Preview
STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J. Finelli
2 1007-7th Street, Suite 500
Sacramento, CA 95814
MAR 3 2011
3 tel 916-443-2144
fax 916-443-1511 By D JOHNSP"
4 I DCPUT^ • i.rivK
Attorney for Plaintiffs,
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FLORENTINE and RODNEY ABBOTT
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7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
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10 FLORENTINE AND RODNEY ABBOTT, CaseNo.. 07AS04450
11 Plaintiffs, NOTICE OF MOTION AND MOTION TO
TAX COSTS; MEMORANDUM OF POINTS
12 VS. & AUTHORITIES IN SUPPORT;
DECLARATION OF STEPHANIE J. FINELLI
13 RONALD BRITSCHGI, et. al.,
Trial Date- January 18, 2011
14 Defendants Judgment: February 3, 2011
15 Hearing: April 8, 2011
16 and related cross-actions Depf 43
Judge: Brian Van Camp
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18 NOTICE OF MOTION
19 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD-
20 PLEASE TAKE NOTICE THAT on April 8, 2011 in Department 43 of the above-
21 entitled court, Plaintiffs Florentine and Rodney Abbott hereby move to tax the cost memorandum
22 served by defendants on February 16, 2011. This motion is made pursuant to California Rules of
23 Court, Rule 3 1700 and Code ofCivil Procedure sections 1032 and 1033.5 on the grounds thai
24 (1) defendants were not necessarily the prevailing party, as plaintiffs prevailed in the cross
25 complaint that defendants had filed against them, (2) this Court should exercise its discretion to
26 deny defendants any such expert fees under Code of Civil Procedure section 998, and (3) certain
27 ofthe costs sought, including the expert witness fees, are unreasonable.
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Motion to Tax Costs - 1
Said motion is based upon this notice, the memorandum of points and authorities, the
2 declaration of Stephanie J. Finelli, the exhibits attached thereto, and the pleadings, records, and
3 files herein, and upon such further oral evidence and argument as may be presented at the
4 hearing of said motion.
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6 Pursuant to Local Rule 3.04, the court may make a tentative ruling on the
merits ofthis matter by 2.00 p.m. the court day before the hearing. Ifthe
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court does make such a ruling, you may access and download the court's
8 ruling from the court's website at http:'www.saccourt.ca.gov. Ifyou wish
to request oral argument, you must contact the courtroom clerk at 916-
9 874-7861 and the opposing party before 4:00 p.m. the court day before
the hearing. If you do not call the court and the opposing party by 4.00
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p.rri. on the court day before the hearing, no hearing will be held.
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13 Dated: March 2, 2011 By:
Stephanie J. Finelli,
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Attorney for Plaintiffs,
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Florentine & Rodney Abbott
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Motion to Tax Costs - 2
1 MEMORANDUM OF POINTS & AUTHORITIES
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3 I. INTRODUCTION
4 Trial in this matter commenced on January 18, 2011. After 9 days of trial, the jury
5 rendered a verdict in favor of defendants. Judgment was entered on February 3, 2011
6 Defendants filed a memorandum of costs on February 16, 2011 Defendants claims costs in the
7 total amount of $84,555 06, of which $65,650.00 is for expert fees that defendants are seeking
8 under Code ofCivil Procedure section 998, and another $2,400.00 are sought for mediation costs
9 and attorney fees. (Exh B hereto.) Plaintiffs hereby move this Court for an order (1) taxing the
10 cost memorandum in its entirety on the basis that defendants are not necessarily the prevailing
11 party, and (2) taxing certain specified costs submitted by defendants within their Memorandum
12 of Costs, specifically item 13 for expert witness fees, as both unavailable to defendants and
13 unreasonable in amount.
14 However, prior to trial, on December 2, 1010, this Court granted plaintiffs' and cross
15 defendants' motion forjudgment on the pleadings as to defendant and cross-complainants' cross-
16 complaint. (See Exh A hereto )
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18 II. LEGAL ARGUMENT
19 A. Summary of Law
20 The right to recovery costs is entirely statutory, with the measure of the statute as the
21 measure of right. {Moss v Underwriters' Report, Inc. (1938) 12 Cal.2d 266, 274; Posey v State
22 of California (1986) 180 Cal.App 3d 836, 852.) The statutes permitting costs are strictly
23 construed. {Sequoia Vacuum Systems v Stranksy (1964) 229 Cal.App.2d 281, 289.)
24 The necessity for any expenditure sought to be recovered as costs is a question of fact for
25 the trial judge. {Moss v Underwriters' Report, Inc. (1938) 12 Cal 2d 266, 276.)
26 When items claimed as costs do not appear on their face to be proper and necessary, and
27 the items are properly challenged by a Motion to Tax Costs the burden of establishing the
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Motion to Tax Costs - 3
1 necessity ofthe items is on the party claiming them as costs {Whitney v Whitney (1958) 164
2 Cal.App.2d 577, Stenzor v Leon (1955) 130 Cal.App.2d 729, 735.)
3 Any award of costs is subject to the rule that allowable costs shall be reasonably
4 necessary to the conduct of the litigation rather than merely convenient or beneficial to its
5 preparafion Code ofCivil Procedure §1033.5(c)(2); California Rules ofCourt Rule 3.1700
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7 B. Defendants Were not Necessarily the Prevailing Party
8 Under Code of Civil Procedure secfion 1032(a)(4), '"Prevailing party' includes the party
9 with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendanl
10 where neither plaintiff nor defendant obtains any relief, and a defendant as against those
II plaintiffs who do not recover any relief against that defendant" As used in that section
12 "Complainf includes a cross-complaint, and "Defendant" includes a cross-defendant. (Code
13 Civ Proc. § 1032(a)(2).
14 Therefore, plaintiffs were the prevailing party on CA Construction's cross-complaint
15 {City of Long Beach v Stevedoring Services of America (2007) 157 Cal App 4th 672, 678, 680.)
16 In that case, the cross-defendant who had been sued for indemnity obtained a dismissal of the
17 cross-complaint on the grounds of mootness after the defendant who had cross-complained
18 against it had prevailed as against the plaintiff, thus mooting any action for indemnity agamst the
19 cross-defendant. The court held that the cross-defendant was nonetheless entitled to an award ol
20 costs as against the defendant who had filed the cross-complaint. {Id. at p. 680 ["When a cross
21 complaint is dismissed as moot, the cross-defendant is one in whose favor the cross-complaint
22 was dismissed and is therefore a prevailing party under Code ofCivil Procedure section 1032
23 entitled to costs as a matter of right."])
