Preview
© OR-GINAL
KNIGHT LAW GROUP, LLP
-
|
Steve Mikhov (SBN 224676)
Ba
HH
Deepak Devabose (SBN 298890)
10250 Constellation Blvd., Suite 2500
WH
Los Angeles, CA 90067
BP
Telephone: (310) 552-2250
Fax: (310) 552-7973
NW
Email: stevem@knightlaw.com
deepakd@knightlaw.com
DR
NIN
HACKLER DAGHIGHIAN MARTINO & NOVAK, P.C.
Sepehr Daghighian (SBN 239349)
Erik K. Schmitt (SBN 314285)
OO
10250 Constellation Blvd., Suite 2500
Los Angeles, CA 90067
SF
Telephone: (310) 887-1333
LU
Facsimile: (310) 887-1334
Ln
2
E-mail: sd@hdmnlaw.com
LW
eks@hdmnlaw.com
DP
we
WHO
Attorneys for Plaintiff:
RICHARD BUSK
BP
ew
Ad
SUPERIOR COURT OF CALIFORNIA
WH
ew
XV4
DA
we
COUNTY OF PLACER
Bmw
NK
we
B&B
RICHARD BUSK, Case No.: SCV0038572
=|
Plaintiff, Assigned to the Honorable Mark S. Curry
DO
PLAINTIFF’S NOTICE OF MOTION
YN
VS.
AND MOTION TO TAX AND/OR
—-§
NY
FCA US LLC., a Delaware Limited Liability STRIKE DEFENDANT’S COSTS
Company; ROSEVILLE MOTOR
Nn
N
CORPORATION, a California Limited Hearing Date: January 31, 2019
Liability Company dba AUTONATION Time: 8:30 a.m.
Bw
NY
CHRYSLER DODGE JEEP; and DOES 1 Dept.: 42
through 10, inclusive,
FF
NY
YY
NY
Defendants.
ND
NY
ony
YN
PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS
—
NO
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
WY
PLEASE TAKE NOTICE that on January 31, 2019 at 8:30 a.m. in Department 42 of the
fF
Placer County Superior Court located at 10820 Justice Center Dr., Roseville, CA 95678, Plaintiff
nA
Richard Busk, will and hereby does, move this Court for an order striking and/or taxing Defendant
Dn
FCA US LLC’s improper costs because many of the claimed costs are unrecoverable under Code of
NY
Civil Procedure section 1033.5. The total amount of the unauthorized and/or unreasonable and
mea
excessive costs that should be taxed is$6,587.18.
Co
This motion is based upon the memorandum of points and authorities attached hereto, upon
O&O
hl
the declarations that may be filed in support, upon the pleadings herein, and upon such evidence,
|
hl
oral and documentary, that may be presented at the hearing, and upon the entire record of the case.
Pre
NY
PCO
WY
Dated: January 3, 2019
FF
FS
nH
YF
HD
FCF Ff
HN
Ff
ODO
RICHARD BUSK
Ff
OD
N
K|K&
NO
NY
NO
Ww
NY
Fk
NN
UN
NH
OW
NO NO
oN
Nb
PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS
YN
MEMORANDUM OF POINTS AND AUTHORITIES
WY
E INTRODUCTION
FF
Defendant FCA US LLC (“Defendant” or “FCA”) submits a Memorandum of Costs seeking
$17,408.07 in what it routinely insists is a“simple lemon law action.” FCA’s cost bill isexcessive,
DH
not only because itoverlooks the statutory limitations on which costs are recoverable, but also
because FCA even attempted to include expenses that were not incurred by its counsel of record in
PON
this matter. While FCA is free to litigateits case as aggressively and as costly as itwishes, not every
(Oo
expenditure is passed on to Plaintiff merely because itwas incurred by FCA. Code of Civil Procedure
oC
§ 1033.5”) specifically identifies and limits the items of costs that are
hE
section 1033.5 (“CCP
ES
recoverable as litigation costs. Defendant’s Memorandum of Costs seeks recovery of expenses far
hl
Se
a company
NY
beyond what is permitted. A memorandum of costs is not intended to substitute as
FSF
WY
expense account. Yet, the majority of the exorbitant sum that Defendant seeks to recover is
FF
costs,
FS
comprised of unrecoverable expenses. CCP § 1033.5 codifies the listof permissible litigation
of litigation,” not just
FF
and even those listed costs must stillbe “reasonably necessary to the conduct
DH
Only part of FCA’s claimed
FF
“merely convenient or beneficial,” if they are to be reimbursed.
under the statute. The restshould be stricken.
|
expenditures are actually recoverable as litigationcosts
FN
FF
The burden is on Defendant to justify its costs. As set forth below, a verified cost
ODO
and reasonably incurred only if
F-
memorandum isprima facie evidence that costs were necessarily
DOD
NO
those costs appear proper on their face. In such a circumstance, the opposing party, i.e.Plaintiff,
KF
NO
must rebut the costs. However, whereas here, the costs are not
proper on their face, the burden
such as this
NN
remains on FCA as the claiming party to justify its costs upon a proper challenge,
WN
the
NO
motion. Consequently, the burden is squarely on Defendant to explain why itshould recover
fe
NO
numerous improper requests for reimbursement that are not statutorily recoverable.
UN
HNO
In light of the following, Defendant should be taxed the sum of $6,587.18. FCA would still
NO
recover $10,820.89.
