Preview
1 Glen Broemer, SBN 165457
2
45080 US Hwy. 41 Chassell MI 49916
323.907.0023 glenbroemer@gmail.com
3 Attorney for Treasa Gavin, John Gavin, Patrick Gavin
4
SUPERIOR COURT OF THE STATE OF CALIFORNIA
5 COUNTY OF SAN MATEO
6 TREASA GAVIN, et al Case No.: 20CIV03806
7 Plaintiffs
Date: 4.11.2024
8 Time: 2 pm
9
Dept. 3
v.
10 PLAINTIFFS’ MOTION TO TAX
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COSTS
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NIMMER MASSIS, et al
13
Defendants
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15 TO DEFENDANTS’ COUNSEL AND THE HONORABLE COURT:
16 Please take notice that on April 11, 2024, at 2:00 p.m., or as soon thereafter as the matter
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may be heard, in Department 3 of the San Mateo Superior Court, 400 County Center, Redwood
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19 City, CA 94063, Plaintiffs Treasa Gavin, John Gavin, and Angus Gavin (“Defendants”) will and
20 hereby do move the Court for an Order striking every cost in the memorandum of costs filed on or
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about 3.6.2024.
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23 This motion is further based upon this notice; the attached Memorandum of Points and
Authorities; the Declaration of Glen Broemer & accompanying exhibits; and upon such further
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evidence and factual/legal reasons for compelling further responses as may be presented prior to or
25 at the time of hearing on the motion.
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28 3.7.2024
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1 MEMORANDUM OF POINTS AND AUTHORITIES
2
INTRODUCTION
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The court granted Defendants’ Motion for Judgment on the Pleadings on January 5, 2024.
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5 Defendants waited until March 6, 2024, to file a request for entry of judgment and their
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memorandum of costs.
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CRC 3.1700 (b) (2) provides "Unless objection is made to the entire cost memorandum,
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9 the motion to strike or tax costs must refer to each item objected to by the same number and
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appear in the same order as the corresponding cost item claimed on the memorandum of costs and
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must state why the item is objectionable."
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13 Plaintiffs object to the following:
14 14. Fees for electronic filing or service ($1,716.69)
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Defendants’ documentation for this entry is set forth in their Worksheet Attachment G.
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17 Attachment G is approximately 5 pages long. On the first page Defendants seek an appellate
18 ‘filing fee expense’ of $775, as well as expenses for filing a Notice of Appeal (13.70) , a Civil Case
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Information Statement ($10.50), Notice of Designation of Record ($13.70), Appendix of
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21 Exhibits ($10.50), Opening Brief ($10.50), and Request for Oral Argument ($10.50). As
22 Defendant Appellants must know, Defendant Appellants lost the appeal and the court of appeal
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actually awarded costs to Plaintiff Respondents1. Broemer Declaration, Paragraph 1 and Exhibit
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25 A.
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27 1
(The Exhibit also indicates two charges for the same Demurrer, an expense of $471.45 on the third page, describing a 9.8.2022
28 Demurrer, and $90, describing a 9.6.2022 Demurrer. The docket, Broemer Declaration Paragraph 2 and Exhibit B, indicates
Defendants filed their P&A on the 7th, and the Demurrer on the 8th). Plaintiffs are unsure if the figures are accurate and would like
the entries explained.
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1 15. Fees for hosting electronic documents ($1200)
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CCP § 1033.5 (a) (15) once permitted “[f]ees for the hosting of electronic documents if a
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court requires or orders a party to have documents hosted by an electronic filing service provider”;
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5 however the statute adds “This paragraph shall become inoperative on January 1, 2022” The fees
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have thus not been permissible at all after January 1, 2022. Even assuming arguendo that
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Defendants can recover now for costs incurred prior to this date, Defendants provide no
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9 documentation indicating the date of any such expense. As much to the point, Plaintiffs do not
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believe the court ordered or required anyone to ‘have documents hosted by an electronic service
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provider’, Broemer Declaration, Paragraph 3, and the cost appears to be entirely fabricated.