24 Code of Civil Procedure section 1032(a)(4) provides that "in situations other than as
25 specified, the 'prevailing party' shall be as determined by the court, and under those
26 circumstances, the court, in its discretion, may allow costs or not . . . ." Thus when each party
27 has obtained something in its favour, it is for the court's discrefion to determine who is the
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Motion to Tax Costs - 4
prevailing party—or that neither prevailed {Wolf v. Walt Disney Pictures & Television (2008)
2 162 Cal App 4th 1107, 1141-1142)
3 Because each side prevailed on the complaint filed against it, as the defendant and cross
4 defendant, respecfively, this Court may and should determine that neither party prevailed for
5 purposes of a costs award, and may and should tax the claimed costs in their entirety (Code
6 Civ.Proc § 1032(a)(4).)
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8 C. The Claim of $65,650.00 for Expert Witness Fees Should Be Taxed in Its Entirety
9 Defendant CA Construction seeks expert witness fees totalling $65,650.00 under Code ol
10 Civil Procedure section 998. This Court should exercise its discretion to deny or reduce fees
11 under that code section.
12 Code of Civil Procedure section 998(c) makes an award of expert fees discretionary on
13 the part of the trial court This Court may and should exercise its discretion to deny defendants
14 their expert fees under of Code of Civil Procedure section 998(c). Although plaintiffs were not
15 successful at trial, they were successful in obtaining a decision by the jury that defendant CA
16 Construction was actually negligent and wilfully violated building standards Had they obtained
17 an award in their favor, it would have far exceeded the $25,000 00 offered by defendants under
18 Code ofCivil Procedure section 998.
19 In order to obtain expert fees, defendants must show the $25,000.00 offer was made in
20 good faith. A token or bad faith offer will not permit an award of costs under the statute. {Arno
21 V Helmet Corp (2005) 130 Cal App.4th 1019, 1024-1025.) "Generally, the reasonableness ofa
22 section 998 offer is measured by the potential recovery the defendant will have to pay plaintiff
23 premised upon the 'informafion that was known or reasonably should have been known' to the
24 offeror and whether that information 'was known or reasonably should have been known' to the
25 offeree " {Id at p 1025 ) Defendants will assert that the offer was, as evidenced by the fact that
26 thejury awarded nothing However, plaintiffs' damages far exceeded $25,000.00. Had plaintiff
27 obtained an award in their favor, they would have been enfitled to several hundred thousand
28 dollars, plus attorney fees under the contract. Defendants knew plaintiff would never accept a
Motion to Tax Costs - 5
mere $25,000.00 As such, the offer was without any risk to defendants, but with a potential
2 reward of almost triple the amount of the offer in expert fees. This Court has the discretion to
3 determine that this offer was not in good faith, and thus refuse to award any expert fees undet
4 secfion 998 {Ibid.)
5 In the interests of jusfice, this Court should exercise its discretion to not award any such
6 expert fees.
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8 D. This Court Should Significantly Reduce any Such Expert Fees
9 If this Court does decide to award defendants expert fees, it should reduce those fees
10 considerably. Expert fees are only awarded to the extent reasonably necessary and actually
11 incurred. (Code Civ Proc. §998(c)) Plainfiffs maintain that Jason Newlin's whopping 211 25
12 hours and David Hereyet's 136.50 hours were not reasonably necessary.
13 Mr. Newlin was only disclosed as an expert witness in a supplemental disclosure on April
14 10, 2009, based upon a May 11, 2009 tnal date. At 40 hours per week, Mr. Newlin billed 5.28
15 weeks' worth of time for pretrial work. And yet at trial, Mr. Newlin testified that he had taken
16 an array of photographs and looked at one crack in the garage This should have taken no more
17 than a few hours of his time.
18 Mr. Heryet put together an "estimate" of various ways of remedying the height difference
19 between the house and the garage. But on cross-examination he admitted that these were just
20 estimates, not bids, and that the final result could be a lot either higher or lower. Plaintiffs are at
21 a loss to determine how this could have taken 146.5 hours—almost 3 Vi weeks of 40-hour weeks.
22 Even if this Court awards defendants expert fees, it should reduce those fees by at least
23 200 hours for Mr. Newlin and another 120 hours for Mr Heryet. This is a reduction of $36,000
24 for Mr. Newlin and $24,000 for Mr Heryet.
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27 Dated- March 2, 2011
Stephanie J. FineHi,
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Attorney for Plaintiffs,
Florenfine & Rodney Abbott
Motion to Tax Costs - 6
DECLARATION OF STEPHANIE J. FINELLI
2 1. Stephanie J. Finelli, hereby declare, and if called as a witness would and could
3 competently testify as follows:
4 1 I am an attorney, duly licensed and practicing in the State of California. I
5 represent plaintiffs herein.
6 2. On December 2, 1010, this Court granted plaintiffs' and cross-defendants' motion
7 for judgment on the pleadings as to defendant and cross-complainants' cross-complaint. A true
8 and correct copy of this Order is attached hereto as Exhibit A and incorporated herein by
9 reference.
10 3. Defendants filed and served a memorandum of costs on February 16, 2011. A
II true and correct copy ofthis Cost Memorandum is attached hereto as Exhibit B and incorporated
12 herein by reference.
13 I declare under penalty ofperjury under the laws ofthe State ofCalifornia the foregoing
14 is true and correct.
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16 Dated: March '^ ,2011 By:
Stephanie J Finelli,
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Attorney for Plainfiffs,
18 Florentine & Rodney Abbott
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Motion to Tax Costs - 7
I STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J. Fmelh CM I t.klfJ
2 1007 - 7th Street, Suite 500
Sacramento, CA 95814
3 tel 916-443-2144 DEC - 2 2010
fax 916-443-1511
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Attorney for Plainfiffs, By Tern West, Deputy Clerk
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FLO and RODNEY ABBOTT
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7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
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10 FLORENTINE AND RODNEY ABBOTT, CaseNo :07AS04450
11 Plainfiffs, ORDER ON MOTION FOR JUDGMENT ON
THE PLEADINGS
12 vs
13 RONALD BRITSCHGI, et al,
14 Defendants
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16 and related cross-action
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18 The motion by Cross-defendants, Florentine and Rodney Abbott, for Judgment on the
19 Pleadings as to Richard Ruybalid individually and dba CA Construction's Cross-complaint for
20 indemnity came regularly for hearing on November 16, 2010 at 2.00 p m. in Department 53 ol
21 the Sacramento County Superior Court, the Honorable David I. Brown presiding. Stephanie J
22 Finelli appeared on behalf of plainfiffs and cross-defendants, Florentine and Rodney Abbott;
23 Gregory Federico of Archer Norris appeared on behalf of defendant and cross-complainant, CA
24 Construction
25 After reviewing the papers and hearing oral argument of the parties, the court rules as
26 follows
27 Cross-defendant, Florentine and Rodney Abbott's Motion for Judgment on the Pleadings
28 is GRANTED, without leave to amend.
