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JAN-23-21 SAT 12:04 PM HANCOCK ROTHERT BUNSHOFT — FAX No, ee ER
WILLIAM J. CASBY (SBN 116531)
ANDREW G. WANGER (SBN 166449)
CHRISTINA C. MARSHALL (SBN 209315)
HANCOCK ROTHERT & BUNSHOFT LEP E | D
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San Francisco, California 94111-4168 ALAMEDA COUNTY
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Factinlos (115) 955-2599 JAN 2S Te et
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Attorneys for Defendants MICHAEL GUTA, CLERK OF TY ‘pea ene
JOHN &, WILT, and LAW OFFICES OF JOHN Deputy
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BE.HILL
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF ALAMEDA
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MICHAEL SMITH, CASE NO. RG 04163436
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Plaintité, : |
. OPPOSITION TO PLAINTIFF'S
ve: a MOTION TO TAX COSTS.
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JOLIN E. HILL, MICHAEL GUTA, Date: February 3,2006
14 LAW OFTICES OF JOHN E, HILL, and DOES} | Time: 10:00 am.
through 100, inclusive, Dept: 18
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Defendants. . Action Filed: June 30, 2004
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17 .
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18 I, INTRODUCTION
19 On December 9, 2005, judgment was entered in favor of Defendants Michael Guta,
20 John 1. Hill and Law Office of John E, Hill (“Defendants”) in an action for legal malpractice
brought by Michael Sinith (“Plaintiff”). As a result, Defendants, as the prevailing parties, moved
for costs pursuant to C.C,P. §§ 1032, 1033, and 1033.5, In his Motion to Tax Costs, Plaintiff
challenges certain items of costs claimed by Defendants, including:
* JAMS fee $1,750.00
* Filing fee $314.50
. Expert Witness fee for Robert Bunzel $5,088,62
« Expert Witness fee for Andrew Weill $3,200,00
* Models, blowups and photocopies of exhibits $6,613.26
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Defendants withdraw their claim for the expert witness fees incurred by Messrs,
Runzel and Weill prior to service of Defendants C.C,P. § 998 Offer to Compromise served on
October 22, 2005 - $5,088.62 and $3,200.00, respectively. Defendants also withdraw their claim
for $330, the cost of two blowups, which are timelines that were not used during trial. Thus, the
costs claimed by Defendants now total $39,146.77.
The remainder of the costs challenged by Plaintiff— the $1,750.00 JAMS fee,the
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$314.50 filing fee,and ihe costs to photocopy the trialexhibits ($6,283.26) —may be awarded at
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"the discretion of the Court,
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Hl, DISCUSSTON
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C.CP. § 1032 (b) provides: “Except as otherwise expressly provided by statute, a
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prevailing party isentitled as.a maticr of right to recover costs in any action or proceeding.”
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Allowable costs include filingand motion fees, and models and blowups of exhibits and
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photocopies of exhibits “ifthey were reasonably helpful to aid the trier of fact.” (C.C.P. |
16 §1033.5(a)(12).) Items not expressly mentioned in § 1033.5 “may be allowed or denied in the
court’s discretion.” (C.C.P. §1033.5(c)(4).)
A, The Court Has Discretion to Award the Cost of the JAMS Mediator
In early 2005, the parlies agreed to mediate and the Court ordered the parties to
mediation and ordered that the partics conduct that mediation before a specified date. (Sec Case
Management Order dated January 6, 2005, altached asExhibit A io the Declaration of Christina C.
Marshall (“Marshall Decl.”),) The totalcost of the mediation (conducted through JAMS) was
$3,500, and the parties agreed to splitthe cost. Obviously, the case did not settle at the mediation
and proceeded {0 trial,Defendants now scck to recover their share of this incurred cost.
