This case was last updated from Los Angeles County Superior Courts on 02/11/2021 at 00:19:13 (UTC).

PEOPLE OF THE STATE OF CALIFORNIA VS LIVING REBOS, LLC ETAL

Case Summary

On 08/29/2017 PEOPLE OF THE STATE OF CALIFORNIA filed a Property - Other Property Fraud lawsuit against LIVING REBOS, LLC ETAL. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MICHAEL P. LINFIELD. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4091

  • Filing Date:

    08/29/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Property Fraud

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MICHAEL P. LINFIELD

 

Party Details

Appellant and Plaintiff

PEOPLE OF THE STATE OF CALIFORNIA EX REL.

Defendants and Respondents

LIVING REBOS LLC

AVEE LABORATORIES INC.

H&H TESTING

ABBOTT LABORATORIES

UB LABORATORIES INC.

REMIEN ROSS

ZEN RECOVERY LLC

MOTANO CARLOS

ESTATE OF AUSTIN ELGUINDY

ALERE TOXICOLOGY SERVICES INC.

GENESIS MOLECULAR DIAGNOSTICS LLC

M-BRACE TREATMENT INC.

UPFRONT LABS LLC

GLOBAL ANALYTICAL DEVELOPMENT LLC

VAN DYKE GREGORY

GLORIOSA MANAGEMENT LLC

UPFRONT A CALIFORNIA CORPORATION

CORDOVA MEDICAL & DIAGNOSTIC GROUP INC.

SOBERTEC LLC

29 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorney

MEDVEI SEBASTIAN M.

Defendant and Respondent Attorneys

KIRKLAND & ELLIS LLP

WELSH ROBERT C. ESQ.

HARDIMAN MARK S.

FELSENTHAL DAVID B.

RADKE JONATHAN

MOLNAR CHRISTIAN S. ESQ.

KRON SCOTT A.

ELIZABETH SIERRA

MATTHIAS MICHAEL R.

CONWAY SARAH G.

WELSH ROBERT CRAIG ESQ.

BUCK JONATHAN ESQ.

PHAN ROBERT N.

ROTHENBERG ZACHARY E.

MARASIGAN JAYSON

BUCK JONATHAN

MOLNAR CHRISTIAN S.

HILEMAN JAMES R.P.

Other Attorneys

MEDVEI SEBASTIAN M. ESQ.

 

Court Documents

Summons

12/29/2017: Summons

NOTICE OF CASE MANAGEMENT CONFERENCE

1/8/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

PROOF OF SERVICE OF SUMMONS

1/10/2018: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE OF SUMMONS

1/10/2018: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE OF SUMMONS

1/10/2018: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE OF SUMMONS

1/10/2018: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE OF SUMMONS

1/10/2018: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE OF SUMMONS

1/10/2018: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE SUMMONS -

1/11/2018: PROOF OF SERVICE SUMMONS -

PROOF OF SERVICE SUMMONS -

1/12/2018: PROOF OF SERVICE SUMMONS -

PROOF OF SERVICE SUMMONS -

1/12/2018: PROOF OF SERVICE SUMMONS -

PROOF OF SERVICE SUMMONS -

1/12/2018: PROOF OF SERVICE SUMMONS -

CASE MANAGEMENT STATEMENT -

1/17/2018: CASE MANAGEMENT STATEMENT -

PROOF OF SERVICE SUMMONS -

1/22/2018: PROOF OF SERVICE SUMMONS -

PROOF OF SERVICE SUMMONS -

1/22/2018: PROOF OF SERVICE SUMMONS -

PROOF OF SERVICE OF APPLICATION TO ADMIT DEFENDANT'S OUT-OF-STATE COUNSEL JAMES R.P. HILEMAN FOR PRO HAC VICE ADMISSION AND ACCOMPANYING DOCUMENTS

1/26/2018: PROOF OF SERVICE OF APPLICATION TO ADMIT DEFENDANT'S OUT-OF-STATE COUNSEL JAMES R.P. HILEMAN FOR PRO HAC VICE ADMISSION AND ACCOMPANYING DOCUMENTS

VERIFIED APPLICATION OF RACHEL B. HAIG FOR PRO HAC VICE ADMISSION

1/26/2018: VERIFIED APPLICATION OF RACHEL B. HAIG FOR PRO HAC VICE ADMISSION

DECLARATION OF SIERRA ELIZABETH IN SUPPORT OF VERIFIED APPLICATION OF JAMES R.P. HILEMAN FOR PRO HAC VICE ADMISSION

1/26/2018: DECLARATION OF SIERRA ELIZABETH IN SUPPORT OF VERIFIED APPLICATION OF JAMES R.P. HILEMAN FOR PRO HAC VICE ADMISSION

501 More Documents Available

 

Docket Entries

  • 07/26/2021
  • Hearing07/26/2021 at 08:30 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 07/12/2021
  • Hearing07/12/2021 at 09:00 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 04/19/2021
  • Hearing04/19/2021 at 08:30 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Seal Motion to File Summary Judgment Papers Under Seal

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  • 04/19/2021
  • Hearing04/19/2021 at 08:30 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Seal Motion to File Summary Judgment Papers Under Seal

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  • 04/19/2021
  • Hearing04/19/2021 at 08:30 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 04/19/2021
  • Hearing04/19/2021 at 08:30 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 04/19/2021
  • Hearing04/19/2021 at 08:30 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 02/08/2021
  • DocketNotice (OF ENTRY OF JUDGMENT OR ORDER); Filed by H&H Testing (Defendant)

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  • 02/05/2021
  • DocketAppeal - Notice of Filing of Notice of Appeal ("U1"); Filed by Clerk

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  • 02/05/2021
  • DocketAppeal - Notice of Filing of Notice of Appeal ("U1"); Filed by Clerk

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589 More Docket Entries
  • 12/04/2017
  • DocketNotice; Filed by Commissioner

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  • 08/29/2017
  • Docketat 08:30 AM in Department 34; Ex-Parte Proceedings (Exparte proceeding; Court makes order) -

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  • 08/29/2017
  • DocketMinute order entered: 2017-08-29 00:00:00; Filed by Clerk

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  • 08/29/2017
  • DocketCOMPLAINT FOR VIOLATION OF THE INSURANCE FRAUD PREVENTION ACT FILED IN CAMERA AND UNDER SEAL

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  • 08/29/2017
  • DocketComplaint; Filed by People of the State of California ex rel. (Plaintiff)

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  • 08/29/2017
  • DocketEX PARTE APPLICATION FOR ORDER PERMITTING FILING OF COMPLAINT IN CAMERA UNDER SEAL PURSUANT TO INSURANCE CODE SECTION 1871.7(E)(2); DECLARATION OF SEBASTIAN M. MEDVEI IN SUPPORT FILED IN CAMERA AND UNDER SEAL

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  • 08/29/2017
  • DocketMinute Order

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  • 08/29/2017
  • DocketEx-Parte Application; Filed by Plaintiff/Petitioner

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  • 08/29/2017
  • DocketOrder; Filed by Plaintiff/Petitioner

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  • 08/29/2017
  • DocketORDER GRANTING EX PARTE APPLICATION FOR ORDER PERMITTING FILING OF COMPLAINT IN CAMERA UNDER SEAL PURSUANT TO INSURANCE CODE SECTION 1871.7(E)(2); DECLARATION OF SEBASTIAN M. MEDVEI IN SUPPORT FILED IN CAMERA AND UNDER SEAL

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Tentative Rulings

b'

Case Number: BC674091 Hearing Date: September 10, 2021 Dept: 34

SUBJECT: Motion for Consent to Dismissal and\r\nDismissal of Settling Parties

\r\n\r\n

\r\n\r\n

Moving Party: Plaintiff People of the State of California ex rel. Alison Tonti

\r\n\r\n

Resp. Party: Defendants\r\nLiving Rebos, LLC; M-Brace Treatment, Inc.; Sobertec LLC; Upfront Labs LLC;\r\nRoss Remien; and Upfront, Inc.

\r\n\r\n

\r\n\r\n

\r\n\r\n

Plaintiff\r\nPeople of the State of California ex rel.\r\nAlison Tonti’s Motion for Consent to Dismissal and Dismissal of Settling Parties\r\nis GRANTED.

\r\n\r\n

\r\n\r\n

The Court orders dismissal with\r\nprejudice entered as to Defendants Sobertec, LLC, Upfront Labs, LLC, Upfront,\r\nLiving Rebos, LLC, M-Brace Treatment, Inc., and Ross Remien.

\r\n\r\n

\r\n\r\n

BACKGROUND:

\r\n\r\n

\r\n\r\n

Plaintiff People of the State of California ex rel.\r\nAlison Tonti (“Plaintiff”) commenced this action on August 29, 2017. On March\r\n28, 2018, Plaintiff filed a first amended complaint (“FAC”) against Defendants\r\nLiving Rebos, LLC; H&H Testing, Inc.; Avee Laboratories, Inc.; M-Brace Treatment, Inc.; Sobertec, LLC; Millennium Health, LLC; Upfront Labs, LLC; Gloriosa Management,\r\nLLC; Gregory Van Dyke; UB Laboratories, Inc.; Cordova Medical Group, Inc.;\r\nGenesis Molecular Diagnostics, LLC; and Zen Recovery, LLC for violation of the\r\nCalifornia Insurance Frauds Prevention Action (“CIFPA”). The amended complaint\r\ncontains allegations against 100 unidentified Doe defendants. (Am. Compl. ¶ 18.)

\r\n\r\n

\r\n\r\n

On November 9, 2018, Defendant Avee Laboratories, Inc.’s (“Avee”) filed a motion\r\nfor summary judgment.

\r\n\r\n

\r\n\r\n

On November 14, 2018, Defendant Millennium Health,\r\nLLC filed a motion for summary judgment.

\r\n\r\n

\r\n\r\n

On November 30, 2018, Defendants Living Rebos, LLC and M-Brace Treatment, Inc. filed a motion for summary judgment.

\r\n\r\n

\r\n\r\n

On December 3, 2018, Defendants Sobertec LLC and Upfront Labs LLC filed a motion for summary judgment.

\r\n\r\n

\r\n\r\n

On January 2, 2019, the Court\r\ndenied Plaintiff’s ex parte to\r\nre-open discovery.

\r\n\r\n

\r\n\r\n

On January 3, 2019, Plaintiff filed requests to amend\r\nher amended complaint by substituting Ross Remien for Doe Defendant 1, Upfront for Doe Defendant 2, and Carlos\r\nMontano for Doe Defendant 3.

\r\n\r\n

\r\n\r\n

On January 3, 2019 and January 7, 2019,\r\nPlaintiff filed requests to amend her amended complaint by substituting Alere,\r\nInc., Alere Toxicology Services, Inc., Global Analytical Development, LLC, and\r\nAbbott Laboratories (collectively, “Alere Defendants”) for Doe Defendants\r\n5-8.

\r\n\r\n

\r\n\r\n

On January 25, 2019, the Court granted Defendant Avee’s motion for summary judgment on the ground that Plaintiff presented no\r\nevidence to establish that Avee violated\r\nthe CIFPA.

\r\n\r\n

\r\n\r\n

On January 29, 2019, Plaintiff filed a request for\r\ndismissal of the entire action with prejudice, without consent from the Court.

\r\n\r\n

\r\n\r\n

On February 4, 2019, the Court granted\r\nDefendant Avee’s motion to deny requests to amend.

\r\n\r\n

\r\n\r\n

On February 14, 2019, Plaintiff filed a notice of\r\nappeal from the final judgment in this matter and all orders that are separately\r\nappealable, including but not limited to the dismissal entered on January 29,\r\n2019, Austin v. Valverde (2012) 211 Cal. App. 4th 546, 550-551, and\r\nall prior appealable orders, as well as the subsequent order granting the\r\nmotion to quash entered on February 4, 2019.

\r\n\r\n

\r\n\r\n

On October 23, 2020, the Court of Appeal issued a\r\nremittitur regarding the appeal number B295815 filed by Plaintiff to invalidate\r\nher voluntary dismissal. The Court of Appeal dismissed the appeal for lack of\r\njurisdiction, remanded the case to the trial court with instructions to vacate\r\nthe unauthorized dismissal, and, absent a motion seeking the trial court’s\r\nconsent to dismissing the qui tam claims, restore the case, and\r\nparticularly the summary judgment motions previously set for February 13, 2019,\r\nto the trial court’s order.

\r\n\r\n

\r\n\r\n

On November 30, 2020, the Court received the\r\nappellate opinion for Plaintiff’s appeal number B302774, where Plaintiff\r\nappealed the awards of costs to defendants. The Court of Appeal affirmed\r\nin part, and reversed in part with instructions. In particular, the\r\nCourt of Appeal concluded that “Government Code section 69950 limits the\r\nrecoverable transcription fees charged by the pro tempore court reporter\r\nretained by defendant Millenium Health,\r\nLLC to transcribe its summary judgment hearing, and that the court erred in\r\nawarding costs above that statutory amount” but “in all other respects, [the\r\nappellate court] affirm[ed].” (11/30/2020 Opinion, pp. 1-2.)

\r\n\r\n

\r\n\r\n

On January 27, 2021, the Court granted Defendants\r\nLiving Rebos, LLC, M-Brace Treatment, Inc., Sobertec LLC, Upfront Labs LLC, and Non-Parties Ross Remien, Upfront Inc. and Carlos X. Montano’s motions to deny\r\nrequests to amend.

\r\n\r\n

\r\n\r\n

On January 28, 2021, the Court granted H&H\r\nTesting’s counsel’s motion to be relieved as counsel.

\r\n\r\n

\r\n\r\n

On January 29, 2021, the Court denied Plaintiff’s\r\nmotion to reopen discovery.

\r\n\r\n

\r\n\r\n

On May 10, 2021, the Court granted counsel for Zen\r\nRecovery, LLC, Scott A. Kron and Anne L. Card of Kron & Card LLP’s motion\r\nto be relieved as counsel.