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13 16. Other
14 Defendants seek $530.75 for items listed in their Worksheet Attachment 16g. The entries are
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generally vague as to whether the referenced documents were served upon the court, or upon
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17 Plaintiff’s counsel, and no documentation is provided If service was to Plaintiff’s counsel, the
18 reference to a process server is inaccurate; it appears that the documents only could have been drop
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served. Broemer Declaration, Paragraph 4. In any event, such service was wholly unnecessary. The
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21 Demurrer listed as served on 12.11.2020 did not even contain a date for hearing, and the parties
22 routinely communicated by email over the course of the litigation. If Defendants desired to serve a
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second copy, they could have done so by mail or FedEx, noting here that Federal Express and
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25 postage charges and telecopy/fax charges are not permissible costs. Ripley v. Pappadopoulos,
26 (1994) 23 Cal. App. 4th 1616, 1627-1628. As the service was in nature messenger service, not
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requiring a process server, the cost should not be recoverable. Messenger fees may be recoverable
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in the trial court's discretion if “reasonably necessary to the conduct of the litigation.” Foothill-De
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1 Anza Community College Dist. v. Emerich, (2007) 158 Cal. App. 4th 11, 30; see also Gorman v.
2
Tassajara Development Corp., (2009) 178 Cal. App. 4th 44, 75. The same considerations apply
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to 2 courtesy copy reply briefs on 2.5.2021, and a proposed orders on 3.16.2021 and 3.29.2021.
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5 The foregoing adds up to $365 in unnecessary costs. Defendants seek reimbursement for courtesy
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copy of the FAC demurrer to the court on 9.7.2022; the motion was heard on 10.27.2022 and
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there was no need whatsoever for anything other than mailed deliver. Defendants similarly paid
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9 for courtesy copies for their belated supplemental requests for judicial notice on 10.20.2022 for
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the 10.27.2022 motion. Allowable costs shall be reasonably necessary to the conduct of the
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litigation rather than merely convenient or beneficial to its preparation. Code Civ Proc § 1033.5
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13 (c)(2) Plaintiffs thus challenge every item listed as other and described in Exhibit 16g.
14 Plaintiffs Also Object To The Entire Memorandum As Untimely
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Defendants were obligated to serve any memorandum after notice of entry of judgment.
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17 Rule 3.1700 (a) (1)
18 Plaintiffs also object to the Entire Memorandum as Unreasonably Inflated
19 "The memorandum of costs must be verified by a statement of the party, attorney, or agent
20 that to the best of his or her knowledge the items of cost are correct and were necessarily incurred
in the case." (CRC 3.1700(a).) In Serrano v. Unruh, (1982) 32 Cal. 3d 621, 635, 652 the
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California Supreme Court stated
22
A fee request that appears unreasonably inflated is a special circumstance permitting the
23 trial court to reduce the award or deny one altogether. "If . . . the Court were required to
24 award a reasonable fee when an outrageously unreasonable one has been asked for,
claimants would be encouraged to make unreasonable demands, knowing that the only
25
unfavorable consequence of such misconduct would be reduction of their fee to what they
26 should have asked in the first place. To discourage such greed, a severer reaction is needful.
. . ." [citing Brown v. Stackler (7th Cir. 1980) 612 F.2d 1057, 1059 .)
27
28 The incentives for trumping up costs in a cost memorandum are the same as the incentives
for making unreasonable claims for attorneys’ fees. Defendants’ counsel should not be permitted
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1 to make numerous unsupported claims, reasoning that his worst case is to merely obtain the costs
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lawfully permitted. Approximately ½ of the costs sought by Defendants are impermissible, and
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Defendants’ attempt to seek these costs is objectively unreasonable. Simply striking these costs
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5 creates no disincentive whatsoever for prevailing parties to state their costs conscientiously and
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according to law.
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CONCLUSION
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9 Defendants request that the cost memorandum be stricken in its entirety, as seeking
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uncoverable fees and unsubstantiated and inadequately described costs.
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13 3.8.2024
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1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF SAN MATEO
3
CASE NO. 20CIV03806
4
5 At the time of service, I was over 18 years of age and not a party to this action. My address is
10500 National Blvd. #34 Los Angeles CA 90034
6
7
8 I served a true copy of the following document on the date listed below, described as
9
PLAINTIFFS’ MOTION TO TAX COSTS
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11 on the interested parties in this action as follows:
12
Yosef Peretz (SBN 209288)
13 David Garibaldi (SBN 313641)
14 Peretz & Associates
22 Battery Street, Suite 200 San Francisco, CA 94111
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yperetz@peretzlaw.com; dgaribaldi@peretzlaw.com
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17 by electronic service
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I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.
