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NOP ON et
Rw NR MY NY Be Be eB eB Bee ee ee ee
BNRRRRBEKSHRBE Ge DWABDREBHRES
Michael G. Ackerman, Esq. (SBN 64997)
LAW OFFICES OF MICHAEL G. ACKERMAN
2391 The Alameda, Suite 100
Santa Clara, CA 95050
Telephone: (408) 261-5800
Facsimile: (408) 261-5900
Email: mga@mgackermanlaw.com
Attorneys for Plaintiff,
PHIL RESTIVO
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
PHILIP RESTIVO, } Case No.: 17CV308469
Plaintiff, )
) MEMORANDUM OF POINTS AND
vs. } AUTHORITIES IN SUPPORT OF
‘OSTS (CRC 3.1700
WORLDWIDE GROUND ) MOTION TO TAX C (CRC )
TRANSPORTATION SOLUTIONS, INC.; )
a ee an individual; and DOE! : Date: June 14, 2019
ough 5, inclusive. ) Time: 9:00 a.m.
Defendants. ) Dept.: 7 .
) Judge: Hon. Christopher G. Rudy
Plaintiff Philip Restivo hereby moves to tax costs claimed by defendant James Brown
pursuant to California Rules of Court, Rule 3.1700. This motion is made with respect to all costs
claimed by Defendant, James Brown, with the exception of the initial filing fee of $435.00.
The Rules of Professional Conduct, Rule 3.3 states that a lawyer shall not knowingly make a
false statement of fact or law to a tribunal or fail to disclose to the tribunal legal authority in the
controlling jurisdiction known to the lawyer to be directly adverse to the position of the client. Mr.
Cumming has violated both sub-sections of this rule where he has filed a memorandum of costs
knowing the items of costs included in the memorandum were not incurred by the defendant, James
Brown. The most obvious and glaring of these were filing fees paid on behalf of Worldwide Ground
Transportation Solutions, Inc., the fees for filing a cross-complaint on behalf of Worldwide Ground
MEMORANDUM OF POINTS AND AUTHORITIES ~ ! -
IN SUPPORT OF MOTION TO TAX COSTS Case No.: 17CV308469oOo NIN DW BP Bw NY
ee
BNRBRRBBRBSFeSrVABBEBEHEAS
Transportation Solutions, Inc., and the court reporter fees incurred during the trial. Further, Mr.
Cumming is presumed to know the law. In California, a prevailing party who is represented by the
same counsel as a nonprevailing party may only recover those costs incurred by the prevailing party
and were reasonably necessary to the conduct of the litigation on behalf of that party. Where the costs
were incurred both by the prevailing party and nonprevailing party and were reasonably necessary to
the conduct of the litigation for both, the award of costs is left to the sound discretion of the trial court
based upon the totality of the circumstances. (Charton v. Harkey (2016) 247 C.A. 4" 730, 744-745,
202 Cal. Rptr. 3d 369) It was therefore counsel’s burden in filing the memorandum of costs to not
only list the costs but to explain in a declaration the circumstances justifying the award of some or all
of those costs to Mr. Brown. Except for the initial filing fee of $435.00, virtually every other cost
was incurred either solely or jointly for Worldwide Ground Transportation Solutions, Inc. How is
this court to decide what portion of these jointly incurred costs were reasonably necessary for the
conduct of the litigation on behalf of Mr. Brown? There was a motion to disqualify brought on behalf
of both defendants, a demurrer brought on behalf of both defendants, and the motion for summary
judgment brought on behalf of both defendants. There were two depositions taken while Mr. Brown
was still in the case; Mr. Brown and Mr. Restivo. Obviously, the depositions were for the benefit of
both defendants. Mr. Carpenter’s deposition was taken after Mr. Brown was granted summary
judgment, and yet that deposition cost is included as well. All of the costs incurred in filing any
pleading with the court (such as a case management conference statement) were included for the full
amount.