In Gibson y.Bobroff (1996) 49 Cal.App.4 1202, the Court of Appeal was
presented with an issuc of firstimpression — whether a trialcourt may in itsdiscretion award
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successful litigants their share ofthe cost of unsuccessful court-ordered, but privately conducted,
mediation. In the published portion of the opinion, the court answered thisquestion inthe
affirmative. In Gibson, the parties attended a court-ordered mediation before a JAMS mediator,
which was unsuccessful, After trial,
Plaintiff sought costs, including the cost of the mediation,
and defendants moved to strike this cost on the grounds that there was no statutory authority to
allow mediation costs. (7d.at 1205.) The trial court allowed the cost of mediation as “reasonably
necossary to the conduct of litigation.” (/d at 1207,) The Court of Appeal agreed, reasoning that
“tad the Legislature inlended to exclude mediation expenses from items allowable as costs, it
would have been a simple matter tohave listed them in section 1033.5, subdivision (b),as an item
Which could not be awarded.” (/d.) The court concluded that “the legislation does not foreclose
an award of mediation. expenses as costs.” (id.at 1208.)
Although the court did not expressly decide whether a party prevailing aftera trial
preceded by unsuccessful po/untary mediation would be entitled to such costs (id,at 1209, n.7), it
ignevertheless within the Court's discretion to decide whethor the mediation costs incurred in this
case should be awarded. The purpose of mediation isto resolve the lawsuit at ihe earliest time
before a costly and time-consuming trial,and mediation ig a necessary part of litigation in
California. (/@, at 1209) Although the parties agreed to participate in mediation, the court still
ordered the parties tomediation and monitored the progress of ihe mediation by requiring that the
partics complete the mediation and report on the outcome within a specific time period. (Marshall
Deel, Exhibit A.) Defendants agreed to this process as a way to resolve the case without incurring
ihe costs associated with trialpreparation and eventual trial,and for that reason, the mediation was
“reasonably necessary to the conduct of the litigation.” Accordingly, Defendants request that the
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Court exercise itsdiserction and award these costs under §1033(c)(4).
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B, The Filing
ewe Fee In The Amount of $314.50isRecoverable Under §1033,5(a)(1)
Plaintiff mischaracterizes the $314.50 filing fee as one associated with the filing of
Defendants’ 'cross-complaint against Philip Duncan. This is incorrect. Instead, this filing fee was
incurred when each of the three Defendants filed their firstappearance fec. (Marshall Decl. {4)
No fees were incurred with the filing of the cross-complaint. (/d.) Thus, this fee should be
awarded under §1033,5(a)(1).
C, Costs to Photocopy Trial Exhibits Are Expressly Allowable Under §1033,5(a)(12)
Defendants submit thatthey are entitled to $6,283.26 in costs associated with
photocopying trialexhibits, In order to assistthe Court, the witnesses, and the jury, Defendants:
prepared three seis of binders of the 110 trial exhibits, which inchided the documents and °
deposition fraser} pts that were listedjointly as trialexhibiis on the Joint Exhibit List. One set of |
binders was provided to the Court for case of reference. One sel was used by the witnesses who
took the stand, A third setwas used by Defendants’ counsel at counsel table, but was also used
during trialby Plaintif’s counsel. Finally, Defendants copied an additional set of the exhibits that
were submitted to the clerk for pre-marking; this set eventually was sent to the jury room during
deliberations. Additionally, many of the copies of the exhibits that constituted deposition
transcripts were made based on Plaintiff’s designation of 15 volumes of depositions as trial
exhibits. (Sce Plaintiffs List of Exhibits, attached as Exhibit B toMarshall Decl.)
Plaintiff did not have a set of trialexhibits copied forthe court, the witnesses, or
the clerk, and Defendants were the only parties to incur these costs, cven though the copies were
made for the benefit of allinvolved, including Plaintiff. Moreover, Plaintiff's counsel and the
witnesses he called relied heavily on the copies of these exhibits during the trial.For these
26
reasons, the cost in the amount of $6,283.26 should be not be stricken because the trialexhibits
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included in the Joint Exhibit Listwere reasonably helpful to aid the trierof fact.
