Preview
21CV382874
Santa Clara — Civil
D Hprris
Electronically Filed
John R. Brydon (Bar No. 83365)
George A. Otstott (Bar No. 184671) by Superior Court of CA,
Brian H. Buddell (Bar No. 166103 County of Santa Clara,
DEMLER, ARMSTRONG & ROWLAND, LLP on 5/14/2021 10:44 AM
101 Montgomery Street, Suite 1800 Reviewed By: D Harris
San Francisco, CA 94104 Case #21CV382874
Telephone: (415) 949-1900 Envelope: 6446230
Facsimile: (415) 354-8380
Email: bry@darlaw.com
ots@darlaw.com
bud@darlaw.com
Attorneys for Petitioner/Insurer
SAFECO INSURANCE COMPANY OF AMERICA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF SANTA CLARA
11
SAFECO INSURANCE COMPANY OF Case No.: 21CV382874
12
AMERICA,
13 SAFECO’S NOTICE AND MOTION TO
Petitioner/Insurer, STRIKE/TAX COSTS
14
Vv. Date: B 8-19-21
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Time: D 9:00am
16 SHERRY A. GLASSMAN, Dept. B 7
17 Respondent/Insured. Concurrently-submitted document:
Declaration of Brian Buddell
18
19 I NOTICE
20 To: The Clerk of the Court and the above named Respondent, in pro per
21 Please take notice that, on a date, and at a time and location as the court may direct,
22 Petitioner Safeco Insurance Company of America (“Safeco”) will move the court for an order
23 striking/taxing costs set forth in Respondent/Insured Sherry Glassman’s (“Ms. Glassman’s)
24 Memorandum of Costs following issuance of an interim arbitration award in her favor in a
25 related Underinsured-Motorist (“UIM”) arbitration proceeding. This motion is being filed
26 concurrently with Petitioner’s Petition to confirm the interim arbitration award as a final award
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SAFECO’S NOTICE AND MOTION TO TAX COSTS
of damages and to enter Judgment thereon'. An amended notice setting forth the date, time
and location of the hearing will be served subsequently.
This motion is based upon this Notice, the Subjoined Memorandum of Points and
Authorities and the Declaration of Brian Buddell submitted herewith; any additional
documents Petitioner may file in support of the Motion; evidence and argument that may be
presented at the hearing; the records and files herein, and such other matters as the court
properly may consider.
Il. POINTS AND AUTHORITIES
A. Procedural Background and Relief Requested
10 Ms. Glassman filed an underinsured motorist (“UIM”) claim under both an auto policy
11 (“Auto Policy”) and umbrella policy (“Umbrella Policy”) issued to her by Safeco (Buddell
12 Dec. 93). Her UIM claim arose out of an auto-pedestrian accident in which Ms. Glassman and
13 her mother, both pedestrians, were struck by a vehicle (Buddell Dec. 44). Ms. Glassman’s
14 UIM claim sought UIM insurance benefits for her own injuries and bystander emotional
15 distress she sustained witnessing her mother’s fatal injury (/d.). Safeco paid the available UIM
16 limits of the Auto Policy to Ms. Glassman after the insurer of the vehicle that struck Ms.
17 Glassman paid its liability limits under its liability policy (Buddell Dec. §5). But the parties
18 disputed whether she was entitled to additional benefits under the Umbrella Policy (/d.).
19 The Umbrella Policy afforded excess underinsured motorist (“UIM”) coverage to Ms.
20 Glassman (Buddell, Exh. “A”). The Umbrella Policy incorporated by reference the terms and
21 conditions of the Auto Policy (/d., Exh. “B”), which contained an arbitration clause stating, in
22 relevant part:
23 A. If we and an insured do not agree:
1. Whether that insured is legally entitled to recover damages; or
24
2. As to the amount of damages which are recoverable by that insured;
25 from the owner or operator of an uninsured motor vehicle? then the matter will be
settled by arbitration...
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27 ‘In the alternative, Petitioner has asked the arbitrator to adopt her interim award for damages only as a Final
Arbitration Award, which Petitioner will request that this court confirm and enter Judgment thereon.
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? “Uninsured motor vehicle” includes an underinsured motor vehicle.
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SAFECO’S NOTICE AND MOTION TO TAX COSTS
B. Each party will:
1. Pay the expenses it incurs; and
2. Bear the expenses of the arbitrator equally.
C. Any decision of the arbitrator will be binding as to:
1. Whether the insured is legally entitled to recover damages; and
2. The amount of damages. (Buddell Dec. Exh. “A.”)
The parties arbitrated Ms. Glassman’s excess UIM claim under the Umbrella Policy
before the Honorable Catherine Gallagher (Ret.) of JAMS (Buddell Dec. 6). On April 12,
2021, Judge Gallagher issued an Interim Award, awarding Ms. Glassman the Umbrella
Policy’s limit of $1,000,000 (/d., Exh. “C”). Thereafter, on April 29, 2021, Ms. Glassman
filed with Judge Gallagher and served upon Safeco a Memorandum of Costs and a letter
10 requesting that, in addition to the damages awarded in the Interim Arbitration Award, Judge
11 Gallagher award her prevailing-party costs under CCP §998 (Buddell Dec. § 7, Exh. “D” and
12 “E”). She did so on a precautionary basis, subject to a determination as to whether the
13 arbitrator had jurisdiction to enter the costs award (/d. Exh. “E”).
14 Safeco contends that the arbitration proceeding was limited to the amount of Ms.
15 Glassman’s damages and that an award of costs is outside the scope of the arbitrator’
16 authority (Buddell Dec. 8). Safeco asked Ms. Glassman to stipulate that the court, and not
17 the arbitrator, has sole jurisdiction to determine the amount of costs recoverable; she declined,
18 stating that she believed the issue was properly before the arbitrator (Buddell Dec. 49)
19 Accordingly, Safeco has asked Judge Gallagher to decline jurisdiction to rule on Ms.
20 Glassman’s entitlement to costs and to enter a final award adopting her interim award for
21 damages only (Buddell Dec. 410).
