Opposition_to_motion_to_tax_costs

Opposition

Cal. Super. - 6th Dist.March 17, 2016

© o o J O N nm BA W N = N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo ALI KAMAREI, ESQ., SBN 175977 MARISELLA PRADA, ESQ., SBN 293164 Inhouse Co. 1 Almaden Boulevard, Suite 810 San Jose, CA 95113 Tel: (408) 918-5393 Fax: (408) 918-5373 Electronically Filed by Superior Court of CA, County of Santa Clara, on 4/1/2020 3:58 PM Reviewed By: A. Floresca Case #16CV292889 Envelope: 4221673 Attorney for Ali Kamarei, Esq., an individual d/b/a InHouse Co. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION SETAYESH PADIDEH, Plaintiff, V. RAMIN MORADI, D.D.S.; ALI KAMAREI, ESQ., dba InHouse Co.; And DOES 1 to 10, inclusive Defendants. CASE NO: 16CV292889 DEFENDANT ALI KAMAREI’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX COSTS DATE: TBD JUDGE: Hon. Thang N. Barrett DEPT: 21 1 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS Oo 0 9 Ln BA W N N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo TABLE OF CONTENTS L INTRODUCTION wmvussssmnsssivsnsnmssnnssssmssnss sss sss sssmss ss sss ssasssn sus sss sas snsss s ss ovsussvasmmsi sransssa 4 II. RELEVANT PROCEDURAL HISTORY .caaisasanvssnivmsmmssissnsvsmisiimmsss 5 HI. ARGUMENT ...ooiiiviiiiiniiinnsencsssrncsssncsssrsssssssssssnssssasssssassssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss 6 Ae LETAl STANAAT Tc cnansmsmmmsesommnmasusmmsssmmmssssesmss so sas sss sess s ss as ss sma Mo SAS ERS RNS AS AES IN SHSEV ADA RAFI HSH 6 B. Plaintiff Failed to Obtain A Judgment Superior to Defendant’s Offer to Compromise ...... 7 C. Defendant’s Offer to Compromise is Valid and was Limited to this Litigation.................... 7 i. A General Release Limited to Claims Related to the Causes of Action in the Litigation is Valid. ......... 8 ii. Defendant Kamarei’s General Release Under Section 1542 is Limited to Plaintiff’s Litigation Against DIIOHAANL..........oie eee eee eet eee eet ete ete tease teehee neers ene nee 8 D. PLAINTIFF’S CITED AUTHORITIES DO NOT SUPPORT INVALIDATING DEFENDANT’S OFFER TO COMPROMISE ;.cisscssssonessnesssssussossessscsussonssossssassssvenssusnsnnessss 9 i. ~~ There is No Reason to Believe There were Any Other CLAIMS. ............ccovcuveioeeeiieiiieee ieee 11 ii. Plaintiff’s Response to Form Interrogatory 9.1 Demonstrates That Plaintiff Had No Other “Potential” Claims Against Defendant nor Any Other Third Party...........ccccoecoeceenveieveieiesieaienneen, 12 iii. Plaintiff’s Response to Form Interrogatory 10.2 and 10.3 Demonstrates That Plaintiff Had No Other “Potential” Claims Against Defendant nor Any Other Third Party...........cccccecoeveinveieneieienieavennnen, 12 iv. Plaintiff Could Still Bring a Trespass Action Had She Accepted Defendant’s Offer to Compromise.. 14 E. Identifying Individuals and Entities Beyond the Named Parties Does Not Invalidate an Offer t0 COMPIOIMISE....cccciierrriessaricssnnissssnissssncssssssssssesssssssssssesssssssssssssssssssssssssssssssssssssssssssssssss 14 F. Accepting Defendant’s Offer to Compromise Would Not Require Plaintiff to Dismiss Her Case Against DY, MOTAUL vuasnsovsmssomessmemosomsossossmemsrosssissmsmsesssons somes susssnoss o ssm mes nem cosnsssness 15 G. DEFENDANT’S COSTS IN HIS MEMORANDUM OF COSTS ARE REASONABLE AND ALLOWABLE ..cuuoiiiiiiniiiinsniicssnnicssnnissssnssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss 16 i. Item 8 - Expert Witnesses Fees Are Allowable Costs Pursuant to CCP §998 .........ccccooevvvevcvivcvennenn. 17 a. Carol Langford’s Fees of $21,060 Were Reasonably Necessary to The Conduct of Litigation ...... 18 b. Dr. Kardong’s Fees of $12,978 Were Reasonably Necessary to the Conduct of Litigation............. 18 ii. Item No. 9 Court Ordered Transcripts are Allowable Costs - $1,300 ...........c..ccovvieeieiieiceiiirieeeeeienn, 19 iii. Item No. 12 Court Reporter Fees are Allowable Costs - $11,876.55 ....ccocoevvmvivivieiieiieieeiieee eee 19 iv. Item No. 16 “Other” Costs are Allowable - $5,864.21. ...........ccouuoeiiiiiiiiieeeieeeeeeeee eee 20 v. Trial Equipment Rental Costs of $4,888.65 For Demonstrative Exhibits Are Recoverable................. 20 vi. The Certified Trial Transcript of Plaintiff of $212 is Recoverable in the Court’s Discretion and YT 7 1 Le el - 21 vii. Parking Costs of $184.00 are Fully Recoverable Costs and Should Be Permitted .............................. 