NO
wo
Il. ARGUMENT
Burden of Establishing That Its Costs Were Necessary and
Co
A. Defendant Bears the
wo
Reasonable
PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS
In ruling upon a motion to tax costs, the burden of proof isalways on the party seeking the
to submit evidence that clearly submits the claim. (Hensley v. Eckerhart (1983) 461 U.S.
award
WN
424, 437.) If the items appear to be proper charges, the verified memorandum is prima facie
WwW
evidence that the costs, expenses and services therein listed were necessarily incurred (Oak Grove
-
Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698) and the burden of showing that
School
OND
properly chargeable or isunreasonable is upon the party challenging the costs (Wilson
an item is not
55 Cal.App.2d 678, 682-683). “The trial court’s firstdetermination iswhether the
v. Nichols (1942)
oclCCOUlUlUOWWOUN
expressly allows the particular item and whether itappears proper on its face; ifso, the burden
statute
is on the objecting party to show the costs to be unnecessary or unreasonable.” (Foothill-DeAnza
College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.) Once items are properly
Community
they are put in issue, and the burden of proof is on the party claiming them as costs.
objected to,
v.California State Auto Assn’ (1993) 19
12 (Melnyk v. Robeldo (1977) 64 Cal.App.3d 618, 624: Ladas
13 Cal.App.4th 761, 774; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265.)
on its face does not appear to
14 However, where the claim is made for a disbursement which
for which is doubtful, and the item is properly
15 be proper, or is for a disbursement the necessity
ison the claimant to establish the necessity forthe
16 challenged upon a motion totax costs, the burden
735.)
17 disbursement. (Stenzor v. Leon (1955) 130 Cal.App.2d 729,
by statute, the burden is on the party claiming the
18 Where costs are not expressly allowed
and necessary. (Perko’s Enterprises, Inc. v. RRNS
19 costs to show that the charges were reasonable
20 Enterprise (1992) 4 Cal.App.4th 238, 245.)
challenged, the claiming party must submit supporting
21 When claimed costs are properly
(1998) 63 Cal.App.4th 1258, 1263; Bach
2 documentation to sustain itsburden. (Jones v. Dumrichob
23 v. County of Butte (1989) 215 Cal. App. 3d 294, 308.)
the charges appear proper on their face. Iffacially
24 Thus, the analysis first considers whether
challenge the costs and then the moving party must
25 proper, the burden is on Plaintiff to properly
objectionable costs are not proper on their face inasmuch
26 justify them. However, whereas here, the
recovery, the burden is stillon Defendant as the claiming
oy as there is no statutory basis supporting
expense items. As more fully set forth below, a substantial portion
28 party to justify the request for the
1
TO TAX AND/OR STRIKE DEFENDANT’S COSTS
PLAINTIFF'S MOTION
of Defendant’s costs are beyond the scope of what is permitted by statute and should be stricken.
—
Accordingly, upon this noticed motion, Plaintiff objects to costs which are not statutorily
OUUN
Oa
permissible or are unreasonable or excessive on their face, as more specifically set forth below. The
burden rests with Defendant tojustify itsexpenditures.
oclUCOUlUlUC
B. Defendant Seeks Reimbursement of Costs That Are Legally Impermissible,
DO
Unreasonable and/or Unnecessary
CCP § 1033.5 provides a laundry list of sixteen categories of litigation costs that may be
reimbursed to a prevailing party. (Code Civ. Proc. § 1033.5(a)(1) — (16).) “Costs statutes are to be
strictly construed.” (Shulman v. Group W Productions, Inc. (1997) 51 Cal.App.4th 850, 894.)
“Because the right to costs isgoverned strictlyby statute a court has no discretion to award costs not
statutorily authorized.” (Rose v. Hertz Corp. (1985) 168 Cal.App.3d Supp. 6, 11; see also Parker v.
me
City of Los Angeles (1974) 44 Cal.App.3d 556, 566; Hogan v. Ingold (1952) 38 Cal.2d 802, 814.)
KPO
me
If the cost item is on the list,the next layer of analysis is whether the cost was reasonably
WD
incurred and not merely convenient or beneficial. “Any award of costs shall be subject to the
BR
following: “...(2) Allowable costs shall be reasonably necessary to the conduct of the litigation
WN
rather than merely convenient or beneficial to itspreparation. (3) Allowable costs shall be reasonable
DB
in amount.” (Code Civ. Proc § 1033.5(c)(2), (3).)“The intent and effect of section 1033.5(c)(2) isto
NY
ww
authorize a trial court to disallow recovery of costs, including filing fees, when itdetermines the
OH
costs were incurred unnecessarily.” (Perko’s Enterprises, supra, 4 Cal.App.4th at 245.) Costs
ODO
permitted by statute are allowable only if they “were reasonably necessary to the conduct of the
DTD
NO
litigation” and “reasonable in amount.” (Nelson v. Anderson (1999) 72 Cal.App. 4th 111, 129.)
KF
RO
Costs that are merely convenient or beneficial are not recoverable. (See id.)