\r\n\r\n

\r\n\r\n

On June 2, 2021, the Court granted counsel for\r\nUB Laboratories, Inc., Garcia & Phan, APC’s motion to be relieved as\r\ncounsel.

\r\n\r\n

\r\n\r\n

On June 3, 2021, Plaintiff filed a notice of non-opposition\r\nto dismissal, stating that “Ricardo Lara, as Insurance Commissioner and on\r\nbehalf of the Department of Insurance (the ‘Department’), by and through\r\nits Counsel, and pursuant to California Insurance Code section 1871.7(e)(1).\r\nhereby does not oppose the dismissal, with prejudice, of Defendants LIVING\r\nREBOS, LLC, M-BRACE TREATMENT, INC., ROSS REMIEN, SOBERTEC, LLC, UPFRONT LABS,\r\nLLC, and UPFRONT, a California corporation (collectively, ‘Defendants’)\r\npursuant to the Confidential Settlement Agreements with the Defendants and\r\nthe terms of distribution of the Allocation Agreement between ALISON\r\nTONTI, her counsel, Sebastian M. Medvei, and the\r\nCalifornia Department of Insurance, which will be submitted to the Court in\r\ncamera for review if so requested.” (06/03/2021 Notice of Non-Opposition to\r\nDismissal, p. 1:20-28.)

\r\n\r\n

\r\n\r\n

Before the\r\nCourt is Plaintiff’s motion for consent to dismissal and dismissal of settling\r\nparties filed on August 2, 2021. \r\nDefendants Living Rebos, LLC, M-Brace Treatment, Inc., Sobertec LLC,\r\nUpfront Labs LLC, and Ross Remien and Upfront, Inc. filed a notice of\r\nnon-opposition on August 13, 2021.

\r\n\r\n

\r\n\r\n

ANALYSIS:

\r\n\r\n

\r\n\r\n

A. \r\nLegal Standard

\r\n\r\n

\r\n\r\n

Insurance Code section 1871.7(e)(1)\r\nstates that “[a]ny interested persons, including an insurer, may bring a civil\r\naction for a violation of this section for the person and for the State of\r\nCalifornia.” (Ins. Code, § 1871.7, subd.\r\n(e)(1).) “The action shall be brought in\r\nthe name of the state.” (Id.) \r\n“The action may be dismissed only if the court and the district attorney\r\nor the commissioner, whichever is participating, give written consent to the\r\ndismissal and their reasons for consenting.” \r\n(Id.)

\r\n\r\n

\r\n\r\n

B. \r\nDiscussion

\r\n\r\n

\r\n\r\n

Plaintiff moves for the Court’s consent\r\nto dismissal of Defendants Sobertec, LLC; Upfront Labs, LLC; Upfront; Living\r\nRebos, LLC; M-Brace Treatment, Inc.; and Ross Remien (“Settling Defendants”)\r\npursuant to Insurance Code section 1871.7(e)(1).

\r\n\r\n

\r\n\r\n

Insurance Code\r\nsection 1871.7(e)(1) requires both the Court’s and either the district attorney\r\nor the commissioner’s written consent to dismissal of the action.

\r\n\r\n

\r\n\r\n

On June 3,\r\n2021, Plaintiff filed a notice of non-opposition to dismissal wherein Ricardo\r\nLara, as Insurance Commissioner and on behalf of the Department of Insurance,\r\nby and through its counsel, indicated they do not oppose the dismissal, with\r\nprejudice, of Settling Defendants pursuant to the confidential settlement\r\nagreements with Settling Defendants and the terms of distribution of the\r\nallocation agreement between Alison Tonti and the California Department of\r\nInsurance.

\r\n\r\n

\r\n\r\n

Given Plaintiff\r\nhas settled this action with Settling Defendants, the Insurance Commissioner\r\nhas consented to the dismissal of Settling Defendants, and no oppositions have\r\nbeen filed to this motion, the Court consents to the dismissal of Settling\r\nDefendants.

\r\n\r\n

\r\n\r\n

The Court\r\nGRANTS Plaintiff’s motion for consent to dismissal and dismissal of settling\r\nparties.

\r\n\r\n

\r\n\r\n

The Court\r\norders dismissal with prejudice entered as to Defendants Sobertec, LLC, Upfront\r\nLabs, LLC, Upfront, Living Rebos, LLC, M-Brace Treatment, Inc., and Ross\r\nRemien.

\r\n\r\n

'b'

Case Number: BC674091 Hearing Date: August 26, 2021 Dept: 34

The Court would appreciate Plaintiff bringing the proposed\r\nsettlement to the Court for an in camera review, prior to the Court ruling on\r\nthe motion to dismiss of Sobertec, LLC, Upfront Labs, LLC, Upfront, Living Rebos,\r\nLLC, M-Brace Treatment, Inc. and Ross Remien

'

Case Number: BC674091    Hearing Date: June 2, 2021    Dept: 34

SUBJECT: Motion to be Relieved as Counsel

Moving Party: Garcia & Phan, APC, counsel for UB Laboratories, Inc.

Resp. Party: None

The motion to be relieved as counsel is GRANTED.

BACKGROUND:

Plaintiff People of the State of California ex rel. Alison Tonti (“Plaintiff”) commenced this action on August 29, 2017. On March 28, 2018, Plaintiff filed a first amended complaint (“FAC”) against Defendants Living Rebos, LLC; H&H Testing, Inc.; Avee Laboratories, Inc.; M-Brace Treatment, Inc.; Sobertec, LLC; Millennium Health, LLC; Upfront Labs, LLC; Gloriosa Management, LLC; Gregory Van Dyke; UB Laboratories, Inc.; Cordova Medical Group, Inc.; Genesis Molecular Diagnostics, LLC; and Zen Recovery, LLC for violation of the California Insurance Frauds Prevention Action (“CIFPA”). The amended complaint contains allegations against 100 unidentified Doe defendants. (Am. Compl. ¶ 18.)

On November 9, 2018, Defendant Avee Laboratories, Inc.’s (“Avee”) filed a motion for summary judgment.

On November 14, 2018, Defendant Millennium Health, LLC filed a motion for summary judgment.

On November 30, 2018, Defendants Living Rebos, LLC and M-Brace Treatment, Inc. filed a motion for summary judgment.

On December 3, 2018, Defendants Sobertec LLC and Upfront Labs LLC filed a motion for summary judgment.

On January 2, 2019, the Court denied Plaintiff’s ex parte to re-open discovery.

On January 3, 2019, Plaintiff filed requests to amend her amended complaint by substituting Ross Remien for Doe Defendant 1, Upfront for Doe Defendant 2, and Carlos Montano for Doe Defendant 3.

On January 3, 2019 and January 7, 2019, Plaintiff filed requests to amend her amended complaint by substituting Alere, Inc., Alere Toxicology Services, Inc., Global Analytical Development, LLC, and Abbott Laboratories (collectively, “Alere Defendants”) for Doe Defendants 5-8.

On January 25, 2019, the Court granted Defendant Avee’s motion for summary judgment on the ground that Plaintiff presented no evidence to establish that Avee violated the CIFPA.

On January 29, 2019, Plaintiff filed a request for dismissal of the entire action with prejudice, without consent from the Court.

On February 4, 2019, the Court granted Defendant Avee’s motion to deny requests to amend.

On February 14, 2019, Plaintiff filed a notice of appeal from the final judgment in this matter and all orders that are separately appealable, including but not limited to the dismissal entered on January 29, 2019, Austin v. Valverde (2012) 211 Cal. App. 4th 546, 550-551, and all prior appealable orders, as well as the subsequent order granting the motion to quash entered on February 4, 2019.

On October 23, 2020, the Court of Appeal issued a remittitur regarding the appeal number B295815 filed by Plaintiff to invalidate her voluntary dismissal. The Court of Appeal dismissed the appeal for lack of jurisdiction, remanded the case to the trial court with instructions to vacate the unauthorized dismissal, and, absent a motion seeking the trial court’s consent to dismissing the qui tam claims, restore the case, and particularly the summary judgment motions previously set for February 13, 2019, to the trial court’s order.

On November 30, 2020, the Court received the appellate opinion for Plaintiff’s appeal number B302774, where Plaintiff appealed the awards of costs to defendants. The Court of Appeal affirmed in part, and reversed in part with instructions. In particular, the Court of Appeal concluded that “Government Code section 69950 limits the recoverable transcription fees charged by the pro tempore court reporter retained by defendant Millenium Health, LLC to transcribe its summary judgment hearing, and that the court erred in awarding costs above that statutory amount” but “in all other respects, [the appellate court] affirm[ed].” (11/30/2020 Opinion, pp. 1-2.)

On January 27, 2021, the Court granted Defendants Living Rebos, LLC, M-Brace Treatment, Inc., Sobertec LLC, Upfront Labs LLC, and Non-Parties Ross Remien, Upfront Inc. and Carlos X. Montano’s motions to deny requests to amend.

On January 28, 2021, the Court granted H&H Testing’s counsel’s motion to be relieved as counsel.

On January 29, 2021, the Court denied Plaintiff’s motion to reopen discovery.

On May 10, 2021, the Court granted counsel for Zen Recovery, LLC, Scott A. Kron and Anne L. Card of Kron & Card LLP’s motion to be relieved as counsel.

Before the Court is counsel for UB Laboratories, Inc., Garcia & Phan, APC’s motion to be relieved as counsel, filed on May 4, 2021.

ANALYSIS:

An attorney moving to be relieved as counsel under California Code of Civil Procedure section 284(2) must meet the requirements set out in California Rules of Court, rule 3.1362. To comply with rule 3.1362, the moving party must submit the following forms: (1) Notice of Motion and Motion to be Relieved as Counsel; (2) Declaration in Support of Attorney's Motion to be Relieved as Counsel; and (3) Order Granting Attorney's Motion to be Relieved as Counsel. (Cal. Rules of Court, rule 3.1362(a), (c), (e).) The moving party must serve the aforementioned forms on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) Further, when the client is served by mail, the attorney's declaration must show that the client's address was confirmed within the last 30 days and how it was confirmed. (Id.) Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.)

Counsel’s motion complies with all of the requirements of California Rules of Court, Rule 3.1362, in that Counsel provided a notice of motion and motion to be relieved as counsel; order granting attorney’s motion to be relieved as counsel; and declaration in support of the motions to be relieved as counsel. Additionally, Counsel’s client was notified by mailing the motion and supporting documents to their client’s last known address and confirmed within the past 30 days that the address is current by looking on the California Business portal. (See Declaration, No. 3(b)(1)(d).) Counsel also filed a proof of service demonstrating that Counsel served all other parties who have appeared in the case. This motion has also not been opposed by any party to the case.

Accordingly, the motion to be relieved as counsel is GRANTED.

  

Case Number: BC674091    Hearing Date: May 10, 2021    Dept: 34

Moving Party: Scott A. Kron and Anne L. Card of Kron & Card LLP, counsel for Zen Recovery, LLC

Resp. Party: None

The motion to be relieved as counsel is GRANTED.

BACKGROUND:

Plaintiff People of the State of California ex rel. Alison Tonti (“Plaintiff”) commenced this action on August 29, 2017. On March 28, 2018, Plaintiff filed a first amended complaint (“FAC”) against Defendants Living Rebos, LLC; H&H Testing, Inc.; Avee Laboratories, Inc.; M-Brace Treatment, Inc.; Sobertec, LLC; Millennium Health, LLC; Upfront Labs, LLC; Gloriosa Management, LLC; Gregory Van Dyke; UB Laboratories, Inc.; Cordova Medical Group, Inc.; Genesis Molecular Diagnostics, LLC; and Zen Recovery, LLC for violation of the California Insurance Frauds Prevention Action (“CIFPA”). The amended complaint contains allegations against 100 unidentified Doe defendants. (Am. Compl. ¶ 18.)

On November 9, 2018, Defendant Avee Laboratories, Inc.’s (“Avee”) filed a motion for summary judgment.

On November 14, 2018, Defendant Millennium Health, LLC filed a motion for summary judgment.

On November 30, 2018, Defendants Living Rebos, LLC and M-Brace Treatment, Inc. filed a motion for summary judgment.

On December 3, 2018, Defendants Sobertec LLC and Upfront Labs LLC filed a motion for summary judgment.

On January 2, 2019, the Court denied Plaintiff’s ex parte to re-open discovery.

On January 3, 2019, Plaintiff filed requests to amend her amended complaint by substituting Ross Remien for Doe Defendant 1, Upfront for Doe Defendant 2, and Carlos Montano for Doe Defendant 3.

On January 3, 2019 and January 7, 2019, Plaintiff filed requests to amend her amended complaint by substituting Alere, Inc., Alere Toxicology Services, Inc., Global Analytical Development, LLC, and Abbott Laboratories (collectively, “Alere Defendants”) for Doe Defendants 5-8.

On January 25, 2019, the Court granted Defendant Avee’s motion for summary judgment on the ground that Plaintiff presented no evidence to establish that Avee violated the CIFPA.

On January 29, 2019, Plaintiff filed a request for dismissal of the entire action with prejudice, without consent from the Court.

On February 4, 2019, the Court granted Defendant Avee’s motion to deny requests to amend.

On February 14, 2019, Plaintiff filed a notice of appeal from the final judgment in this matter and all orders that are separately appealable, including but not limited to the dismissal entered on January 29, 2019, Austin v. Valverde (2012) 211 Cal. App. 4th 546, 550-551, and all prior appealable orders, as well as the subsequent order granting the motion to quash entered on February 4, 2019.

On October 23, 2020, the Court of Appeal issued a remittitur regarding the appeal number B295815 filed by Plaintiff to invalidate her voluntary dismissal. The Court of Appeal dismissed the appeal for lack of jurisdiction, remanded the case to the trial court with instructions to vacate the unauthorized dismissal, and, absent a motion seeking the trial court’s consent to dismissing the qui tam claims, restore the case, and particularly the summary judgment motions previously set for February 13, 2019, to the trial court’s order.

