Kellner vs. FCA US, LLC

303 Cipher The motion to be relieved as counsel of record for Entertainment plaintiff Cipher Entertainment LLC filed by Marc LLC vs. A. Collins of Collins & Khan LLC is DENIED. Optimyze Digital LLC There is a discrepancy in the proofs of service. Moving counsel’s declaration states the motion papers were served on the client by mail, but the proofs of service show only service by email. Moreover, “[i]f the notice is served on the client by electronic service...it must be accompanied by a declaration stating that the electronic service address is the client’s current electronic service address.” (C.R.C. rule 3.1362(d)(2).) Moving counsel’s declaration contains no such statement.

As to the OSC re: dismissal for failure to proceed, plaintiff failed to file a declaration explaining why the court should not dismiss the action for failure to proceed. On the OSC re: dismissal for failure to serve, Jeffers defendant has still not been served 2.5 years into this case. The court dismisses the action without prejudice for failure to proceed.

Moving counsel shall give notice.

304 Kellner vs. FCA The motion of plaintiffs Brian Kellner and Alyssa US, LLC Kellner (collectively referred to as Plaintiffs) for an order to strike and/or tax costs of defendant FCA US, LLC (Defendant) is GRANTED IN PART and DENIED IN PART.

Filing and motion fees and court reporter fees are expressly allowed as costs under Code of Civil Procedure section 1033.5. (See Code Civ. Proc. § 1033.5(a)(1), (11).) Plaintiffs failed to meet their burden of demonstrating the costs to be unreasonable or unnecessary. (See Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.) The charges for “Other” costs

are supported by the detailed receipts and appear necessary and reasonably incurred.

The motion is thus DENIED as to the foregoing costs.

As to the claimed costs for expert witness fees, expert witness fees not ordered by the court are expressly disallowed under Code of Civil Procedure section 1033.5, subdivision (b)(1). Defendant cites Code of Civil Procedure section 1033.5(a)(7) and 1033.5(a)(8) to argue the costs are allowable, but these sections involve ordinary witness fees and fees of expert witnesses ordered by the court. Defendant’s memorandum of costs shows the $2,855 charge is for expert fees, not ordinary witness fees. (See Memorandum of Costs Worksheet at ¶ 8b.) Defendant also submits no evidence showing the fees claimed are for expert fees ordered by the court. The motion is thus GRANTED as to the $2,855 in expert witness fees.