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Plaintiff argues that many of the exhibits copied were not actually “shown to the
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jury or admitied into evidence,” and therefore they should not be recouped. However, the Court
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sill has the discretion under §1033.5(c)(4) to allow these costs since copies of these exhibits were
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“reasonably necessary to the conduct of the litigation.” (See Applegate vy.St. Francis Lutheran
Gn
Church (1994) 23 Cal.App.4" 361, 364 (court properly exercised discretion to allow exhibit costs
where aclion was dismissed by opposing counsel on the firstday of trial),)Although many of the
§ exhibits designated as trial exhibits were not moved into evidence, they were stillpresented to and
used with witnesses for both the Plaintiff and ihe defense, and helped assist in the overall
10
presentation of the evidence to the jury. The fact that not every single exhibit was ultimately
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moved into evidence should not in any way suggest thatthe exhibits were not“reasonably
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‘necessary to ihe conduct of the litigation.” This concept is exemplified in the Applegate case,
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14 where the court awarded trialexhibit costs even though the action never proceeded to trial.
15 Finally, Plaintiff's unsupported statement that “internal copy costs are not allowed”
16 is wholly without merit, While this rule may apply to regular photocopying charges under
17 §1033(b)(3), ihe rule is inapplicable to trialexhibits. Having a vendor copy the exhibits would
18 have arguably been more costly than in-house copying, and Plaintiff's contention iswithout merit.
19
IH. CONCLUSION
20
Other than the items mentioned above, Plaintiff has not moved totax or strike any
of Defendanis’ other claimed costs. At the very Icast, Defendants should be entitled to
$32,549.01, because these costs have not been disputed. However, Defendants submit thatcertain
costs claimed, such as the JAMS fee,while not expressly listedas an allowable cost under
§1033.5, are also not expressly disallowed. Instead, such casts are within the Court’s diserction to
award, Defendants respectfully request that the Court exercise itsdiscretion to allow the costs
incurred with mediation, firstappearance fee, and photocopies of trialexhibits, and award costs in
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the amount of $39,146.77,
Dated: January 23, 2006 DUANE MORRIS LLP
Nw
Ww
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6 Andrew G. Wanger
Christina C, Marshal]
Attomeys forDefendants MICHAEL GUTA,
JOHN E. HILE and LAW OFFICES OF
JOLIN E. HILL
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SEVN892924.6
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10834686.tif-
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SERVICE LIST
Smith y.John E. Hill, Michael Guta, et al,
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
ta
Tam employed in the county of aforesaid; 1 am over the age of cighteen years and
not a party to the within entitledaction; my business address isFour Embarcadero Center, Suite
300, San Francisco, California 94111-4168.
A
On January 23, 2006, I served the following document(s) described as
O&O
OPPOSITION TO MOTION TO TAX COSTS
st
on the interested party(ies) in this action in the following manner:
co
1] BY E-MAIL: On the date set forth below, atSan Francisco, California, I caused the
mo
foregoing document(s) to be served by e-mail transmission to the e-mail address(os) sct forth
below, as last given by that person on any document which he or she has filed in the cause and
served on theparty making the service. The document(s) was(were) transmitted by e-mail from a
computer in the offices of Duane Morris. The c-mail transmission(s) was(were) reporied as
delivered to the party(ies) at the indicated e-mail address(es), and no undeliverable message from
the recipient’s server was received by the sender of the e-mail, A copy of the e-mail transmission _
’ confirmation(s) is(are)attached hereto,
{ ] .BY FACSIMILE: Qn the date set forth below, at San Francisco, Califomia, I caused the
foregoing documenl(s) to be transmilled by facsimile transmission. I am readily familiar with the
firm’s business practice regarding facsimile transmissions, According to that practice, the
document(s) will be transmitted by facsimile from the offices of Duane Morris thatsame day to
the law office(s) stated below totheir known business facsimile number(s) and/or to the facsimile
number(s) maintained by the addressce{s) designated below atthe facsimile machine telephone
number as last given by that person on any document which he or she has filed in the cause and
served on the parly making the service, The transmission(s) was(werc) reported as complete and
without error, A copy of the transmission repori(s) properly issued by one or more of Duane
Monis’ four Canon Laser Class facsimile machine(s) is(are)attached hereto.