On November 30, 2020, the Court received the appellate opinion for Plaintiff’s appeal number B302774, where Plaintiff appealed the awards of costs to defendants. The Court of Appeal affirmed in part, and reversed in part with instructions. In particular, the Court of Appeal concluded that “Government Code section 69950 limits the recoverable transcription fees charged by the pro tempore court reporter retained by defendant Millenium Health, LLC to transcribe its summary judgment hearing, and that the court erred in awarding costs above that statutory amount” but “in all other respects, [the appellate court] affirm[ed].” (11/30/2020 Opinion, pp. 1-2.)

On January 27, 2021, the Court granted Defendants Living Rebos, LLC, M-Brace Treatment, Inc., Sobertec LLC, Upfront Labs LLC, and Non-Parties Ross Remien, Upfront Inc. and Carlos X. Montano’s motions to deny requests to amend.

On January 28, 2021, the Court granted H&H Testing’s counsel’s motion to be relieved as counsel.

On January 29, 2021, the Court denied Before the Court is Plaintiff’s motion to reopen discovery.

On April 1, 2021, Scott A. Kron and Anne L. Card of Kron & Card LLP, counsel for Zen Recovery, LLC, filed the instant motion to be relieved as counsel.

ANALYSIS:

An attorney moving to be relieved as counsel under California Code of Civil Procedure section 284(2) must meet the requirements set out in California Rules of Court, rule 3.1362. To comply with rule 3.1362, the moving party must submit the following forms: (1) Notice of Motion and Motion to be Relieved as Counsel; (2) Declaration in Support of Attorney's Motion to be Relieved as Counsel; and (3) Order Granting Attorney's Motion to be Relieved as Counsel. (Cal. Rules of Court, rule 3.1362(a), (c), (e).) The moving party must serve the aforementioned forms on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) Further, when the client is served by mail, the attorney's declaration must show that the client's address was confirmed within the last 30 days and how it was confirmed. (Id.) Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.)

Counsel’s motion complies with all of the requirements of California Rules of Court, Rule 3.1362, in that Counsel provided a notice of motion and motion to be relieved as counsel; order granting attorney’s motion to be relieved as counsel; and declaration in support of the motions to be relieved as counsel. Additionally, Counsel’s client was notified by mailing the motion and supporting documents to their client’s last known address and confirmed within the past 30 days that the address is current by telephone. (See Declaration, No. 3(b)(1)(b).) Counsel also filed a proof of service demonstrating that Counsel served all other parties who have appeared in the case. This motion has also not been opposed by any party to the case.

Accordingly, the motion to be relieved as counsel is GRANTED.

Case Number: BC674091    Hearing Date: January 29, 2021    Dept: 34

SUBJECT: Motion to Reopen Discovery

Moving Party: Plaintiff People of the State of California ex rel. Alison Tonti

Resp. Party: Defendants Living Rebos, LLC, M-Brace Treatment, Inc., Sobertec LLC, Upfront Labs LLC, and Zen Recovery, LLC

The Court DENIES the motion to reopen discovery.

The Court GRANTS Defendant Zen Recovery, LLC’s request for sanctions against Plaintiff and its counsel in the amount of $2,115.00.

BACKGROUND:

Plaintiff People of the State of California ex rel. Alison Tonti (“Plaintiff”) commenced this action on August 29, 2017. On March 28, 2018, Plaintiff filed a first amended complaint (“FAC”) against Defendants Living Rebos, LLC; H&H Testing, Inc.; Avee Laboratories, Inc.; M-Brace Treatment, Inc.; Sobertec, LLC; Millennium Health, LLC; Upfront Labs, LLC; Gloriosa Management, LLC; Gregory Van Dyke; UB Laboratories, Inc.; Cordova Medical Group, Inc.; Genesis Molecular Diagnostics, LLC; and Zen Recovery, LLC for violation of the California Insurance Frauds Prevention Action (“CIFPA”). The amended complaint contains allegations against 100 unidentified Doe defendants. (Am. Compl. ¶ 18.)

On November 9, 2018, Defendant Avee Laboratories, Inc.’s (“Avee”) filed a motion for summary judgment.

On November 14, 2018, Defendant Millennium Health, LLC filed a motion for summary judgment.

On November 30, 2018, Defendants Living Rebos, LLC and M-Brace Treatment, Inc. filed a motion for summary judgment.

On December 3, 2018, Defendants Sobertec LLC and Upfront Labs LLC filed a motion for summary judgment.

On January 2, 2019, the Court denied Plaintiff’s ex parte to re-open discovery.

On January 3, 2019, Plaintiff filed requests to amend her amended complaint by substituting Ross Remien for Doe Defendant 1, Upfront for Doe Defendant 2, and Carlos Montano for Doe Defendant 3.

On January 3, 2019 and January 7, 2019, Plaintiff filed requests to amend her amended complaint by substituting Alere, Inc., Alere Toxicology Services, Inc., Global Analytical Development, LLC, and Abbott Laboratories (collectively, “Alere Defendants”) for Doe Defendants 5-8.

On January 25, 2019, the Court granted Defendant Avee’s motion for summary judgment on the ground that Plaintiff presented no evidence to establish that Avee violated the CIFPA.

On January 29, 2019, Plaintiff filed a request for dismissal of the entire action with prejudice, without consent from the Court.

On February 4, 2019, the Court granted Defendant Avee’s motion to deny requests to amend.

On February 14, 2019, Plaintiff filed a notice of appeal from the final judgment in this matter and all orders that are separately appealable, including but not limited to the dismissal entered on January 29, 2019, Austin v. Valverde (2012) 211 Cal. App. 4th 546, 550-551, and all prior appealable orders, as well as the subsequent order granting the motion to quash entered on February 4, 2019.

On October 23, 2020, the Court of Appeal issued a remittitur regarding the appeal number B295815 filed by Plaintiff to invalidate her voluntary dismissal. The Court of Appeal dismissed the appeal for lack of jurisdiction, remanded the case to the trial court with instructions to vacate the unauthorized dismissal, and, absent a motion seeking the trial court’s consent to dismissing the qui tam claims, restore the case, and particularly the summary judgment motions previously set for February 13, 2019, to the trial court’s order.

On November 30, 2020, the Court received the appellate opinion for Plaintiff’s appeal number B302774, where Plaintiff appealed the awards of costs to defendants. The Court of Appeal affirmed in part, and reversed in part with instructions. In particular, the Court of Appeal concluded that “Government Code section 69950 limits the recoverable transcription fees charged by the pro tempore court reporter retained by defendant Millenium Health, LLC to transcribe its summary judgment hearing, and that the court erred in awarding costs above that statutory amount” but “in all other respects, [the appellate court] affirm[ed].” (11/30/2020 Opinion, pp. 1-2.)

On January 27, 2021, the Court granted Defendants Living Rebos, LLC, M-Brace Treatment, Inc., Sobertec LLC, Upfront Labs LLC, and Non-Parties Ross Remien, Upfront Inc. and Carlos X. Montano’s motions to deny Plaintiff’s requests to amend.

On January 28, 2021, the Court granted H&H Testing’s counsel’s motion to be relieved as counsel.

Before the Court is Plaintiff’s motion for order deeming discovery reopened on the remittitur or in the alternative, reopening discovery pursuant to Code of Civil Procedure section 2024.050, filed on December 29, 2020.

ANALYSIS:

I. Motion to Reopen Discovery

A. Unauthorized Sur-Reply

Unless a party requests leave to file a sur-reply and the requested is granted by the court, no sur-reply is authorized. (See Code Civ. Proc., § 1005, subd. (b).) It is within the trial court’s discretion to consider a sur-reply. (See Guimei v. Gen. Elec. Co. (2009) 172 Cal. App. 4th 689, 703-704, as modified on denial of reh'g (Mar. 24, 2009).) California Rules of Court, rule 3.1300(d) provides that “if the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.”

Defendant Zen Recovery, LLC submitted a memorandum of points and authorities in support of objections to Plaintiff’s reply, a declaration from counsel, as well as supporting documents. It is permissible for a party to object to to evidence in support of the reply. However, these extra arguments are improper, as they function as an unauthorized sur-reply to the arguments in the reply. Therefore, the Court will not consider these extra documents filed by Defendant Zen Recovery, LLC.

B. Evidentiary Objections

Defendant Zen Recovery, LLC submits 19 evidentiary objections to the text of the reply and three evidentiary objections to the declaration of Sebastian Medvei. The Court notes that Defendant Zen’s “Objections” to the Reply are not evidentiary objections; Zen simply disputes the statements made. In fact, Zen admits as much in its “Introduction” to its Objections when it declares that it is filing objections “Due to a number of misrepresentations of both fact and law made in Plaintiff’s . . . Reply.” (MPA in Support of Objections, p. 1:3-4.) These are not proper objections; Zen’s tactic is not allowed under the Rules and simply wastes the Court’s time.

The Court OVERRULES Objections 1 through 19, and SUSTAINS Objections 20-22.

C. Legal Standard

Except as otherwise provided, “any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for trial of the action.”  (Code Civ. Proc., § 2024.020(a).)  “[A] continuance or postponement of the trial date does not operate to reopen discovery proceedings” unless a motion to reopen discovery is filed and granted pursuant to Code of Civil Procedure section 2024.050. (Code Civ. Proc., § 2024.020(b); Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568.)

Code of Civil Procedure section 2024.050 provides that “[o]n motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.”  (Code Civ. Proc., § 2024.050(a).)

“The purpose of imposing a time limit on discovery is to expedite and facilitate trial preparation and to prevent delay.¿ Without a cutoff date, the parties could tie up each other and the trial court in discovery and discovery disputes right up to the eve of trial or beyond. Furthermore, . . . to be effective the cutoff date must be firm or some litigants will manipulate the proceedings to avoid the cut-off date.”¿ (Beverly Hosp. v. Superior Court (1993) 19 Cal.App.4th 1289, 1295.) 

The reopening of discovery is a matter that is committed to the trial court’s sound discretion.¿ (Code Civ. Proc., § 2024.050(a), (b).)¿ In exercising that discretion, the trial court considers “any matter relevant to the leave requested,” including:

(1) The necessity and the reasons for the discovery.¿

(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.¿

(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.¿

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.¿ (Code Civ. Proc., § 2024.050(b).)¿

A motion to reopen discovery pursuant to Code of Civil Procedure section 2024.050 must be accompanied by a meet and confer declaration demonstrating a good faith effort at informal resolution.  (Code Civ. Proc., § 2024.050(a).) “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2024.050(c).)

“It is now well settled that discovery automatically reopens following a mistrial, order granting new trial, or reversal on appeal.” (Hirano v. Hirano (2007) 158 Cal.App.4th 1, 6.) In Beverly Hospital v. Superior Court (1993) 19 Cal.App.4th 1289, 1291, the Court of Appeal held that “a mistrial, new trial or reversal of the judgment of appeal automatically restarts the time limitations on discovery.” In Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, our Supreme Court confirmed the holding in Beverly Hospital and held that discovery reopens following a mistrial, an order granting a new trial, or a remand for a new trial after a judgment is reversed on appeal. (Id. at p. 247.) In such a case, the new discovery cutoff is calculated from the date initially set for the new trial. (Ibid.) The California Supreme Court reasoned that requiring parties to seek leave to take additional discovery in the case of a new trial would not be consistent with the purposes of the Discovery Act. (Id. at pp. 252-253; see also Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 169 fn. 13.)

D. Discussion

Plaintiff moves for an order deeming discovery reopened on the remittitur, or in the alternative, for an order reopening discovery pursuant to Code of Civil Procedure section 2024.050. (Motion, pp. 1:27-2:5.)

1. Reopening Discovery After Remittitur

 

Plaintiff argues that “all discovery was automatically reopened by virtue of the remittitur vacating a final judgment on the merits in the form of a dismissal with prejudice of the action.” (Motion, pp. 2:3-4, 7:5-7.) Plaintiff maintains that “the trial has already been delayed by years from the initial trial date, the parties will be seeking to bring this matter to a conclusion on the merits, and discovery will facilitate all of the parties in accomplishing that and obtaining a just outcome.” (Id. at p. 7:15-17.)

Plaintiff asserts that “had the dismissal not been vacated, this action would have been concluded on the merits – any attempt by Plaintiff to bring the Relator’s claims thereafter would have been permanently barred by the doctrine of res judicata to the dismissal with prejudice.” (Id. at pp. 7:24-8:1.) Plaintiff maintains that “when the dismissal was vacated, this matter was remanded to continue on the merits, including as to the setting of a new trial date.” (Id. at p. 8:1-3.) Therefore, Plaintiff argues that “those circumstances make the procedural status of this matter consistent with both Fairmont and Beverly Hospital, and thus supports the conclusion that discovery was automatically reopened by the remittitur.” (Id. at p. 8:5-7.)

In opposition, Defendants Living Rebos, LLC and M-Brace Treatment, Inc., Sobertec LLC and Upfront Labs LLC (“Living Rebos Defendants”) argue that “the dismissal of Plaintiff’s appeal does not operate to automatically reopen discovery.” (Living Rebos, Opposition, p. 6:11-12.) Living Rebos Defendants maintain that the Court of Appeal “did not reverse, affirm or otherwise even hear the substance of Plaintiff’s appeal.” (Id. at p. 6:25-26.) The Living Rebos Defendants assert that “Plaintiff’s appeal was instead dismissed for lack of jurisdiction, which unlike a reversal, is deemed an affirmance of this Court’s prior orders in this case.” (Id. at pp. 6:27-7:2.)

The Living Rebos Defendants argue that Plaintiff dismissal was not a “‘judgment on the merits,’ because Plaintiff did not seek or secure consent for her dismissal from this Court or the government.” (Id. at p. 7:2-4.) Living Rebos Defendants assert that “as Plaintiff admits, and the Court of Appeal agreed, ‘[a] dismissal entered by the clerk after a request from an individual plaintiff who has not obtained consent from the court and/or related government entities is a ‘void’ act, subject to set aside at any time, because the court lacks jurisdiction or authority to enter dismissals of IFPA lawsuits prior to the individual plaintiff obtaining the requisite statutory consent.’” (Id. at p. 7:4-8, citing Court of Appeal Opinion, pp. 8-9.) Therefore, the Living Rebos Defendants contend, “Plaintiff’s voluntary dismissal had no legal effect in the first place, and therefore could not constitute a judgment subject to reversal.” (Id. at p. 7:9-10.) Lastly, the Living Rebos Defendants argue that the Fairmont decision opposes reopening discovery in this case because compared to Fairmont, here, “Plaintiff dismissed her case before any trial, and before entry of judgment as to these Defendants.” (Id. at p. 7:11-16.)