22 Alternatively, Safeco has filed a petition with this court to confirm the interim
23 arbitration award for damages as a final award and enter Judgment thereon, and concurrently
24 files this Motion to Strike/Tax Costs. (Buddell Dec. 11). Since no court has ruled on the
25 jurisdictional issues yet, Safeco has filed this motion promptly on a precautionary basis, to
26 ensure that it is filed within 15 days (+5 days for mailing) of when Ms. Glassman served upon
27 Safeco her memorandum of costs in the arbitration proceeding (Buddell Dec. §12).
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B. Jurisdiction to Determine the Amount of Recoverable Costs Lies with this Court,
Not the Arbitrator.
Arbitration of UIM disputes over the underinsured motorist’s liability, and the
insured’s damages resulting therefrom, is required by statute, which provides, in pertinent part:
The [UIM] policy or an endorsement added thereto shall provide that the determination
as to whether the insured shall be legally entitled to recover damages, and if so entitled,
the amount thereof, shall be made by agreement between the insured and the insurer or,
in the event of disagreement, by arbitration.
(Cal. Ins. Code § 11580.2(f),)
The Auto Policy (which is incorporated by reference into the Umbrella Policy)
10 likewise limits the scope of arbitrable issues to the (1) right (not disputed here) and/or (2)
11 amount of (disputed), damages the insured is entitled to recover from the underinsured
12 driver/owner (Buddell Dec. Exh. “A”). Neither the statute nor the policy confers jurisdiction
13 upon the arbitrator to decide other issues arising out of the UIM claim.
14 In Storm v. Standard Fire Ins. Co. (2020) 52 Cal. App. 5th 636, 647-48, review
15 denied (Nov. 10, 2020), a case cited by Ms. Glassman in her letter to Judge Gallagher
16 requesting an award of costs, the court held that, following UIM arbitrations, unless the parties
17 agree otherwise, the court, not the arbitrator, decides issues of entitlement to costs®. As set
18 forth above, the arbitration clause in the Safeco policy is limited to the scope set forth in Ins.
19 Code §11580.2. Safeco has not agreed to expand the arbitrator’s authority beyond
20 determining the amount of damages Ms. Glassman is entitled to recover, and expressly
21 declines to confer jurisdiction upon the arbitrator to rule on Ms. Glassman’s recoverable costs,
22 which would deprive Safeco of the right to a judicial determination of the same (Buddell Dec.
23 48).
24 The ruling in Storm is consistent with the general rule that the policy terms govern, and
25 interpretation of an insurance policy is a question of law (AIU Ins. Co. v. Superior
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27 3 Other sing cost awards all involved determinations by the court, not the arbitrator, confirming
Safeco’s position that jurisdiction over the issue of a prevailing party’s entitlement to costs following arbitration
28 lies with the court. (see, Pilimai v. Farmers Ins. Exch. Co. (2006) 39 Cal. 4th 133, 137; Austin v. Allstate Ins. Co.
(1993) 16 Cal. App. 4th 1812, 1814.)
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SAFECO’S NOTICE AND MOTION TO TAX COSTS
Court (1990) 51 Cal.3d 807, 818.) The rules governing policy interpretation require a court to
look first to the language of the contract in order to ascertain its plain meaning or the meaning
a layperson would ordinarily attach to it. (Waller v. Truck Ins. Exch., Inc., 11 Cal. 4th 1
(1995), as modified on denial of reh'g (Oct. 26, 1995).) Here, the Auto Policy unambiguously
limits the scope of arbitration to a determination of the amount of “damages” the insured is
entitled to recover against the tortfeasor. (Storm, supra, 52 Cal. App. 5th at 647-48.)
Statutory costs to the prevailing party in arbitration proceedings between insurer and
insured are not damages that the insured is entitled to recover from the tortfeasor. They do not
compensate the injured party for the harm caused by the tortfeasor. Rather, they are statutory
10 awards obligating a non-prevailing party in litigation to compensate the prevailing party for
11 certain specifically-listed costs associated with the proceeding itself (see, e.g., CCP §§998,
12 1032) —and in the case of UIM arbitration, the tortfeasor is not a party. The contractual
13 provision in the Safeco policy is consistent with the statute, which limits mandatory UIM
14 arbitration to issues of liability for, and the amount of, damages only.(Ins. Code §11580.2(f).)
15 JAMS Rule 24(f), relied upon by Ms. Glassman in support of her claim to arbitration
16 costs, does not confer jurisdiction upon the arbitrator to decide any portion of the costs issue,
17 including arbitration fees and arbitrator’s compensation. That rule provides:
18 (f) The Award of the Arbitrator may allocate Arbitration fees and Arbitrator
compensation and expenses, unless such an allocation is expressly prohibited by the
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Parties' Agreement. (Such a prohibition may not limit the power of the Arbitrator to
20 allocate Arbitration fees and Arbitrator compensation and expenses pursuant to Rule
31(c)*.) (Buddell Dec. 4 13, Exh. “F”).
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22 Not only does the parties’ agreement (the policy) expressly provide that the
23 Arbitrator’s jurisdiction is limited to the tortfeasor’s liability and the amount of the insured’s
24 damages (Buddell Dec. Exh. “A”), but the Notice of Appointment of Arbitrator expressly
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4 The referenced subparagraph pertains to the joint and several liability of the parties for arbitration fees and the
26 arbitrator’s compensation. Subsection (a) provides that, absent an agreement to contrary, the parties are to share
such fees equally. Under subparagraph (c), if one party pays more than its pro rata share, the arbitrator has
27 authority to award a any other Party any such fees, compensation and expenses that such Party owes with
respect to the Arbitration. That is not the case here, the parties were billed for and cach paid half of the total
28 arbitration fees and arbitrator’s compensation (Buddell Dec. 413).
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SAFECO’S NOTICE AND MOTION TO TAX COSTS
provides that, unless the parties agree otherwise, each party shall share equally in the
arbitration fees and expenses (Buddell Dec. 914, Exh. “G”). Therefore, JAMS Rule 24(f) does
not confer upon the arbitrator authority to award costs to the prevailing party, including any
arbitration fees or arbitrator compensation.
Safeco has not waived its right to have the court determine the amount of costs
awardable to Ms. Glassman; it has not agreed to submit to the arbitrator the issue of Ms.
Glassman’s entitlement to costs, and how much, and hereby requests that this court assume
jurisdiction to make that determination.