{X] BY MAIL: On the date set forth below, at San Francisco, California, I placed the
documeni(s) in a sealed envelopes), addressed as setforth below, for collection and mailing with
the United States Postal Service, Iam readily familiar with the firm’s practice forcollection and
processing of correspondence for mailing with the United States Postal Service. According to that
practice, the correspondence will be deposited with the United States Postal Service that same day
in the ordinary course of business, with first-classprepaid postage thereon, Service made pursuant
to CCP § 1013a(3), upon motion of a party served, shall be presumed invalid if thepostal
cancellation date orpostage meter date on the envelope ismore than one day afierthe date of
deposit for mailing contained in the affidavit,
[X] BY OVERNIGHT DELIVERY: On the date set forth below, at San Francisco,
California, Iplaced the document(s) for overnight delivery in a box or location regularly
maintained by Fedoral Express (or oiher express courier service) at my office, or Idelivered the
document(s) to an authorized courier or driver authorized by Federal Express (or other express
courier service) to receive documents, The document(s) was(were) placed in a sealed enyclope(s)
‘orpackage(s) designated by Federal Express (orother express courier service), wilh delivery fees
paid or provided for,addressed as set forth below to the person(s) to whom the document(s)
should be delivered, aiihe office address(es) as lastgiver by that person on any document filed in
the canse and served on the party making service; otherwise atthat patty’s place of residence.
2 Case No. 1-04-CV-806004
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{ ] BY PERSONAL DELIVERY: On the date set forth below, at San Francisco, California,
I placed the above-referenced document(s) in a box or location regularly maintained atmy office
for our messenger/courier service, or I delivered the envelope or package to a courier or driver
authorized by our messenger/couricr service to receive documents, The document(s) was(were)
placed in a sealed envélope or package designated by our messenger/couricr service with delivery
fees paid or provided for,addressed to the person(s) on whom itis to be personally served at the
address(es) shown below, atthe office address(es) as lastgiven by thatperson on any document
Gled in the cause and served on the party making service; otherwise atthat party’s place of
residence, The messengor/courier service was provided with instructions ihat the envelope or
package be personally served on the addressee(s) by same day delivery (C,C.P. §1011).
Attorneys for Plaitift Attorneys for Cross-Complainants
Michael Smith Philip J. Duncan, Duncan & Rainwater
William DeGarmo, Esq, John H. Feeney, Esq.
McCann & Lopue Thomas J,D’Amato
1660 Hamilion Avenue, Suite 203 Murphy, Pearson, Bradley & Feeney
San Jose, CA 95125 88 Kearny Street, 10" Floor
Tel: (408) 269-8787 San Francisoc, CA 94108
Fax: (408) 269-2321 Tel: (415) 788-1900
Fax: (415)393-8087
‘BY OVERNIGHT
BY US, MAIL
T declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct,
Executed on January 23, 2006, at San Francisco, California,
Cindy Foyg VW
3 Casa No. 1-04-CV-806004
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NN ED EEE EE JAN-23-21 SAT 12:04 PM HANCOCK ROTHERT BUNSHOFT — FAX No, ee ER WILLIAM J. CASBY (SBN 116531) ANDREW G. WANGER (SBN 166449) CHRISTINA C. MARSHALL (SBN 209315) HANCOCK ROTHERT & BUNSHOFT LEP E | D ioe) San Francisco, California 94111-4168 ALAMEDA COUNTY we Factinlos (115) 955-2599 JAN 2S Te et > LA Attorneys for Defendants MICHAEL GUTA, CLERK OF TY ‘pea ene JOHN &, WILT, and LAW OFFICES OF JOHN Deputy “OOS BE.HILL SUPERIOR COURT OF THE STATE OF CALIFORNIA we FOR THE COUNTY OF ALAMEDA ow 10 MICHAEL SMITH, CASE NO. RG 04163436 th Plaintité, : | . OPPOSITION TO PLAINTIFF'S ve: a MOTION TO TAX COSTS. 