Defendant Zen Recovery, LLC also opposes this motion. Defendant Zen Recovery, LLC argues that Plaintiff’s “attempt[] to invoke Fairmont Ins. Co. v. Superior Court, (2000) 22 Cal.4th 245 and Beverly Hospital v. Sup.Ct. (1993) 19 Cal.App.4th 1289, for the proposition that discovery should have automatically reopened upon issuance of the remittitur,” is improper because “neither Fairmont nor Beverly Hospital says any such thing.” (Zen Opposition, p. 5:20-23.) Defendant Zen Recovery, LLC maintains that “here, unlike in Fairmont, Plaintiff’s case has yet to be tried, and so whatever trial commences upon the date reset by this Court will not be a new trial but will be the first trial, and its date will not be the initial trial date but a continued trial date—the initial trial date for the trial that will be re-set will always be November 26, 2018 and, under Fairmont, that date will always controls the discovery cutoff for this first trial, which was and still is October 29, 2018.” (Id. at p. 6:1-5.) Therefore, Defendant Zen Recovery, LLC argues, “Plaintiff’s position that discovery automatically reopens on remittitur—when no trial has ever taken place, and discovery closed months before Plaintiff even brought her appeal—is entirely unsupported by California law.” (Id. at p. 6:6-8.)

Defendants are correct: discovery is not automatically reopened in this case solely because the Court of Appeal issued a remittitur, and neither Fairmont nor Beverly Hospital support Plaintiff’s argument. Fairmont reviewed Beverly Hospital’s holding, which was whether, “in the case of a mistrial, order granting a new trial, or remand for a new trial after reversal of a judgment on appeal,” discovery is reopened in light of Code of Civil Procedure section 2024, subdivision (a). (See Fairmont, supra, 22 Cal.4th at pp. 247-250.) Fairmont explained that “each time an action is tried, the court sets an ‘initial (i.e., ‘first’ or ‘beginning’) date for the actual trial, and that date controls the discovery cutoff for the trial to which it relates.” (Id. at p. 250, citing Beverly Hospital, supra, 19 Cal.App.4th at p. 1293.) In other words, Fairmont’s holding is limited to cases of a mistrial, order granting a new trial, or remand for a new trial after reversal of a judgment on appeal – all events after an initial trial takes place. (Ibid.)

Fairmont and Beverly Hospital’s holdings do not apply because there was no remand for a new trial after reversal of a judgment on appeal. There was no trial here; instead Plaintiff improperly dismissed her case with prejudice without seeking consent of the court, and before any trial could take place. The Court of Appeal dismissed the appeal for lack of jurisdiction, remanded the case to the trial court with instructions to vacate the unauthorized dismissal, and to reinstate motions that were on calendar before the dismissal occurred. Therefore, discovery was not automatically reopened when the remittitur was issued.

The Court DENIES Plaintiff’s motion for an order deeming discovery reopened on the remittitur.

2. Reopening Discovery Pursuant to Code of Civil Procedure Section 2024.050

Plaintiff argues that in the alternative, “all discovery should be reopened under Code of Civil Procedure section 2024.050.” (Motion, p. 2:5.) Plaintiff contends that discovery is necessary because : (1) the Court has previously excluded Plaintiff’s evidence submitted in opposition to motions for summary judgment for lack of authentication; (2) Plaintiff has no evidence to support its claims in opposition to still-pending motions for summary judgment; (3) there are defendants who have not answered the complaint, or who answered after the close of discovery; (4) and “none of the remaining defendants have participated in discovery from the Plaintiff, whatsoever.” (Id. at p. 9:3-13).

Plaintiff admits that it “conducted virtually no discovery” (id. at p. 8:27) but argues that it was Plaintiff’s counsel who was not diligent in conducting discovery because he erroneously believed discovery was still open when it was not. (Id. at p. 10:6-13.) Plaintiff argues that it was diligent in seeking relief because “upon discovery of the potential need for discovery and the need for the reopening of discovery, Plaintiff promptly moved ex parte to reopen the cutoff on January 2, 2018, which motion was denied.” (Id. at p. 10:3-6.)

In opposition, the Living Rebos Defendants argue that “Plaintiff’s request to reopen discovery [pursuant to Code of Civil Procedure section 2024.050] should be denied because of her own lack of diligence and discovery gamesmanship.” (Living Rebos Opp., p. 8:15-16.) These Defendants argue that “despite ample opportunity, Plaintiff chose not to pursue any discovery, including written discovery to defendants, or noticing a single deposition,” and “failed to pursue any third party discovery or to disclose any experts in response to a timely demand for expert disclosures.” (Id. at p. 9:8-11.) The Living Rebos Defendants argue that reopening discovery would unfairly prejudice them because (1) “Plaintiff’s’ unauthorized dismissal not only forced these Defendants (through no fault of their own) through a costly appeal, but has resulted in additional and unwarranted delay[;]” and (2) they have participated in discovery, by seeking both written discovery and depositions. (Id. at pp. 9:27-10:2, 10:5-8.)

In opposition, Defendant Zen Recovery, LLC echoes Living Rebos Defendants’ arguments that discovery should not be reopened pursuant to Code of Civil Procedure section 2024.050 because of Plaintiff’s unwarranted lack of diligence in conducting discovery and that reopening discovery will cause Defendant Zen Recovery, LLC prejudice. (Zen Opp., pp. 7:4-8:23.) Defendant Zen Recovery, LLC also argues that “Plaintiff is not entitled to relief under Code of Civil Procedure 2024.050 because she failed to meet [and] confer as required.” (Id. at p. 6:9-10.) Defendant Zen Recover, LLC maintains that “neither Plaintiff nor Attorney Medvei ever made a single attempt to meet and confer with Zen Recovery prior to filing the Motion to Reopen Discovery; that is likely why they also failed to file a meet-and-confer declaration, since there was nothing to declare.” (Id. at p. 6:17-20.)

In reply to Defendant Zen Recovery, LLC’s meet and confer argument, Plaintiff argues that “there is no question that the parties have met and conferred about this motion, for years.” (Reply to Zen Opposition, p. 2:1-2.) Plaintiff asserts that “prior to the appeal and remittitur, Plaintiff expressly discussed the reopening of discovery with Defendant Zen, specifically with Ms. Anne Card, on December 12, 2018.” (Id. at p. 2:14-17, citing Reply Medvei Decl., ¶ 3.) Plaintiff maintains that “in any event, the briefing was invited by the Court in the context of a meet and confer that was held in open court at the status conference following the remittitur.” (Id. at p. 2:2-5.)

The Court finds that the motion to reopen discovery pursuant to Code of Civil Procedure section 2024.050 should be denied because Plaintiff failed to include a meet and confer declaration with its moving papers. (Code Civ. Proc., § 2024.050(a).) Further, Plaintiff failed to demonstrate that Plaintiff’s counsel met and conferred in good faith with Defendants’ counsel regarding the issues of reopening discovery present in this instant motion before bringing this motion. (Ibid.)

The Court also notes that two years ago, on January 2, 2019, the Court denied Plaintiff’s ex parte to re-open discovery. Nothing substantively has changed since that time; were the Court to exercise its discretion on this matter, the Court would similarly deny the motion.

The Court DENIES Plaintiff’s motion to reopen discovery pursuant to Code of Civil Procedure section 2024.050.

3. Request for Sanctions

Defendant Zen Recovery, LLC argues that “for failing to meet that threshold requirement, Plaintiff is precluded from seeking to reopen discovery under Code of Civil Procedure [section] 2024.050 and is subject to monetary sanctions.” (Zen Opp., p. 6:20-22.) Defendant Zen Recovery, LLC maintains that “under Code of Civil Procedure [section] 2023.020, that failure subjects both Plaintiff and Attorney Medvei to mandatory monetary sanctions constituting Zen Recovery’s reasonable expenses incurred as a result of that conduct.” (Id. at p. 10:5-7.) Defendant Zen Recovery, LLC “request[s] that the Court impose a monetary sanction of $3,915.00 against both Plaintiff and Attorney Medvei, jointly and severally, constituting the attorneys’ fees and costs incurred by Zen Recovery in having to oppose the Motion to Reopen Discovery.” (Id. at p. 10:7-10, citing Card Decl., ¶¶ 27-30).

Defendant Zen Recovery, LLC’s counsel declares that the reasonable fees and costs of $3,915.00 are broken down as follows:

· Drafting of Opposition to Motion to Compel: $3,000.00 for 10 hours @ $300/hr.

· Drafting of Declaration in Support of Opposition: $300.00 for 1.0 hours @ $300/hr.

· Participation in the Hearing on the Motion to Compel:

o Projected Fees for time spent preparing for and participating in hearing: $600.00 for 2 hours @ $300/hr.

o Cost of telephonic appearance: $15.00. (Card Decl., ¶ 28.)

In reply, Plaintiff does not address whether sanctions are warranted.

The Court finds that Defendant Zen Recovery, LLC is entitled to seek sanctions against Plaintiff and its counsel because Plaintiff unsuccessfully made this motion to reopen discovery. (Code Civ. Proc., § 2024.050(c).) However, the amount of sanctions requested is unwarranted. Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $2,115.00 (calculated as 7 hours at $300.00 per hour + $15.00).

Therefore, the Court GRANTS Defendant Zen Recovery, LLC’s request for sanctions against Plaintiff and its counsel in the amount of $2,115.00.

Case Number: BC674091    Hearing Date: January 28, 2021    Dept: 34

SUBJECT: Motion to be Relieved as Counsel

Moving Party: David B. Felsenthal, counsel for H&H Testing, Inc.

Resp. Party: None

The Court GRANTS the motion to be relieved as counsel.

BACKGROUND:

Plaintiff People of the State of California ex rel. Alison Tonti (“Plaintiff”) commenced this action on August 29, 2017. On March 28, 2018, Plaintiff filed a first amended complaint (“FAC”) against Defendants Living Rebos, LLC; H&H Testing, Inc.; Avee Laboratories, Inc.; M-Brace Treatment, Inc.; Sobertec, LLC; Millennium Health, LLC; Upfront Labs, LLC; Gloriosa Management, LLC; Gregory Van Dyke; UB Laboratories, Inc.; Cordova Medical Group, Inc.; Genesis Molecular Diagnostics, LLC; and Zen Recovery, LLC for violation of the California Insurance Frauds Prevention Action (“CIFPA”). The amended complaint contains allegations against 100 unidentified Doe defendants. (Am. Compl. ¶ 18.)

On November 9, 2018, Defendant Avee Laboratories, Inc.’s (“Avee”) filed a motion for summary judgment.

On November 14, 2018, Defendant Millennium Health, LLC filed a motion for summary judgment.

On November 30, 2018, Defendants Living Rebos, LLC and M-Brace Treatment, Inc. filed a motion for summary judgment.

On December 3, 2018, Defendants Sobertec LLC and Upfront Labs LLC filed a motion for summary judgment.

On January 3, 2019, Plaintiff filed requests to amend her amended complaint by substituting Ross Remien for Doe Defendant 1, Upfront for Doe Defendant 2, and Carlos Montano for Doe Defendant 3.

On January 3, 2019 and January 7, 2019, Plaintiff filed requests to amend her amended complaint by substituting Alere, Inc., Alere Toxicology Services, Inc., Global Analytical Development, LLC, and Abbott Laboratories (collectively, “Alere Defendants”) for Doe Defendants 5-8.

On January 14, 2019, Defendants Living Rebos, LLC, M-Brace Treatment, Inc., and Non-Party Ross Remien filed a motion to deny request to amend, set for hearing on February 11, 2019.

On January 25, 2019, the Court granted Defendant Avee’s motion for summary judgment on the ground that Plaintiff presented no evidence to establish that Avee violated the CIFPA.

On January 29, 2019, Plaintiff filed a request for dismissal of the entire action with prejudice, without consent from the Court.

On February 4, 2019, the Court granted Defendant Avee’s motion to deny requests to amend.

On February 14, 2019, Plaintiff filed a notice of appeal from the final judgment in this matter and all orders that are separately appealable, including but not limited to the dismissal entered on January 29, 2019, Austin v. Valverde (2012) 211 Cal. App. 4th 546, 550-551, and all prior appealable orders, as well as the subsequent order granting the motion to quash entered on February 4, 2019.

On October 23, 2020, the Court of Appeal issued a remittitur regarding the appeal number B295815 filed by Plaintiff to invalidate her voluntary dismissal. The Court of Appeal dismissed the appeal for lack of jurisdiction, remanded the case to the trial court with instructions to vacate the unauthorized dismissal, and, absent a motion seeking the trial court’s consent to dismissing the qui tam claims, restore the case, and particularly the summary judgment motions previously set for February 13, 2019, to the trial court’s order.

On November 30, 2020, the Court received the appellate opinion for Plaintiff’s appeal number B302774, where Plaintiff appealed the awards of costs to defendants. The Court of Appeal affirmed in part, and reversed in part with instructions. In particular, the Court of Appeal concluded that “Government Code section 69950 limits the recoverable transcription fees charged by the pro tempore court reporter retained by defendant Millenium Health, LLC to transcribe its summary judgment hearing, and that the court erred in awarding costs above that statutory amount” but “in all other respects, [the appellate court] affirm[ed].” (11/30/2020 Opinion, pp. 1-2.)

On December 31, 2020, David B. Felsenthal, counsel for H&H Testing, Inc., filed the instant motion to be relieved as counsel.