This court may not simply divide the total costs incurred jointly by both defendants by two to
arrive at an appropriate allocation. (Charton, supra, at pages 743-745) Given it was Defendant
James Brown’s burden to provide this court with a truthful and accurate declaration of what the costs
were necessarily incurred on behalf of James Brown, and having failed to do so, this motion to tax
costs should be granted. All costs incurred except for James Brown’s initial filing fee of $435.00
should be stricken from the memorandum of costs. This would be within the discretion of this court
where James Brown has made an outrageously unreasonable claim for costs, knowing that the only
unfavorable consequence of such misconduct would be a reduction of his costs to what he should
MEMORANDUM OF POINTS AND AUTHORITIES ~2-
IN SUPPORT OF MOTION TO TAX COSTS Case No.: 17CV308469have asked for in the first place. (Serrano v. Unruh (1982) 32 Cal. 3d 621, at page 635, referring to a
motion for attorney’s fees)
For all of the foregoing reasons, Plaintiff's motion to tax costs should be granted and all of the
costs in the memorandum of costs, with the exception of the initial filing fee of $435.00, should be
stricken.
DATED: May F , 2019 LAW OFFICES
MICHAEL
By: .
ie “ACKERMAN, ESQ.
Attorneys for Plaintiff, PHIL RESTIVO
MEMORANDUM OF POINTS AND AUTHORITIES ~ 37
IN SUPPORT OF MOTION TO TAX COSTS Case No.: 17CV308469nan nun sk w
PROOF OF SERVICE
The undersigned declares:
Tam a citizen of the United States and a resident of Santa Clara County, State of California. I
am over the age of eighteen (18) years and not a party to the within above-entitled action. My
business address is 2391 The Alameda, Suite 100, Santa Clara, CA 95050.
On May _[O _, 2019, I served a copy of the following document(s) described as:
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
TAX COSTS (CRC 3.1700)
on the interested parties in this action by placing true copies thereof in a sealed envelope addressed to
the person(s) listed below:
William R. Cumming, Esq Nancy M. Battel, Esq.
Cumming & Associates, APLC Law Offices of Nancy Battel
3080 Bristol Street, Suite 630 1101 Westwood Drive, Suite B
Costa Mesa, CA 92626 San Jose, CA 95125
Facsimile: (714) 202-3162 Telephone (408) 723-2946
Facsimile (408) 266-7238
(Attorneys for Defendants, James Brown, Worldwide
Ground Transportation Solutions, Inc.) (Attorney for Worldwide Ground
Transportation Solutions, Inc., and James
Brown)
% (By U.S. Mail) I am readily familiar with my employer’s business practice for collection and
processing of correspondence for mailing with the United States Postal Service. I am aware that on
motion of the party served, service is presumed invalid if postal cancellation date or postage meter is
more than one day after dated of deposit for mailing in affidavit. I caused to be deposited such
envelope(s) with postage thereon fully paid to be placed in the United States Mail at Santa Clara,
California.
( ) Gy Personal Service) I caused to be delivered by hand on the interested parties in this action
by having true and correct copies placed thereof in an envelope addressed to the office of the
addressee(s) as above indicated.
() (By Facsimile) I caused to be served by facsimile a true and correct copy pursuant to C.C.P.
§1013(e), calling for agreement and written confirmation of that agreement on court
order, to the number(s) listed above or on an attached sheet. Said transmission was reported complete
MEMORANDUM OF POINTS AND AUTHORITIES ~ 4~
IN SUPPORT OF MOTION TO TAX COSTS Case No.: 17CV308469and without error.
() (By E-Mail) I caused a true copy of the foregoing document to be served on William R.
Cumming, Esq., with Cumming & Associates, APLC at cumming@cummingandassociateslaw.com,
via e-mail at his respective email address. This e-mail was complete and no reports of error were
received on May 10, 2019.
() (By Federal Express Overnight Mail) I caused to be served a true and correct copy enclosed
in a sealed package, for Federal Express Overnight collection and for overnight delivery. I had said
envelope marked for collection and overnight delivery to the addressed and to the office of the
addressee(s) as above indicated. In the ordinary course of business and including said overnight
envelopes, will be deposited with Federal Express at Santa Clara, California.