Order - 1
EKVI A
) "I
Plaintiffs/cross-defendants move for judgment on the pleadings on the ground the
2 defendant contractor cannot state a cause of action for implied equitable indemnity against the
3 plaintiffs to assert what amounts to the defense of comparative negligence Equitable indemnity
4 has been properly denied where, as here, equivalent relief is already available in the main action.
5 Leko V Cornerstone Bldg Inspection Service (2001) 86 Cal App.4th 1109, 1118
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Plaintiffs hired CA Construction to be the foundation contractor of their home. Cross-
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complainant alleges that plaintiffs were actively involved in the supervision, design and
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construction of their home and contributed to the damages that they claim were caused by CA
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Construction
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The only cause of action asserted against the plaintiffs/cross-defendants is implied
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equitable indemnity. Such a claim is made when a third party is partially liable for a plaintiffs
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injuries. See Leko v. Cornerstone Bldg Inspection Service (2001) 86 Cal.App.4th 1109, 1115-
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1116 (joint and several liability of tortfeasors is required for implied equitable indemnity.) CA
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Construction argues that plaintiffs are wearing "two different hats" so they can be liable for
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comparative negligence as well as implied equitable indemnity in their role as "general
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contractor." However, plaintiffs are individual plaintiffs and are not suing on behalf of anyone
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else. There is no legal basis for the cross-complainant to obtain an award of money against
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plaintiffs based on plaintiffs' alleged contributions to their own damages. The case of Daon
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Corp. V Place Homeowners Assn (1989) 207 Cal.App.3d 1449 is distinguishable since in that
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case the plaintiff was acting on behalf of itself and on behalf of the homeowners, therefore it was
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appropriate that the contractor could assert a claim for indemnity against the homeowners
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association for damages that the individual condominium owners had suffered that Daon was
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required to pay, if those damages were cause by the homeovmers association.
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CA Construction has not explained why it cannot be protected by asserting its affirmative
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defense of comparative negligence
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Order - 2
No leave to amend is granted since the only theory that cross-complainant seeks to allege
2 IS a claim for equitable indemnity based on the alleged neghgent supervision of the construction
3 project by the plamtiffs
4 IT IS SO ORDERED
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DEC - 2 SiG KEVIN R. CULHANE
6 Dated. By.
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Judge David Brown of Sacramento County
Superior Court
8 SiGNATURE PURSUANT
TO 635 CCP
9 Approved as to form:
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II
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Gregory Federico
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Order - 3
MC-010
ATTORNEY OR PARTf WITHOUT ATTORNEY (Name, state barnumber, and address) FOR COURTUSE ONL Y
[ T o d d A Jones (SB#198024)/Gregory K Federico (SB#242184)
l A R C H E R NORRIS
301 University Avenue, Suite 110
Sacramento, CA 95825
TELEPHONENO 916 646 2480 FAXNO 916 646 5696
ATTORNEY FOR f/vamej Defendant and Cross-Defendant Richard K Ruybalid dba GA
Construction
INSERT NAME OF COURT, JUDICIAL DISTRICT, AND BRANCH COURT, IF ANY
Sacramento Supenor Court
PUMNTIFF. Rodney Abbott, et al
DEFENDANT Bntschgi Construction, et ai
CASE NUMBER
MEMORANDUM OF COSTS (SUMMARY) 07AS04450
The following costs are requested: TOTALS
1 Filing and motion fees . 1$ 200 00
2 Jury fees 2 $ 2,098 40
3. Jury food and lodging ... . 3 $
4 Deposition costs . 4 $ 4,969 56
5 Service of process 5 $ 977 50
6 Attachment expenses 6 $
7. Surety bond premiums .7 $
8 Witness fees 8 $ 70,380 00
9 Court-ordered transcnpts 9 $
10 Attorney fees (enter here if contractual or statutory fees are fixed without necessity ofa court
detennination, otherNise a noticed motion is required) 10 $
11. Models, blowups, and photocopies of exhibits .... 11 $ 1,498 10
12 Court reporter fees as established by statute 12 $ 2,031 50
ATTORNEY'S FEES. EXPENSES AND COSTS PER CONTRACT BY MOTION, MEDIATION FEES
13 Other 13 $ 2.400 00
TOTAL COSTS $ 84,555 06
I am the attorney, agent, or party who claims these costs To the best of my knowledge and belief this memorandum of costs is correct
and these costs wereriecessanly incurred in this case
Date February ^O , 2011
TODD A JONES
Form Approvod for Optional Uso
ETvUS
Code of ClVll Procedure,
Judicial Councll of California MEMORANDUM OF COSTS (SUMMARY) §§1032.1033 5
MC.010|Rev Jul^T. T999)
American LegalNel, Inc.