22 viii. Defendant Agrees to Taxing of $578.80 for the Computerized Research, Court Call Appearances, Process Server to Find the Addresses of Witnesses and Meals During Trial...............cccccccoovvioenieacencnnnnnn. 22 IV: CONCLUSION sosimmmenmessmssromsss mss somes ss sss ies sees sess sess ves seers sarees ms easssiass 22 --2 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS © o o J O N nm BA W N = N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo TABLE OF AUTHORITIES Cases Am. Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal. App.4th 1017................ 21 Benach v. Cnty. of LA (2007) 149 Cal. App.41 858... nic eee eee 19 Brown v. Nolan (1979) 98 Cal. App. 3d 445... eee eee eee eens 7 Chabaan v. Wet Seal, Inc. (2012) 203 Cal. App.4th 49... ori, 7 Chen v. Interinsurance Exchange Auto. Club (2008) 164 Cal. App.4th 117.......ccoiiiiiiiiiiint. 9, 14 County of Kern v. Ginn (1983) 146 Cal. App.3d 1107... cuit eee 16 Culbertson v. R.D. Werner Co. (1987) 190 Cal.App.3d 704, 711. .cooiriiriiiiiiii ieee 7 Davis v. KFO-T.V., Inc. (1998) Cal.4th 436. .......uiuiiii ieee eee eee 16 Distefano v. Hall (1968) 263 Cal.APP.2d 380... eine eee eee eee 7 El Dorade Meal Coy 150 Cal. Appl Gf G1 Dau: « os « sommes 115 0 summa e 0 5s poossmsmnns s ommend o 15 5 5 oomeons 1 117 8 gs 21 Fassberg Constr. Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720...... 14 Goodstein v. Bank of San Pedro (1994) 27 Cal. App.4™ 899... oii, 4,8,10, 11 Heppler v. J.M. Peters Co. (1999) 73 Cal. App.4" 1265... commie 19 Holman v. Altana, 186 Cal. APPA" 262... oo 17 Ignacio v. Caracciolo (2016) 2 Cal. App.5th 81... ...ooviiiiiiiii ieee 4,10,11, 14 Ladas v. Cal, State Auto. Ass'n (1993) 19 Cal. APPA TOL cassis is ss soswmnsa vans s saumnsi s 1s 55 smsmnans i 8 § 3555 17 Landwatch San Luis Obispo County v. Cambria Comm. Srvs. Dist. (2018) 236 Cal.Rptr.3d 150........ 21 Linthicum v. Butterfield (2009) 175 Cal. App.4th 259... oii, 4,10,11, 14 Perko's Enterprise, Inc. v. RRNS Enterprises, (1992) 4 CAA4th 238... civic, 18 Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256......ceiiiiiiiiiiiiiiiiiiieane, 16 Ripley v. Pappadapoulos (1994) 23 Cal APPA IB T68 awssns «ss 5 sommes o 55 55 som sumenmsames ¢ ¢ 5 5 6 summa s 153 5 sows 21 Seever v. Copley, 141 CalLApp.4th 1550... oii eee eee eee 16 Valentino v. Elliott Sav-On Gas, Inc. (1988) 201 Cal.App.3d 692... ..oiniiiiiiiiiieieeae 10 Williams v. Atchinson, T. & S.F.R. Co, (1909) 156 Cal. 140, 103 P. 885....cc.coiiiriiiiiiiiiiieieea, 18 Statutes California Code of Civil Procedure section 998............oooiiiiiiii ieee 4-21 California Code of Civil Procedure section 1032..........cooiiiiiiiiiiii ieee 16 California Code of Civil Procedure section 1033.5... iii eee 6,16 -21 California Code of Civil Procedure section 1542. ......oviiiiiii ieee, 8,9, 14 Rules of Court California Rules of Court, Tule 3.1700 .....ooiiiii tee eee eee ee eee 16 --3 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS © o o J O N nm BA W N = N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo I. INTRODUCTION In December 2017, after written discovery and deposition of the main treating physician of Plaintiff, Dr. Contro, Defendant Ali Kamarei (“Defendant”), made an Offer to Compromise pursuant to Code of Civil Procedure section 998 for $10,000 (“Offer to Compromise”). Plaintiff Padideh Setayesh (“Plaintiff”) rejected that offer and despite having less than $10,000 in attorney’s fees, and no retained expert witness, and no proof of emotional damages, and a prior history of mental and emotional stress, went to trial. On May 18, 2018, Plaintiff herself made a 998 Offer to Compromise for $124,999.99 to Defendant Kamarei. She also made a separate 998 Offer to Defendant Dr. Moradi for $124,999.99. Defendant prevailed on a jury verdict that Plaintiff had unclean hands. It is undisputed that Plaintiff failed to obtain a verdict even remotely close to her own 998 Offer to Compromise, and Defendant Kamarei prevailed on his 998 Offer to Compromise. Contrary to Plaintiff’s assertion, under California law, Defendant’s Offer to Compromise is valid. California law has consistently held that and Offer to Compromise is valid