13 JOLIN E. HILL, MICHAEL GUTA, Date: February 3,2006 14 LAW OFTICES OF JOHN E, HILL, and DOES} | Time: 10:00 am. through 100, inclusive, Dept: 18 15 Defendants. . Action Filed: June 30, 2004 16 17 . 7 + “ FA? a “e 18 I, INTRODUCTION 19 On December 9, 2005, judgment was entered in favor of Defendants Michael Guta, 20 John 1. Hill and Law Office of John E, Hill (“Defendants”) in an action for legal malpractice brought by Michael Sinith (“Plaintiff”). As a result, Defendants, as the prevailing parties, moved for costs pursuant to C.C,P. §§ 1032, 1033, and 1033.5, In his Motion to Tax Costs, Plaintiff challenges certain items of costs claimed by Defendants, including: * JAMS fee $1,750.00 * Filing fee $314.50 . Expert Witness fee for Robert Bunzel $5,088,62 « Expert Witness fee for Andrew Weill $3,200,00 * Models, blowups and photocopies of exhibits $6,613.26 SPN\R32O24.Y 02047-00200 ~ 10534696 tf- 1/23Q006 121450 PM OPPOSITION TO MOTION TO TAX COSTS JAN-23-21 SAT 12:05 PM HANCOCK ROTHERT BUNSHOFT © FAX NO, 4159552699 P, 03 Defendants withdraw their claim for the expert witness fees incurred by Messrs, Runzel and Weill prior to service of Defendants C.C,P. § 998 Offer to Compromise served on October 22, 2005 - $5,088.62 and $3,200.00, respectively. Defendants also withdraw their claim for $330, the cost of two blowups, which are timelines that were not used during trial. Thus, the costs claimed by Defendants now total $39,146.77. The remainder of the costs challenged by Plaintiff— the $1,750.00 JAMS fee,the SI $314.50 filing fee,and ihe costs to photocopy the trialexhibits ($6,283.26) —may be awarded at oF Oo "the discretion of the Court, 10 Hl, DISCUSSTON im} C.CP. § 1032 (b) provides: “Except as otherwise expressly provided by statute, a yall. prevailing party isentitled as.a maticr of right to recover costs in any action or proceeding.” 13 Allowable costs include filingand motion fees, and models and blowups of exhibits and 14 photocopies of exhibits “ifthey were reasonably helpful to aid the trier of fact.” (C.C.P. | 16 §1033.5(a)(12).) Items not expressly mentioned in § 1033.5 “may be allowed or denied in the court’s discretion.” (C.C.P. §1033.5(c)(4).) A, The Court Has Discretion to Award the Cost of the JAMS Mediator In early 2005, the parlies agreed to mediate and the Court ordered the parties to mediation and ordered that the partics conduct that mediation before a specified date. (Sec Case Management Order dated January 6, 2005, altached asExhibit A io the Declaration of Christina C. Marshall (“Marshall Decl.”),) The totalcost of the mediation (conducted through JAMS) was $3,500, and the parties agreed to splitthe cost. Obviously, the case did not settle at the mediation and proceeded {0 trial,Defendants now scck to recover their share of this incurred cost. In Gibson y.Bobroff (1996) 49 Cal.App.4 1202, the Court of Appeal was presented with an issuc of firstimpression — whether a trialcourt may in itsdiscretion award SPUNGS2924, 1 02047-00201 2 10534686.tf- 1/230006 12:14:50 PH OPPOSITION TO MOTION TO TAX COSTS JAN-23-21 SAT 12:05 PM HANCOCK ROTHERT BUNSHOFT © FAX NO, 4159552599 P, O4 « successful litigants their share ofthe cost of unsuccessful court-ordered, but privately conducted, mediation. In the published portion of the opinion, the court answered thisquestion inthe affirmative. In Gibson, the parties attended a court-ordered mediation before a JAMS mediator, which was unsuccessful, After trial, Plaintiff sought costs, including the cost of the mediation, and defendants moved to strike this cost on the grounds that there was no statutory authority to allow mediation costs. (7d.at 1205.) The trial court allowed the cost of mediation as “reasonably necossary to the conduct of litigation.” (/d at 1207,) The Court of Appeal agreed, reasoning that “tad the Legislature inlended to exclude mediation expenses from items allowable as costs, it would have been a simple matter tohave listed them in section 1033.5, subdivision (b),as an item Which could not be awarded.” (/d.) The court concluded that “the