wwvv.FQrmsWorkFlow.com
MC-011
SHORT TITLE CASE NUMBER
Rodney Abbott, et al v Bntschgi Construction, et al 37,^^^04450
MEMORANDUM OF COSTS (WORKSHEET)
1 Filing and motion fees
Paper filed Filing fee
a 8/27/09 - Motion to Stnke/Demurrer $ 80 00
b. 6/21/10-Motion to Quash $ 40 00
c 12/3/10 - Motions to Compel (2) $ 80 00
d $
e $
f $
g • information about additional filing and motion fees is contained in Attachment 1g
TOTAL 1 200 00
2 Jury fees
Date Fee & mileage
a 1/18/11 -1/21/11 $ 463 20
b 1/24/11 -1/28/11 $ 1,022 00
c 1/31/11 -2/2/11 $ 613 20
d $
e n Information about additional jury fees is contained in Attachment 2e
TOTAL 2 $ 2,098 40
3 Juror food: $ and lodging: $ TOTAL 3 $ 0 00
4 Deposition costs
Name of Video-
deponent Taking Transcnbing Travel taping Subtotals
a Mark Smith $ $ 666 75 $ $ $ 666 75
b Bryan Hill $ 548 00 $ 1,086 25 $ $ $ 1,634 25
c James R Lee $ $ 721.66
721.66 $
$ $ $ 721.66
d Robert "Skip" Weahunt $ 555 60 $ $ $ 555 60
Information about additional deposition costs is contained in Attachment 4e
TOTAL 4 $ 3,578 26
(Continued on reverse) Page 1 of 4
Form Approved for Optional Use MEMORANDUM OF COSTS (WORKSHEET) . - , ,.,-—; 1 Code of Civil Procedure
Judicial Councll of California American LegalNeL Inc §6 10321033 5
MC-011 {Rev J u l y l , 19991 *ww USCounForms com
CASE NUMBER
SHORT TITLE
Rodney Abbott, et al v Bntschgi Construction, et al 07AS04450
- i rn .'r.; 5t
- --
5 Service of process
Name of person Public Registered Other
served officer process Publication (soecifv)
a Bryan Hill $ $ 218 25$ $
b Steve Mears $ $ 119 00$ $
c Bnan Melvin $ $ 79 50 $ $
d 1 ^ Information about additiona1 costs for sen/ice of process is contained in Attachment 5d
TOTAL 5 $ 416 75
6 Attachment expenses (specify). 6 $
7 Surety bond premiums (itemize bonds and amounts) ... . . 7 $
8 a Ordinary witness fees
Name of witness Daily fee IVIileage Total
(1) Tim Glissman days at 35 00 $/day 60 00 miles at 0 20 0/mile . 47 00
(2) Dynan Keller days at 35 00 $/day 120 00 miles at 0 20 ?i/mile 59 00
(3) Steve Mears days at 35 00 $/day 45 00 miles at 0 20 (iS/mile 44 00
(4) Terry Haagensen days at 35 00 $/day miles at 0/mile . 35 00
(5) Bnan Melvin days at 150 00 $/day miles at 0/mile 150 00
(6) • information about additional ordinary witness fees is contained in Attachment 8a(6)
SUBTOTAL 8a 335 00
(Continued on next page) Page 2 of 4
MC-011 (Rev J u l y l , 1999) MEMORANDUM OF COSTS (WORKSHEET) American LegalNet. Inc
*vww USCourtForms com
SHORT TITLE CASE NUMBER
Rodney Abbott, et al v Bntschgi Construction, et al 07AS04450
MEMORANDUM OF COSTS (WORKSHEET) (Continued)
8 b Expert fees (per Code of Civil Procedure section 998)
Name of witness Fee
(1) Jason Newlin 21125 hours at $ 180 00/hr $ 38,025 00
(2) Dave Heryet 136 50 hours at $ 200 00/hr . $ 27,300 00
(3) Donn Mannovich (tnal) 3 25 hours at $ 100 00/hr . $ 325 00
(4) hours at $ /hr $ 0 00
(5) ^ Information about additional expert witness fees is contained in Attachment 8b(5)
SUBTOTAL 8b. $ 65,650.00
c Court-]«< '<.?••
1 PROOF OF SERVICE
2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et al.
Court and Action No: Sacramento County Superior No. 07AS04450
3
I, Cindy A. Ingland, declare that I am over the age of 18 years and not a party to this
4 action or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento,
California 95825. On February 16, 2011 I caused the following document(s) to be served:
5
MEMORANDUM OF COSTS
6
[=1 [5(1 By placing a true copy ofthe documents listed above, enclosed in a sealed envelope,
7 addressed as set forth below, for collection and mailing on the date and at the business
address shown above following our ordinary business practices. I am readily familiar
8 with this business' practice for collection and processing of correspondence for
9 mailing with the United States Postal Service. On the same day that a sealed envelope
is placed for collection and mailing, it is deposited in the ordinary course ofbusiness
10 with the United States Postal Service with postage fully prepaid.
11 I I By having a true copy ofthe document(s) listed above transmitted by facsimile to the
person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission
12 was reported as complete without error by a report issued by the transmitting facsimile
13 machine.
14 n By placing a true copy ofthe document(s) listed above, in a box or other facility
regularly maintained by UPS, an express service carrier, or delivered to a courier or
15 driver authorized by the express service carrier to receive documents, in an envelope
designated by the express service carrier, with delivery fees paid or provided for,
16 addressed as set forth below.
17 by having personal delivery by FIRST LEGAL SUPPORT SERVICES a true copy of
18 the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
address(es) set forth below.
19
20 [SEE ATTACHED SERVICE LIST]
21 I declare under penalty ofperjury that the foregoing is true and correct. Executed on
February 16, 2011, at Sacramento, Califomia.
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N1C341/608293-1
PROOF OF SERVICE
1 • Service List ' '
2
Stephanie Finelli PLAINTIFFS
3 Law Offices of Stephanie J Finelli
1007 Seventh Street, Suite 500 Tel. (916)443-2144
4 Sacramento, CA 95814 Fax:(916)443-1511
E-mail sfinelll700@yahoo com
5 [BY HAND DELIVERY]
Richarci D Sopp Counsel for CADRE DESIGN GROUP, INC.
6 Wheatley Sopp LLP
1004 River Rock Drive, Suite 245 Tel (916)986-3857
7 Folsom, CA 95630 Fax:(916)988-5296
[BY MAIL] Email. rds(gmwsblaw.com
8
Mark Smith In Pro Per
9 8549 Willow Valley Place
Granite Bay, CA 95746
10 markdarlenesmith(ggmail.com
[BY MAIL]
11
Richard W Freeman Counsel for R4C0RP
12 Scott S. Brooks
WOOD SMITH HENNING & BERMAN LLP Tel. (925) 356-8200
13 1401 Willow Pass Road, Suite 700 Fax: (925) 356-8250
Concord, CA 94520-7982
14 [BY MAIL]
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NIC341/608293-1 2
"' SERVICE LIST
PROOF OF SERVICE BY MAIL
CASE NAME: Abbott v. Britschgi
CASE NUMBER: Sacramento County Superior Court 07AS04450
1 declare that:
I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am,
and at all times mentioned herem was, an active member of the State Bar of Califomia and
not a party to the above-entitied cause. My business address is 1007 Seventh Street, Suite
500, Sacramento, Califomia 95814.
On March 3,2011, pursuant to CCP §1013A(2), I served the following.
NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF
POINTS & AUTHORITIES IN SUPPORT; DECLARATION OF STEPHANIE J
FINELLI
BY MAIL, by depositing a copy ofsaid document m the United States mail in Sacramento,
Califorma, in a sealed envelope, with postage fiilly prepaid, addressed as follows:
Gregory Federico
Archer Norris
301 University Ave , Suite 110
Sacramento, CA 95825
Mark Smith
8549 Willow Valley Place
Granite Bay, CA 95746
Richard W. Freeman, Jr.