ANALYSIS:

An attorney moving to be relieved as counsel under California

Code of Civil Procedure section 284(2) must meet the requirements set out in California Rules of Court, rule 3.1362. To comply with rule 3.1362, the moving party must submit the following forms: (1) Notice of Motion and Motion to be Relieved as Counsel; (2) Declaration in Support of Attorney's Motion to be Relieved as Counsel; and (3) Order Granting Attorney's Motion to be Relieved as Counsel. (Cal. Rules of Court, rule 3.1362(a), (c), (e).) The moving party must serve the aforementioned forms on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) Further, when the client is served by mail, the attorney's declaration must show that the client's address was confirmed within the last 30 days and how it was confirmed. (Id.) Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.)

Counsel’s motion complies with all of the requirements of California Rules of Court, Rule 3.1362, in that Counsel provided a notice of motion and motion to be relieved as counsel; order granting attorney’s motion to be relieved as counsel; and declaration in support of the motion to be relieved as counsel. Additionally, Counsel’s client was notified by mailing the motion and supporting documents to H&H Testing, Inc.’s last known address and confirmed by email exchanges that H&H Testing, Inc.’s address is current. (See Declaration, No. 3(b)(1)(d).) Counsel also filed a proof of service demonstrating that Counsel served all other parties who have appeared in the case. This motion has also not been opposed by any party to the case.

The motion to be relieved as counsel is GRANTED.

Case Number: BC674091    Hearing Date: January 27, 2021    Dept: 34

SUBJECT: (1) Motion to Deny Requests to Amend

Moving Party: Defendants Living Rebos, LLC, M-Brace Treatment, Inc., and Non-Party Ross Remien

Resp. Party: Plaintiff People of the State of California ex rel. Alison Tonti

(2) Motion to Deny Requests to Amend

Moving Party: Defendants Sobertec LLC, Upfront Labs LLC, and Non-Party Upfront Inc.

Resp. Party: Plaintiff People of the State of California ex rel. Alison Tonti

(3) Motion to Deny Requests to Amend

Moving Party: Defendant Carlos X. Montano

Resp. Party: Plaintiff People of the State of California ex rel. Alison Tonti

The Court GRANTS the three motions to deny requests to amend.

BACKGROUND:

Plaintiff People of the State of California ex rel. Alison Tonti (“Plaintiff”) commenced this action on August 29, 2017. On March 28, 2018, Plaintiff filed a first amended complaint (“FAC”) against Defendants Living Rebos, LLC; H&H Testing, Inc.; Avee Laboratories, Inc.; M-Brace Treatment, Inc.; Sobertec, LLC; Millennium Health, LLC; Upfront Labs, LLC; Gloriosa Management, LLC; Gregory Van Dyke; UB Laboratories, Inc.; Cordova Medical Group, Inc.; Genesis Molecular Diagnostics, LLC; and Zen Recovery, LLC for violation of the California Insurance Frauds Prevention Action (“CIFPA”). The amended complaint contains allegations against 100 unidentified Doe defendants. (Am. Compl. ¶ 18.)

On November 9, 2018, Defendant Avee Laboratories, Inc.’s (“Avee”) filed a motion for summary judgment.

On November 14, 2018, Defendant Millennium Health, LLC filed a motion for summary judgment.

On November 30, 2018, Defendants Living Rebos, LLC and M-Brace Treatment, Inc. filed a motion for summary judgment.

On December 3, 2018, Defendants Sobertec LLC and Upfront Labs LLC filed a motion for summary judgment.

On January 3, 2019, Plaintiff filed requests to amend her amended complaint by substituting Ross Remien for Doe Defendant 1, Upfront for Doe Defendant 2, and Carlos Montano for Doe Defendant 3.

On January 3, 2019 and January 7, 2019, Plaintiff filed requests to amend her amended complaint by substituting Alere, Inc., Alere Toxicology Services, Inc., Global Analytical Development, LLC, and Abbott Laboratories (collectively, “Alere Defendants”) for Doe Defendants 5-8.

On January 14, 2019, Defendants Living Rebos, LLC, M-Brace Treatment, Inc., and Non-Party Ross Remien filed a motion to deny request to amend, set for hearing on February 11, 2019.

On January 25, 2019, the Court granted Defendant Avee’s motion for summary judgment on the ground that Plaintiff presented no evidence to establish that Avee violated the CIFPA.

On January 29, 2019, Plaintiff filed a request for dismissal of the entire action with prejudice, without consent from the Court.

On February 4, 2019, the Court granted Defendant Avee’s motion to deny requests to amend.

On February 14, 2019, Plaintiff filed a notice of appeal from the final judgment in this matter and all orders that are separately appealable, including but not limited to the dismissal entered on January 29, 2019, Austin v. Valverde (2012) 211 Cal. App. 4th 546, 550-551, and all prior appealable orders, as well as the subsequent order granting the motion to quash entered on February 4, 2019.

On October 23, 2020, the Court of Appeal issued a remittitur regarding the appeal number B295815 filed by Plaintiff to invalidate her voluntary dismissal. The Court of Appeal dismissed the appeal for lack of jurisdiction, remanded the case to the trial court with instructions to vacate the unauthorized dismissal, and, absent a motion seeking the trial court’s consent to dismissing the qui tam claims, restore the case, and particularly the summary judgment motions previously set for February 13, 2019, to the trial court’s order.

On November 30, 2020, the Court received the appellate opinion for Plaintiff’s appeal number B302774, where Plaintiff appealed the awards of costs to defendants. The Court of Appeal affirmed in part, and reversed in part with instructions. In particular, the Court of Appeal concluded that “Government Code section 69950 limits the recoverable transcription fees charged by the pro tempore court reporter retained by defendant Millenium Health, LLC to transcribe its summary judgment hearing, and that the court erred in awarding costs above that statutory amount” but “in all other respects, [the appellate court] affirm[ed].” (11/30/2020 Opinion, pp. 1-2.)

On December 18, 2020, Defendants Living Rebos, LLC, M-Brace Treatment, Inc., and Non-Party Ross Remien filed the instant motion to deny request to amend or in the alternative, quash service of summons.

On December 18, 2020, Defendants Sobertec LLC, Upfront Labs LLC, and Upfront Inc. filed the instant motion to deny request to amend or in the alternative, quash service of summons.

On December 23, 2020, Defendant Carlos X. Montano filed the instant motion to deny request to amend or in the alternative, quash service of summons.

ANALYSIS:

I. Motions to Deny Requests to Amend

A. Request for Judicial Notice

Defendant Carlos Montano requests that the Court take judicial notice of the following:

· Exhibit 1: The Declaration of Alison Tonti in Support of Opposition to Motion for Summary Judgment of Defendant Millennium Health, LLC filed in this matter on January 14, 2019.

· Exhibit 2: The Notice of Court’s Ruling Granting Defendant Avee Laboratories, Inc. and Non-Parties Alere, Inc., Alere Toxicology Services, Inc., Global Analytical Development LLC, and Aboot Laboratories’ Motion to Deny Requests to Amend or, in the Alternative, to Quash Service filed in this matter on or about February 4, 2019; and

· Exhibit 3: The Joint Status Report of People of State of California Ex Rel. Alison Tonti and Zen Recovery, LLC filed in this matter on or about December 1, 2020.

The Court DENIES Defendant Carlos Montano’s request for judicial notice as superfluous. (Cal. Rules of Court, rule 3.1110(d).) Any party that wishes to draw the Court’s attention to a matter filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).)

B. Evidentiary Objections

Defendant Carlos Montano submits 8 evidentiary objections to the declaration of Sebastian M. Medvei and two evidentiary objections to the declaration of Alison Tonti.

The Court SUSTAINS the evidentiary objections made to the Medvei Declaration, and OVERRULES the evidentiary objections made to the Tonti Declaration.

C. Legal Standard

Code of Civil Procedure section 474 provides: “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly.”

“When a complaint sets forth a cause of action against a defendant designated by a fictitious name and his true name thereafter is discovered and substituted by amendment, he is considered a party to the action from its commencement so that the statute of limitations stops running as of the date the original complaint was filed. [Citations.] For this rule to apply, it is necessary that the plaintiff actually be ignorant of the name or identity of the fictitiously named defendant at the time the complaint is filed. [Citations.] The phrase ‘when the plaintiff is ignorant of the name of a defendant’ in section 474 has not been interpreted literally. It includes situations where the plaintiff ‘ “knew the identity of the person but was ignorant of the facts giving him a cause of action against the person [citations], or knew the name and all the facts but was unaware that the law gave him a cause of action against the fictitiously named defendant and discovered that right by reason of decisions rendered after the commencement of the action. [Citation.]” ’ [Citation.] ‘The lack of knowledge of the true name of a defendant, however, must be “real and not feigned.” [Citation.] A plaintiff must actually be ignorant of the facts giving him a cause of action against a defendant. “Ignorance of the facts is the critical issue....” [Citations.]’ [Citation.] ‘The pivotal question in this regard is “did plaintiff know facts?” not “did plaintiff know or believe that [he] had a cause of action based on those facts?” [Citation.]’ [Citation.] The question of the plaintiff's good faith in this regard is for the determination of the trial court. [Citation.]” (Optical Surplus, Inc. v. Superior Court (1991) 228 Cal.App.3d 776, 783, citing Hazel v. Hewlett (1988) 201 Cal.App.3d 1458, 1464-1465, italics omitted.)

“[S]ection 474 includes an implicit requirement that a plaintiff may not ‘unreasonably delay’ his or her filing of a Doe amendment after learning a defendant's identity … ‘unreasonable delay’ … includes a prejudice element, which requires a showing by the defendant that he or she would suffer prejudice from plaintiff's delay in filing the Doe amendment.” (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066-1067.)

D. Discussion

Defendants Living Rebos, LLC, M-Brace, Inc., and Non-Party Ross Remien move the Court to deny Relator Alison Tonti’s (“Relator” or “Plaintiff”) request to substitute Ross Remien for Doe Defendant 1 “on the grounds that Relator was, or should have been, aware of Ross Remien’s identity prior to filing her Complaint in 2017 and that Relator has unreasonably delayed in moving to designate Doe defendants by their true names causing Mr. Remien and Rebos/M-Brace to be prejudiced as a result.” (Remien Motion, p. 2:4-12.) Defendants Rebos, LLC, M-Brace, Inc., and Non-Party Ross Remien maintain that Plaintiff “was aware of Mr. Remien’s identity prior to filing her Complaint in 2017, as he is publicly listed as the agent for service of process for Living Rebos, LLC (‘Rebos’) and M-Brace Treatment, Inc. (‘M-Brace’ and with Rebos as ‘Defendants’) as well as each entity’s Chief Executive Officer.” (Id. at p. 3:6-9.) These defendants assert that Plaintiff also knew of Mr. Remien’s identity because “it was Mr. Remien who was served with the complaint on behalf of both Defendants on January 5 and 7, 2018, respectively.” (Id. at p. 3:9-11.)

Defendants Sobertec LLC, Upfront Labs LLC, and Non-Party Upfront Inc. similarly move the Court to deny Relator’s request to substitute Upfront Inc. for Doe Defendant 2 “on the grounds that Relator was, or should have been, aware of Upfront Inc.’s identity prior to filing her Complaint 18 months ago and that Relator has unreasonably delayed in moving to designate Doe defendants by their true names causing Upfront Inc. and Defendants Sobertec and Upfront Labs LLC to be prejudiced as a result.” (Upfront Motion, p. 2:4-12.) Defendants Sobertec LLC, Upfront Labs LLC, and Non-Party Upfront Inc. argue that “Relator was aware (or should have been aware) of Upfront Inc.’s existence as the ‘holding company’ for Defendants Upfront Labs and Sobertec when she served her complaint way back in early 2018, as that information is publicly listed as such on Upfront Inc.’s website and in other publicly available records.” (Id. at p. 3:19-22.)

Defendant Montano also moves Court to deny Relator’s request to substitute him for Doe Defendant 3 “on the grounds that Relator was, or should have been, aware of Dr. Montano’s identity prior to

filing her Complaint and that Relator unreasonably delayed in designating Dr. Montano as a Doe defendant, causing Dr. Montano to be prejudiced as a result.” (Montano Motion, p. 2:1-9.) Defendant Montano maintains that “the timing of the filing of Relator’s Doe Amendments makes her intent clear: they were filed so that Relator could conduct discovery on the newly added defendants which she could then use to oppose the original defendants’ summary judgment motions and/or to reopen discovery, which had closed months before Relator’s Doe Amendments were filed.” (Id. at p. 3:8-11.) Defendant Montano argues that “Relator was aware, or should have been aware, of Montano’s alleged relationship with Defendant SoberTec, LLC (‘SoberTec’) prior to the filing of her Complaint” because “according to Relator’s Declaration in Support of her Opposition to the Motion for Summary Judgment of Millenium Health, LLC . . . , she signed off on requisition forms listing Dr. Montano as her treating physician when she was undergoing treatment with Defendant SoberTec between July 28, 2014 and August 29, 2014.” (Id. at p. 3:12-18, citing Plaintiff’s Opp. to Millenium’s MSJ, ¶¶ 9-10.)

In opposition to the Remien motion, Plaintiff argues that the Court should not deny her request to amend because “prior to Rebos’ motion for summary judgment, Relator had no understanding of Defendant Remien’s role in the Rebos and M-Brace entities.” (Remien Opp., p. 4:7-8.) Plaintiff argues that after analyzing Rebos’ motion for summary judgment, “Plaintiff promptly substituted a DOE defendant for Defendant Remien.” (Id. at p. 4:10-11.)

In opposition to the Upfront motion, “Plaintiff concedes that it does not currently have evidence that Upfront Inc. was directly involved with the alleged urine test insurance payment churning scheme.” (Upfront Opp., p. 3:5-7.) However, Plaintiff argues that “according to Sobertec and Upfront Labs LLC, Upfront Inc. appears to be a part of the Sobertec-Upfront Labs LLC enterprise and an alter ego of Upfront Labs LLC.” (Id. at p. 3:3-4.)