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct and that this declaration was executed in the City of Santa Clara, State of California,
on May 10, 2019.
TERHANIE S.
MEMORANDUM OF POINTS AND AUTHORITIES ~5-
IN SUPPORT OF MOTION TO TAX COSTS Case No.: 17CV308469
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NOP ON et Rw NR MY NY Be Be eB eB Bee ee ee ee BNRRRRBEKSHRBE Ge DWABDREBHRES Michael G. Ackerman, Esq. (SBN 64997) LAW OFFICES OF MICHAEL G. ACKERMAN 2391 The Alameda, Suite 100 Santa Clara, CA 95050 Telephone: (408) 261-5800 Facsimile: (408) 261-5900 Email: mga@mgackermanlaw.com Attorneys for Plaintiff, PHIL RESTIVO SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA PHILIP RESTIVO, } Case No.: 17CV308469 Plaintiff, ) ) MEMORANDUM OF POINTS AND vs. } AUTHORITIES IN SUPPORT OF ‘OSTS (CRC 3.1700 WORLDWIDE GROUND ) MOTION TO TAX C (CRC ) TRANSPORTATION SOLUTIONS, INC.; ) a ee an individual; and DOE! : Date: June 14, 2019 ough 5, inclusive. ) Time: 9:00 a.m. Defendants. ) Dept.: 7 . ) Judge: Hon. Christopher G. Rudy Plaintiff Philip Restivo hereby moves to tax costs claimed by defendant James Brown pursuant to California Rules of Court, Rule 3.1700. This motion is made with respect to all costs claimed by Defendant, James Brown, with the exception of the initial filing fee of $435.00. The Rules of Professional Conduct, Rule 3.3 states that a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client. Mr. Cumming has violated both sub-sections of this rule where he has filed a memorandum of costs knowing the items of costs included in the memorandum were not incurred by the defendant, James Brown. The most obvious and glaring of these were filing fees paid on behalf of Worldwide Ground Transportation Solutions, Inc., the fees for filing a cross-complaint on behalf of Worldwide Ground MEMORANDUM OF POINTS AND AUTHORITIES ~ ! - IN SUPPORT OF MOTION TO TAX COSTS Case No.: 17CV308469oOo NIN DW BP Bw NY ee BNRBRRBBRBSFeSrVABBEBEHEAS Transportation Solutions, Inc., and the court reporter fees incurred during the trial. Further, Mr. Cumming is presumed to know the law. In California, a prevailing party who is represented by the same counsel as a nonprevailing party may only recover those costs incurred by the prevailing party and were reasonably necessary to the conduct of the litigation on behalf of that party. Where the costs were incurred both by the prevailing party and nonprevailing party and were reasonably necessary to the conduct of the litigation for both, the award of costs is left to the sound discretion of the trial court based upon the totality of the circumstances. (Charton v. Harkey (2016) 247 C.A. 4" 730, 744-745, 202 Cal. Rptr. 3d 369) It was therefore counsel’s burden in filing the memorandum of costs to not only list the costs but to explain in a declaration the circumstances justifying the award of some or all of those costs to Mr. Brown. Except for the initial filing fee of $435.00, virtually every other cost was incurred either solely or jointly for Worldwide Ground Transportation Solutions, Inc. How is this court to decide what portion of these jointly incurred costs were reasonably necessary for the conduct of the litigation on behalf of Mr. Brown? There was a motion to disqualify brought on behalf of both defendants, a demurrer brought on behalf of both defendants, and the motion for summary judgment brought on behalf of both defendants. There were two depositions taken while Mr. Brown was still in the case; Mr. Brown and Mr. Restivo. Obviously, the depositions were for the benefit of both defendants. Mr. Carpenter’s deposition was taken after Mr. Brown was granted summary judgment, and yet that deposition cost is included as well. All of the costs incurred in filing any pleading with the court (such as a case management conference statement) were included for the full amount. This court may not simply divide the total costs incurred jointly by both defendants by two to arrive at an appropriate allocation. (Charton, supra, at pages 743-745) Given it was Defendant James Brown’s burden to provide this court with a truthful and accurate declaration of what the costs were necessarily incurred