C. Right of Prevailing Party to Recover Statutory Costs Incurred in Arbitration
10 Unlike court proceedings, there is no right to recover costs incurred in UIM arbitration
11 proceedings. Absent contrary agreement the parties must share the arbitrator's fee and bear
12 their own costs, including witness fees and attorney fees. (See CCP § 1284.2.) But CCP §
13 998 provides for shifting of certain coats where a pretrial settlement offer is rejected and the
14 offeree fails to obtain a better result at trial. By its terms, § 998 applies to an “arbitration as
15 provided in ... [CCP] section 1281,” which includes UIM arbitrations. (Pilimai v. Farmers
16 Ins. Exch. Co. (2006) 39 Cal.4th 133, 140.) Ms. Glassman’s claim for costs is based upon a
17 February 2020 CCP §998 offer to Safeco in the amount of $999,999. Safeco did not achieve a
18 better result in the arbitration, therefore the cost-shifting provisions of §998 apply.
19 But a party’s right to recover under CCP § 998 arbitration-related costs is limited to
20 post-offer expert fees (in the discretion of the court) and those specifically-enumerated costs
21 (e.g., witness fees and deposition expenses) that would be recoverable if the matter had gone
22 to trial. (Pilimai v. Farmers Ins. Exch. Co., supra, 39 Cal.4th at 149-150.) The types of costs
23 available to an arbitration prevailing party are “those costs available under ... [CCP] section
24 1032, as enumerated in ... [CCP] section 1033.5.” (Pilimai v. Farmers Ins. Exch. Co., supra,
25 39 Cal. 4" at 150.)
26 Thus, a prevailing party is not authorized to collect from the non-prevailing party any
27 expense not allowable as an item of costs. (Moss v. Underwriters' Report, Inc. (1938) 12 Cal
28 2d 266.) The right to recover any of such costs is determined entirely by statute: "It is
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axiomatic that the right to recover costs is purely statutory, and, in the absence of an
authorizing statute, no costs can be recovered by either party." (Garcia v. Hyster Co. (1994) 28
Cal.App.4th 724, 732.) CCP§ 1033.5(a) and (b) outline the items of allowable and
disallowable as costs, respectively. Subsection (c) sets forth the conditions for any award
of costs. These statutes outlining authorized costs are strictly construed. (Sequoia Vacuum
Systems v. Stransky (1964) 229 Cal. App.2d 281, 289.)
In awarding costs, the court must first determine whether the statute expressly allows
the particular item and whether it appears proper on its face. (Whatley-Miller v. Cooper (2013)
212 Cal. App. 4th 1103, 1113.) "If the items in a cost bill appear to be proper charges, the
10 burden is on the party seeking to tax costs to show that they were not reasonable or necessary.
11 On the other hand, "...[t]he mere filing of a motion to tax costs may be a ‘proper objection’ to
12 an item, the necessity of which appears doubtful, or which does not appear proper on its
13 face." (Nelson v. Anderson (1999) 72 Cal. App. 4th 111,131.) Thus, if the items are properly
14 objected to, they are put in issue and the burden of proof is on the party claiming them
15 as costs." (Ladas v. California State Automobile Association (1993) 10 Cal. App. 4 761, 774.)
16 Even otherwise allowable costs are limited to those reasonably necessary to the
17 conduct of the litigation, rather than merely convenient or beneficial to its preparation. (CCP
18 §1033.5(c)(2); Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.)) They also “shall be
19 reasonable in amount.” (CCP 1033.5(c)(3).) Thus, courts have the power to disallow
20 even costs "allowable as a matter of right" if they were not "reasonably necessary" and/or to
21 reduce the amount of any cost item to that which is "reasonable." (Perko's Enterprises, Inc. v.
22 RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.)
23 As discussed below, Safeco requests that the Court strike certain items claimed and
24 strike additional items and/or exercise its discretion to tax certain costs, which will be
25 identified after Safeco has had an opportunity to review supporting costs documentation
26 requested from Ms. Glassman (Buddell Dec. {[ 15-19).
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SAFECO’S NOTICE AND MOTION TO TAX COSTS
D. Ms. Glassman Must Produce Supporting Documentation For Each Cost Claimed;
Any Specific Cost Unsubstantiated By Appropriate Documentation Should Be
Disallowed
Costs are not recoverable unless they actually have been incurred. (CCP§1033.5(c)(1).)
"Once costs claimed in the memorandum are challenged via a motion to tax, documentation
must be submitted to sustain the burden" on the party seeking to recover these costs. (Jones v.
Dumrichob (1998) 63 Cal. App. 4th 1258, 1265 [internal citations omitted].) Therefore, it
follows that costs unsubstantiated by invoices or evidence of payment for recoverable items
should be disallowed. (Id.)
10 Based on the costs memorandum alone, Safeco has insufficient information to
11 determine if the costs are proper, and were actually incurred, reasonably necessary, and
12 reasonable in amount (Buddell Dec. § 15). By this motion, Safeco requests that Ms. Glassman
13 file and serve documentation (e.g., invoices or proof of payment) to support each and every
14 cost claimed (/d.). To the extent that Ms. Glassman is unable to provide admissible supporting
15 documentation, she has failed to meet her burden of demonstrating that she has incurred the
16 cost and that it is a recoverable cost under CCP §1033.5. Where the required proof is lacking,
17 the cost should be disallowed.
18 E. Safeco Preliminarily Requests That The Court Strike The Following Cost Items as
19 Not Proper Costs
20
Based on Safeco’s review of the Costs Memorandum, worksheet and declaration on
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their face, Safeco preliminarily moves to strike the following line items in Ms. Glassman’s
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Memorandum of Costs:
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I. Item 8(b) 5 — Transcripts ($2,383.75)(Buddell Dec. 416)
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This line item appears to be for transcripts of the two-day arbitration proceeding, not
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deposition transcripts (Buddell Dec. Exh. “D”). . Transcripts of court proceedings not ordered
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by the court are not recoverable costs. (CCP § 1033.5(b); see Davis v. KGO-T.V., Inc. (1998)
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17 Cal.4th 436, 440-442 (disapproved on other grounds by Williams v. Chino Valley
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SAFECO’S NOTICE AND MOTION TO TAX COSTS
Independent Fire Dist. (2015) 61 Cal.4th 97, 105-107; Sanchez v. Bay Shores Med.