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23 3.8.2024
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Preview
1 Glen Broemer, SBN 165457 2 45080 US Hwy. 41 Chassell MI 49916 323.907.0023 glenbroemer@gmail.com 3 Attorney for Treasa Gavin, John Gavin, Patrick Gavin 4 SUPERIOR COURT OF THE STATE OF CALIFORNIA 5 COUNTY OF SAN MATEO 6 TREASA GAVIN, et al Case No.: 20CIV03806 7 Plaintiffs Date: 4.11.2024 8 Time: 2 pm 9 Dept. 3 v. 10 PLAINTIFFS’ MOTION TO TAX 11 COSTS 12 NIMMER MASSIS, et al 13 Defendants 14 15 TO DEFENDANTS’ COUNSEL AND THE HONORABLE COURT: 16 Please take notice that on April 11, 2024, at 2:00 p.m., or as soon thereafter as the matter 17 may be heard, in Department 3 of the San Mateo Superior Court, 400 County Center, Redwood 18 19 City, CA 94063, Plaintiffs Treasa Gavin, John Gavin, and Angus Gavin (“Defendants”) will and 20 hereby do move the Court for an Order striking every cost in the memorandum of costs filed on or 21 about 3.6.2024. 22 23 This motion is further based upon this notice; the attached Memorandum of Points and Authorities; the Declaration of Glen Broemer & accompanying exhibits; and upon such further 24 evidence and factual/legal reasons for compelling further responses as may be presented prior to or 25 at the time of hearing on the motion. 26 27 28 3.7.2024 -1- 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 INTRODUCTION 3 The court granted Defendants’ Motion for Judgment on the Pleadings on January 5, 2024. 4 5 Defendants waited until March 6, 2024, to file a request for entry of judgment and their 6 memorandum of costs. 7 CRC 3.1700 (b) (2) provides "Unless objection is made to the entire cost memorandum, 8 9 the motion to strike or tax costs must refer to each item objected to by the same number and 10 appear in the same order as the corresponding cost item claimed on the memorandum of costs and 11 must state why the item is objectionable." 12 13 Plaintiffs object to the following: 14 14. Fees for electronic filing or service ($1,716.69) 15 Defendants’ documentation for this entry is set forth in their Worksheet Attachment G. 16 17 Attachment G is approximately 5 pages long. On the first page Defendants seek an appellate 18 ‘filing fee expense’ of $775, as well as expenses for filing a Notice of Appeal (13.70) , a Civil Case 19 Information Statement ($10.50), Notice of Designation of Record ($13.70), Appendix of 20 21 Exhibits ($10.50), Opening Brief ($10.50), and Request for Oral Argument ($10.50). As 22 Defendant Appellants must know, Defendant Appellants lost the appeal and the court of appeal 23 actually awarded costs to Plaintiff Respondents1. Broemer Declaration, Paragraph 1 and Exhibit 24 25 A. 26 27 1 (The Exhibit also indicates two charges for the same Demurrer, an expense of $471.45 on the third page, describing a 9.8.2022 28 Demurrer, and $90, describing a 9.6.2022 Demurrer. The docket, Broemer Declaration Paragraph 2 and Exhibit B, indicates Defendants filed their P&A on the 7th, and the Demurrer on the 8th). Plaintiffs are unsure if the figures are accurate and would like the entries explained. -2- 1 15. Fees for hosting electronic documents ($1200) 2 CCP § 1033.5 (a) (15) once permitted “[f]ees for the hosting of electronic documents if a 3 court requires or orders a party to have documents hosted by an electronic filing service provider”; 4 5 however the statute adds “This paragraph shall become inoperative on January 1, 2022” The fees 6 have thus not been permissible at all after January 1, 2022. Even assuming arguendo that 7 Defendants can recover now for costs incurred prior to this date, Defendants provide no 8 9 documentation indicating the date of any such expense. As much to the point, Plaintiffs do not 10 believe the court ordered or required anyone to ‘have documents hosted by an electronic service 11 provider’, Broemer Declaration, Paragraph 3, and the cost appears to be entirely fabricated. 