Wood, Smith, Henning & Berman
1401 Willow Pass Road, Suite 700
Concord, CA 94520-7982
I declare imder penalty of perjury under the Jaws of Jjie State of Califomia the
foregoing is true and correct
Dated: March 3,2011 ^
Stephanie J Finelli
Preview
STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J. Finelli 2 1007-7th Street, Suite 500 Sacramento, CA 95814 MAR 3 2011 3 tel 916-443-2144 fax 916-443-1511 By D JOHNSP" 4 I DCPUT^ • i.rivK Attorney for Plaintiffs, 5 FLORENTINE and RODNEY ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 FLORENTINE AND RODNEY ABBOTT, CaseNo.. 07AS04450 11 Plaintiffs, NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS 12 VS. & AUTHORITIES IN SUPPORT; DECLARATION OF STEPHANIE J. FINELLI 13 RONALD BRITSCHGI, et. al., Trial Date- January 18, 2011 14 Defendants Judgment: February 3, 2011 15 Hearing: April 8, 2011 16 and related cross-actions Depf 43 Judge: Brian Van Camp 17 18 NOTICE OF MOTION 19 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD- 20 PLEASE TAKE NOTICE THAT on April 8, 2011 in Department 43 of the above- 21 entitled court, Plaintiffs Florentine and Rodney Abbott hereby move to tax the cost memorandum 22 served by defendants on February 16, 2011. This motion is made pursuant to California Rules of 23 Court, Rule 3 1700 and Code ofCivil Procedure sections 1032 and 1033.5 on the grounds thai 24 (1) defendants were not necessarily the prevailing party, as plaintiffs prevailed in the cross 25 complaint that defendants had filed against them, (2) this Court should exercise its discretion to 26 deny defendants any such expert fees under Code of Civil Procedure section 998, and (3) certain 27 ofthe costs sought, including the expert witness fees, are unreasonable. 28 Motion to Tax Costs - 1 Said motion is based upon this notice, the memorandum of points and authorities, the 2 declaration of Stephanie J. Finelli, the exhibits attached thereto, and the pleadings, records, and 3 files herein, and upon such further oral evidence and argument as may be presented at the 4 hearing of said motion. 5 6 Pursuant to Local Rule 3.04, the court may make a tentative ruling on the merits ofthis matter by 2.00 p.m. the court day before the hearing. Ifthe 7 court does make such a ruling, you may access and download the court's 8 ruling from the court's website at http:'www.saccourt.ca.gov. Ifyou wish to request oral argument, you must contact the courtroom clerk at 916- 9 874-7861 and the opposing party before 4:00 p.m. the court day before the hearing. If you do not call the court and the opposing party by 4.00 10 p.rri. on the court day before the hearing, no hearing will be held. 11 12 13 Dated: March 2, 2011 By: Stephanie J. Finelli, 14 Attorney for Plaintiffs, 15 Florentine & Rodney Abbott 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion to Tax Costs - 2 1 MEMORANDUM OF POINTS & AUTHORITIES 2 3 I. INTRODUCTION 4 Trial in this matter commenced on January 18, 2011. After 9 days of trial, the jury 5 rendered a verdict in favor of defendants. Judgment was entered on February 3, 2011 6 Defendants filed a memorandum of costs on February 16, 2011 Defendants claims costs in the 7 total amount of $84,555 06, of which $65,650.00 is for expert fees that defendants are seeking 8 under Code ofCivil Procedure section 998, and another $2,400.00 are sought for mediation costs 9 and attorney fees. (Exh B hereto.) Plaintiffs hereby move this Court for an order (1) taxing the 10 cost memorandum in its entirety on the basis that defendants are not necessarily the prevailing 11 party, and (2) taxing certain specified costs submitted by defendants within their Memorandum 12 of Costs, specifically item 13 for expert witness fees, as both unavailable to defendants and 13 unreasonable in amount. 14 However, prior to trial, on December 2, 1010, this Court granted plaintiffs' and cross 15 defendants' motion forjudgment on the pleadings as to defendant and cross-complainants' cross- 16 complaint. (See Exh A hereto ) 17 18 II. LEGAL ARGUMENT 19 A. Summary of Law 20 The right to recovery costs is entirely statutory, with the measure of the statute as the 21 measure of right. {Moss v Underwriters' Report, Inc. (1938) 12 Cal.2d 266, 274; Posey v State 22 of California (1986) 180 Cal.App 3d 836, 852.) The statutes permitting costs are strictly 23 construed. {Sequoia Vacuum Systems v Stranksy (1964) 229 Cal.App.2d 281, 289.) 24 The necessity for any expenditure sought to be recovered as costs is a question of fact for 25 the trial judge. {Moss v Underwriters' Report, Inc. (1938) 12 Cal 2d 266, 276.) 26 When items claimed as costs do not appear on their face to be proper and necessary, and 27 the items are properly challenged by a Motion to Tax Costs the burden of establishing the 28 Motion to Tax Costs - 3 1 necessity ofthe items is on the party claiming them as costs {Whitney v Whitney (1958) 164 2 Cal.App.2d 577, Stenzor v Leon (1955) 130 Cal.App.2d 729, 735.) 3 Any award of costs is subject to the rule that allowable costs shall be reasonably 4 necessary to the conduct of the litigation rather than merely convenient or beneficial to its 5 preparafion Code ofCivil Procedure §1033.5(c)(2); California Rules ofCourt Rule 3.1700 6 7 B. Defendants Were not Necessarily the Prevailing Party 8 Under Code of Civil Procedure secfion 1032(a)(4), '"Prevailing party' includes the party 9 with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendanl 10 where neither plaintiff nor defendant obtains any relief, and a defendant as against those II plaintiffs who do not recover any relief against that defendant" As used in that section 12 "Complainf includes a cross-complaint, and "Defendant" includes a cross-defendant. (Code 13 Civ Proc. § 1032(a)(2). 14 Therefore, plaintiffs were the prevailing party on CA Construction's cross-complaint 15 {City of Long Beach v Stevedoring Services of America (2007) 157 Cal App 4th 672, 678, 680.) 16 In that case, the cross-defendant who had been sued for indemnity obtained a dismissal of the 17 cross-complaint on the grounds of mootness after the defendant who had cross-complained 18 against it had prevailed as against the plaintiff, thus mooting any action for indemnity agamst the 19 cross-defendant. The court held that the cross-defendant was nonetheless entitled to an award ol 20 costs as against the defendant who had filed the cross-complaint. {Id. at p. 680 ["When a cross 21 complaint is dismissed as moot, the cross-defendant is one in whose favor the cross-complaint 22 was dismissed and is therefore a prevailing party under Code ofCivil Procedure section 1032 23 entitled to costs as a matter of right."]) 