even if the 998 Offer requires a general release of known or unknown claims, so long as the release is not vague and does not extend to claims unrelated to the action. (Goodstein v. Bank of San Pedro (1994) 27 Cal. App.4h 899, 907; Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81, Linthicum v. Butterfield (2009) 175 Cal.App.4th 259.) The 998 Offer in this case is valid as the release is explicitly and clearly limited to only claims related to or at issue in this Action and does not incorporate claims outside the scope of the litigation, which there were none. Since Defendant’s Offer to Compromise is valid under Code of Civil Procedure section 998(c)(1), Plaintiff is obligated by law to pay Defendant’s post offer costs, which are set forth in Defendant’s Memorandum of Costs. Separately, Plaintiff challenges Defendant’s court reporter costs, trial transcript costs, certain expert witness fees, and “other” costs, but as set forth below and as demonstrated by the invoices that are being submitted with this opposition, those costs are appropriate and should be awarded to Defendant. 4 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS Oo 0 9 Ln BA W N N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo II. RELEVANT PROCEDURAL HISTORY Plaintiffs Malicious Prosecution action against Defendant results from a cross-complaint filed against Plaintiff where she was a cross-defendant for three months in the underlying case (“Underlying Suit”). Plaintiff alleged that as a result of being named in a lawsuit for three months, she suffered emotional distress and sought both economic and non-economic damages in this case. On July 7, 2016, Defendant Kamarei served written discovery requests on Plaintiff. As part of Form Interrogatories, Kamarei sought responses from Plaintiff, to Form Interrogatory No. 9.1 and 9.2, which inquire whether there are any other damages that Plaintiff attributes to her claims against Defendant. (Decl. Prada, 92, Exhibit 1.) On September 7, 2016, Plaintiff’s verified responses to Form Interrogatories 9.1 and 9.2, as “Not Known.” (Id. at 93, Exhibit 2.) Furthermore, Interrogatory No. 10.2 and 10.3 specifically asks whether there are any other causes for any damages of the kind Plaintiff is claiming damages for. (/d. at 2, Exhibit 1.) Plaintiff was seeking damages for mental and emotional stress as a result of being named as a defendant in the underlying action. Plaintiff responded “no” to Form Interrogatory 10.2 and 10.3, meaning that she has no mental or emotional distress related to any other cause. (/d. at 43, Exhibit 2.) Now, Plaintiff claims that she had a claim for Intentional Infliction of Emotional Distress as a result of trespass. However, at the time of her verified discovery responses, Plaintiff failed to disclose any other circumstances or causes of her mental and emotional suffering. What Plaintiff now asserts she had as a claim, which is that she had emotional distress as a result of trespass, is contradictory to her verified discovery responses during litigation. On December 6, 2017, Kamarei took the deposition of Dr. Contro. (Id. at 4, Exhibit 3.) Dr. Contro testified that he could not attribute any causation to Plaintiff’s claimed mental stress, or depression to any lawsuit. (/d. at 94, Exhibit 3, Dr. Contro Deposition 57:8-20.) Moreover, Plaintiff had been seeing Dr. Contro since 2009, six years before she was named as a defendant in the Underlying Action, and reported to Dr. Contro that she was experiencing mood swings and emotional instability. (Id. at 94, Exhibit 3, Dr. Contro Deposition 44:14-21.) Lastly, Dr. Contro testified that even before 5 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS © o o J O N nm BA W N = N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo being dismissed from the Underling Action, on December 7, 2015, Plaintiff reported that she was “feeling better; no longer anxious; and planning on countersuing next year.” (/d.) After Dr. Contro’s deposition testimony, and after Plaintiff had responded that she had no other damages in verified discovery responses, Kamarei made a reasonable 998 Offer to Plaintiff. (/d. at 95, Exhibit 4.) On December 22, 2017, Defendant Kamarei served on Plaintiff an Offer to Compromise. (/d.) On April 30, 2018, Plaintiff