Group (1999) 75 Cal.App.4th 946, 948-949; Baker-Hoey v. Lockheed Martin Corp. (2003)
111 Cal.App.4th 592, 599-600.) There is no evidence that the court (or the arbitrator) ordered
transcripts of the proceedings (Buddell Dec. 16). Safeco requests that the court strike this
line item in its entirety.
2. Item 16(a) Arbitration Fees and Arbitrator’s Compensation ($34,654.54)(Buddell
Dec. U7)
The impact of §998 on recovery of prevailing-party fees is to permit the prevailing
party thereunder to recover discretionary post-offer expert fees in addition to the prevailing
10 eee
party’s “costs. ” (CCP § 998(d).) The “costs” referenced in §998 refer to those costs allowed
11
under Section 1032 (CCP §998(a)), which allowable costs are set forth in §1033.5.) But there
12
is no basis to recover costs that are not identified in §998 or §1033.5 as recoverable costs to
13
the prevailing party.
14
Arbitration fees and arbitrator compensation are not within the categories of costs
15
recoverable under CCP § 1033.5. Nor are they required to be awarded ... [by] statute as an
16
incident to prevailing in the action at trial ...” (CCP § 1033.5(a)(16). As discussed above,
17
although § 998 applies to arbitrations, the additional penalty for failing to accept a Section 998
18
offer, when the nonaccepting party fails to achieve a more favorable result, is a discretionary
19
award of expert fees. And CCP § 1284.2 does not authorize recovery of arbitration fees and
20
arbitrator compensation as costs. To the contrary, the rule provides that, unless the parties
21
agree otherwise, each party shall assume liability for her or its pro rata share of the expenses
22
and fees of the arbitrator. The parties’ contract expressly provides that each party shall bear
23
his or its own arbitration costs and share in the compensation of the arbitrator equally (Buddell
24
Dec. Exh. “A”) and the JAMS Notice of Appointment of Arbitrator also provides that the
25
parties will share fees and compensation equally (Buddell Dec. Exh. “G”). And there is no
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statutory basis to shift Ms. Glassman’s liability for her share of arbitration costs and fees to
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Safeco.
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SAFECO’S NOTICE AND MOTION TO TAX COSTS
No reported decision has held to the contrary. The insured in Pilimai v. Farmers Ins.
Exch. Co. (2006) 39 Cal.4th 133 did not include arbitration fees and arbitrator compensation in
his memorandum of costs. But then he initially argued in Supreme Court brief that he was
entitled, not only to the expenses listed, but also to “arbitrator's fees and expenses.” However,
the insured clarified in supplemental briefing that he sought only those expenses requested in
his memorandum of costs, which did not include a request for arbitrators’ fees and expenses.
The Supreme Court therefore expressed no opinion as to whether such fees and expenses may
be awarded pursuant to Section 998.
Because there is no contractual or statutory authority for recovery of arbitration fees
10 and arbitrator compensation to the prevailing party, these fees and compensation are not
11 recoverable costs. Safeco respectfully requests that the court strike this line item from Ms.
12 Glassman’s Memorandum of Costs.
13 F. Safeco reserves its right to challenge, by request on reply to strike or tax additional
14 costs
15 Finally, Safeco reserves its right to move to strike and/or tax additional items of costs
16 on reply, after review of Ms. Glassman’s costs documentation, requested herein. That
17 additional request may be based upon any or all of the following grounds: they are not proper
18 costs, they were not incurred (or adequately documented), they were not necessary or
19 reasonable in amount, and/or they were merely convenient or beneficial to preparation for
20 litigation (Buddell Dec. 418). By way of example, but not limitation, Ms. Glassman included
21 costs to expedite preparation of a deposition transcript and delivery of an unspecified
22 document to JAMS. There is insufficient information in the costs memorandum and
23 worksheet from which one can determine whether these items should be stricken or taxed.
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SAFECO’S NOTICE AND MOTION TO TAX COSTS
(Buddell Dec. 419)
Dated: May 14, 2021 DEMLER, ARMSTRONG & ROWLAND, LLP
By (Subs
John R. Brydon
George A. tstott
Brian H. Buddell
Attorneys for Respondent
SAFECO INSURANCE COMPANY OF
AMERICA
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SAFECO’S NOTICE AND MOTION TO TAX COSTS
PROOF OF SERVICE
Iam employed in the County of San Francisco, State of California. I am over the age
of 18 and not a party to the within action; my business address is 101 Montgomery Street,
Suite 1800, San Francisco, California 94104.
On May 14, 2021, I served the foregoing document(s) described as SAFECO’S
NOTICE AND MOTION TO TAX COSTS on the interested parties in this action addressed
as follows:
Sherry Glassman
herryglassman@mac.com
In Pro Per
ea] BY MAIL —I placed the document(s) listed above in a sealed envelope and place the
10 envelope for collection and mailing on the date below following the firm’s ordinary business
practice. Iam readily familiar with the firm’s practice of collection and processing for
11 mailing. Under that practice it would be deposited with the U.S. Postal Service on the same
day with postage thereon fully prepaid in San Francisco, California, in the ordinary course of
12 business. I am aware that on motion of the party served, service is presume invalid if postal
cancellation date or postage meter date is more than one day after date of deposit for mailing
13 in affidavit.
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Oo BY PERSONAL SERVICE — I caused personal delivery of the document(s) listed
15 above to the person(s) at the address(es) set forth above.
16 oO BY FACSIMILE TRANSMISSION - I transmitted via facsimile the document(s) listed
17 above to the fax number(s) set forth above on this date before 5:00 p.m.
18 BSZx x] BY ELECTRONIC TRANSMISSION - Only by emailing the document(s) to the
persons at the e-mail address(es). This is necessitated during the declared National Emergency
19 due to the Coronavirus (COVID-19) pandemic because this office will be working remotely,
20 not able to send physical mail as usual, and is therefore using only electronic mail. No
electronic message or other indication that the transmission was unsuccessful was received
21 within a reasonable time after the transmission. We will provide a physical copy, upon request
only, when we return to the office at the conclusion of the national emergency.
22)
oO BY FED EX - I placed the document(s) listed above in a sealed envelope designated for
23
Fed Ex overnight delivery and deposited the same with fees thereupon prepaid, in a facility
24 regularly maintained by Federal Express, addressed as set forth above.
25 I declare under penalty of perjury under the laws of the State of California that the
above is true and correct. Executed on May 14, 2021, at San Francisco, California.