Ne
KN
Here, Defendant seeks recovery of several statutorily impermissible expenses. The recovery
Ww
KN
of costs is purely a creature of statute and those costs that are not listed in the statute may not be
FF
NO
recovered. The Legislature saw fitto identify several categories of reimbursable expenses, to the
UN
NO
exclusion of others. The list ofrecoverable costs under CCP § 1033.5 is obviously not an exhaustive
DOD
NYO
listof allexpenses that are typically incurred during litigation, yet some expenditures are recoverable
wpO
oN
and others are not. There is a difference between “costs” and “expenses.” (See Arntz Contracting
NO
2
PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS
Co. v.St. Paul
coclUNCUOUlUCUCUCCOOON
Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 491 [holding litigation “expenses”
There are many
Nl
are far broader than “costs”].) In this motion, the issue is“costs,” not “expenses.”
expenditures incurred during litigation, but not all of those are codified as recoverable. Many
Sea
naturally occurring expenses were not included inthe canon of allowable costs. “That plain language
[of the statute] reflects a clear intent to limit the recovery of costs to those which are ‘reasonably
OD
necessary.”” (Perko’'s Enterprises, supra, 4 Cal.App.4th at 244.) Thus, not all litigation expenses
are permissible. Those which were delineated in CCP § 1033.5 are the statutory “costs” that may be
recovered; other litigation “expenses” are not recoverable.
The burden is squarely on FCA to justify the need for some of its outrageous spending. This
Court should grant Plaintiff's motion and strike FCA’s claimed expenditures in the amount of
$6,587.18. This amount isjust a small fraction of the costs sought by Defendant. Plaintiff submits
—
this Court should tax the following costs, which are not permitted by statute, are not reasonable or
YO
ee
necessary to the conduct of this litigation, and/or lack supporting documents to be able to ascertain
WY
whether or not the cost amount is reasonable and necessary:
Fe
er
1) Filing Fees (41)
On
mm
Plaintiff has no objection to the amounts sought for filing fees. Filing fees are properly
WB
recoverable.
NY
mm
2) Deposition Costs ({ 4
oH
The costs of taking, videotaping, and transcribing depositions, including an original and one
Oo
Km
copy of depositions taken by the claimant and one copy of depositions taken by the party against
TD
RO
whom costs are allowed, are allowable. (C.C.P. 1033.5(a)(3).) However, allowable costs shall be
F|Y&
KN
reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to
NHN
KH
itspreparation. Here, FCA has requested reimbursement for the costs of a transcript of the deposition
WO
KH
of Dr. Barbara Luna, who was never called at trial.Accordingly, Plaintiff requests the Court tax the
Fk
KO
$504.80 requested by Defendant that relates to this deposition.
UN
HO
Furthermore, FCA’s request for reimbursement for the travel expenses in the amount of
HP
NO
$541.75 incurred for the deposition of Thomas Lepper in line item 4(b) should also be stricken. This
PO
travel was simply not reasonably necessary for this deposition. The deposition occurred at
Co
DO
3
PLAINTIFF'S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS
Defendant’s Los Angeles office and was not taken by either of Defendant’s San Francisco based
trial attorneys. Accordingly, any Los Angeles-based attorney of Defendant’s counsel could have
NO
taken the deposition without incurring travel costs.
W
Additionally, Plaintiff requests the $245.34 in travel costs relating to the deposition of
Fe
Plaintiff Richard Busk be stricken. This deposition occurred on March 2, 2018, on the same date and
WN
in the same general location as the Mandatory Settlement Conference. Itappears that Defendant has
Dn
labeled this travel expense as relating to Plaintiff's deposition merely to fallwithin the guidelines of
NI
what may be recoverable, even though it would have had to drive to the Mandatory Settlement
Aa
Conference. In fact, the only reason the deposition occurred atthis location isbecause Plaintiff, who
SoS
lives out of state,was required to be at the Mandatory Settlement Conference as well. Thus, because
CO
Defendant was required to attend the Mandatory Settlement Conference on the same date as
eS
KH
Plaintiff's deposition, any travel costs related to the deposition were not necessarily incurred.
Se
WHY
Thus, Plaintiff asks this Court to tax $1,291.89 out of the $4,021.52 in deposition costs
Se
requested by Defendant.
BF
Se
3) Expert Fees ({8(b))
Be
DWN
Plaintiff has no objection to the amounts sought for Expert fees. Expert fees are properly
Be
recoverable.
Be
ON
4) Court Reporter Fees ({11)
SB
Court reporter fees as established by statute are recoverable. (Code Civ. Proc. §
HB
OO
1033.5(a)(11).) However, transcripts of court proceedings which have not been ordered by the Court
ND
are not recoverable. (Code of Civil Procedure section 1033.5(b)(5); Davis v.KGO-T.V., Inc. (1998)
|—§-
NN
17 Cal.4th 436, 439; Sanchez v. Pacificare Health Systems (1999) 75 Cal. App. 4th 946, 948-49;
WN
Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal. App. 4th 592, 598-99.) The Legislature
VY
articulated a distinction between the types of transcripts of hearings that are recoverable versus those
f&
NH
that are not by carving out the limitation that they are recoverable ifthe Court orders the transcripts.
NH
A
Based on the fact that the Legislature as spoken on this cost category and created a limitation, itmust
NY
A
be inferred that the Legislature intended that not all transcripts would be recoverable as litigation
NY
oN
costs.
wo
PLAINTIFF'S MOTION TO TAX AND/OR STRIKE DEFENDANT'S COSTS
— Defendant’s entry in its cost memorandum indicates the expenditure were for the “Court
Reporter Fees” for the trialproceedings. The requested amount of $2,640.00 for the Court Reporter
PPO
costs listed in Defendant’s memorandum is not a permissible litigation cost for FCA to recover
WD
because there is no statute that confers such a right to FCA. Further, FCA cannot argue that these
fees were ordered by the Court because such orders were, in fact, never issued. Thus, FCA must (i)
Wn
identify that statute that authorizes recovery of court reporter fees, (ii)provide documentation that
DH
supports the amount of the charge and (iii) explain why this charge was both reasonable and
N
meme
necessary.
