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Theresa J. Barta, SBN 150995
BARTA LAW
4041 Macarthur Blvd., Ste. 280
Newport Beach, CA 92660-2537
Telephone: (949) 833-3383
Facsimile: (949) 209-2530
Email: theresa@barta-law.com
Charles M. Louderback, SBN 88788
Stacey L. Pratt, SBN 124892
LOUDERBACK LAW GROUP
44 Montgomery Street, Suite 2970
San Francisco, CA 94104
Telephone: (415) 615-0200
Facsimile: (415) 795-4775
E-Mail: — clouderback@louderbackgroup.com
spratt@louderbackgroup.com
Attorneys for Plaintiff
DIANA P. BLUM, M.D.
IN AND FOR THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION
DIANA P. BLUM, M.D.,
Plaintiff,
Vv.
SUTTER HEALTH, a California corporation;
PALO ALTO FOUNDATION MEDICAL
GROUP, INC., a California corporation; PALO
ALTO MEDICAL FOUNDATION, a
California corporation; and DOES 1 through 20,
Defendants.
00022454 v2
Civil Case No. 2015-1-CV-277582
PLAINTIFF’S REPLY IN SUPPORT
OF PLAINTIFF’S MOTION TO
STRIKE AND TAX DEFENDANTS
SUTTER HEALTH AND PALO ALTO
MEDICAL FOUNDATION’S
MEMORANDUM OF COSTS
Date: April 24, 2018
Time: 1:30 p.m.
Dept: 16
Judge: Drew C. Takaichi
Complaint filed: March 4, 2015
Trial Date: January 8, 2018
PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND TAX DEFENDANTS
SUTTER HEALTH AND PALO ALTO MEDICAL FOUNDATION’S MEMORANDUM OF COSTS;
Case No. 2015-1-CV-27758210
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I INTRODUCTION
Plaintiff Diana P. Blum M_D. (“Plaintiff”) hereby submits her reply brief in support of
her motion to strike and costs claimed by defendants Sutter Health and Palo Alto Medical
Foundation (“PAME”) (collectively “Defendants”) in this litigation. In their opposition,
Defendants claim that the lodging costs associated with defense counsel’s Fairmont Hotel stay
were reasonably necessary to the conduct of the litigation because counsel believed that
commuting from San Francisco or Walnut Creek would have taken approximately four hours a
day, While Defendants concede that they commuted to depositions during the course of the
litigation, they claim that they decided to stay at the Fairmont San Jose -- a hotel near the
courthouse in San Jose -- because it would not have been “practicable” to commute to San Jose
for trial. As all the papers filed in connection with this motion show, these hotel costs incurred
were “merely convenient or beneficial” to preparation for trial. Nothing offered in response to
this motion demonstrates that the costs were “reasonably necessary to the conduct of the
litigation.” Plaintiff's motion should be granted accordingly.
IL. ARGUMENT
A. Defendants’ Hotel Charges Were for the Convenience of Counsel and Must
Therefore be Taxed
As Defendants concede in their opposition, the standard for recovery of a discretionary
cost is that the cost must be “reasonably necessary to the conduct of the litigation rather than
merely convenient or beneficial to its preparation” and “reasonable in amount. (Code Civ. Proc.
§ 1033.5(c)(2)-(3).” (Opposition, p. 3, lines 4-6.) Here, Defendants’ opposition reveals that the
costs were “merely convenient or beneficial to its preparation.” Accordingly, the lodging
charges in the amount of $8,557.36 should be taxed and/or stricken.
The central argument Defendants advance is that the commute to and from San Jose is a
lengthy one for counsel driving from San Francisco (55 miles each way) and Walnut Creek (54
miles each way). Here, Defendants assert that “a four hour commute ... would not have been
practicable...” (Opposition, p. 3, lines 17-18 [emphasis added].) However, the standard is
00022454 v2 -2-
PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND TAX DEFENDANTS
SUTTER HEALTH AND PALO ALTO MEDICAL FOUNDATION’S MEMORANDUM OF COSTS;
Case No. 2015-1-CV-277582Co eo ND HW BF Bw Ye
YM NY NY YN NY HN KY He we we ewe we we ewe eB
eorAXI nan FF BHF SF ODA AA WHR WN SF OD
whether the cost of Bay Area counsel staying in a Bay Area hotel during trial was “reasonably
necessary to the conduct of the litigation.” (Code Civ. Proc. § 1033.5(c)(2).) The supporting
declaration of Ms. Nakarai-Kanivas indicates she based the decision to stay in a hotel on her
previous experience working and living in the Bay Area: “I knew that the drive to/from San Jose
would take approximately two hours each way during regular commute times.” (Nakarai-
Kanivas Decl., 44.) She also attests that she anticipated that there would be significant work
done every day after Court, based on her experience with other cases. (/d.) However, the only
evidence of what was actually done after Court adjourned to justify shifting these hotel costs to
Plaintiff is contained within a single statement: “This ended up being true for this case as well,
and Mr. Porter and I consistently worked many hours after Court was adjourned each day.” (Id.,
lines 25-26.[emphasis added.])!