on behalf of James Brown, and having failed to do so, this motion to tax costs should be granted. All costs incurred except for James Brown’s initial filing fee of $435.00 should be stricken from the memorandum of costs. This would be within the discretion of this court where James Brown has made an outrageously unreasonable claim for costs, knowing that the only unfavorable consequence of such misconduct would be a reduction of his costs to what he should MEMORANDUM OF POINTS AND AUTHORITIES ~2- IN SUPPORT OF MOTION TO TAX COSTS Case No.: 17CV308469have asked for in the first place. (Serrano v. Unruh (1982) 32 Cal. 3d 621, at page 635, referring to a motion for attorney’s fees) For all of the foregoing reasons, Plaintiff's motion to tax costs should be granted and all of the costs in the memorandum of costs, with the exception of the initial filing fee of $435.00, should be stricken. DATED: May F , 2019 LAW OFFICES MICHAEL By: . ie “ACKERMAN, ESQ. Attorneys for Plaintiff, PHIL RESTIVO MEMORANDUM OF POINTS AND AUTHORITIES ~ 37 IN SUPPORT OF MOTION TO TAX COSTS Case No.: 17CV308469nan nun sk w PROOF OF SERVICE The undersigned declares: Tam a citizen of the United States and a resident of Santa Clara County, State of California. I am over the age of eighteen (18) years and not a party to the within above-entitled action. My business address is 2391 The Alameda, Suite 100, Santa Clara, CA 95050. On May _[O _, 2019, I served a copy of the following document(s) described as: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO TAX COSTS (CRC 3.1700) on the interested parties in this action by placing true copies thereof in a sealed envelope addressed to the person(s) listed below: William R. Cumming, Esq Nancy M. Battel, Esq. Cumming & Associates, APLC Law Offices of Nancy Battel 3080 Bristol Street, Suite 630 1101 Westwood Drive, Suite B Costa Mesa, CA 92626 San Jose, CA 95125 Facsimile: (714) 202-3162 Telephone (408) 723-2946 Facsimile (408) 266-7238 (Attorneys for Defendants, James Brown, Worldwide Ground Transportation Solutions, Inc.) (Attorney for Worldwide Ground Transportation Solutions, Inc., and James Brown) % (By U.S. Mail) I am readily familiar with my employer’s business practice for collection and processing of correspondence for mailing with the United States Postal Service. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter is more than one day after dated of deposit for mailing in affidavit. I caused to be deposited such envelope(s) with postage thereon fully paid to be placed in the United States Mail at Santa Clara, California. ( ) Gy Personal Service) I caused to be delivered by hand on the interested parties in this action by having true and correct copies placed thereof in an envelope addressed to the office of the addressee(s) as above indicated. () (By Facsimile) I caused to be served by facsimile a true and correct copy pursuant to C.C.P. §1013(e), calling for agreement and written confirmation of that agreement on court order, to the number(s) listed above or on an attached sheet. Said transmission was reported complete MEMORANDUM OF POINTS AND AUTHORITIES ~ 4~ IN SUPPORT OF MOTION TO TAX COSTS Case No.: 17CV308469and without error. () (By E-Mail) I caused a true copy of the foregoing document to be served on William R. Cumming, Esq., with Cumming & Associates, APLC at cumming@cummingandassociateslaw.com, via e-mail at his respective email address. This e-mail was complete and no reports of error were received on May 10, 2019. () (By Federal Express Overnight Mail) I caused to be served a true and correct copy enclosed in a sealed package, for Federal Express Overnight collection and for overnight delivery. I had said envelope marked for collection and overnight delivery to the addressed and to the office of the addressee(s) as above indicated. In the ordinary course of business and including said overnight envelopes, will be deposited with Federal Express at Santa Clara, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed in the City of Santa Clara, State of California, on May 10, 2019. TERHANIE S. MEMORANDUM OF POINTS AND AUTHORITIES ~5- IN SUPPORT OF MOTION TO TAX COSTS Case No.: 17CV308469