Since Defendant fails to demonstrate how any of these transcripts were required by court
So
order, these costs of $2,640.00 should be taxed because they do not appear to be authorized,
OS
necessary or reasonable expenses.
KF
EOE
5) “Other Expenses” ({ 16)
NYO
As set out below, Plaintiff respectfully requests the Court tax $2,655.29 of the $5,564.96
WY
FE
listed in Defendant’s “Other” costs, and reflected in Exhibit “M” attached to the Declaration of Jeff
Fe
Ee
Thayer in Support of Defendant’s Cost Memorandum.
OHO
EE
As an initial matter, Defendants entry under the “Other Expenses” is labeled as “Counsel
WDB
Ee
Travel and Lodging”; however, Defendant simply lists as figure without itemizing the individual
NY
ee
expenses, making itextremely tedious to determine if these costs are recoverable. Further, Defendant
TBH
merely attached a host of invoices and receipts in an apparent attempt to either make the Court sort
UO
Ee
through the invoices itself, or simply hope that the Court would summarily grant the lump sum of
Oo
NN
costs requested in this category. As the Court will see, however, Defendant appears to have
|
intentionally submitted substantial “Counsel Travel and Lodging” costs for persons that are not, and
NHN
NO
never were, Defendant’s counsel in this matter.
WD
NO
Curiously, FCA requests the Court award costs in the amount of $2,269.43, buried deep in
Ph
NO
Exhibit “M” of its supporting declaration, as it relates to travel and lodging costs of “Brian
AN
NO
Yasuzawa.” Brian Yasuzawa isan attorney inthe Los Angeles office of Hawkins Parnell Thackston
NO
NO
& Young, LLP. Neither Mr. Yasuzawa, nor any other attorney in the Los Angeles office, performed
wpo
on this case. In fact, upon information and belief, Mr. Yasuzawa did nothing
oOo
any work whatsoever
NO
5
PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS
& other than sit inthe audience to observe the trialproceedings for several days. Even worse, itappears
that Defendant is requesting hotel reimbursement for Mr. Yasuzawa when he was not even in Placer
NO
County, according the travel invoices submitted to this Court.
WOW
The following isan enumerated listof the wholly improper costs requested that relate directly
F&F
to Mr. Yasuzawa’s presence at this matter’s trial:
WN
DBD
Date : Nature of Expense Amount
ON
10/24/18 Flight from BUR to SMF $261.98
10/25/18 Flight from SMF to BUR $261.98
SoS
10/25/18 Rental Car $104.94
CO
ee
10/26/18 Hotel $618.62
ee
SK
10/28/18 Flight from BUR to SMF $261.98
Se
NO
10/29/18 Hotel $204.37
WY
ee
10/30/18 Hotel $210.99
FP
ee
10/30/18 Rental Car $82.59
Wn
Re
10/30/18 Flight from SMF to BUR $261.98
DB
ee
TOTAL | $2,269.43
NQH
HOH
Further, Defendant requests costs in the amount of $385.86 relating to mileage expenses
ee
ODO
incurred by Defendant’s lead trialcounsel, Jeff Thayer. An overview of the pertinent documents
TD
NO
contained in Exhibit “M” reveals that Mr. Thayer is requesting mileage reimbursement for 708 miles
F&
VN
(118 miles times 6 trips).This information was handwritten on the mileage document itselfcontained
NN
in Exhibit “M.” However, neither Defendant’s Memo, nor Mr. Thayer’s declaration, sets forth when
WN
NY
these expenses were incurred, and to which hearings/proceedings they relate. As such, neither
Ff
NO
Plaintiff nor the Court can properly determine whether these costs were reasonable and necessary to
UN
HN
this litigation. Thus, FCA must (i) provide documentation that supports the date the cost was
BO
WN
incurred, and (ii)explain why this charge was both reasonable and necessary, in order for these
wpo
requested costs to be considered by the Court.
CoN
NO
PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS
we Accordingly, the amounts totaling to $2,655.29 do not appear to be authorized, necessary or
reasonable reimbursements and thus should be taxed.
Pp
Il. CONCLUSION
WH
Defendant seeks an award of costs, many of which are statutorily
BR
impermissible and/or were
unnecessarily and unreasonably incurred. The Court should exercise
NW
its discretion and tax
DR
Defendant’s costs inthe total sum of $6,587.18 as follows:
ON
Deposition Costs: $1,291.89
ODO
Court Reporter Fees: $2,640.00
Other Expenses: $2,655.29
oF
ee
TOTAL TO BE STRICKEN: $6,587.18
eee
Dated: January 3, 2019
Respectfully submitted,
—O
NO
NO
NO
NO
NO
PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS
PROOF OF SERVICE
Ke (Code of Civil Procedure §1013a)
I am employed in the County of Los Angeles, State of California. I am over the age of
pO
18
years and not a party to the within action. My business address 10250 Constellation Blvd., Suite
WwW
2500, Los Angeles, CA 90067.