24 Code of Civil Procedure section 1032(a)(4) provides that "in situations other than as 25 specified, the 'prevailing party' shall be as determined by the court, and under those 26 circumstances, the court, in its discretion, may allow costs or not . . . ." Thus when each party 27 has obtained something in its favour, it is for the court's discrefion to determine who is the 28 Motion to Tax Costs - 4 prevailing party—or that neither prevailed {Wolf v. Walt Disney Pictures & Television (2008) 2 162 Cal App 4th 1107, 1141-1142) 3 Because each side prevailed on the complaint filed against it, as the defendant and cross 4 defendant, respecfively, this Court may and should determine that neither party prevailed for 5 purposes of a costs award, and may and should tax the claimed costs in their entirety (Code 6 Civ.Proc § 1032(a)(4).) 7 8 C. The Claim of $65,650.00 for Expert Witness Fees Should Be Taxed in Its Entirety 9 Defendant CA Construction seeks expert witness fees totalling $65,650.00 under Code ol 10 Civil Procedure section 998. This Court should exercise its discretion to deny or reduce fees 11 under that code section. 12 Code of Civil Procedure section 998(c) makes an award of expert fees discretionary on 13 the part of the trial court This Court may and should exercise its discretion to deny defendants 14 their expert fees under of Code of Civil Procedure section 998(c). Although plaintiffs were not 15 successful at trial, they were successful in obtaining a decision by the jury that defendant CA 16 Construction was actually negligent and wilfully violated building standards Had they obtained 17 an award in their favor, it would have far exceeded the $25,000 00 offered by defendants under 18 Code ofCivil Procedure section 998. 19 In order to obtain expert fees, defendants must show the $25,000.00 offer was made in 20 good faith. A token or bad faith offer will not permit an award of costs under the statute. {Arno 21 V Helmet Corp (2005) 130 Cal App.4th 1019, 1024-1025.) "Generally, the reasonableness ofa 22 section 998 offer is measured by the potential recovery the defendant will have to pay plaintiff 23 premised upon the 'informafion that was known or reasonably should have been known' to the 24 offeror and whether that information 'was known or reasonably should have been known' to the 25 offeree " {Id at p 1025 ) Defendants will assert that the offer was, as evidenced by the fact that 26 thejury awarded nothing However, plaintiffs' damages far exceeded $25,000.00. Had plaintiff 27 obtained an award in their favor, they would have been enfitled to several hundred thousand 28 dollars, plus attorney fees under the contract. Defendants knew plaintiff would never accept a Motion to Tax Costs - 5 mere $25,000.00 As such, the offer was without any risk to defendants, but with a potential 2 reward of almost triple the amount of the offer in expert fees. This Court has the discretion to 3 determine that this offer was not in good faith, and thus refuse to award any expert fees undet 4 secfion 998 {Ibid.) 5 In the interests of jusfice, this Court should exercise its discretion to not award any such 6 expert fees. 7 8 D. This Court Should Significantly Reduce any Such Expert Fees 9 If this Court does decide to award defendants expert fees, it should reduce those fees 10 considerably. Expert fees are only awarded to the extent reasonably necessary and actually 11 incurred. (Code Civ Proc. §998(c)) Plainfiffs maintain that Jason Newlin's whopping 211 25 12 hours and David Hereyet's 136.50 hours were not reasonably necessary. 13 Mr. Newlin was only disclosed as an expert witness in a supplemental disclosure on April 14 10, 2009, based upon a May 11, 2009 tnal date. At 40 hours per week, Mr. Newlin billed 5.28 15 weeks' worth of time for pretrial work. And yet at trial, Mr. Newlin testified that he had taken 16 an array of photographs and looked at one crack in the garage This should have taken no more 17 than a few hours of his time. 18 Mr. Heryet put together an "estimate" of various ways of remedying the height difference 19 between the house and the garage. But on cross-examination he admitted that these were just 20 estimates, not bids, and that the final result could be a lot either higher or lower. Plaintiffs are at 21 a loss to determine how this could have taken 146.5 hours—almost 3 Vi weeks of 40-hour weeks. 22 Even if this Court awards defendants expert fees, it should reduce those fees by at least 23 200 hours for Mr. Newlin and another 120 hours for Mr Heryet. This is a reduction of $36,000 24 for Mr. Newlin and $24,000 for Mr Heryet. 25 26 27 Dated- March 2, 2011 Stephanie J. FineHi, 28 Attorney for Plaintiffs, Florenfine & Rodney Abbott Motion to Tax Costs - 6 DECLARATION OF STEPHANIE J. FINELLI 2 1. Stephanie J. Finelli, hereby declare, and if called as a witness would and could 3 competently testify as follows: 4 1 I am an attorney, duly licensed and practicing in the State of California. I 5 represent plaintiffs herein. 6 2. On December 2, 1010, this Court granted plaintiffs' and cross-defendants' motion 7 for judgment on the pleadings as to defendant and cross-complainants' cross-complaint. A true 8 and correct copy of this Order is attached hereto as Exhibit A and incorporated herein by 9 reference. 10 3. Defendants filed and served a memorandum of costs on February 16, 2011. A II true and correct copy ofthis Cost Memorandum is attached hereto as Exhibit B and incorporated 12 herein by reference. 13 I declare under penalty ofperjury under the laws ofthe State ofCalifornia the foregoing 14 is true and correct. 