In opposition to the Montano motion, Plaintiff argues that “prior to Millennium’s motion for summary judgment, Relator had never met or heard of Defendant Motano” and “did not ever know or understand that any actual physicians were involved with her enrollment at sober living facilities.” (Montano Opp., p. 4:19-21.) Plaintiff maintains that “upon receipt of evidence tying Defendant Montano to Sobertec’s scheme to generate insurance claims for urine testing, Plaintiff substituted Defendant Montano for a DOE defendant.” (Id. at p. 5:21-23.) Plaintiff maintains that “prior to Millennium’s motion for summary judgment, Defendant Montano had not been disclosed by any party as affiliated with Sobertec or involved in the allegations of urine testing insurance claim churning.” (Id. at p. 6:4-6.)

Although the trial has not been reset in this matter and a trial setting conference is set for January 29, 2021, it appears to the Court that Plaintiff’s attempt to amend in new defendants is nothing more than a delaying tactic. Plaintiff filed these Doe amendments right before trial was about be held on February 25, 2019, and just before Plaintiff improperly dismissed this action. Non-expert discovery has long since been closed; in fact, more than two years ago, on January 2, 2019, the Court denied Plaintiff’s ex parte to re-open discovery.

As to Defendant Upfront, Inc., Plaintiff admits that she does not have evidence that Upfront Inc. was involved with the allegations of this action. Plaintiff fails to provide the Court with a valid reason as to why this defendant should be included in this action.

Further, “‘[i]t is settled law that the responsibility of diligent prosecution at every stage of the proceeding is on the plaintiff.’” (Sanders v. Fuller (1975) 45 Cal.App.3d 994, 1002.) Here, “Plaintiff has had ample opportunity, through pretrial discovery, to marshal evidence” and discover the identities of each of these doe defendants as well as any facts giving her a cause of action against them. Plaintiff’s choice not to pursue discovery in this case is a factor that weighs heavily in favor of finding her doe amendments unreasonably dilatory. (See Lowe v. Thomas (1970) 11 Cal.App.3d 867, 870-872 [finding that plaintiffs could not show good cause for failing to pursue pretrial discovery]; Rodde v. Trousdale Const. Co., 276 (1969) Cal.App.2d 419, 423 [considering plaintiff’s failure to pursue discovery a factor in determining that plaintiff’s request was dilatory]. Overall, there is nothing before the Court would support a finding that Plaintiff was genuinely ignorant of these doe defendants’ identities, or facts giving rise to the claims asserted against them.

The Court GRANTS the three motions to deny requests to amend.

Case Number: BC674091    Hearing Date: December 02, 2019    Dept: 34

SUBJECT: (1) Motion to Tax Costs

Moving Party: Plaintiff People of the State of California ex rel. Alison Tonti

Resp. Party: Defendants Sobertec, LLC and Upfront Labs, LLC

(2) Motion to Tax Costs

Moving Party: Plaintiff People of the State of California ex rel. Alison Tonti

Resp. Party: Defendant Avee Laboratories, Inc. and Alere Non-Parties

TENTATIVE RULING:

Plaintiff’s motion to tax the costs of Defendants Sobertec, LLC and Upfront Labs, LLC is DENIED.

Plaintiff’s motion to tax the costs of Defendant Avee Laboratories, Inc. is GRANTED in part. The Court taxes the amount of costs sought by Defendant Avee by $4,839.15.

BACKGROUND:

Plaintiff People of the State of California ex rel. Alison Tonti (“Plaintiff”) commenced this action on August 29, 2017. On March 28, 2018, Plaintiff filed a first amended complaint (“FAC”) against Defendants Living Rebos, LLC; H&H Testing, Inc.; Avee Laboratories, Inc.; M-Brace Treatment, Inc.; Sobertec, LLC; Millennium Health, LLC; Upfront Labs, LLC; Gloriosa Management, LLC; Gregory Van Dyke; UB Laboratories, Inc.; Cordova Medical Group, Inc.; Genesis Molecular Diagnostics, LLC; and Zen Recovery, LLC for violation of the California Insurance Frauds Prevention Action (“CIFPA”). The amended complaint contains allegations against 100 unidentified Doe defendants. (Am. Compl. ¶ 18.)

On January 3, 2019 and January 9, 2019, Plaintiff filed requests to amend her amended complaint by substituting Alere, Inc., Alere Toxicology Services, Inc., Global Analytical Development, LLC, and Abbott Laboratories (collectively, “Alere Defendants”) for Doe Defendants 5-8.

On January 25, 2018, the Court granted Defendant Avee Laboratories, Inc.’s (“Avee”) motion for summary judgment on the ground that Plaintiff presented no evidence to establish that Avee violated the CIFPA.

On January 29, 2019, Plaintiff filed a request for dismissal of the entire action with prejudice.

On February 4, 2019, the Court granted Avee’s motion to deny requests to amend.

On February 14, 2019, Plaintiff filed a notice of appeal from the final judgment in this matter and all orders that are separately appealable, including but not limited to the dismissal entered on January 29, 2019, Austin v. Valverde (2012) 211 Cal. App. 4th 546, 550-551, and all prior appealable orders, as well as the subsequent order granting the motion to quash entered on February 4, 2019.

On February 15, 2019, Sobertec, LLC and Upfront Labs, LLC filed their memorandum of costs.

On February 19, 2019, Avee filed its memorandum of costs.

On March 3, 2019, Plaintiff filed the instant motions to tax costs claimed by Avee, Sobertec, LLC, and Upfront Labs, LLC.

Plaintiff requests that Sobertec, LLC and Upfront Labs, LLC’s memorandum of costs be stricken in its entirety, or in the alternative, that the costs claimed be taxed to reflect the costs actually incurred and substantiated by the Defendants, which is, at best, $870.00. (Sobertec & Upfront Labs Motion, p. 2:6-8.)

Plaintiff requests that Avee’s memorandum of costs be stricken in its entirety or, in the alternative, that the costs claimed be taxed to reflect the costs actually incurred and substantiated by the Defendants, which is, at best, $1,079.43. (Avee Motion, p. 2:6-8.)

ANALYSIS:

A. Relevant Law

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032(b).)

After judgment is entered, the prevailing party “who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule 3.1700(a).) “The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in this case.” (Id.)

In turn, the losing party may file a motion to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b).) Procedurally, “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.” (Id.)

Even where parties are unsuccessful as to certain matters, prevailing parties as defined by statute (Code of Civil Procedure §1032) are entitled to recover all costs reasonably incurred, and proof that parties were unsuccessful on particular items is not tantamount to a demonstration that such costs were unreasonably incurred. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1200.)

During the hearing, “the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) “This procedure provides an orderly and efficient way of placing disputed costs at issue on a line item basis.” (612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285.)

“[T]he mere filing of a motion to tax costs may be a “proper objection” to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. [Citation.] However, “[i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” [Citations.]

The court’s first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. [Citation.] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. [Citation.]” (Nelson, 72 Cal.App.4th at p. 131.)

B. Trial Court’s Jurisdiction Pending Appeal

As an initial matter, Plaintiff contends that the pending appeal stays proceeding in the lower court and that this Court does not have subject matter jurisdiction to decide the issue of costs. (E.g., Avee Motion, pp. 4:13-5:7.) However, the trial court retains jurisdiction to award or tax costs after an appeal is taken. (See Bankes v. Lucas (1992) 9 Cal. App. 4th 365, 368 [jurisdiction to award Civ. Code §1616 attorney fees as costs]; Robertson v. Rodriguez (1995) 36 Cal. App. 4th 347, 360 [jurisdiction to rule on motion for statutory attorney fees (Code of Civ. Proc., §425.16(c)) as costs]; Carpenter v. Jack In the Box Corp. (2007) 151 Cal. App. 4th 454, 461 [same].) Therefore, the Court will proceed to analyze these motions to tax costs on the merits.

C. Motion to Tax the Costs of Sobertec, LLC and Upfront Labs, LLC

Plaintiff moves to tax the following costs:

· No. 1: Filing and motion fees ($2,170.00)

· No. 4: Deposition costs ($1,006.30)

· No. 5: Service of Process Fees ($123.84)

1. Motion and Filing Fees

Plaintiff argues that the filing fees are duplicative, excessive, and unsupported because “Defendants were only required to pay first paper fees of $435 each, and collectively they only filed three motions to compel, which motions each sought the attorney’s fees and the filing fees as sanctions attending the motion, and which motions concluded with an award of the Defendants’ fees and costs on the motions.” (Sobertec and Upfront Labs Motion, p. 3:13-17.) Plaintiff asserts that “Defendants also filed a single ex parte application to shorten time on those motions” and “since Defendants have already been granted their costs on the motions to compel, they are, at very best, entitled to $930 (two first paper fees and an ex parte application fee) in filing fees.” (Id. at p. 3:17-20 [citing Medvei Decl., ¶ 6].)

In opposition, Sobertec, LLC and Upfront Labs, LLC explain that the $2,170.00 in filing fees are as follows:

· $870 first appearance fees for Sobertec, LLC and Upfront Labs, LLC;

· $300 filing fees for three discovery motions and one related ex parte application;

· $1,000 filing fees for two motions for summary judgment; and

· $60 filing fees for motion to file documents under seal in connection with motions for summary judgment. (Sobertec and Upfront Opp., p. 3:4-9 [citing Rothenberg Decl., ¶ 2].)

Sobertec, LLC and Upfront, LLC argue that although they “may have been awarded sanctions in connection with those discovery motions, those awards were consistently less than the total fees (and costs) in bringing those motions” and “the additional $300 in costs would help to ‘make whole’ the Defendants who prevailed on both the discovery motions and this case more generally.” (Id. at p. 3:12-17.)

Pursuant to Code of Civil Procedure section 1033.5(a)(1), filing and motion fees are allowable costs. Under section 1033.5, “An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)

“Neither subdivision (a) or (b) [of Code of Civil Procedure section 1033.5] states whether attorney service charges for court filings and deliveries or mediators' fees are allowable or not. Thus, these costs fall within the ‘discretionary category,’ subdivision (c)—that is, they are allowable if in the court's discretion they were ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’” (Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1132.)

The Court finds that the requested motion and filing fee costs are reasonably necessary to the conduct of litigation, thus are allowable. The Court also finds that the $300.00 fees associated with the motions to compel discovery and related ex parte application are not duplicative because although Defendants’ request for sanctions was awarded, this did not include the filing fees associated with these motions.

The Court DENIES Plaintiff’s motion to tax the motion and filing fees.

2. Deposition Costs

Plaintiff argues that Sobertec, LLC and Upfront Labs, LLC’s deposition costs of $1,006.30 are unreasonable and unsupported because these defendants did not hold a deposition, and even if these costs are related to travel, then these travel costs would be certainly excessive because Defendants’ local counsel, Ms. Berle’s office is very close to the deposition location. (Sobertec and Upfront Motion, pp. 3:22-4:5.)

In opposition, Sobertec, LLC and Upfront Labs, LLC argues that these deposition costs are reasonable and supported because these costs account for $976.80 for the transcript of Plaintiff’s October 12, 2018 deposition and another $29.50 for travel expenses relating to that same deposition. (Sobertec and Upfront Opp., p. 3:18-22 [citing Rothenberg Decl., ¶ 3].) Sobertec, LLC and Upfront Labs, LLC maintain that it was necessary for them to purchase the transcript of Plaintiff’s deposition, as “Plaintiff was the sole witness identified with any knowledge of the fraud conspiracy alleged, making her the key witness as to the facts supporting the basis of this action.” (Id. at pp. 3:23-24, 4:9-10.)

Code of Civil Procedure §1033.5(a)(3) provides that costs for “[t]aking, video recording, and transcribing necessary depositions” are allowable, as are travel expenses to attend depositions. The Court finds that the deposition fees claimed by Sobertec, LLC and Upfront Labs, LLC are reasonable and necessary to the conduct of litigation.

The motion to tax the deposition costs is DENIED.

 

3. Service of Process Costs

 

Plaintiff argues that Sobertec, LLC and Upfront Labs, LLC never effectuated any service of process, thus the fees of $123.84 are not necessary to the conduct of litigation.

In opposition, Sobertec, LLC and Upfront Labs, LLC asserts that these “challenged fees were necessary in this case to effectuate service of a deposition subpoena for production of business records to Blue Shield of California,” thus these costs were reasonably necessary to the defense of this case.

Under Code of Civil Procedure section 1033.5, subdivision (a)(4), the following items are allowable as costs:

“Service of process by a public officer, registered process server, or other means, as follows:

(A) When service is by a public officer, the recoverable cost is the fee authorized by law at the time of service.

(B) If service is by a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code, the recoverable cost is the amount actually incurred in effecting service, including, but not limited to, a stakeout or other means employed in locating the person to be served, unless those charges are successfully challenged by a party to the action.

(C) When service is by publication, the recoverable cost is the sum actually incurred in effecting service.

(D) When service is by a means other than that set forth in subparagraph (A), (B), or (C), the recoverable cost is the lesser of the sum actually incurred, or the amount allowed to a public officer in this state for that service, except that the court may allow the sum actually incurred in effecting service upon application pursuant to paragraph (4) of subdivision (c).” (Code Civ. Proc., § 1033.5(a)(4).)

The Court finds that the service of process costs for the deposition subpoena for production of business records to Blue Shield of California were reasonably necessary to the conduct of litigation.

The Court DENIES the motion to tax service of process costs.

 

 

D. Motion to Tax the Costs of Avee

 

Plaintiff moves to tax the following costs:

· No. 1: Filing and motion fees ($4,605.84)

· No. 4: Deposition costs ($4,493.95)

· No. 14: Electronic filing or service fees ($1,778.85)

1. Motion and Filing Fees

 

Plaintiff argues that Avee “is, at very best, entitled to $1,055 in filing fees” because Avee “was only required to pay a first paper fee of $435, a $60 fee for a demurrer, a $60 fee for a motion to quash which was heard after the dismissal, and a single summary judgment motion for $500.” (Avee Motion, p. 3:16-20.)