I served the foregoing document described
BP
as:
WNW
PLAINTIFF’S NOTICE OF MOTION AND MOTION TO TAX AND/OR STRIKE
DEFENDANT?’S COSTS
ND
Said document was served on the interested parties in this action, by placing true copies
thereof enclosed in sealed envelopes, with postage prepaid, addressed as follows:
OO
SEE ATTACHED MAILING LIST
So
XX BY MAIL: Iam readily familiar with this firm's practice of collection and processing
CO
correspondence for mailing with the United States Postal Service. Under that practice, it
KF
would be deposited with the U.S. Postal Service on that same day with postage thereon
me
fully prepaid at a Postal Service collection box at Los Angeles, California, inthe ordinary
PO
course of business. The envelope was sealed and placed for collection that same day
following ordinary business practices, addressed to the above-referenced attorney.
me
WO
BP
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Hn
WDB
Executed on January 3, 2019 atLos Angeles, California.
ANA
wm
fF
OBO
gut Gd
NNO
TD
‘{ JACQUELINE GIBNEY
—|§
KN
NY
KN
WD
NO
fF
HO
On
NO
Hn
NO
NO
CoN
DO
-|-
PROOF OF SERVICE
Preview
© OR-GINAL KNIGHT LAW GROUP, LLP - | Steve Mikhov (SBN 224676) Ba HH Deepak Devabose (SBN 298890) 10250 Constellation Blvd., Suite 2500 WH Los Angeles, CA 90067 BP Telephone: (310) 552-2250 Fax: (310) 552-7973 NW Email: stevem@knightlaw.com deepakd@knightlaw.com DR NIN HACKLER DAGHIGHIAN MARTINO & NOVAK, P.C. Sepehr Daghighian (SBN 239349) Erik K. Schmitt (SBN 314285) OO 10250 Constellation Blvd., Suite 2500 Los Angeles, CA 90067 SF Telephone: (310) 887-1333 LU Facsimile: (310) 887-1334 Ln 2 E-mail: sd@hdmnlaw.com LW eks@hdmnlaw.com DP we WHO Attorneys for Plaintiff: RICHARD BUSK BP ew Ad SUPERIOR COURT OF CALIFORNIA WH ew XV4 DA we COUNTY OF PLACER Bmw NK we B&B RICHARD BUSK, Case No.: SCV0038572 =| Plaintiff, Assigned to the Honorable Mark S. Curry DO PLAINTIFF’S NOTICE OF MOTION YN VS. AND MOTION TO TAX AND/OR —-§ NY FCA US LLC., a Delaware Limited Liability STRIKE DEFENDANT’S COSTS Company; ROSEVILLE MOTOR Nn N CORPORATION, a California Limited Hearing Date: January 31, 2019 Liability Company dba AUTONATION Time: 8:30 a.m. Bw NY CHRYSLER DODGE JEEP; and DOES 1 Dept.: 42 through 10, inclusive, FF NY YY NY Defendants. ND NY ony YN PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS — NO TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: WY PLEASE TAKE NOTICE that on January 31, 2019 at 8:30 a.m. in Department 42 of the fF Placer County Superior Court located at 10820 Justice Center Dr., Roseville, CA 95678, Plaintiff nA Richard Busk, will and hereby does, move this Court for an order striking and/or taxing Defendant Dn FCA US LLC’s improper costs because many of the claimed costs are unrecoverable under Code of NY Civil Procedure section 1033.5. The total amount of the unauthorized and/or unreasonable and mea excessive costs that should be taxed is$6,587.18. Co This motion is based upon the memorandum of points and authorities attached hereto, upon O&O hl the declarations that may be filed in support, upon the pleadings herein, and upon such evidence, | hl oral and documentary, that may be presented at the hearing, and upon the entire record of the case. Pre NY PCO WY Dated: January 3, 2019 FF FS nH YF HD FCF Ff HN Ff ODO RICHARD BUSK Ff OD N K|K& NO NY NO Ww NY Fk NN UN NH OW NO NO oN Nb PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS YN MEMORANDUM OF POINTS AND AUTHORITIES WY E INTRODUCTION FF Defendant FCA US LLC (“Defendant” or “FCA”) submits a Memorandum of Costs seeking $17,408.07 in what it routinely insists is a“simple lemon law action.” FCA’s cost bill isexcessive, DH not only because itoverlooks the statutory limitations on which costs are recoverable, but also because FCA even attempted to include expenses that were not incurred by its counsel of record in PON this matter. While FCA is free to litigateits case as aggressively and as costly as itwishes, not every (Oo expenditure is passed on to Plaintiff merely because itwas incurred by FCA. Code of Civil Procedure oC § 1033.5”) specifically identifies and limits the items of costs that are hE section 1033.5 (“CCP ES recoverable as litigation costs. Defendant’s Memorandum of Costs seeks recovery of expenses far hl Se a company NY beyond what is permitted. A memorandum of costs is not intended to substitute as FSF WY expense account. Yet, the majority of the exorbitant sum that Defendant seeks to recover is FF costs, FS comprised of unrecoverable expenses. CCP § 1033.5 codifies the listof permissible litigation of litigation,” not just FF and even those listed costs must stillbe “reasonably necessary to the conduct DH Only part of FCA’s claimed FF “merely convenient or beneficial,” if they are to be reimbursed. under the statute. The restshould be stricken. | expenditures are actually recoverable as litigationcosts FN FF The burden is on Defendant to justify its costs. As set forth below, a verified cost ODO and reasonably incurred only if F- memorandum isprima facie evidence that costs were necessarily DOD NO those costs appear proper on their face. In such a circumstance, the opposing party, i.e.Plaintiff, KF NO must rebut the costs. However, whereas here, the costs are not proper on their face, the burden such as this NN remains on FCA as the claiming party to justify its costs upon a proper challenge, WN the NO motion. Consequently, the burden is squarely on Defendant to explain why itshould recover fe NO numerous improper requests for reimbursement that are not statutorily recoverable. UN HNO In light of the following, Defendant should be taxed the sum of $6,587.18. FCA would still NO recover $10,820.89. NO