15 16 Dated: March '^ ,2011 By: Stephanie J Finelli, 17 Attorney for Plainfiffs, 18 Florentine & Rodney Abbott 19 20 21 22 23 24 25 26 27 28 Motion to Tax Costs - 7 I STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J. Fmelh CM I t.klfJ 2 1007 - 7th Street, Suite 500 Sacramento, CA 95814 3 tel 916-443-2144 DEC - 2 2010 fax 916-443-1511 4 Attorney for Plainfiffs, By Tern West, Deputy Clerk 5 FLO and RODNEY ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 FLORENTINE AND RODNEY ABBOTT, CaseNo :07AS04450 11 Plainfiffs, ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS 12 vs 13 RONALD BRITSCHGI, et al, 14 Defendants 15 16 and related cross-action 17 18 The motion by Cross-defendants, Florentine and Rodney Abbott, for Judgment on the 19 Pleadings as to Richard Ruybalid individually and dba CA Construction's Cross-complaint for 20 indemnity came regularly for hearing on November 16, 2010 at 2.00 p m. in Department 53 ol 21 the Sacramento County Superior Court, the Honorable David I. Brown presiding. Stephanie J 22 Finelli appeared on behalf of plainfiffs and cross-defendants, Florentine and Rodney Abbott; 23 Gregory Federico of Archer Norris appeared on behalf of defendant and cross-complainant, CA 24 Construction 25 After reviewing the papers and hearing oral argument of the parties, the court rules as 26 follows 27 Cross-defendant, Florentine and Rodney Abbott's Motion for Judgment on the Pleadings 28 is GRANTED, without leave to amend. Order - 1 EKVI A ) "I Plaintiffs/cross-defendants move for judgment on the pleadings on the ground the 2 defendant contractor cannot state a cause of action for implied equitable indemnity against the 3 plaintiffs to assert what amounts to the defense of comparative negligence Equitable indemnity 4 has been properly denied where, as here, equivalent relief is already available in the main action. 5 Leko V Cornerstone Bldg Inspection Service (2001) 86 Cal App.4th 1109, 1118 6 Plaintiffs hired CA Construction to be the foundation contractor of their home. Cross- 7 complainant alleges that plaintiffs were actively involved in the supervision, design and 8 construction of their home and contributed to the damages that they claim were caused by CA 9 Construction 10 The only cause of action asserted against the plaintiffs/cross-defendants is implied 11 equitable indemnity. Such a claim is made when a third party is partially liable for a plaintiffs 12 injuries. See Leko v. Cornerstone Bldg Inspection Service (2001) 86 Cal.App.4th 1109, 1115- 13 1116 (joint and several liability of tortfeasors is required for implied equitable indemnity.) CA 14 Construction argues that plaintiffs are wearing "two different hats" so they can be liable for 15 comparative negligence as well as implied equitable indemnity in their role as "general 16 contractor." However, plaintiffs are individual plaintiffs and are not suing on behalf of anyone 17 else. There is no legal basis for the cross-complainant to obtain an award of money against 18 plaintiffs based on plaintiffs' alleged contributions to their own damages. The case of Daon 19 Corp. V Place Homeowners Assn (1989) 207 Cal.App.3d 1449 is distinguishable since in that 20 case the plaintiff was acting on behalf of itself and on behalf of the homeowners, therefore it was 21 appropriate that the contractor could assert a claim for indemnity against the homeowners 22 association for damages that the individual condominium owners had suffered that Daon was 23 required to pay, if those damages were cause by the homeovmers association. 24 CA Construction has not explained why it cannot be protected by asserting its affirmative 25 defense of comparative negligence 26 /// 27 28 Order - 2 No leave to amend is granted since the only theory that cross-complainant seeks to allege 2 IS a claim for equitable indemnity based on the alleged neghgent supervision of the construction 3 project by the plamtiffs 4 IT IS SO ORDERED 5 DEC - 2 SiG KEVIN R. CULHANE 6 Dated. By. 7 Judge David Brown of Sacramento County Superior Court 8 SiGNATURE PURSUANT TO 635 CCP 9 Approved as to form: 10 II 12 Gregory Federico 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order - 3 MC-010 ATTORNEY OR PARTf WITHOUT ATTORNEY (Name, state barnumber, and address) FOR COURTUSE ONL Y [ T o d d A Jones (SB#198024)/Gregory K Federico (SB#242184) l A R C H E R NORRIS 301 University Avenue, Suite 110 Sacramento, CA 95825 TELEPHONENO 916 646 2480 FAXNO 916 646 5696 ATTORNEY FOR f/vamej Defendant and Cross-Defendant Richard K Ruybalid dba GA Construction INSERT NAME OF COURT, JUDICIAL DISTRICT, AND BRANCH COURT, IF ANY Sacramento Supenor Court PUMNTIFF. Rodney Abbott, et al DEFENDANT Bntschgi Construction, et ai CASE NUMBER MEMORANDUM OF COSTS (SUMMARY) 07AS04450 The following costs are requested: TOTALS 1 Filing and motion fees . 1$ 200 00 2 Jury fees 2 $ 2,098 40 3. Jury food and lodging ... . 3 $ 4 Deposition costs . 4 $ 4,969 56 5 Service of process 5 $ 977 50 6 Attachment expenses 6 $ 7. Surety bond premiums .7 $ 8 Witness fees 8 $ 70,380 00 9 Court-ordered transcnpts 9 $ 10 Attorney fees (enter here if contractual or statutory fees are fixed without necessity ofa court detennination, otherNise a noticed motion is required) 10 $ 11. Models, blowups, and photocopies of exhibits .... 11 $ 1,498 10 12 Court reporter fees as established by statute 12 $ 2,031 50 ATTORNEY'S FEES. EXPENSES AND COSTS PER CONTRACT BY MOTION, MEDIATION FEES 13 Other 13 $ 2.400 00 TOTAL COSTS $ 84,555 06 I am the attorney, agent, or party who claims these costs To the best of my knowledge and belief this memorandum of costs is correct and these costs wereriecessanly incurred in this case Date February ^O , 2011 TODD A JONES Form Approvod for Optional Uso ETvUS Code of ClVll Procedure, Judicial Councll of California MEMORANDUM OF COSTS (SUMMARY) §§1032.1033 5 MC.010|Rev Jul^T. T999) American LegalNel, Inc. wwvv.FQrmsWorkFlow.com MC-011 SHORT TITLE CASE NUMBER Rodney Abbott, et al v Bntschgi Construction, et al 37,^^^04450 MEMORANDUM OF COSTS (WORKSHEET) 1 Filing and motion fees Paper filed Filing fee a 8/27/09 - Motion to Stnke/Demurrer $ 80 00 b. 6/21/10-Motion to Quash $ 40 00 c 12/3/10 - Motions to Compel (2) $ 80 00 d $ e $ f $ g • information about additional filing and motion fees is contained in Attachment 1g TOTAL 1 200 00 2 Jury fees Date Fee & mileage a 1/18/11 -1/21/11 $ 463 20 b 1/24/11 -1/28/11 $ 1,022 00 c 1/31/11 -2/2/11 $ 613 20 d $ e n Information about additional jury fees is contained in Attachment 2e TOTAL 2 $ 2,098 40 3 Juror food: $ and lodging: $ TOTAL 3 $ 0 00 4 Deposition