legislation does not foreclose an award of mediation. expenses as costs.” (id.at 1208.) Although the court did not expressly decide whether a party prevailing aftera trial preceded by unsuccessful po/untary mediation would be entitled to such costs (id,at 1209, n.7), it ignevertheless within the Court's discretion to decide whethor the mediation costs incurred in this case should be awarded. The purpose of mediation isto resolve the lawsuit at ihe earliest time before a costly and time-consuming trial,and mediation ig a necessary part of litigation in California. (/@, at 1209) Although the parties agreed to participate in mediation, the court still ordered the parties tomediation and monitored the progress of ihe mediation by requiring that the partics complete the mediation and report on the outcome within a specific time period. (Marshall Deel, Exhibit A.) Defendants agreed to this process as a way to resolve the case without incurring ihe costs associated with trialpreparation and eventual trial,and for that reason, the mediation was “reasonably necessary to the conduct of the litigation.” Accordingly, Defendants request that the 26 Court exercise itsdiserction and award these costs under §1033(c)(4). 27 28 SEUNGIZ9Z4102047-00201 3 10534686 if- 129906121450PM OPPOSITION TO MOTION 70 TAX COSTS JAN-23-21 SAT 12:06 PM HANCOCK ROTHERT BUNSHOFT FAX NO, “e- P, 06 B, The Filing ewe Fee In The Amount of $314.50isRecoverable Under §1033,5(a)(1) Plaintiff mischaracterizes the $314.50 filing fee as one associated with the filing of Defendants’ 'cross-complaint against Philip Duncan. This is incorrect. Instead, this filing fee was incurred when each of the three Defendants filed their firstappearance fec. (Marshall Decl. {4) No fees were incurred with the filing of the cross-complaint. (/d.) Thus, this fee should be awarded under §1033,5(a)(1). C, Costs to Photocopy Trial Exhibits Are Expressly Allowable Under §1033,5(a)(12) Defendants submit thatthey are entitled to $6,283.26 in costs associated with photocopying trialexhibits, In order to assistthe Court, the witnesses, and the jury, Defendants: prepared three seis of binders of the 110 trial exhibits, which inchided the documents and ° deposition fraser} pts that were listedjointly as trialexhibiis on the Joint Exhibit List. One set of | binders was provided to the Court for case of reference. One sel was used by the witnesses who took the stand, A third setwas used by Defendants’ counsel at counsel table, but was also used during trialby Plaintif’s counsel. Finally, Defendants copied an additional set of the exhibits that were submitted to the clerk for pre-marking; this set eventually was sent to the jury room during deliberations. Additionally, many of the copies of the exhibits that constituted deposition transcripts were made based on Plaintiff’s designation of 15 volumes of depositions as trial exhibits. (Sce Plaintiffs List of Exhibits, attached as Exhibit B toMarshall Decl.) Plaintiff did not have a set of trialexhibits copied forthe court, the witnesses, or the clerk, and Defendants were the only parties to incur these costs, cven though the copies were made for the benefit of allinvolved, including Plaintiff. Moreover, Plaintiff's counsel and the witnesses he called relied heavily on the copies of these exhibits during the trial.For these 26 reasons, the cost in the amount of $6,283.26 should be not be stricken because the trialexhibits 27 included in the Joint Exhibit Listwere reasonably helpful to aid the trierof fact. 28 SUYN83292d.1 02047-00201 4 10534696 if-insitode 12:14:50 PH OPPOSITION TO MOTION TO TAX COSTS OL a JAN-23-21 SAT 12:08 PM HANCOCK ROTHERT BUNSHOFT FAX NO. 4159552599 P, 06 Plaintiff argues that many of the exhibits copied were not actually “shown to the bo jury or admitied into evidence,” and therefore they should not be recouped. However, the Court lat sill has the discretion under §1033.5(c)(4) to allow these costs since copies of these exhibits