The fact that defense counsel may have worked “many hours” after Court each day does
not establish that the substantial costs of having two lawyers stay at the Fairmont Hotel San Jose
for the duration of the trial were “reasonably necessary to the conduct of the litigation.”
Defendants do not offer any evidence that defense counsel could not have reasonably conducted
the defense of the trial without staying overnight each night in San Jose. They offer no specifics
of the work they actually conducted after hours during this period that precluded them from
commuting to and from the trial. (See Nakarai-Kanivas Decl., 4.) Moreover, Plaintiff's
position that the hotel was “merely convenient” is further underscored by Defendants’ statement
that counsel elected to stay at the Fairmont Hotel not because it was a luxury hotel, but “because
of its proximity to the Courthouse...” (Opposition, p. 3, line 23 through p. 4, line 1; See also
Nakarai-Kanivas Decl., 95 “...1 selected the Fairmont San Jose because it was only a few blocks
from the Courthouse....”) As such, these hotel charges were “merely convenient or beneficial,”
and therefore, the Court should exercise its discretion and disallow these charges in their entirety.
! Mr. Porter offers no declaration in support of the hotel charges he incurred or the work
he performed.
00022454 v2 -3-
PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND TAX DEFENDANTS
SUTTER HEALTH AND PALO ALTO MEDICAL FOUNDATION’S MEMORANDUM OF COSTS;
Case No. 2015-1-CV-277582Ak Ww WN
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Further, to the extent that Defendants disclose that the rate they negotiated at the
Fairmont Hotel was $265 per night — and argue that this charge was reasonable because
Plaintiffs counsel must have paid $414 for her stay at the Residence Inn (based on counsel’s
search for rates for April 9, 2018) — Plaintiff's counsel paid a much lesser rate of $259 per night
for her stay at the Residence Inn. (Barta Reply Decl., 2.) However, regardless of the negotiated
rate incurred, Defendants have not met their burden to establish the underlying costs were
reasonably necessary to the litigation.
B. Defendants are Not Entitled to Attorney’s Fees as the Prevailing Party
Defendants assert in their opposition that, in a subsequent motion, they will seek their
attorney’s fees as the prevailing party under Civil Code section 1717. Plaintiff disputes that
Defendants are so entitled, and will oppose any such later-filed noticed motion for attorney’s
fees.
C. Plaintiff Has Filed a Notice of Appeal From the Underlying Order and
Judgment
Finally, after Plaintiff's motion to tax costs was filed, Plaintiff filed a notice of appeal
from the order granting nonsuit and judgment on which Defendants claim their entitlement to
costs. (Barta Reply Decl., Exh. A.) If reversed on appeal, all costs claimed by Sutter Health and
PAMF in their memorandum of costs as the prevailing party under Code of Civil Procedure
section 1033.5, will likewise be subject to reversal.
il. CONCLUSION
Based upon the foregoing, Plaintiff respectfully requests that the Court grant her motion
to strike and/or tax.
BARTA LAW
. ] pb
DATE: April 16, 2018 :
u hh bee
Theresa J Bartaf!
Attorney for Plaintiff
DIANA P. BLUM, M.D
00022454 v2 -4-
PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND TAX DEFENDANTS
SUTTER HEALTH AND PALO ALTO MEDICAL FOUNDATION’S MEMORANDUM OF COSTS;
Case No. 2015-1-CV-277582ah WwW WN
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LOUDERBACK LAW GROUP
DATE: April 16, 2018 // /
f
“Charles M. Louderback
Stacey L. Pratt
Attorneys for Plaintiff
DIANA P. BLUM, M.D.