provided her Expert Disclosure, which did not include any retained experts. (Id. at 6, Exhibit 5.) On May 18, 2018, after having full knowledge that she has no retained expert witnesses, Plaintiff] served a 998 offer to compromise on Defendant Kamarei for $124,999.00. (/d. at §7, Exhibit 6.) On May 18, 2018, Plaintiff also served a separate 998 offer to compromise on Dr. Moradi for $124,999.00. (Id. at 48, Exhibit 7.) In other words, Plaintiff wanted $250,000, to settle a case where she had no retained expert witness. The matter went to trial on January 6, 2020. The jury rendered its verdict on January 16, 2020, favoring Defendants, and finding that Plaintiff had unclean hands. Based on the jury verdict, the Court in this case issued a judgment on February 25, 2020. (1d. at 99.) On March 2, 2020, Defendant Kamarei submitted his Memorandum of Costs seeking the recovery of $113,095.45, pursuant to Code of Civil Procedure sections 998(c)(1) and 1033.5. (Id. at 110.) III. ARGUMENT A. LEGAL STANDARD Code of Civil Procedure section 998 states that, “The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.” Code Civ. Proc. § 998(b). “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer.” Code Civ. Proc. § 998(c)(1). Furthermore, if 6 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS © o o J O N nm BA W N = N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo the plaintiff fails to obtain a more favorable judgment than the Offer to Compromise, the court may require the plaintiff to pay a reasonable sum to cover the defendant’s postoffer costs of the services of expert witnesses, including expert witness fees. (Id.; see also Chabaan v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 53.) B. PLAINTIFF FAILED TO OBTAIN A JUDGMENT SUPERIOR TO DEFENDANT’S OFFER TO COMPROMISE There is no dispute that Plaintiff failed to obtain a more favorable judgment than Defendant’s Offer to Compromise. Defendant’s Offer to Compromise was for $10,000. (Decl. Prada, 95, Exhibit 4.) Under the plain language of Code of Civil Procedure section 998(c)(1), Plaintiff failed to obtain a more favorable judgment or award than Defendant’s Offer to Compromise, which means Defendant has the right to recover his postoffer costs, including expert witness costs. “It is well settled that the purpose of this section is to encourage the settlement of litigation without trial. Its effect is to punish the plaintiff who fails to accept a reasonable offer from a defendant.” (Culbertson v. R.D. Werner Co. (1987) 190 Cal.App.3d 704, 711; citing Distefano v. Hall (1968) 263 Cal. App.2d 380, 385; Brown v. Nolan (1979) 98 Cal. App.3d 445, 449.) In this case, Plaintiff refused to accept an offer that was more than reasonable given Dr. Contro’s deposition testimony. Defendant made a generous offer before the depositions of numerous witnesses and the hiring of expert witnesses, that Plaintiff refused to accept. Despite having no retained expert witnesses, Plaintiff herself made an unreasonable $124,999.00 offer. Plaintiff should not benefit from taking a chance at trial fully knowing her own medical history of significant emotional stress, that she attributed her stress to her own lawsuit as a plaintiff, and her false deposition testimonies in the underlying action, and that she did not have any retained experts. C. DEFENDANT’S OFFER TO COMPROMISE IS VALID AND WAS LIMITED TO THIS LITIGATION Defendant’s Offer to Compromise pursuant to Code of Civil Procedure section 998 is valid. Defendant’s Offer to Compromise meets the requirements of Code of Civil Procedure section 998 in that] it sets forth the terms and conditions of the settlement. (Code Civ. Proc. § 998(b).) The terms of the 7 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS © o o J O N nm BA W N = N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo settlement are that: Plaintiff sign the Offer to Compromise within 30 days of receiving it; Defendant will pay Plaintiff $10,000; (Decl. Prada, 45, Exhibit 4.) Within 15 days of receiving payment by Defendant, Plaintiff dismisses her complaint against Defendant (/d.) Defendant’s Offer to Compromise is valid and appropriate under California law as there is nothing ambiguous or uncertain about the Offer to Compromise and the claims being