were Be “reasonably necessary to the conduct of the litigation.” (See Applegate vy.St. Francis Lutheran Gn Church (1994) 23 Cal.App.4" 361, 364 (court properly exercised discretion to allow exhibit costs where aclion was dismissed by opposing counsel on the firstday of trial),)Although many of the § exhibits designated as trial exhibits were not moved into evidence, they were stillpresented to and used with witnesses for both the Plaintiff and ihe defense, and helped assist in the overall 10 presentation of the evidence to the jury. The fact that not every single exhibit was ultimately 11 moved into evidence should not in any way suggest thatthe exhibits were not“reasonably 12 ‘necessary to ihe conduct of the litigation.” This concept is exemplified in the Applegate case, 13 14 where the court awarded trialexhibit costs even though the action never proceeded to trial. 15 Finally, Plaintiff's unsupported statement that “internal copy costs are not allowed” 16 is wholly without merit, While this rule may apply to regular photocopying charges under 17 §1033(b)(3), ihe rule is inapplicable to trialexhibits. Having a vendor copy the exhibits would 18 have arguably been more costly than in-house copying, and Plaintiff's contention iswithout merit. 19 IH. CONCLUSION 20 Other than the items mentioned above, Plaintiff has not moved totax or strike any of Defendanis’ other claimed costs. At the very Icast, Defendants should be entitled to $32,549.01, because these costs have not been disputed. However, Defendants submit thatcertain costs claimed, such as the JAMS fee,while not expressly listedas an allowable cost under §1033.5, are also not expressly disallowed. Instead, such casts are within the Court’s diserction to award, Defendants respectfully request that the Court exercise itsdiscretion to allow the costs incurred with mediation, firstappearance fee, and photocopies of trialexhibits, and award costs in S§C1TN8329241 02047-00201 3 10534606 f-1/2]0006 121450Pa OPPOSTION TO MOTIONTO TAX COSTS JAN-23-21 SAT 12:07 PM HANCOCK ROTHERT BUNSHOFT FAX NO, 4159552599 P, OF —_ the amount of $39,146.77, Dated: January 23, 2006 DUANE MORRIS LLP Nw Ww we LLM. > 6 Andrew G. Wanger Christina C, Marshal] Attomeys forDefendants MICHAEL GUTA, JOHN E. HILE and LAW OFFICES OF JOLIN E. HILL 16 SEVN892924.6 02047-0020) 6 10834686.tif- ina 06121450PH OPPOSITION TO MOTION TO TAX COSTS OL Le JAN-23-21 SAT 12:07 PM HANCOCK ROTHERT BUNSHOFT FAX NO, 4159552599 P, 08 SERVICE LIST Smith y.John E. Hill, Michael Guta, et al, STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO ta Tam employed in the county of aforesaid; 1 am over the age of cighteen years and not a party to the within entitledaction; my business address isFour Embarcadero Center, Suite 300, San Francisco, California 94111-4168. A On January 23, 2006, I served the following document(s) described as O&O OPPOSITION TO MOTION TO TAX COSTS st on the interested party(ies) in this action in the following manner: co 1] BY E-MAIL: On the date set forth below, atSan Francisco, California, I caused the mo foregoing document(s) to be served by e-mail transmission to the e-mail address(os) sct forth below, as last given by that person on any document which he or she has filed in the cause and served on theparty making the service. The document(s) was(were) transmitted by e-mail from a computer in the offices of Duane Morris. The c-mail transmission(s) was(were) reporied as delivered to the party(ies) at the indicated e-mail address(es), and no undeliverable message from the recipient’s server was received by the sender of the e-mail, A copy of the e-mail transmission _ ’ confirmation(s) is(are)attached hereto, { ] .BY FACSIMILE: Qn the date set forth below, at San Francisco, Califomia, I caused the foregoing documenl(s) to be transmilled by facsimile transmission. I am readily familiar with the firm’s business practice regarding facsimile transmissions, According to that practice, the document(s) will