In opposition, Avee argues that not only did it pay a first paper fee of $435.00, a $60.00 fee for a demurrer, a $60.00 fee for a motion to quash, and a $500.00 fee for a motion for summary judgment, it also “filed several other motions necessary to the litigation, including, for example, motions for pro hac vice admission and motions to seal.” (Avee Opp., p. 3:7-12 [citing Hileman Decl., ¶ 8, Ex. 3].) Avee asserts that its “filing and motion fees also include messenger service charges for paper filings before the Court approved e-filing on January 1, 2019,” which “account for $1,244.20 of the total $4,605.80 requested filing and motion fees.” (Id. at p. 3:21-23 [citing Hileman Decl. ¶ 9, Ex. 4].)

As explained above, filing and motion fees are allowable costs. (Code Civ. Proc., § 1033.5, subd. (a)(1).) The Court finds that the filing and motion fees of $2,821.60 is allowable and are reasonably necessary to the conduct of litigation.

“Costs for courier or messenger fees are not specifically enumerated as allowable costs in Code of Civil Procedure section 1033.5, subdivision (a), neither are they prohibited in subdivision (b). Thus, messenger fees may be recoverable in the trial court's discretion if ‘reasonably necessary to the conduct of the litigation.’” (Foothill-De Anza Community College District v. Emerich (2007) 158 Cal.App.4th 11, 30 [citing Code Civ. Proc., § 1033.5, subd. (c)(2); Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 776.)

As to the remaining $1,244.20 costs for messenger fees, the Court finds that they were not reasonably necessary to the conduct of litigation, but were instead merely convenient to Avee’s defense of this case.

The Court GRANTS Plaintiff’s motion to tax the motion and filing fees, in the amount of $1,244.20.

2. Deposition Costs

 

Plaintiff argues that the deposition costs of $4,493.95 are unreasonable and unsupported, as Avee held a deposition that involved about an hour of testimony. (Avee Motion, p. 3:21-22.) Plaintiff also argues that although no worksheet is attached, if these costs “are travel costs, they are certainly excessive, even factoring in a flight (which was unnecessary since Kirkland & Ellis employs many local counsel).” (Id. at p. 3:24-28.)

In opposition, Avee argues that the deposition travel costs are not excessive and Avee has a right to be reimbursed for these costs, as “Avee’s primary counsel in this case, James R.P. Hileman, practices in Kirkland & Ellis’ Chicago office” and because he was “the attorney most involved in Avee’s day-to-day defense, Mr. Hileman attended the deposition on Avee’s behalf.” (Avee Opp., p. 4:17-24 [citing Hileman Decl. ¶¶ 1-4].) Avee maintains that these deposition costs of $1,853.20 for the flight ($1,008.60), hotel fees ($401.10), and car travel costs ($443.50) are reasonable and should be awarded. (Id. at p. 5:6-8 [citing Hileman Decl., ¶ 6, Ex. 1].)

Avee also argues that he deposition costs of $1,633.25 for a court reporter and $1,007.50 for a videographer are reasonable and necessary to the conduct of litigation because Plaintiff’s “testimony provided key evidence showing she had no personal knowledge to support her claims against Avee.” (Id. at p. 5:19-23 [citing Hileman Decl., ¶ 5].)

“Although the fees charged by court-retained reporters are fixed by statute (Gov. Code, §§ 69947, 69948, 69950), there is no statute regulating the fees charged by private reporting firms, and [private] reporters are free to charge all the market will bear.” (Urban Pacific Equities Corp. v. Superior Court (1997) 59 Cal.App.4th 688, 691-692.) The costs at issue here are not those by a court-retained reporter, but those incurred by Avee for a deposition transcribed by a private reporter.

Code of Civil Procedure §1033.5(a)(3) provides that costs for “[t]aking, video recording, and transcribing necessary depositions” are allowable, as are travel expenses to attend depositions.

The Court finds that the deposition fees of $2,640.75 for the court reporter and videographer are reasonable and necessary to the conduct of litigation.

However, the Court finds that the travel costs associated with the deposition were merely convenient rather than necessary to the conduct of litigation. For example, the hotel costs included a room service dinner charge of $48.23, which was not necessary to the conduct of litigation. (See Hileman Decl., Ex. 1.) Further, even if Mr. Hileman was Avee’s counsel most involved in Avee’s day-to-day defense, Avee has not shown that another counsel in the location office could not have attended the deposition instead. Avee has not demonstrated how these costs are necessary and Plaintiff should not have to bear the costs of lodging, travel, and meals as a result of Defendant’s choice of counsel if from another state, when counsel from Kirkland & Ellis’ local office could have attended the deposition.

The Court GRANTS Plaintiff’s motion to tax costs in the amount of $1,853.20.

3. Electronic Filing and Service Fees

 

Plaintiff argues that although Avee claims $1,778.85 in electronic filing and service fees, this is simply unsupportable. (Avee Motion, p. 4:6-12.)

In opposition, Avee asserts that its e-filing fees are supported and are entirely a result of Plaintiff’s litigation tactics. (Avee Opp., p. 4:5-7 [citing Hileman Decl., ¶ 11, Ex. 5].) Avee argues that “by attempting to amend her complaint and add Alere Non-Parties to the case at the eleventh hour, she forced those parties to file a motion opposing her right to amend” and “Alere Non-Parties first-filing costs amount for $1,741.75 of the total $1,778.85 claimed e-filing fees.” (Id. at p. 4:7-10 [citing Hileman Decl., ¶¶10-11, Ex. 5].) Avee asserts that the Alere Non-Parties are also “prevailing parties” because the “Court validated Alere Non-Parties’ position by denying Plaintiff the right to amend her complaint and add them as defendants.” (Id. at p. 4:11-14.) Avee argues that “the Alere Non-Parties’ filing fees were undoubtedly ‘reasonably necessary to the conduct of the litigation’ and should be awarded.” (Id. at p. 4:14-16.)

As the memorandum of costs at issue was only filed by Avee (see Memorandum of Costs, p. 1), not the Alere Non-Parties, Defendant Avee may only seek costs that it incurred itself, not the costs another defendant incurred. The Court finds that the e-filing fees Avee incurred in the amount of $37.10 are allowable and reasonably necessary to the conduct of litigation. (Code Civ. Proc., § 1033.5, subd. (a)(1).)

As the memorandum of costs at issue was only filed on behalf of Avee, Avee may not seek the Alere Non-Parties’ costs in the amount of $1,741.75.

The Court GRANTS Plaintiff’s motion to tax the costs of the e-filing and service fees in the amount of $1,741.75.

E. Conclusion

The Court DENIES Plaintiff’s Motion to Tax Costs as to Sobertec and Upfront. Sobertec and Upfront are entitled to $3,474.80 in costs as indicated below.

The Court GRANTS in part Plaintiff’s Motion to Tax Costs as to Avee. The Court taxes $4,819.15 and grants Avee $6,059.49 in costs as indicated below.

Motion to Tax Costs – Sobertec and Upfront

Item No.

Item

Amount Requested

Amount Taxed

Amount Granted

1

Filing and motion fees

$2,170.00

$0.00

$2,170.00

2

Jury fees

$150.00

$0.00

$150.00

3

Jury food and lodging

$0.00

$0.00

$0.00

4

Deposition costs

$1,006.30

$0.00

$1,006.30

5

Service of process

$123.84

$0.00

$123.84

6

Attachment expenses

$0.00

$0.00

$0.00

7

Surety bond premiums

$0.00

$0.00

$0.00

8

Witness fees

$0.00

$0.00

$0.00

9

Court-ordered transcripts

$0.00

$0.00

$0.00

10

Attorneys fees

$0.00

$0.00

$0.00

11

Court reporter fees

$0.00

$0.00

$0.00

12

Models, blowups, photocopies

$0.00

$0.00

$0.00

13

Interpreter fees

$0.00

$0.00

$0.00

14

Fees for electronic filing or service

$24.66

$0.00

$24.66

15

Fees for hosting electronic documents

$0.00

$0.00

$0.00

16

Other

$0.00

$0.00

$0.00

TOTAL

$3,474.80

$0.00

$3,474.80

Motion to Tax Costs – Avee

Item No.

Item

Amount Requested

Amount Taxed

Amount Granted

1

Filing and motion fees

$4,605.84

$1,224.20

$3,381.64

2

Jury fees

$0.00

$0.00

$0.00

3

Jury food and lodging

$0.00

$0.00

$0.00

4

Deposition costs

$4,493.95

$1,853.20

$2,640.75

5

Service of process

$0.00

$0.00

$0.00

6

Attachment expenses

$0.00

$0.00

$0.00

7

Surety bond premiums

$0.00

$0.00

$0.00

8

Witness fees

$0.00

$0.00

$0.00

9

Court-ordered transcripts

$0.00

$0.00

$0.00

10

Attorneys fees

$0.00

$0.00

$0.00

11

Court reporter fees

$0.00

$0.00

$0.00

12

Models, blowups, photocopies

$0.00

$0.00

$0.00

13

Interpreter fees

$0.00

$0.00

$0.00

14

Fees for electronic filing or service

$1,778.85

$1,741.75

$37.10

15

Fees for hosting electronic documents

$0.00

$0.00

$0.00

16

Other

$0.00

$0.00

$0.00

TOTAL

$10,878.64

$4,819.15

$6,059.49

Case Number: BC674091    Hearing Date: November 06, 2019    Dept: 34

SUBJECT: Motion to Tax Costs

Moving Party: Plaintiff People of the State of California ex rel. Alison Tonti

Resp. Party: Defendants Living Rebos, LLC and M-Brace Treatment, Inc.

Plaintiff’s motion to tax the costs of Defendants Living Rebos, LLC and M-Brace Treatment, Inc. is GRANTED in part. The Court taxes the requested costs by $1,516.31, and grants costs in the amount of $7,407.51.

BACKGROUND:

Plaintiff People of the State of California ex rel. Alison Tonti (“Plaintiff”) commenced this action on August 29, 2017. On March 28, 2018, Plaintiff filed a first amended complaint (“FAC”) against Defendants Living Rebos, LLC; H&H Testing, Inc.; Avee Laboratories, Inc.; M-Brace Treatment, Inc.; Sobertec, LLC; Millennium Health, LLC; Upfront Labs, LLC; Gloriosa Management, LLC; Gregory Van Dyke; UB Laboratories, Inc.; Cordova Medical Group, Inc.; Genesis Molecular Diagnostics, LLC; and Zen Recovery, LLC for violation of the California Insurance Frauds Prevention Action (“CIFPA”). The amended complaint contains allegations against 100 unidentified Doe defendants. (Am. Compl. ¶ 18.)

On January 3, 2019 and January 9, 2019, Plaintiff filed requests to amend her amended complaint by substituting Alere, Inc., Alere Toxicology Services, Inc., Global Analytical Development, LLC, and Abbott Laboratories (collectively, “Alere Defendants”) for Doe Defendants 5-8. On January 25, 2018, the Court granted Defendant Avee Laboratories, Inc.’s (“Avee”) motion for summary judgment on the ground that Plaintiff presented no evidence to establish that Avee violated the CIFPA.

On January 29, 2019, Plaintiff filed a request for dismissal of the entire action with prejudice.

On February 4, 2019, the Court granted Defendant Avee Laboratories, Inc. (“Avee”) motion to deny requests to amend.

On February 14, 2019, Plaintiff filed a notice of appeal from the final judgment in this matter and all orders that are separately appealable, including but not limited to the dismissal entered on January 29, 2019, Austin v. Valverde (2012) 211 Cal. App. 4th 546, 550-551, and all prior appealable orders, as well as the subsequent order granting the motion to quash entered on February 4, 2019.

On February 19, 2019, Living Rebos, LLC and M-Brace Treatment, Inc. filed their memorandum of costs.

On March 3, 2019, Plaintiff filed the instant motion to tax costs claimed by Defendants Living Rebos, LLC and M-Brace Treatment, Inc.

ANALYSIS:

Plaintiff moves to tax and/or strike the costs claimed by Defendants Living Rebos, LLC and M-Brace Treatment, Inc. on the grounds that “1) the costs claimed are unreasonable, unsubstantiated, and/or unrecoverable; 2) the Court does not have jurisdiction to award costs while this appeal is pending under the ‘effect’ test because ‘costs-only’ judgments are expressly stayed by statute pending appeal.” (Motion, pp. 1:28-2:4.)

A. Relevant Law

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032(b).)

After judgment is entered, the prevailing party “who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule 3.1700(a).) “The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in this case.” (Id.)

In turn, the losing party may file a motion to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b).) Procedurally, “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.” (Id.)

Even where parties are unsuccessful as to certain matters, prevailing parties as defined by statute (Code of Civil Procedure §1032) are entitled to recover all costs reasonably incurred, and proof that parties were unsuccessful on particular items is not tantamount to a demonstration that such costs were unreasonably incurred. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1200.)

During the hearing, “the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) “This procedure provides an orderly and efficient way of placing disputed costs at issue on a line item basis.” (612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285.)

“[T]he mere filing of a motion to tax costs may be a “proper objection” to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. [Citation.] However, “[i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” [Citations.]

The court’s first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. [Citation.] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. [Citation.]” (Nelson, 72 Cal.App.4th at p. 131.)

B. Discussion

Plaintiff moves to tax the following costs:

· No. 1: Filing and motion fees ($4,913.16)

· No. 4: Deposition costs ($2,320.00)

· No. 5: Service of Process Fees ($1,166.66)

· No. 16: Court Call Costs ($374.00)

1. Trial Court’s Jurisdiction Pending Appeal

As an initial matter, Plaintiff contends that the pending appeal stays proceeding in the lower court and that this Court does not have subject matter jurisdiction to decide the issue of costs. (Motion, p. 5:3-19.) However, the trial court retains jurisdiction to award or tax costs after an appeal is taken. (See Bankes v. Lucas (1992) 9 Cal. App. 4th 365, 368 [jurisdiction to award Civ. Code §1616 attorney fees as costs]; Robertson v. Rodriguez (1995) 36 Cal. App. 4th 347, 360 [jurisdiction to rule on motion for statutory attorney fees (Code of Civ. Proc., §425.16(c)) as costs]; Carpenter v. Jack In the Box Corp. (2007) 151 Cal. App. 4th 454, 461 [same].)