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Kez
28 Francinty de Almeida
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SAFECO’S NOTICE AND MOTION TO TAX COSTS
Preview
21CV382874 Santa Clara — Civil D Hprris Electronically Filed John R. Brydon (Bar No. 83365) George A. Otstott (Bar No. 184671) by Superior Court of CA, Brian H. Buddell (Bar No. 166103 County of Santa Clara, DEMLER, ARMSTRONG & ROWLAND, LLP on 5/14/2021 10:44 AM 101 Montgomery Street, Suite 1800 Reviewed By: D Harris San Francisco, CA 94104 Case #21CV382874 Telephone: (415) 949-1900 Envelope: 6446230 Facsimile: (415) 354-8380 Email: bry@darlaw.com ots@darlaw.com bud@darlaw.com Attorneys for Petitioner/Insurer SAFECO INSURANCE COMPANY OF AMERICA SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF SANTA CLARA 11 SAFECO INSURANCE COMPANY OF Case No.: 21CV382874 12 AMERICA, 13 SAFECO’S NOTICE AND MOTION TO Petitioner/Insurer, STRIKE/TAX COSTS 14 Vv. Date: B 8-19-21 15 Time: D 9:00am 16 SHERRY A. GLASSMAN, Dept. B 7 17 Respondent/Insured. Concurrently-submitted document: Declaration of Brian Buddell 18 19 I NOTICE 20 To: The Clerk of the Court and the above named Respondent, in pro per 21 Please take notice that, on a date, and at a time and location as the court may direct, 22 Petitioner Safeco Insurance Company of America (“Safeco”) will move the court for an order 23 striking/taxing costs set forth in Respondent/Insured Sherry Glassman’s (“Ms. Glassman’s) 24 Memorandum of Costs following issuance of an interim arbitration award in her favor in a 25 related Underinsured-Motorist (“UIM”) arbitration proceeding. This motion is being filed 26 concurrently with Petitioner’s Petition to confirm the interim arbitration award as a final award 27 28 1 SAFECO’S NOTICE AND MOTION TO TAX COSTS of damages and to enter Judgment thereon'. An amended notice setting forth the date, time and location of the hearing will be served subsequently. This motion is based upon this Notice, the Subjoined Memorandum of Points and Authorities and the Declaration of Brian Buddell submitted herewith; any additional documents Petitioner may file in support of the Motion; evidence and argument that may be presented at the hearing; the records and files herein, and such other matters as the court properly may consider. Il. POINTS AND AUTHORITIES A. Procedural Background and Relief Requested 10 Ms. Glassman filed an underinsured motorist (“UIM”) claim under both an auto policy 11 (“Auto Policy”) and umbrella policy (“Umbrella Policy”) issued to her by Safeco (Buddell 12 Dec. 93). Her UIM claim arose out of an auto-pedestrian accident in which Ms. Glassman and 13 her mother, both pedestrians, were struck by a vehicle (Buddell Dec. 44). Ms. Glassman’s 14 UIM claim sought UIM insurance benefits for her own injuries and bystander emotional 15 distress she sustained witnessing her mother’s fatal injury (/d.). Safeco paid the available UIM 16 limits of the Auto Policy to Ms. Glassman after the insurer of the vehicle that struck Ms. 17 Glassman paid its liability limits under its liability policy (Buddell Dec. §5). But the parties 18 disputed whether she was entitled to additional benefits under the Umbrella Policy (/d.). 19 The Umbrella Policy afforded excess underinsured motorist (“UIM”) coverage to Ms. 20 Glassman (Buddell, Exh. “A”). The Umbrella Policy incorporated by reference the terms and 21 conditions of the Auto Policy (/d., Exh. “B”), which contained an arbitration clause stating, in 22 relevant part: 23 A. If we and an insured do not agree: 1. Whether that insured is legally entitled to recover damages; or 24 2. As to the amount of damages which are recoverable by that insured; 25 from the owner or operator of an uninsured motor vehicle? then the matter will be settled by arbitration... 26 27 ‘In the alternative, Petitioner has asked the arbitrator to adopt her interim award for damages only as a Final Arbitration Award, which Petitioner will request that this court confirm and enter Judgment thereon. 28 ? “Uninsured motor vehicle” includes an underinsured motor vehicle. 2) SAFECO’S NOTICE AND MOTION TO TAX COSTS B. Each party will: 1. Pay the expenses it incurs; and 2. Bear the expenses of the arbitrator equally. C. Any decision of the arbitrator will be binding as to: 1. Whether the insured is legally entitled to recover damages; and 2. The amount of damages. (Buddell Dec. Exh. “A.”) The parties arbitrated Ms. Glassman’s excess UIM claim under the Umbrella Policy before the Honorable Catherine Gallagher (Ret.) of JAMS (Buddell Dec. 6). On April 12, 2021, Judge Gallagher issued an Interim Award, awarding Ms. Glassman the Umbrella Policy’s limit of $1,000,000 (/d., Exh. “C”). Thereafter, on April 29, 2021, Ms. Glassman filed with Judge Gallagher and served upon Safeco a Memorandum of Costs and a letter 10 requesting that, in addition to the damages awarded in the Interim Arbitration Award, Judge 11 Gallagher award her prevailing-party costs under CCP §998 (Buddell Dec. § 7, Exh. “D” and 12 “E”). She did so on a precautionary basis, subject to a determination as to whether the 13 arbitrator had jurisdiction to enter the costs award (/d. Exh. “E”). 14 Safeco contends that the arbitration proceeding was limited to the amount of Ms. 15 Glassman’s damages and that an award of costs is outside the scope of the arbitrator’ 16 authority (Buddell Dec. 8). Safeco asked Ms. Glassman to stipulate that the court, and not 17 the arbitrator, has sole jurisdiction to determine the amount of costs recoverable; she declined, 18 stating that she believed the issue was properly before the arbitrator (Buddell Dec. 49) 19 Accordingly, Safeco has asked Judge Gallagher to decline jurisdiction to rule on Ms. 20 Glassman’s entitlement to costs and to enter a final award adopting her interim award for 21 damages only (Buddell Dec. 410). 22 Alternatively, Safeco has filed a petition with this court to confirm the interim 23 arbitration award for damages as a final award and enter Judgment thereon, and concurrently 24 files this Motion to Strike/Tax Costs. (Buddell Dec. 11). Since no court has ruled on the 25 jurisdictional issues yet, Safeco has filed this motion promptly on a precautionary basis, to 26 ensure that it is filed within 15 days (+5 days for mailing) of when Ms. Glassman served upon 27 Safeco her memorandum of costs in the arbitration proceeding (Buddell Dec. §12). 