be transmitted by facsimile from the offices of Duane Morris thatsame day to the law office(s) stated below totheir known business facsimile number(s) and/or to the facsimile number(s) maintained by the addressce{s) designated below atthe facsimile machine telephone number as last given by that person on any document which he or she has filed in the cause and served on the parly making the service, The transmission(s) was(werc) reported as complete and without error, A copy of the transmission repori(s) properly issued by one or more of Duane Monis’ four Canon Laser Class facsimile machine(s) is(are)attached hereto. {X] BY MAIL: On the date set forth below, at San Francisco, California, I placed the documeni(s) in a sealed envelopes), addressed as setforth below, for collection and mailing with the United States Postal Service, Iam readily familiar with the firm’s practice forcollection and processing of correspondence for mailing with the United States Postal Service. According to that practice, the correspondence will be deposited with the United States Postal Service that same day in the ordinary course of business, with first-classprepaid postage thereon, Service made pursuant to CCP § 1013a(3), upon motion of a party served, shall be presumed invalid if thepostal cancellation date orpostage meter date on the envelope ismore than one day afierthe date of deposit for mailing contained in the affidavit, [X] BY OVERNIGHT DELIVERY: On the date set forth below, at San Francisco, California, Iplaced the document(s) for overnight delivery in a box or location regularly maintained by Fedoral Express (or oiher express courier service) at my office, or Idelivered the document(s) to an authorized courier or driver authorized by Federal Express (or other express courier service) to receive documents, The document(s) was(were) placed in a sealed enyclope(s) ‘orpackage(s) designated by Federal Express (orother express courier service), wilh delivery fees paid or provided for,addressed as set forth below to the person(s) to whom the document(s) should be delivered, aiihe office address(es) as lastgiver by that person on any document filed in the canse and served on the party making service; otherwise atthat patty’s place of residence. 2 Case No. 1-04-CV-806004 PROOF OF SERVICE 10534686.tiF-D006 1/23 12-1450 PM ee eerer os 6 A maenene + i BUNSHOFT FAX NO, ‘e P, O02 JAN-23-21 SAT 01:10 PM HANCOCK ROTHERT { ] BY PERSONAL DELIVERY: On the date set forth below, at San Francisco, California, I placed the above-referenced document(s) in a box or location regularly maintained atmy office for our messenger/courier service, or I delivered the envelope or package to a courier or driver authorized by our messenger/couricr service to receive documents, The document(s) was(were) placed in a sealed envélope or package designated by our messenger/couricr service with delivery fees paid or provided for,addressed to the person(s) on whom itis to be personally served at the address(es) shown below, atthe office address(es) as lastgiven by thatperson on any document Gled in the cause and served on the party making service; otherwise atthat party’s place of residence, The messengor/courier service was provided with instructions ihat the envelope or package be personally served on the addressee(s) by same day delivery (C,C.P. §1011). Attorneys for Plaitift Attorneys for Cross-Complainants Michael Smith Philip J. Duncan, Duncan & Rainwater William DeGarmo, Esq, John H. Feeney, Esq. McCann & Lopue Thomas J,D’Amato 1660 Hamilion Avenue, Suite 203 Murphy, Pearson, Bradley & Feeney San Jose, CA 95125 88 Kearny Street, 10" Floor Tel: (408) 269-8787 San Francisoc, CA 94108 Fax: (408) 269-2321 Tel: (415) 788-1900 Fax: (415)393-8087 ‘BY OVERNIGHT BY US, MAIL T declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, Executed on January 23, 2006, at San Francisco, California, Cindy Foyg VW 3 Casa No. 1-04-CV-806004 PROOF OF SERVICE 10634701 Jif113/2006 1:11:03 PM