Therefore, the Court will proceed to analyze the motion to tax costs on its merits.

2. Motion and Filing Fees

Plaintiff argues that following fees are not recoverable:

· The fee for opposing the writ because Plaintiff prevailed on the writ.

· The motion rescheduling fees because they are not filing fees and are not required or necessary.

· Costs for motion for summary judgment that was not held.

· Motion for Sanctions that sought fees and costs that was granted, thus this is a duplicative request to what was already granted.

· Motions filed under seal that were not heard or not necessary.

· $2,648.26 in attorney service fees that are not filing fees. (Motion, p. 3:16-24.)

Plaintiff argues that “the filing fees request must be reduced by $3,918.96, with a maximum entitlement of fees being $994.20 in the event the Court enters costs pending an appeal.” (Id. at pp. 3:24-4:2.)

In opposition, Defendants first argue that they may recover their costs for filing an opposition to Plaintiff’s writ of mandate because they are the prevailing parties in this action and these filing fees are recoverable as a matter of right. (Opp., p. 3:6-18 [referencing Code Civ. Proc., §1032(a)(4)].)

Next, Defendants maintain that their other motions were reasonably necessary for the defense of this litigation and they are entitled to recover these costs even if they were never heard because “it was Plaintiff who made Defendants’ remaining hearings moot by voluntarily dismissing her claims before the hearings occurred” and because Plaintiff provides no evidence or argument to the contrary that their other discovery, summary judgment, and quash motions were not reasonably necessary. (Id. at pp. 3:19-4:5.)

However, Defendants “agree to withdraw their request to recover costs in the amount of $61.65 for Defendants’ Motion for Monetary Sanctions as such costs were granted to Defendants at the time of the hearing for the subject motion.” (Id. at p. 4:6-8 [referencing Memorandum of Costs, p. 4, No. 12].)

Third, Defendants argue that the “rescheduling fees, which are required by the Court's electronic filing system to preserve or change hearings, are often the result of meet and confer efforts or status changes in the litigation.” (Id. at p. 4:12-14.) Defendants assert that “such fees serve no purpose other than as it relates to filing motions; common sense dictates that rescheduling fees are therefore recoverable as ‘filing’ and ‘motion’ fees within the meaning of section 1033.5(a)(1).” (Id. at p. 4:14-17.)

Lastly, Defendants argue that the attorney service fees for court filings and deliveries are recoverable because “each of these costs were incurred as a result of motions filed and served in this case to prepare this case for trial, all of which were reasonable and warranted to ensure that Defendants’ interests were protected against Plaintiff’s claims.” (Id. at p. 4:18-24.)

Pursuant to Code of Civil Procedure section 1033.5(a)(1), filing and motion fees are allowable costs. Under section 1033.5, “An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)

“Neither subdivision (a) or (b) [of Code of Civil Procedure section 1033.5] states whether attorney service charges for court filings and deliveries or mediators' fees are allowable or not. Thus, these costs fall within the ‘discretionary category,’ subdivision (c)—that is, they are allowable if in the court's discretion they were ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’” (Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1132.)

The Court agrees that the motion for monetary sanction costs are duplicative. However, the Court finds the remainder of Defendants’ requested motion and filing fee costs are reasonably necessary to the conduct of the litigation, thus are allowable.

The Court GRANTS in part Plaintiff’s motion to tax the filing fee for the motion for monetary sanctions costs, in the amount of $61.65.

3. Deposition Costs

Plaintiff asserts that Defendants’ deposition costs in the amount of $2,320.00 are unreasonable and unsupported. (Motion, p. 4:3.) Plaintiff argues that the costs for transcribing a deposition are set by Government Code section 69950, which allows a party to “recover eighty-five cents ($0.85) for each 100 words transcribed.” (Id. at p. 3:25-26 [citing Gov. Code §69950(a)].) Plaintiff states that “the cost requested by Defendants would cover 272,941 words[; however] the deposition is approximately 38,800 words (being generous) at 200 words per page for 194 pages, possibly entitling Defendants to, at most, $329.80 in transcription costs.” (Id. at p. 4:7-10.)

In opposition, Defendants argue that the deposition costs are reasonable and supported. (Opp., p. 5:4.) Defendants assert that “Section 66950 applies only to official court reporters appointed by the Superior Court and has no bearing on costs associated with a private court reporter for a deposition, as is the case here.” (Id. at p. 5:5-8.) Defendants maintain that “there is no statute fixing fees of private court reporters.” (Id. at p. 5:8-9.) Defendants explain that Plaintiff’s deposition was necessary because “Plaintiff was the sole witness identified with any knowledge of the fraud conspiracy alleged, making her the key witness as to the facts supporting the basis of this action.” (Id. at p. 5:14-19.)

“Although the fees charged by court-retained reporters are fixed by statute (Gov. Code, §§ 69947, 69948, 69950), there is no statute regulating the fees charged by private reporting firms, and [private] reporters are free to charge all the market will bear.” (Urban Pacific Equities Corp. v. Superior Court (1997) 59 Cal.App.4th 688, 691-692.) The costs at issue here are not those by a court-retained reporter, but those incurred by Defendant for a deposition transcribed by a private reporter.

Code of Civil Procedure §1033.5(a)(3) provides that costs for “[t]aking, video recording, and transcribing necessary depositions” are allowable, as are travel expenses to attend depositions. The Court finds that the deposition fees are reasonable and necessary to the conduct of litigation.

The Court DENIES Plaintiff’s motion to tax the deposition costs.

4. Service of Process and Messenger Fees

 

Plaintiff argues that the service of process fees of $968.80 to personally serve the other attorneys in this case with documents are not recoverable because these documents can be served by other methods such as mail or overnight delivery. (Motion, p. 4:11-13.) Plaintiff asserts that the service of process fees associated with personally serving documents are not necessary to the conduct of litigation, thus are not recoverable. (Id. at p. 4:14-16.) Plaintiff also argues that “Defendants claim to have served Blue Shield, but Plaintiff was not served with any notice or copy of such a subpoena as it is typically required under section 1983.3 of the Code of Civil Procedure” thus “Defendants are not entitled to any service of process costs.” (Id. at p. 4:16-19.)

In opposition, Defendants argue that “Plaintiff’s pure speculation that mail service could have been used in place of a courier is insufficient to demonstrate that the services were unnecessary, particularly given the complexity of the case.” (Opp., p. 6:2-4.) Defendants maintains that the messenger fees were reasonably necessary to the defense of “this case because of the sheer volume of motions and pleadings filed and served, the heavy workload, and tight deadlines.” (Id. at p. 6:7-12.)

Defendants assert that “Plaintiff’s separate challenge to the costs for service of a third party subpoena to Blue Shield is also baseless” because “Plaintiff was served with a Notice to Consumer of the subpoena issued by Defendants to Blue Shield of California on July 6, 2018.” (Id. at p. 6:13-16 [citing Mackin Decl., ¶ 2, Ex. A].)

In reply, Plaintiff argues that Defendants have failed to demonstrate that the messenger costs were actually incurred as opposed to merely fabricated because “the only evidence presented to support the messenger costs claimed is a subpoena to Blue Shield, but even the subpoena provided as evidence of costs incurred indicates that the fee for service was zero.” (Reply, p. 3:13-19 [citing Ex. A to Opposition, p. 6 (Fee for service: $ .00)].) Plaintiff argues that Defendants have not shown why it is necessary to incur messenger fees when documents can be served by regular mail. (Id. at p. 2:6-16.)

Under Code of Civil Procedure section 1033.5, subdivision (a)(4), the following items are allowable as costs:

“Service of process by a public officer, registered process server, or other means, as follows:

(A) When service is by a public officer, the recoverable cost is the fee authorized by law at the time of service.

(B) If service is by a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code, the recoverable cost is the amount actually incurred in effecting service, including, but not limited to, a stakeout or other means employed in locating the person to be served, unless those charges are successfully challenged by a party to the action.

(C) When service is by publication, the recoverable cost is the sum actually incurred in effecting service.

(D) When service is by a means other than that set forth in subparagraph (A), (B), or (C), the recoverable cost is the lesser of the sum actually incurred, or the amount allowed to a public officer in this state for that service, except that the court may allow the sum actually incurred in effecting service upon application pursuant to paragraph (4) of subdivision (c).” (Code Civ. Proc., § 1033.5(a)(4).)

“Costs for courier or messenger fees are not specifically enumerated as allowable costs in Code of Civil Procedure section 1033.5, subdivision (a), neither are they prohibited in subdivision (b). Thus, messenger fees may be recoverable in the trial court's discretion if ‘reasonably necessary to the conduct of the litigation.’” (Foothill-De Anza Community College District v. Emerich (2007) 158 Cal.App.4th 11, 30 [citing Code Civ. Proc., § 1033.5, subd. (c)(2); Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 776.)

The litigation conduct described by Defendants is not unique – many litigants file numerous motions and pleadings, encounter a heavy workload and encounter tight deadlines. (See Opp., p. 6:7-12.) However, serving parties by a messenger to deal with ordinary litigation conduct is merely convenient and Defendants have not demonstrated why incurring service of process costs in their specific case is necessary to the conduct of litigation.

The Court finds that the service of process costs of $968.80 for Medivei Law Group, Helton Law Group, Ardensen Cane Molner, Baker Hostetler, Kirkland & Ellis, Kron & Card, LLP, and Garcia & Phan, APC were not reasonably necessary to the conduct of litigation, but rather were merely convenient to its preparation because Defendants could have used alternative means to send the documents without using a messenger or courier. (See Code of Civ. Proc., § 1033.5(c)(2).) Further, Defendants have not demonstrated that the service of process costs of $197.86 for Blue Shield of CA were necessary to the conduct of litigation, especially because the proof of service for deposition subpoena indicates that Defendants were charged a $0.00 fee for the service. (See Opp., Ex. A, “Proof of Service of Deposition Subpoena,” No. 1(f).)

Accordingly, the motion to tax the $1,166.66 in costs associated with service of process is GRANTED.

5. Court Call Costs

Plaintiff asserts that “although Courtcall costs are recoverable, Defendants do not set forth the amount of times they used Courtcall and the particular fee charged in a given instance (the fee increased in 2019).” (Motion, p. 4:21-22.) Plaintiff argues that “the sum, $374, does not divide to an integer, whether it is divided by the 2019 fee of $94, or $86 (the “late” Courtcall fees should not be recoverable) and therefore these costs are dubious and not substantiated.” (Id. at pp. 4:23-5:1.) Plaintiff states that it “is aware of a single instance where Defendants appeared by Courtcall and thus a single fee of $86 appears reasonable.” (Id. at p. 5:1-2.)

In opposition, Defendants argue that the CourtCall costs are reasonable and warranted. (Opp., p. 6:17.) Defendants assert that “Plaintiff has no personal knowledge of the costs incurred, and her counsel is not a mathematician.” (Id. at p. 6:23-24.) Defendants argue that Plaintiff’s counsel did not attend most of the hearings in this case to know who appeared and “Plaintiff’s general memory of the hearings in this multiparty and complex litigation is plainly insufficient to meet her burden to show these costs were neither incurred nor reasonable or necessary.” (Id. at p. 6:25-27.) Defendants assert that their “verified memorandum of costs is prima facie evidence of the propriety of these costs, all of which were reasonably incurred in order to defend against Plaintiffs claims.” (Id. at p. 7:1-3 [citing Mackin Decl., ¶¶ 3-4, Ex. B].)

Defendants’ counsel declares that “the total costs incurred by Defendants for Courtcall exceeded $374” and “in preparing Defendants’ Memorandum of Costs, [counsel] inadvertently miscalculated the total costs incurred as totaling $374, instead of the true figure of $458.” (Mackin Decl., ¶3.) Defendants’ counsel attaches the CourtCall invoices incurred by Defendants to demonstrate the costs incurred.

A review of Code of Civil Procedure section 1033.5(a) reveals that it does not identify costs for Court Call as an allowable cost. Further, section 1033.5(b) does not bar the recovery of these costs. Under Code of Civil Procedure section 1033.5(c), the Court may award the cost if it is “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.”

The Court finds that Defendants did not necessarily incur the Court Call fees because their counsel could have driven to the Court to make the appearances. The Court Call costs were incurred because it is more convenient to appear through Court Call than to drive to the Court. However, it appears that Plaintiff concedes that these costs for Court Call are recoverable but only asserts that a single fee of $86 is reasonable, thus requesting that the Court tax the remaining $288.00 of the $374.00 as excessive costs. Accordingly, the Court taxes $288.00 from No. 16.

C. Conclusion

Plaintiff’s motion to tax the costs of Defendants Living Rebos, LLC and M-Brace Treatment, Inc. is GRANTED in part. The Court taxes the requested costs by $1,516.31, and grants costs in the amount of $7,407.51 as indicated in the spreadsheet below.

Item No.

Item

Amount Requested

Amount Taxed

Amount Granted

1

Filing and motion fees

$4,913.16

$61.65

$4,851.51

2

Jury fees

$150.00

$0.00

$150.00

3

Jury food and lodging

$0.00

$0.00

$0.00

4

Deposition costs

$2,320.00

$0.00

$2,320.00

5

Service of process

$1,166.66

$1,166.66

$0.00

6

Attachment expenses

$0.00

$0.00

$0.00

7

Surety bond premiums

$0.00

$0.00

$0.00

8

Witness fees

$0.00

$0.00

$0.00

9

Court-ordered transcripts

$0.00

$0.00

$0.00

10

Attorneys fees

$0.00

$0.00

$0.00

11

Court reporter fees

$0.00

$0.00

$0.00

12

Models, blowups, photocopies

$0.00

$0.00

$0.00

13

Interpreter fees

$0.00

$0.00

$0.00

14

Fees for electronic filing or service

$0.00

$0.00

$0.00

15

Fees for hosting electronic documents

$0.00

$0.00

$0.00

16

Other

$374.00

$288.00

$86.00

TOTAL

$8,923.82

$1,516.31

$7,407.51

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