wo Il. ARGUMENT Burden of Establishing That Its Costs Were Necessary and Co A. Defendant Bears the wo Reasonable PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS In ruling upon a motion to tax costs, the burden of proof isalways on the party seeking the to submit evidence that clearly submits the claim. (Hensley v. Eckerhart (1983) 461 U.S. award WN 424, 437.) If the items appear to be proper charges, the verified memorandum is prima facie WwW evidence that the costs, expenses and services therein listed were necessarily incurred (Oak Grove - Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698) and the burden of showing that School OND properly chargeable or isunreasonable is upon the party challenging the costs (Wilson an item is not 55 Cal.App.2d 678, 682-683). “The trial court’s firstdetermination iswhether the v. Nichols (1942) oclCCOUlUlUOWWOUN expressly allows the particular item and whether itappears proper on its face; ifso, the burden statute is on the objecting party to show the costs to be unnecessary or unreasonable.” (Foothill-DeAnza College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.) Once items are properly Community they are put in issue, and the burden of proof is on the party claiming them as costs. objected to, v.California State Auto Assn’ (1993) 19 12 (Melnyk v. Robeldo (1977) 64 Cal.App.3d 618, 624: Ladas 13 Cal.App.4th 761, 774; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265.) on its face does not appear to 14 However, where the claim is made for a disbursement which for which is doubtful, and the item is properly 15 be proper, or is for a disbursement the necessity ison the claimant to establish the necessity forthe 16 challenged upon a motion totax costs, the burden 735.) 17 disbursement. (Stenzor v. Leon (1955) 130 Cal.App.2d 729, by statute, the burden is on the party claiming the 18 Where costs are not expressly allowed and necessary. (Perko’s Enterprises, Inc. v. RRNS 19 costs to show that the charges were reasonable 20 Enterprise (1992) 4 Cal.App.4th 238, 245.) challenged, the claiming party must submit supporting 21 When claimed costs are properly (1998) 63 Cal.App.4th 1258, 1263; Bach 2 documentation to sustain itsburden. (Jones v. Dumrichob 23 v. County of Butte (1989) 215 Cal. App. 3d 294, 308.) the charges appear proper on their face. Iffacially 24 Thus, the analysis first considers whether challenge the costs and then the moving party must 25 proper, the burden is on Plaintiff to properly objectionable costs are not proper on their face inasmuch 26 justify them. However, whereas here, the recovery, the burden is stillon Defendant as the claiming oy as there is no statutory basis supporting expense items. As more fully set forth below, a substantial portion 28 party to justify the request for the 1 TO TAX AND/OR STRIKE DEFENDANT’S COSTS PLAINTIFF'S MOTION of Defendant’s costs are beyond the scope of what is permitted by statute and should be stricken. — Accordingly, upon this noticed motion, Plaintiff objects to costs which are not statutorily OUUN Oa permissible or are unreasonable or excessive on their face, as more specifically set forth below. The burden rests with Defendant tojustify itsexpenditures. oclUCOUlUlUC B. Defendant Seeks Reimbursement of Costs That Are Legally Impermissible, DO Unreasonable and/or Unnecessary CCP § 1033.5 provides a laundry list of sixteen categories of litigation costs that may be reimbursed to a prevailing party. (Code Civ. Proc. § 1033.5(a)(1) — (16).) “Costs statutes are to be strictly construed.” (Shulman v. Group W Productions, Inc. (1997) 51 Cal.App.4th 850, 894.) “Because the right to costs isgoverned strictlyby statute a court has no discretion to award costs not statutorily authorized.” (Rose v. Hertz Corp. (1985) 168 Cal.App.3d Supp. 6, 11; see also Parker v. me City of Los Angeles (1974) 44 Cal.App.3d 556, 566; Hogan v. Ingold (1952) 38 Cal.2d 802, 814.) KPO me If the cost item is on the list,the next layer of analysis is whether the cost was reasonably WD incurred and not merely convenient or beneficial. “Any award of costs shall be subject to the BR following: “...(2) Allowable costs shall be reasonably necessary to the conduct of the litigation WN rather than merely convenient or beneficial to itspreparation. (3) Allowable costs shall be reasonable DB in amount.” (Code Civ. Proc § 1033.5(c)(2), (3).)“The intent and effect of section 1033.5(c)(2) isto NY ww authorize a trial court to disallow recovery of costs, including filing fees, when itdetermines the OH costs were incurred unnecessarily.” (Perko’s Enterprises, supra, 4 Cal.App.4th at 245.) Costs ODO permitted by statute are allowable only if they “were reasonably necessary to the conduct of the DTD NO litigation” and “reasonable in amount.” (Nelson v. Anderson (1999) 72 Cal.App. 4th 111, 129.) KF RO Costs that are merely convenient or beneficial are not recoverable. (See id.) Ne KN Here, Defendant seeks recovery of several statutorily impermissible expenses. The recovery Ww KN of costs is purely a creature of statute and those costs that are not listed in the statute may not be FF NO recovered. The Legislature saw fitto identify several categories of reimbursable expenses, to the UN NO exclusion of others. The list ofrecoverable costs under CCP § 1033.5 is obviously not an exhaustive DOD NYO listof allexpenses that are typically incurred during litigation, yet some expenditures are recoverable wpO oN and others are not. There is a difference between “costs” and “expenses.” (See Arntz Contracting NO 2 PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS Co. v.St. Paul coclUNCUOUlUCUCUCCOOON Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 