12 13 16. Other 14 Defendants seek $530.75 for items listed in their Worksheet Attachment 16g. The entries are 15 generally vague as to whether the referenced documents were served upon the court, or upon 16 17 Plaintiff’s counsel, and no documentation is provided If service was to Plaintiff’s counsel, the 18 reference to a process server is inaccurate; it appears that the documents only could have been drop 19 served. Broemer Declaration, Paragraph 4. In any event, such service was wholly unnecessary. The 20 21 Demurrer listed as served on 12.11.2020 did not even contain a date for hearing, and the parties 22 routinely communicated by email over the course of the litigation. If Defendants desired to serve a 23 second copy, they could have done so by mail or FedEx, noting here that Federal Express and 24 25 postage charges and telecopy/fax charges are not permissible costs. Ripley v. Pappadopoulos, 26 (1994) 23 Cal. App. 4th 1616, 1627-1628. As the service was in nature messenger service, not 27 requiring a process server, the cost should not be recoverable. Messenger fees may be recoverable 28 in the trial court's discretion if “reasonably necessary to the conduct of the litigation.” Foothill-De -3- 1 Anza Community College Dist. v. Emerich, (2007) 158 Cal. App. 4th 11, 30; see also Gorman v. 2 Tassajara Development Corp., (2009) 178 Cal. App. 4th 44, 75. The same considerations apply 3 to 2 courtesy copy reply briefs on 2.5.2021, and a proposed orders on 3.16.2021 and 3.29.2021. 4 5 The foregoing adds up to $365 in unnecessary costs. Defendants seek reimbursement for courtesy 6 copy of the FAC demurrer to the court on 9.7.2022; the motion was heard on 10.27.2022 and 7 there was no need whatsoever for anything other than mailed deliver. Defendants similarly paid 8 9 for courtesy copies for their belated supplemental requests for judicial notice on 10.20.2022 for 10 the 10.27.2022 motion. Allowable costs shall be reasonably necessary to the conduct of the 11 litigation rather than merely convenient or beneficial to its preparation. Code Civ Proc § 1033.5 12 13 (c)(2) Plaintiffs thus challenge every item listed as other and described in Exhibit 16g. 14 Plaintiffs Also Object To The Entire Memorandum As Untimely 15 Defendants were obligated to serve any memorandum after notice of entry of judgment. 16 17 Rule 3.1700 (a) (1) 18 Plaintiffs also object to the Entire Memorandum as Unreasonably Inflated 19 "The memorandum of costs must be verified by a statement of the party, attorney, or agent 20 that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case." (CRC 3.1700(a).) In Serrano v. Unruh, (1982) 32 Cal. 3d 621, 635, 652 the 21 California Supreme Court stated 22 A fee request that appears unreasonably inflated is a special circumstance permitting the 23 trial court to reduce the award or deny one altogether. "If . . . the Court were required to 24 award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only 25 unfavorable consequence of such misconduct would be reduction of their fee to what they 26 should have asked in the first place. To discourage such greed, a severer reaction is needful. . . ." [citing Brown v. Stackler (7th Cir. 1980) 612 F.2d 1057, 1059 .) 27 28 The incentives for trumping up costs in a cost memorandum are the same as the incentives for making unreasonable claims for attorneys’ fees. Defendants’ counsel should not be permitted -4- 1 to make numerous unsupported claims, reasoning that his worst case is to merely obtain the costs 2 lawfully permitted. Approximately ½ of the costs sought by Defendants are impermissible, and 3 Defendants’ attempt to seek these costs is objectively unreasonable. Simply striking these costs 4 5 creates no disincentive whatsoever for prevailing parties to state their costs conscientiously and 6 according to law. 7 CONCLUSION 8 9 Defendants request that the cost memorandum be stricken in its entirety, as seeking 10 uncoverable fees and unsubstantiated and inadequately described costs. 11 12 13 3.8.2024 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF SAN MATEO 3 CASE NO. 20CIV03806 4 5 At the time of service, I was over 18 years of age and not a party to this action. My address is 10500 National Blvd. #34 Los Angeles CA 90034 6 7 8 I served a true copy of the following document on the date listed below, described as 9 PLAINTIFFS’ MOTION TO TAX COSTS 10 11 on the interested parties in this action as follows: 12 Yosef Peretz (SBN 209288) 13 David Garibaldi (SBN 313641) 14 Peretz & Associates 22 Battery Street, Suite 200 San Francisco, CA 94111 15 yperetz@peretzlaw.com; dgaribaldi@peretzlaw.com 16 17 by electronic service 18 19 20 21 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 22 23 3.8.2024 24 25 26 27 28 -6-