28 3 SAFECO’S NOTICE AND MOTION TO TAX COSTS B. Jurisdiction to Determine the Amount of Recoverable Costs Lies with this Court, Not the Arbitrator. Arbitration of UIM disputes over the underinsured motorist’s liability, and the insured’s damages resulting therefrom, is required by statute, which provides, in pertinent part: The [UIM] policy or an endorsement added thereto shall provide that the determination as to whether the insured shall be legally entitled to recover damages, and if so entitled, the amount thereof, shall be made by agreement between the insured and the insurer or, in the event of disagreement, by arbitration. (Cal. Ins. Code § 11580.2(f),) The Auto Policy (which is incorporated by reference into the Umbrella Policy) 10 likewise limits the scope of arbitrable issues to the (1) right (not disputed here) and/or (2) 11 amount of (disputed), damages the insured is entitled to recover from the underinsured 12 driver/owner (Buddell Dec. Exh. “A”). Neither the statute nor the policy confers jurisdiction 13 upon the arbitrator to decide other issues arising out of the UIM claim. 14 In Storm v. Standard Fire Ins. Co. (2020) 52 Cal. App. 5th 636, 647-48, review 15 denied (Nov. 10, 2020), a case cited by Ms. Glassman in her letter to Judge Gallagher 16 requesting an award of costs, the court held that, following UIM arbitrations, unless the parties 17 agree otherwise, the court, not the arbitrator, decides issues of entitlement to costs®. As set 18 forth above, the arbitration clause in the Safeco policy is limited to the scope set forth in Ins. 19 Code §11580.2. Safeco has not agreed to expand the arbitrator’s authority beyond 20 determining the amount of damages Ms. Glassman is entitled to recover, and expressly 21 declines to confer jurisdiction upon the arbitrator to rule on Ms. Glassman’s recoverable costs, 22 which would deprive Safeco of the right to a judicial determination of the same (Buddell Dec. 23 48). 24 The ruling in Storm is consistent with the general rule that the policy terms govern, and 25 interpretation of an insurance policy is a question of law (AIU Ins. Co. v. Superior 26 27 3 Other sing cost awards all involved determinations by the court, not the arbitrator, confirming Safeco’s position that jurisdiction over the issue of a prevailing party’s entitlement to costs following arbitration 28 lies with the court. (see, Pilimai v. Farmers Ins. Exch. Co. (2006) 39 Cal. 4th 133, 137; Austin v. Allstate Ins. Co. (1993) 16 Cal. App. 4th 1812, 1814.) 4 SAFECO’S NOTICE AND MOTION TO TAX COSTS Court (1990) 51 Cal.3d 807, 818.) The rules governing policy interpretation require a court to look first to the language of the contract in order to ascertain its plain meaning or the meaning a layperson would ordinarily attach to it. (Waller v. Truck Ins. Exch., Inc., 11 Cal. 4th 1 (1995), as modified on denial of reh'g (Oct. 26, 1995).) Here, the Auto Policy unambiguously limits the scope of arbitration to a determination of the amount of “damages” the insured is entitled to recover against the tortfeasor. (Storm, supra, 52 Cal. App. 5th at 647-48.) Statutory costs to the prevailing party in arbitration proceedings between insurer and insured are not damages that the insured is entitled to recover from the tortfeasor. They do not compensate the injured party for the harm caused by the tortfeasor. Rather, they are statutory 10 awards obligating a non-prevailing party in litigation to compensate the prevailing party for 11 certain specifically-listed costs associated with the proceeding itself (see, e.g., CCP §§998, 12 1032) —and in the case of UIM arbitration, the tortfeasor is not a party. The contractual 13 provision in the Safeco policy is consistent with the statute, which limits mandatory UIM 14 arbitration to issues of liability for, and the amount of, damages only.(Ins. Code §11580.2(f).) 15 JAMS Rule 24(f), relied upon by Ms. Glassman in support of her claim to arbitration 16 costs, does not confer jurisdiction upon the arbitrator to decide any portion of the costs issue, 17 including arbitration fees and arbitrator’s compensation. That rule provides: 18 (f) The Award of the Arbitrator may allocate Arbitration fees and Arbitrator compensation and expenses, unless such an allocation is expressly prohibited by the 19 Parties' Agreement. (Such a prohibition may not limit the power of the Arbitrator to 20 allocate Arbitration fees and Arbitrator compensation and expenses pursuant to Rule 31(c)*.) (Buddell Dec. 4 13, Exh. “F”). 21 22 Not only does the parties’ agreement (the policy) expressly provide that the 23 Arbitrator’s jurisdiction is limited to the tortfeasor’s liability and the amount of the insured’s 24 damages (Buddell Dec. Exh. “A”), but the Notice of Appointment of Arbitrator expressly 25 4 The referenced subparagraph pertains to the joint and several liability of the parties for arbitration fees and the 26 arbitrator’s compensation. Subsection (a) provides that, absent an agreement to contrary, the parties are to share such fees equally. Under subparagraph (c), if one party pays more than its pro rata share, the arbitrator has 27 authority to award a any other Party any such fees, compensation and expenses that such Party owes with respect to the Arbitration. That is not the case here, the parties were billed for and cach paid half of the total 28 arbitration fees and arbitrator’s compensation (Buddell Dec. 413). 5 SAFECO’S NOTICE AND MOTION TO TAX COSTS provides that, unless the parties agree otherwise, each party shall share equally in the arbitration fees and expenses (Buddell Dec. 914, Exh. “G”). Therefore, JAMS Rule 24(f) does not confer upon the arbitrator authority to award costs to the prevailing party, including any arbitration fees or arbitrator compensation. Safeco has not waived its right to have the court determine the amount of costs awardable to Ms. Glassman; it has not agreed to submit to the arbitrator the issue of Ms. Glassman’s entitlement to costs, and how much, and hereby requests that this court assume jurisdiction to make that determination. C. Right of Prevailing Party to Recover Statutory Costs Incurred in Arbitration 10 Unlike court proceedings, there is no right to recover costs incurred in UIM arbitration 11 proceedings. Absent contrary agreement the parties must share the arbitrator's fee and bear 12 their own costs, including witness fees and attorney fees. (See CCP § 1284.2.) But CCP § 13 998 provides for shifting of certain coats where a pretrial settlement offer is rejected and the 14 offeree fails to obtain a better result at trial. By its terms, § 998 applies to an “arbitration as 15 provided in ... [CCP] section 1281,” which includes UIM arbitrations. (Pilimai v. Farmers 16 Ins. Exch. Co. (2006) 39 Cal.4th 133, 140.) Ms. Glassman’s claim for costs is based upon a 17 February 2020 CCP §998 offer to Safeco in the amount of $999,999. Safeco did not achieve a 18 better result in the arbitration, therefore the cost-shifting provisions of §998 apply. 