491 [holding litigation “expenses” There are many Nl are far broader than “costs”].) In this motion, the issue is“costs,” not “expenses.” expenditures incurred during litigation, but not all of those are codified as recoverable. Many Sea naturally occurring expenses were not included inthe canon of allowable costs. “That plain language [of the statute] reflects a clear intent to limit the recovery of costs to those which are ‘reasonably OD necessary.”” (Perko’'s Enterprises, supra, 4 Cal.App.4th at 244.) Thus, not all litigation expenses are permissible. Those which were delineated in CCP § 1033.5 are the statutory “costs” that may be recovered; other litigation “expenses” are not recoverable. The burden is squarely on FCA to justify the need for some of its outrageous spending. This Court should grant Plaintiff's motion and strike FCA’s claimed expenditures in the amount of $6,587.18. This amount isjust a small fraction of the costs sought by Defendant. Plaintiff submits — this Court should tax the following costs, which are not permitted by statute, are not reasonable or YO ee necessary to the conduct of this litigation, and/or lack supporting documents to be able to ascertain WY whether or not the cost amount is reasonable and necessary: Fe er 1) Filing Fees (41) On mm Plaintiff has no objection to the amounts sought for filing fees. Filing fees are properly WB recoverable. NY mm 2) Deposition Costs ({ 4 oH The costs of taking, videotaping, and transcribing depositions, including an original and one Oo Km copy of depositions taken by the claimant and one copy of depositions taken by the party against TD RO whom costs are allowed, are allowable. (C.C.P. 1033.5(a)(3).) However, allowable costs shall be F|Y& KN reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to NHN KH itspreparation. Here, FCA has requested reimbursement for the costs of a transcript of the deposition WO KH of Dr. Barbara Luna, who was never called at trial.Accordingly, Plaintiff requests the Court tax the Fk KO $504.80 requested by Defendant that relates to this deposition. UN HO Furthermore, FCA’s request for reimbursement for the travel expenses in the amount of HP NO $541.75 incurred for the deposition of Thomas Lepper in line item 4(b) should also be stricken. This PO travel was simply not reasonably necessary for this deposition. The deposition occurred at Co DO 3 PLAINTIFF'S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS Defendant’s Los Angeles office and was not taken by either of Defendant’s San Francisco based trial attorneys. Accordingly, any Los Angeles-based attorney of Defendant’s counsel could have NO taken the deposition without incurring travel costs. W Additionally, Plaintiff requests the $245.34 in travel costs relating to the deposition of Fe Plaintiff Richard Busk be stricken. This deposition occurred on March 2, 2018, on the same date and WN in the same general location as the Mandatory Settlement Conference. Itappears that Defendant has Dn labeled this travel expense as relating to Plaintiff's deposition merely to fallwithin the guidelines of NI what may be recoverable, even though it would have had to drive to the Mandatory Settlement Aa Conference. In fact, the only reason the deposition occurred atthis location isbecause Plaintiff, who SoS lives out of state,was required to be at the Mandatory Settlement Conference as well. Thus, because CO Defendant was required to attend the Mandatory Settlement Conference on the same date as eS KH Plaintiff's deposition, any travel costs related to the deposition were not necessarily incurred. Se WHY Thus, Plaintiff asks this Court to tax $1,291.89 out of the $4,021.52 in deposition costs Se requested by Defendant. BF Se 3) Expert Fees ({8(b)) Be DWN Plaintiff has no objection to the amounts sought for Expert fees. Expert fees are properly Be recoverable. Be ON 4) Court Reporter Fees ({11) SB Court reporter fees as established by statute are recoverable. (Code Civ. Proc. § HB OO 1033.5(a)(11).) However, transcripts of court proceedings which have not been ordered by the Court ND are not recoverable. (Code of Civil Procedure section 1033.5(b)(5); Davis v.KGO-T.V., Inc. (1998) |—§- NN 17 Cal.4th 436, 439; Sanchez v. Pacificare Health Systems (1999) 75 Cal. App. 4th 946, 948-49; WN Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal. App. 4th 592, 598-99.) The Legislature VY articulated a distinction between the types of transcripts of hearings that are recoverable versus those f& NH that are not by carving out the limitation that they are recoverable ifthe Court orders the transcripts. NH A Based on the fact that the Legislature as spoken on this cost category and created a limitation, itmust NY A be inferred that the Legislature intended that not all transcripts would be recoverable as litigation NY oN costs. wo PLAINTIFF'S MOTION TO TAX AND/OR STRIKE DEFENDANT'S COSTS — Defendant’s entry in its cost memorandum indicates the expenditure were for the “Court Reporter Fees” for the trialproceedings. The requested amount of $2,640.00 for the Court Reporter PPO costs listed in Defendant’s memorandum is not a permissible litigation cost for FCA to recover WD because there is no statute that confers such a right to FCA. Further, FCA cannot argue that these fees were ordered by the Court because such orders were, in fact, never issued. Thus, FCA must (i) Wn identify that statute that authorizes recovery of court reporter fees, (ii)provide documentation that DH supports the amount of the charge and (iii) explain why this charge was both reasonable and N meme necessary. Since Defendant fails to demonstrate how any of these