00022454 v2 -5-
PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND TAX DEFENDANTS
SUTTER HEALTH AND PALO ALTO MEDICAL FOUNDATION’S MEMORANDUM OF COSTS;
Case No. 2015-1-CV-277582
Preview
eC oe AN a 10 re 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 Theresa J. Barta, SBN 150995 BARTA LAW 4041 Macarthur Blvd., Ste. 280 Newport Beach, CA 92660-2537 Telephone: (949) 833-3383 Facsimile: (949) 209-2530 Email: theresa@barta-law.com Charles M. Louderback, SBN 88788 Stacey L. Pratt, SBN 124892 LOUDERBACK LAW GROUP 44 Montgomery Street, Suite 2970 San Francisco, CA 94104 Telephone: (415) 615-0200 Facsimile: (415) 795-4775 E-Mail: — clouderback@louderbackgroup.com spratt@louderbackgroup.com Attorneys for Plaintiff DIANA P. BLUM, M.D. IN AND FOR THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION DIANA P. BLUM, M.D., Plaintiff, Vv. SUTTER HEALTH, a California corporation; PALO ALTO FOUNDATION MEDICAL GROUP, INC., a California corporation; PALO ALTO MEDICAL FOUNDATION, a California corporation; and DOES 1 through 20, Defendants. 00022454 v2 Civil Case No. 2015-1-CV-277582 PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND TAX DEFENDANTS SUTTER HEALTH AND PALO ALTO MEDICAL FOUNDATION’S MEMORANDUM OF COSTS Date: April 24, 2018 Time: 1:30 p.m. Dept: 16 Judge: Drew C. Takaichi Complaint filed: March 4, 2015 Trial Date: January 8, 2018 PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND TAX DEFENDANTS SUTTER HEALTH AND PALO ALTO MEDICAL FOUNDATION’S MEMORANDUM OF COSTS; Case No. 2015-1-CV-27758210 u 12 13 4 15 16 7 18 19 20 21 22 23 24 25 26 27 28 I INTRODUCTION Plaintiff Diana P. Blum M_D. (“Plaintiff”) hereby submits her reply brief in support of her motion to strike and costs claimed by defendants Sutter Health and Palo Alto Medical Foundation (“PAME”) (collectively “Defendants”) in this litigation. In their opposition, Defendants claim that the lodging costs associated with defense counsel’s Fairmont Hotel stay were reasonably necessary to the conduct of the litigation because counsel believed that commuting from San Francisco or Walnut Creek would have taken approximately four hours a day, While Defendants concede that they commuted to depositions during the course of the litigation, they claim that they decided to stay at the Fairmont San Jose -- a hotel near the courthouse in San Jose -- because it would not have been “practicable” to commute to San Jose for trial. As all the papers filed in connection with this motion show, these hotel costs incurred were “merely convenient or beneficial” to preparation for trial. Nothing offered in response to this motion demonstrates that the costs were “reasonably necessary to the conduct of the litigation.” Plaintiff's motion should be granted accordingly. IL. ARGUMENT A. Defendants’ Hotel Charges Were for the Convenience of Counsel and Must Therefore be Taxed As Defendants concede in their opposition, the standard for recovery of a discretionary cost is that the cost must be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount. (Code Civ. Proc. § 1033.5(c)(2)-(3).” (Opposition, p. 3, lines 4-6.) Here, Defendants’ opposition reveals that the costs were “merely convenient or beneficial to its preparation.” Accordingly, the lodging charges in the amount of $8,557.36 should be taxed and/or stricken. The central argument Defendants advance is that the commute to and from San Jose is a lengthy one for counsel driving from San Francisco (55 miles each way) and Walnut Creek (54 miles each way). Here, Defendants assert that “a four hour commute ... would not have been practicable...” (Opposition, p. 3, lines 17-18 [emphasis added].) However, the standard is 00022454 v2 -2- PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND TAX DEFENDANTS SUTTER HEALTH AND PALO ALTO MEDICAL FOUNDATION’S MEMORANDUM OF COSTS; Case No. 2015-1-CV-277582Co eo ND HW BF Bw Ye YM NY NY YN NY HN KY He we we ewe we we ewe eB eorAXI nan FF BHF SF ODA AA WHR WN SF OD whether the cost of Bay Area counsel staying in a Bay Area hotel during trial was “reasonably necessary to the conduct of the litigation.” (Code Civ. Proc. § 1033.5(c)(2).) The supporting declaration of Ms. Nakarai-Kanivas indicates she based the decision to stay in a hotel on her previous experience working and living in the Bay Area: “I knew that the drive to/from San Jose would take approximately two hours each way during regular commute times.” (Nakarai- Kanivas Decl., 44.) She also attests that she anticipated that there would be significant work done every day after Court, based on her experience with other cases. (/d.) However, the only evidence of what was actually done after Court adjourned to justify shifting these hotel costs to Plaintiff is contained within a single statement: “This ended up being true for this case as well, and Mr. Porter and I consistently worked many hours after Court was adjourned each day.” (Id., lines 25-26.