costs Name of Video- deponent Taking Transcnbing Travel taping Subtotals a Mark Smith $ $ 666 75 $ $ $ 666 75 b Bryan Hill $ 548 00 $ 1,086 25 $ $ $ 1,634 25 c James R Lee $ $ 721.66 721.66 $ $ $ $ 721.66 d Robert "Skip" Weahunt $ 555 60 $ $ $ 555 60 Information about additional deposition costs is contained in Attachment 4e TOTAL 4 $ 3,578 26 (Continued on reverse) Page 1 of 4 Form Approved for Optional Use MEMORANDUM OF COSTS (WORKSHEET) . - , ,.,-—; 1 Code of Civil Procedure Judicial Councll of California American LegalNeL Inc §6 10321033 5 MC-011 {Rev J u l y l , 19991 *ww USCounForms com CASE NUMBER SHORT TITLE Rodney Abbott, et al v Bntschgi Construction, et al 07AS04450 - i rn .'r.; 5t - -- 5 Service of process Name of person Public Registered Other served officer process Publication (soecifv) a Bryan Hill $ $ 218 25$ $ b Steve Mears $ $ 119 00$ $ c Bnan Melvin $ $ 79 50 $ $ d 1 ^ Information about additiona1 costs for sen/ice of process is contained in Attachment 5d TOTAL 5 $ 416 75 6 Attachment expenses (specify). 6 $ 7 Surety bond premiums (itemize bonds and amounts) ... . . 7 $ 8 a Ordinary witness fees Name of witness Daily fee IVIileage Total (1) Tim Glissman days at 35 00 $/day 60 00 miles at 0 20 0/mile . 47 00 (2) Dynan Keller days at 35 00 $/day 120 00 miles at 0 20 ?i/mile 59 00 (3) Steve Mears days at 35 00 $/day 45 00 miles at 0 20 (iS/mile 44 00 (4) Terry Haagensen days at 35 00 $/day miles at 0/mile . 35 00 (5) Bnan Melvin days at 150 00 $/day miles at 0/mile 150 00 (6) • information about additional ordinary witness fees is contained in Attachment 8a(6) SUBTOTAL 8a 335 00 (Continued on next page) Page 2 of 4 MC-011 (Rev J u l y l , 1999) MEMORANDUM OF COSTS (WORKSHEET) American LegalNet. Inc *vww USCourtForms com SHORT TITLE CASE NUMBER Rodney Abbott, et al v Bntschgi Construction, et al 07AS04450 MEMORANDUM OF COSTS (WORKSHEET) (Continued) 8 b Expert fees (per Code of Civil Procedure section 998) Name of witness Fee (1) Jason Newlin 21125 hours at $ 180 00/hr $ 38,025 00 (2) Dave Heryet 136 50 hours at $ 200 00/hr . $ 27,300 00 (3) Donn Mannovich (tnal) 3 25 hours at $ 100 00/hr . $ 325 00 (4) hours at $ /hr $ 0 00 (5) ^ Information about additional expert witness fees is contained in Attachment 8b(5) SUBTOTAL 8b. $ 65,650.00 c Court-]«< '<.?•• 1 PROOF OF SERVICE 2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et al. Court and Action No: Sacramento County Superior No. 07AS04450 3 I, Cindy A. Ingland, declare that I am over the age of 18 years and not a party to this 4 action or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento, California 95825. On February 16, 2011 I caused the following document(s) to be served: 5 MEMORANDUM OF COSTS 6 [=1 [5(1 By placing a true copy ofthe documents listed above, enclosed in a sealed envelope, 7 addressed as set forth below, for collection and mailing on the date and at the business address shown above following our ordinary business practices. I am readily familiar 8 with this business' practice for collection and processing of correspondence for 9 mailing with the United States Postal Service. On the same day that a sealed envelope is placed for collection and mailing, it is deposited in the ordinary course ofbusiness 10 with the United States Postal Service with postage fully prepaid. 11 I I By having a true copy ofthe document(s) listed above transmitted by facsimile to the person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission 12 was reported as complete without error by a report issued by the transmitting facsimile 13 machine. 14 n By placing a true copy ofthe document(s) listed above, in a box or other facility regularly maintained by UPS, an express service carrier, or delivered to a courier or 15 driver authorized by the express service carrier to receive documents, in an envelope designated by the express service carrier, with delivery fees paid or provided for, 16 addressed as set forth below. 17 by having personal delivery by FIRST LEGAL SUPPORT SERVICES a true copy of 18 the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the address(es) set forth below. 19 20 [SEE ATTACHED SERVICE LIST] 21 I declare under penalty ofperjury that the foregoing is true and correct. Executed on February 16, 2011, at Sacramento, Califomia. 22 23 24 25 26 27 28 N1C341/608293-1 PROOF OF SERVICE 1 • Service List ' ' 2 Stephanie Finelli PLAINTIFFS 3 Law Offices of Stephanie J Finelli 1007 Seventh Street, Suite 500 Tel. (916)443-2144 4 Sacramento, CA 95814 Fax:(916)443-1511 E-mail sfinelll700@yahoo com 5 [BY HAND DELIVERY] Richarci D Sopp Counsel for CADRE DESIGN GROUP, INC. 6 Wheatley Sopp LLP 1004 River Rock Drive, Suite 245 Tel (916)986-3857 7 Folsom, CA 95630 Fax:(916)988-5296 [BY MAIL] Email. rds(gmwsblaw.com 8 Mark Smith In Pro Per 9 8549 Willow Valley Place Granite Bay, CA 95746 10 markdarlenesmith(ggmail.com [BY MAIL] 11 Richard W Freeman Counsel for R4C0RP 12 Scott S. Brooks WOOD SMITH HENNING & BERMAN LLP Tel. (925) 356-8200 13 1401 Willow Pass Road, Suite 700 Fax: (925) 356-8250 Concord, CA 94520-7982 14 [BY MAIL] 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC341/608293-1 2 "' SERVICE LIST PROOF OF SERVICE BY MAIL CASE NAME: Abbott v. Britschgi CASE NUMBER: Sacramento County Superior Court 07AS04450 1 declare that: I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am, and at all times mentioned herem was, an active member of the State Bar of Califomia and not a party to the above-entitied cause. My business address is 1007 Seventh Street, Suite 500, Sacramento, Califomia 95814. On March 3,2011, pursuant to CCP §1013A(2), I served the following. NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT; DECLARATION OF STEPHANIE J FINELLI BY MAIL, by depositing a copy ofsaid document m the United States mail in Sacramento, Califorma, in a sealed envelope, with postage fiilly prepaid, addressed as follows: Gregory Federico Archer Norris 301 University Ave , Suite 110 Sacramento, CA 95825 Mark Smith 8549 Willow Valley Place Granite Bay, CA 95746 Richard W. Freeman, Jr. Wood, Smith, Henning & Berman 1401 Willow Pass Road, Suite 700 Concord, CA 94520-7982 I declare imder penalty of perjury under the Jaws of Jjie State of Califomia the foregoing is true and correct Dated: March 3,2011 ^ Stephanie J Finelli