19 But a party’s right to recover under CCP § 998 arbitration-related costs is limited to 20 post-offer expert fees (in the discretion of the court) and those specifically-enumerated costs 21 (e.g., witness fees and deposition expenses) that would be recoverable if the matter had gone 22 to trial. (Pilimai v. Farmers Ins. Exch. Co., supra, 39 Cal.4th at 149-150.) The types of costs 23 available to an arbitration prevailing party are “those costs available under ... [CCP] section 24 1032, as enumerated in ... [CCP] section 1033.5.” (Pilimai v. Farmers Ins. Exch. Co., supra, 25 39 Cal. 4" at 150.) 26 Thus, a prevailing party is not authorized to collect from the non-prevailing party any 27 expense not allowable as an item of costs. (Moss v. Underwriters' Report, Inc. (1938) 12 Cal 28 2d 266.) The right to recover any of such costs is determined entirely by statute: "It is 6 SAFECO’S NOTICE AND MOTION TO TAX COSTS axiomatic that the right to recover costs is purely statutory, and, in the absence of an authorizing statute, no costs can be recovered by either party." (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 732.) CCP§ 1033.5(a) and (b) outline the items of allowable and disallowable as costs, respectively. Subsection (c) sets forth the conditions for any award of costs. These statutes outlining authorized costs are strictly construed. (Sequoia Vacuum Systems v. Stransky (1964) 229 Cal. App.2d 281, 289.) In awarding costs, the court must first determine whether the statute expressly allows the particular item and whether it appears proper on its face. (Whatley-Miller v. Cooper (2013) 212 Cal. App. 4th 1103, 1113.) "If the items in a cost bill appear to be proper charges, the 10 burden is on the party seeking to tax costs to show that they were not reasonable or necessary. 11 On the other hand, "...[t]he mere filing of a motion to tax costs may be a ‘proper objection’ to 12 an item, the necessity of which appears doubtful, or which does not appear proper on its 13 face." (Nelson v. Anderson (1999) 72 Cal. App. 4th 111,131.) Thus, if the items are properly 14 objected to, they are put in issue and the burden of proof is on the party claiming them 15 as costs." (Ladas v. California State Automobile Association (1993) 10 Cal. App. 4 761, 774.) 16 Even otherwise allowable costs are limited to those reasonably necessary to the 17 conduct of the litigation, rather than merely convenient or beneficial to its preparation. (CCP 18 §1033.5(c)(2); Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.)) They also “shall be 19 reasonable in amount.” (CCP 1033.5(c)(3).) Thus, courts have the power to disallow 20 even costs "allowable as a matter of right" if they were not "reasonably necessary" and/or to 21 reduce the amount of any cost item to that which is "reasonable." (Perko's Enterprises, Inc. v. 22 RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.) 23 As discussed below, Safeco requests that the Court strike certain items claimed and 24 strike additional items and/or exercise its discretion to tax certain costs, which will be 25 identified after Safeco has had an opportunity to review supporting costs documentation 26 requested from Ms. Glassman (Buddell Dec. {[ 15-19). 27 28 Ml 7 SAFECO’S NOTICE AND MOTION TO TAX COSTS D. Ms. Glassman Must Produce Supporting Documentation For Each Cost Claimed; Any Specific Cost Unsubstantiated By Appropriate Documentation Should Be Disallowed Costs are not recoverable unless they actually have been incurred. (CCP§1033.5(c)(1).) "Once costs claimed in the memorandum are challenged via a motion to tax, documentation must be submitted to sustain the burden" on the party seeking to recover these costs. (Jones v. Dumrichob (1998) 63 Cal. App. 4th 1258, 1265 [internal citations omitted].) Therefore, it follows that costs unsubstantiated by invoices or evidence of payment for recoverable items should be disallowed. (Id.) 10 Based on the costs memorandum alone, Safeco has insufficient information to 11 determine if the costs are proper, and were actually incurred, reasonably necessary, and 12 reasonable in amount (Buddell Dec. § 15). By this motion, Safeco requests that Ms. Glassman 13 file and serve documentation (e.g., invoices or proof of payment) to support each and every 14 cost claimed (/d.). To the extent that Ms. Glassman is unable to provide admissible supporting 15 documentation, she has failed to meet her burden of demonstrating that she has incurred the 16 cost and that it is a recoverable cost under CCP §1033.5. Where the required proof is lacking, 17 the cost should be disallowed. 18 E. Safeco Preliminarily Requests That The Court Strike The Following Cost Items as 19 Not Proper Costs 20 Based on Safeco’s review of the Costs Memorandum, worksheet and declaration on 21 their face, Safeco preliminarily moves to strike the following line items in Ms. Glassman’s 22 Memorandum of Costs: 23 I. Item 8(b) 5 — Transcripts ($2,383.75)(Buddell Dec. 416) 24 This line item appears to be for transcripts of the two-day arbitration proceeding, not 25 deposition transcripts (Buddell Dec. Exh. “D”). . Transcripts of court proceedings not ordered 26 by the court are not recoverable costs. (CCP § 1033.5(b); see Davis v. KGO-T.V., Inc. (1998) 27 17 Cal.4th 436, 440-442 (disapproved on other grounds by Williams v. Chino Valley 28 8 SAFECO’S NOTICE AND MOTION TO TAX COSTS Independent Fire Dist. (2015) 61 Cal.4th 97, 105-107; Sanchez v. Bay Shores Med. Group (1999) 75 Cal.App.4th 946, 948-949; Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 599-600.) There is no evidence that the court (or the arbitrator) ordered transcripts of the proceedings (Buddell Dec. 16). Safeco requests that the court strike this line item in its entirety. 