from First Digital
Solutions for printing exhibits, copying DVD’s and “trial exhibits” ($5,664).

Code of Civil Procedure §1033.5(a)(13) specifically allows costs for models and blowups

Et ae __10 : Case No.: CGC-11-515542_
DEFENDANTS’ MPA IN SUPPORT OF JOINT MOTION TO TAX COSTS

|of exhibits and photocopies of exhibits if reasonably helpful to aid the trier of fact. Section |
1033.5(b)(3) states that postage, telephone, and photocopying charges (except for exhibits) are not
recoverable. Plaintiff's Memorandum does not provide the Court or parties with any guidance
concerning the identification of the costs reflected in Attachment 11. Cryptic phrases like “trial
binders,” “disk reproduction,” and “copies of Docs for Trial” do not answer the question of
whether these costs are for photocopying trial exhibits or for photocopying something other than
trial exhibits. In short, Plaintiff has not provided sufficient information to show that these costs
fall within Section 1033.5(a)(13) or Section 1033.5(b)(3), or that they were reasonably necessary
for the conduct of this litigation. In fact, based on description alone, the charges from Advanced
Discovery ($866), Copy Tec Legal Services ($1,535), and Desiree Butler ($265) are not
recoverable under §1033.5(b)(3). Plaintiff also bears the burden of identifying the costs and
showing that they were reasonably necessary, and the Memorandum does not provide sufficient
information to meet Plaintiff’s burden.

6. Plaintiff’s Costs for Service of Process Include Improper Charges

While Plaintiff is entitled to ordinary process service charges, such as subpoenaing
necessary parties to trial or deposition, service of the complaint, etc... Plaintiff's costs bill
includes charges for items that are obviously not service of process. For example, Plaintiff claims
costs incurred for delivering jury questionnaires to the court, and for delivering a “courtesy copy”
of its trial brief, Plaintiff also includes costs for service of subpoenas on Taxi Properties’ Philip
Welch, despite the fact counsel for Taxi Properties agreed to accept service for the witness.
Similarly, Plaintiff includes cost items with vague terms such as “Serve 4 Trial Subpoenas.”
Defendants cannot meaningfully evaluate whether such service costs were reasonable, let alone
necessary. To the extent that Plaintiff cannot now establish that these costs are valid, they should
be taxed or disallowed. ;

7, Nearly all of Plaintiff's Charges in the “Other” Category Are Not
Recoverable

Plaintiff seeks recovery for a variety of miscellaneous charges in Item 13. The |

corresponding Attachment 13 (See Memorandum, Item No. 13, at p. 2, Weber Decl. § 8; Exh.

11 Case No. CGC-11-515542G.) shows that this is indeed a “catch-all” of charges, including such charges as office supplies,
photocopies of documents sent to experts, medical records, miscellaneous other photocopies,
parking and mileage fees, federal express charges, and obtaining investigative records. Very few
of these items are recoverable. In fact, the majority of these charges are specifically not
recoverable under Code of Civil Procedure §§1033.5(b)(2) and (b)(3).

a. Photocopy charges other than for trial exhibits are not recoverable: Perhaps the

majority of the charges in Attachment 13 are for photocopying records other than trial exhibits.
Most of the charges under the source “Emmanuel Law Group,” “ABI Document Support
Services,” and “Stanford Hospitals & Clinics” fall within this category. As noted above, these

photocopying charges were not for copying tial exhibits and are therefore specifically not

recoverable under Section 1033.5(b)(3), regardless of whether they were reasonably necessary for |

the conduct of the litigation. All such charges should be stricken, (See Ripley v. Pappadopoulos,
supra, 23 Cal.App.4th at pp. 1627-1628; Great Western Bank v. Converse Consultants, Inc.
(1997) 58 Cal.App.4th 609, 615; Travelers Cas. and Sur. Co. ¥. Employers Ins. of Wausau (2005)
130 Cal.App.4th 99, 117 [postage, telephone and photocopying charges non recoverable].)
Similarly, Plaintiff claims a $2,997 charge for “Exhibits” by “High Impact, Inc.” There is no
description as to what these Exhibits are, what they were used for, or who “High Impact, Inc.” is.
The charge should be stricken.

b. Office Supplies: Some of the charges under the source “Emmanuel Law Group”
are for office supplies such as binders, redwells, CD’s, and CD cases. There is no authority for
allowing such charges as costs, and all should be stricken.

c. Postage: There are several references to “postage” under the source “Emmanuel
Law Group.” Postage fees are not recoverable. (Code of Civil Procedure §1033.5(b)(3).)

d. Fed
(See Ripley v. Pappadopoulos, (1994) 23 Cal.App.4th 1616, at pp. 1627-1628.)

ix Charges: Federal Express charges are not recoverable as a matter of law.

e Investigative Records: Investigation expenses are expressly disallowed as costs.

Code of Civil Procedure §1033.5(b)(2). Thus, the charges for obtaining the vehicle information

report, additional DMV Ownership Request, and public records search are not recoverable.

7 —— 12 Case Now: CGC-11-515542_
DEFENDANTS’ MPA IN SUPPORT OF JOINT MOTION TO TAX COSTS© ond DA HW PB WN

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