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Jul.25, 2017 10:54AM Law Offices No. 0192 PF 2
HOWARD R. MELAMED, SBH#40962
FILED BY FAX
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Attorney at Law ALAMEDA COUNTY
319 Lennon Lane July 25, 2011
oO
Walnut Creek, CA 94598
Telephone: (925) 932-0417 tHe art court
Facsimile: 925 256-9542 . By Rosanne Case, Deputy
Email: hmelamed@gmail.com
CASE NUMBER:
Attorney for Plaintitf RGO9469504
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
10 JAMES LUTTRULE, Case No. RG09-469504 :
BYCFAX
Plaintiff, PLAINTIFE’S OPPOSTTION TO j
DEFENDANT’S MOTION TO STRIKE -
12 vs. OR, IN THE ALTERNATIVE, TAX
PLAINTIFF’?S MEMORANDUM OF
13 ISLAND PACITTIC SUPERMARKETS, COSTS; DECLARATION OF HOWARD
INC., and DOES 1-100, R. MELAMTD, ESQ.
14
Defendants. Date: August 5, 2011
15 Time: 9:30 a.m.
Dept.: 21
16 __/ Judge: Honorable Wynne 8. Carvill
17 Plaintiff, James Luttrell, submits the following opposition to defendant’s motion to
18 strike plaintiff's memorandum of costs or, in the alternative, to tax cerlain cos(s as improper]
19 As shown by plaintiff’s opposition, the motion should be denied in its entirety.
20 ‘THE MOTION TO STRIKE PLAINTIFF'S
COST BILL MUST BE DENIED
21
22 Defendant claims that plaintifl’s cost bill was filed untimely and moves Lostrike iton
23 that basis. Defendant is wrong. Plaintiff filed his cost bill timely in accordance with
24 California Rules of Court (CRC), rule 3.1700(a)(1).
25 A cost bill or memorandum of costs must be served and filed within the earlier of:
26 * 15 days after notice of cntry of judgment is mailed by the clerk under CCP
27 §664.5;
28 . 15 days after notice of entry of judgment is served by any patty; or
OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS
Jul. 25. 20177 10:55AM Law Offices No 0192 PF. 3
. 180 days after entry of judgment, CRC 3.7700 (a)(1).
The judgment was entered on May 20, 2011. Sec Axhibit “A” to Declaration of Wilma
Gray filed in support of defendant’s motion to strike or tax costs.
The clerk has not mailed any document entitled “notice of entry of judgment” under
CCP $664.5 and neither plamtiff nor defendant has served any such document. See
Declaration of Howard R. Melamed, Esq. filed herewith.
Plaintiff filed his memorandum of costs on June 29, 2011, This is within 180 days o
the May 20, 2011, entry of judgment. As such, plaintiff’s memorandum of costs was filed
timely and, therefore, defendant’s motion to strike the memorandum must be denied,
10 THE MOTION ‘TO TAX ITEMS FROM
PLAINTIFE’S COST BIEL MUST BE
in DENIED
12 L. Plaintiff’s Deposition Costs Are Proper
And Should Not Be Taxed
13
14 Tn his memorandum of costs, plaintiff claims $4,368.02 in costs in connection with
15 the taking of ten (10) depositions. The costs, itemized in Attachment 4e, are for
16 “transcribing” these ten depositions and are taken from the Court Reporter’s bills,Nine of
17 these supporting bills are attached to the Declaration of Howard R. Melamed, Esq. filed
18 herewith. The billfor $322.75 for plaintiff's deposition taken on May 11, 2010, was incurred
19 by plaintiff while he was represented by counsel other than Howard R, Melamed. Prior
20 counscl has advised that he no longer has the invoice for the May 11, 2010, deposition.
21 ‘The costs of transcribing necessary depositions including an original and one copy of
22 those taken by the claimant are allowable costs under Code of Civil Procedure section!
23 1033.5(a)(3). In this regard, defendant does not challenge the necessity of the ten depositions
24 listed in plaintiff’s cost bill,
25 Defendant has moved to tax plaintiffs costs that relate to the depositions of expert
26 witnesses, to wit, Ryan Jones, Dr, Danicl Allen, Dr. Wiiliam Steams, W, Charles Perry and
27 Dr, Alan Kawaguchi. These costs total $2,587.04. Defendant’s argument is that plaintiffis
28 not entitled to the costs of taking the depositions of these experts since plaintiff failed to
OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS
Jul. 25. 2077 10:55AM Law Offices No. 0192 PF. 4
reccive ajudgment more favorable than defendant’s CCP 998 offer.
-
The flaw in defendant’s argument is that the deposition costs claimed by plaintiff are|
for the “transcribing” of the depositions and noi costs paid to the expert witnesses in
Mat
connection with thcir depositions. See Declaration of Howard R. Melamed, lisq. [led
a=
herewith. As such, defendant’s motion to tax the costs incurred by plaintiff for the
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transcription of the depositions of expert witnesses must be denied.