[emphasis added.])! The fact that defense counsel may have worked “many hours” after Court each day does not establish that the substantial costs of having two lawyers stay at the Fairmont Hotel San Jose for the duration of the trial were “reasonably necessary to the conduct of the litigation.” Defendants do not offer any evidence that defense counsel could not have reasonably conducted the defense of the trial without staying overnight each night in San Jose. They offer no specifics of the work they actually conducted after hours during this period that precluded them from commuting to and from the trial. (See Nakarai-Kanivas Decl., 4.) Moreover, Plaintiff's position that the hotel was “merely convenient” is further underscored by Defendants’ statement that counsel elected to stay at the Fairmont Hotel not because it was a luxury hotel, but “because of its proximity to the Courthouse...” (Opposition, p. 3, line 23 through p. 4, line 1; See also Nakarai-Kanivas Decl., 95 “...1 selected the Fairmont San Jose because it was only a few blocks from the Courthouse....”) As such, these hotel charges were “merely convenient or beneficial,” and therefore, the Court should exercise its discretion and disallow these charges in their entirety. ! Mr. Porter offers no declaration in support of the hotel charges he incurred or the work he performed. 00022454 v2 -3- PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND TAX DEFENDANTS SUTTER HEALTH AND PALO ALTO MEDICAL FOUNDATION’S MEMORANDUM OF COSTS; Case No. 2015-1-CV-277582Ak Ww WN oC eo ND 10 ul 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further, to the extent that Defendants disclose that the rate they negotiated at the Fairmont Hotel was $265 per night — and argue that this charge was reasonable because Plaintiffs counsel must have paid $414 for her stay at the Residence Inn (based on counsel’s search for rates for April 9, 2018) — Plaintiff's counsel paid a much lesser rate of $259 per night for her stay at the Residence Inn. (Barta Reply Decl., 2.) However, regardless of the negotiated rate incurred, Defendants have not met their burden to establish the underlying costs were reasonably necessary to the litigation. B. Defendants are Not Entitled to Attorney’s Fees as the Prevailing Party Defendants assert in their opposition that, in a subsequent motion, they will seek their attorney’s fees as the prevailing party under Civil Code section 1717. Plaintiff disputes that Defendants are so entitled, and will oppose any such later-filed noticed motion for attorney’s fees. C. Plaintiff Has Filed a Notice of Appeal From the Underlying Order and Judgment Finally, after Plaintiff's motion to tax costs was filed, Plaintiff filed a notice of appeal from the order granting nonsuit and judgment on which Defendants claim their entitlement to costs. (Barta Reply Decl., Exh. A.) If reversed on appeal, all costs claimed by Sutter Health and PAMF in their memorandum of costs as the prevailing party under Code of Civil Procedure section 1033.5, will likewise be subject to reversal. il. CONCLUSION Based upon the foregoing, Plaintiff respectfully requests that the Court grant her motion to strike and/or tax. BARTA LAW . ] pb DATE: April 16, 2018 : u hh bee Theresa J Bartaf! Attorney for Plaintiff DIANA P. BLUM, M.D 00022454 v2 -4- PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND TAX DEFENDANTS SUTTER HEALTH AND PALO ALTO MEDICAL FOUNDATION’S MEMORANDUM OF COSTS; Case No. 2015-1-CV-277582ah WwW WN Co ND 10 ret 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOUDERBACK LAW GROUP DATE: April 16, 2018 // / f “Charles M. Louderback Stacey L. Pratt Attorneys for Plaintiff DIANA P. BLUM, M.D. 00022454 v2 -5- PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND TAX DEFENDANTS SUTTER HEALTH AND PALO ALTO MEDICAL FOUNDATION’S MEMORANDUM OF COSTS; Case No. 2015-1-CV-277582