2. Item 16(a) Arbitration Fees and Arbitrator’s Compensation ($34,654.54)(Buddell Dec. U7) The impact of §998 on recovery of prevailing-party fees is to permit the prevailing party thereunder to recover discretionary post-offer expert fees in addition to the prevailing 10 eee party’s “costs. ” (CCP § 998(d).) The “costs” referenced in §998 refer to those costs allowed 11 under Section 1032 (CCP §998(a)), which allowable costs are set forth in §1033.5.) But there 12 is no basis to recover costs that are not identified in §998 or §1033.5 as recoverable costs to 13 the prevailing party. 14 Arbitration fees and arbitrator compensation are not within the categories of costs 15 recoverable under CCP § 1033.5. Nor are they required to be awarded ... [by] statute as an 16 incident to prevailing in the action at trial ...” (CCP § 1033.5(a)(16). As discussed above, 17 although § 998 applies to arbitrations, the additional penalty for failing to accept a Section 998 18 offer, when the nonaccepting party fails to achieve a more favorable result, is a discretionary 19 award of expert fees. And CCP § 1284.2 does not authorize recovery of arbitration fees and 20 arbitrator compensation as costs. To the contrary, the rule provides that, unless the parties 21 agree otherwise, each party shall assume liability for her or its pro rata share of the expenses 22 and fees of the arbitrator. The parties’ contract expressly provides that each party shall bear 23 his or its own arbitration costs and share in the compensation of the arbitrator equally (Buddell 24 Dec. Exh. “A”) and the JAMS Notice of Appointment of Arbitrator also provides that the 25 parties will share fees and compensation equally (Buddell Dec. Exh. “G”). And there is no 26 statutory basis to shift Ms. Glassman’s liability for her share of arbitration costs and fees to 27 Safeco. 28 9 SAFECO’S NOTICE AND MOTION TO TAX COSTS No reported decision has held to the contrary. The insured in Pilimai v. Farmers Ins. Exch. Co. (2006) 39 Cal.4th 133 did not include arbitration fees and arbitrator compensation in his memorandum of costs. But then he initially argued in Supreme Court brief that he was entitled, not only to the expenses listed, but also to “arbitrator's fees and expenses.” However, the insured clarified in supplemental briefing that he sought only those expenses requested in his memorandum of costs, which did not include a request for arbitrators’ fees and expenses. The Supreme Court therefore expressed no opinion as to whether such fees and expenses may be awarded pursuant to Section 998. Because there is no contractual or statutory authority for recovery of arbitration fees 10 and arbitrator compensation to the prevailing party, these fees and compensation are not 11 recoverable costs. Safeco respectfully requests that the court strike this line item from Ms. 12 Glassman’s Memorandum of Costs. 13 F. Safeco reserves its right to challenge, by request on reply to strike or tax additional 14 costs 15 Finally, Safeco reserves its right to move to strike and/or tax additional items of costs 16 on reply, after review of Ms. Glassman’s costs documentation, requested herein. That 17 additional request may be based upon any or all of the following grounds: they are not proper 18 costs, they were not incurred (or adequately documented), they were not necessary or 19 reasonable in amount, and/or they were merely convenient or beneficial to preparation for 20 litigation (Buddell Dec. 418). By way of example, but not limitation, Ms. Glassman included 21 costs to expedite preparation of a deposition transcript and delivery of an unspecified 22 document to JAMS. There is insufficient information in the costs memorandum and 23 worksheet from which one can determine whether these items should be stricken or taxed. 24 Ml 25 Mt 26 i 27 Ml 28 10 SAFECO’S NOTICE AND MOTION TO TAX COSTS (Buddell Dec. 419) Dated: May 14, 2021 DEMLER, ARMSTRONG & ROWLAND, LLP By (Subs John R. Brydon George A. tstott Brian H. Buddell Attorneys for Respondent SAFECO INSURANCE COMPANY OF AMERICA 10 11 12 13 14 15 16 17 18 19 20 21 22) 23 24 25 26 27 28 ll SAFECO’S NOTICE AND MOTION TO TAX COSTS PROOF OF SERVICE Iam employed in the County of San Francisco, State of California. I am over the age of 18 and not a party to the within action; my business address is 101 Montgomery Street, Suite 1800, San Francisco, California 94104. On May 14, 2021, I served the foregoing document(s) described as SAFECO’S NOTICE AND MOTION TO TAX COSTS on the interested parties in this action addressed as follows: Sherry Glassman herryglassman@mac.com In Pro Per ea] BY MAIL —I placed the document(s) listed above in a sealed envelope and place the 10 envelope for collection and mailing on the date below following the firm’s ordinary business practice. Iam readily familiar with the firm’s practice of collection and processing for 11 mailing. Under that practice it would be deposited with the U.S. Postal Service on the same day with postage thereon fully prepaid in San Francisco, California, in the ordinary course of 12 business. I am aware that on motion of the party served, service is presume invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing 13 in affidavit. 14 Oo BY PERSONAL SERVICE — I caused personal delivery of the document(s) listed 15 above to the person(s) at the address(es) set forth above. 16 oO BY FACSIMILE TRANSMISSION - I transmitted via facsimile the document(s) listed 17 above to the fax number(s) set forth above on this date before 5:00 p.m. 18 BSZx x] BY ELECTRONIC TRANSMISSION - Only by emailing the document(s) to the persons at the e-mail address(es). This is necessitated during the declared National Emergency 19 due to the Coronavirus (COVID-19) pandemic because this office will be working remotely, 20 not able to send physical mail as usual, and is therefore using only electronic mail. No electronic message or other indication that the transmission was unsuccessful was received 21 within a reasonable time after the transmission. We will provide a physical copy, upon request only, when we return to the office at the conclusion of the national emergency. 22) oO BY FED EX - I placed the document(s) listed above in a sealed envelope designated for 23 Fed Ex overnight delivery and deposited the same with fees thereupon prepaid, in a facility 24 regularly maintained by Federal Express, addressed as set forth above. 25 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on May 14, 2021, at San Francisco, California. 26 y sl 27 Kez 28 Francinty de Almeida 12 SAFECO’S NOTICE AND MOTION TO TAX COSTS