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2. Plaintiff's Service Of Process Costs Are
~
Proper And Should Not Re Taxed
oo
Defendant moves to tax plaintiffs scrvice of process costs on Lwo grounds, to wit, (1)
SO
itcannot be determined whether the costs were incurred before or atter defendant’s CCP 998
OS
offer and (2) it cannot be determined ifthe costs are reasonable.
NS
‘Lhe service of process costs were all incurred before defendant’s CCP 998 offer was
eet
setved on January 14, 2011. The fees for serving defendant ($250) were incurred in|
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November, 2009. The fees for serving Unisource Discovery (medical records) ($400) were
Se
incurred in March, 2010. The fees for serving Stanlcy Access ($40) were incurred in August,
we
2010. See Declaration of Toward R. Mclamed, Esq. filed herewith.
MH
The costs sct forth in plaintiffs cost bill for service of process are the amounts]
Ss
actually paid to the process servers cffecting service. he recoverable cost for service off
ef
process by a process server is the amount actually incurred in cffecting service. CCP
So
20 $1033, 5fa)(4)(B). The amounts set forth in item 5 of plaintiff’ scost billfor service of process
21 arc the amounts actually paid to process servers to effect service. Sec Declaration of Howard
22 R. Melamed, Esq. filed herewith.
23 CONCLUSION
24 For the reasons stated, dcfondant’s motion to strike plaintif[’s memorandum of costs
25 or, in the alternative, to tax certain costs as improper, should be denied in itsentirety.
26 Dated: July 22, 2011 Regpectfully submitte
27
Howard R. Melamed, Attorney for
28 Plaintiff, James Luttrell
OPPOSITION TO DEFENDANT’S MOTION TO TAX COSTS
Jul 25. 2071 10:55AM = Law Offices No. 0192 =P. 5
DECLARATION OF TIOWARD R. MELAMED, ESQ. IN
SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION ‘lO
STRIKE OR TAX COSTS
I, Howard R. Melamed, declare:
1. 1 am the attomey for plaintiff, James Taattrell, in this matter. 1arn making this
declaration in support of my clicnt’s opposition to defendant’s motion to strike plaintiff's
Memorandum of Costs or, in the alternative, to lax certain costs contained therein,
2. ‘The judgment was entered on May 20, 2011. See Exhibit “A” to Declaration o
Wilma Gray filed in support of defendant's motion to strike or tax costs,
9 3, The clerk has not mailed any document entitled “notice of eniry of judgment” under
10 CCP $664.5 and neither plaintiff nor defendant has served any such document.
li 4. Plaintiff filed his memorandum of costs on June 29, 2011. This is within 180 days
12 of the May 20, 2011, entry of judgment.
13 5. The $4,368.02 in deposition costs, itemized in Attachment 4c to plaintiff’
14 Memorandum of Costs, are for “transcribing” the ten depositions listed in the atlachment and
15 are laken from the Court Reporter’s bills. The supporting bills for nine (9) of the depositions
16 are attached hercto as Uxhibit “A.” ‘he deposition of plaintiff on May 11, 2010, was taken
17 before T became plaintiffs attorney. Plaintiff's then counsel, Balamuth Harrington LLC,
18 advises me that they no longer have the invoice for the May 11, 2010, deposition of plaintiff,
19 However, they have filed a lien in plainti{f’s case to recover that cost among others incurred,
20 6. None of the costs included in the $4,368.02 are for money paid to the expert
al wilhesses in connection with their depositions.
22 7, AlLofthe service of process costs were incurred before defendant served his CCP
23 998 offer, ‘The fee of $250 for serving defendant was incurred in November, 2009, The foc
24 of $400 for serving Unisource Discovery (medical records) was incurred inMarch, 2010. ‘The
25 fee of $40 for serving Stanley Access was incurred in August, 2010.
26 8. The amounts set forth in plaintiff's cost bill for service of process aro the amounts
27 actually paid to the various process servers.
28 9, The bill for service on Stanley Access is attached hereto as Exhibit “B,”
OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS
Jul. 25. 2077 10:55AM Law Offices No. 0192 PF. 6
1 10. The bills for service on defendant and on Unisource Discovery for medical records
2 | are unavailable, These costs were incurred by plaintiff's prior counsel and | am informed by
3 | plaintiff's prior counscl that the invoices supporting these costs are no longer available,
4 || However, plaintiff’s prior counsel has asserted a lien for these costs (and others) against
5 || plaintiff in this case.
6 T declare under penalty of perjury under the laws of the State of California that the
7 i foregoing is trac and correct. Iixecuted on July 22, 2011, al Walnut Creek, California.
Hag
Howard R. Melamed, Esq,
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OPPOSITION TO DETENDANT’S MOUVION POTAX COSTS
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