transcripts were required by court So order, these costs of $2,640.00 should be taxed because they do not appear to be authorized, OS necessary or reasonable expenses. KF EOE 5) “Other Expenses” ({ 16) NYO As set out below, Plaintiff respectfully requests the Court tax $2,655.29 of the $5,564.96 WY FE listed in Defendant’s “Other” costs, and reflected in Exhibit “M” attached to the Declaration of Jeff Fe Ee Thayer in Support of Defendant’s Cost Memorandum. OHO EE As an initial matter, Defendants entry under the “Other Expenses” is labeled as “Counsel WDB Ee Travel and Lodging”; however, Defendant simply lists as figure without itemizing the individual NY ee expenses, making itextremely tedious to determine if these costs are recoverable. Further, Defendant TBH merely attached a host of invoices and receipts in an apparent attempt to either make the Court sort UO Ee through the invoices itself, or simply hope that the Court would summarily grant the lump sum of Oo NN costs requested in this category. As the Court will see, however, Defendant appears to have | intentionally submitted substantial “Counsel Travel and Lodging” costs for persons that are not, and NHN NO never were, Defendant’s counsel in this matter. WD NO Curiously, FCA requests the Court award costs in the amount of $2,269.43, buried deep in Ph NO Exhibit “M” of its supporting declaration, as it relates to travel and lodging costs of “Brian AN NO Yasuzawa.” Brian Yasuzawa isan attorney inthe Los Angeles office of Hawkins Parnell Thackston NO NO & Young, LLP. Neither Mr. Yasuzawa, nor any other attorney in the Los Angeles office, performed wpo on this case. In fact, upon information and belief, Mr. Yasuzawa did nothing oOo any work whatsoever NO 5 PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS & other than sit inthe audience to observe the trialproceedings for several days. Even worse, itappears that Defendant is requesting hotel reimbursement for Mr. Yasuzawa when he was not even in Placer NO County, according the travel invoices submitted to this Court. WOW The following isan enumerated listof the wholly improper costs requested that relate directly F&F to Mr. Yasuzawa’s presence at this matter’s trial: WN DBD Date : Nature of Expense Amount ON 10/24/18 Flight from BUR to SMF $261.98 10/25/18 Flight from SMF to BUR $261.98 SoS 10/25/18 Rental Car $104.94 CO ee 10/26/18 Hotel $618.62 ee SK 10/28/18 Flight from BUR to SMF $261.98 Se NO 10/29/18 Hotel $204.37 WY ee 10/30/18 Hotel $210.99 FP ee 10/30/18 Rental Car $82.59 Wn Re 10/30/18 Flight from SMF to BUR $261.98 DB ee TOTAL | $2,269.43 NQH HOH Further, Defendant requests costs in the amount of $385.86 relating to mileage expenses ee ODO incurred by Defendant’s lead trialcounsel, Jeff Thayer. An overview of the pertinent documents TD NO contained in Exhibit “M” reveals that Mr. Thayer is requesting mileage reimbursement for 708 miles F& VN (118 miles times 6 trips).This information was handwritten on the mileage document itselfcontained NN in Exhibit “M.” However, neither Defendant’s Memo, nor Mr. Thayer’s declaration, sets forth when WN NY these expenses were incurred, and to which hearings/proceedings they relate. As such, neither Ff NO Plaintiff nor the Court can properly determine whether these costs were reasonable and necessary to UN HN this litigation. Thus, FCA must (i) provide documentation that supports the date the cost was BO WN incurred, and (ii)explain why this charge was both reasonable and necessary, in order for these wpo requested costs to be considered by the Court. CoN NO PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS we Accordingly, the amounts totaling to $2,655.29 do not appear to be authorized, necessary or reasonable reimbursements and thus should be taxed. Pp Il. CONCLUSION WH Defendant seeks an award of costs, many of which are statutorily BR impermissible and/or were unnecessarily and unreasonably incurred. The Court should exercise NW its discretion and tax DR Defendant’s costs inthe total sum of $6,587.18 as follows: ON Deposition Costs: $1,291.89 ODO Court Reporter Fees: $2,640.00 Other Expenses: $2,655.29 oF ee TOTAL TO BE STRICKEN: $6,587.18 eee Dated: January 3, 2019 Respectfully submitted, —O NO NO NO NO NO PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS PROOF OF SERVICE Ke (Code of Civil Procedure §1013a) I am employed in the County of Los Angeles, State of California. I am over the age of pO 18 years and not a party to the within action. My business address 10250 Constellation Blvd., Suite WwW 2500, Los Angeles, CA 90067. I served the foregoing document described BP as: WNW PLAINTIFF’S NOTICE OF MOTION AND MOTION TO TAX AND/OR STRIKE DEFENDANT?’S COSTS ND Said document was served on the interested parties in this action, by placing true copies thereof enclosed in sealed envelopes, with postage prepaid, addressed as follows: OO SEE ATTACHED MAILING LIST So XX BY MAIL: Iam readily familiar with this firm's practice of collection and processing CO correspondence for mailing with the United States Postal Service. Under that practice, it KF would be deposited with the U.S. Postal Service on that same day with postage thereon me fully prepaid at a Postal Service collection box at Los Angeles, California, inthe ordinary PO course of business. The envelope was sealed and placed for collection that same day following ordinary business practices, addressed to the above-referenced attorney. me WO BP I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Hn WDB Executed on January 3, 2019 atLos Angeles, California. ANA wm fF OBO gut Gd NNO TD ‘{ JACQUELINE GIBNEY —|§ KN NY KN WD NO fF HO On NO Hn NO NO CoN DO -|- PROOF OF SERVICE