released are limited to Plaintiff’s claims in this case. i. A General Release Limited to Claims Related to the Causes of Action in the Litigation is Valid. In Goodstein v. Bank of San Pedro, the Court of Appeal upheld an Offer to Compromise pursuant to Code of Civil Procedure section 998 which provided, in pertinent part, that: In full settlement of this action, [Bank] hereby offers to pay [Goodstein] the total sum of $150,000 in exchange for each of the following: [{] 1. The entry of a Request for Dismissal with prejudice on behalf of the Plaintiff in favor of [Bank]; [9] 2. The execution and transmittal of a General Release by [Goodstein] in favor of [Bank]; [4] 3. Each party is to bear their own respective costs and attorney’s fees.” (Goodstein, 27 Cal. App.4th at 905). In Goodstein, the Court made two important determinations: (1) that an Offer to Compromise did not require a judgment but could be valid when it involves a compromise agreement, and (2) the claims dismissed in the Offer to Compromise must be clear and unambiguous and intended only to settle the claims in the litigation. (/d. at 907.) ii. Defendant Kamarei’s General Release Under Section 1542 is Limited to Plaintiff’s Litigation Against Defendant In Linthicum v. Butterfield (2009), the Court of Appeal upheld language in an Offer to Compromise that required a mutual general release of all claims arising from the litigation. (/d. at 270.) Compromise agreements, such as Offers to Compromise pursuant to Code of Civil Procedure section 998, are governed by legal principles applicable to contracts generally. (Linthicum, 175 Cal. App.4th 259 at 272; citing Goodstein, 27 Cal. App.4th at 905.) “One of the cardinal rules of contract construction is that, if possible, the contract should be construed to render it valid and enforceable.” (Linthicum, 175 Cal.App.4th at 272; citing Civ. Code §§ 1643, 3541.) In Linthicum, the Court of Appeal upheld a general release of “all current claims” which is akin to the facts in this case, in which Defendant’s Offer 8 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS © o o J O N nm BA W N = N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo to Compromise is limited solely to the Plaintiff’s action against Defendant and nothing further. In its analysis of the 998 Offer, the Linthicum Court observed that the terms costs, fees and "mutual dismissal" are obviously limited to the instant lawsuit. There is no reason to interpret the term "all current claims" found in the same sentence as referring to anything other than the same lawsuit. As stated above, paragraph 4 of Defendant’s Offer to Compromise clearly defines and narrowly limits the parameters of the preceding release language as follows: “Parties understand and agree that this Agreement fully and finally releases and forever resolves the matters released and discharged with respect to the Action, including those which may be unknown, unanticipated and/or unsuspected and parties waive all benefits under California Civil Code Section 1542, as well as any other statutes or common law principles of similar effect, to the extent that such benefits may contravene these releases. (Decl. Prada, 95, Exhibit 4.) Clearly, Defendant’s Offer to Compromise is not impermissibly over broad to encompass claims not related to the Action or any future claims. By its explicit terms, any release and discharge is limited “with respected to the Action.” As to the general release, Kamarei’s 998 Offer further states that it is only applicable to the extent that it covers releases that contravene the releases contemplated. Clearly, the 998 Offer does not extend to releases that do not contravene the release of claims related to the claims in the Action. Defendant Kamarei’s 998 Offer does not demand a release of any and all type of unrelated or future claims. Defendant’s release in the Offer to Compromise is only waived to the degree that it relates to the claims Plaintiff asserted in her action against Defendant. Therefore, on its face, Kamarei’s 998 Offer is limited to releases with respect to the Action, and is valid. D. PLAINTIFF’S CITED AUTHORITIES DO NOT SUPPORT INVALIDATING DEFENDANT’S OFFER TO COMPROMISE The cases cited by Plaintiff are inapposite. In Chen v. Interinsurance Exchange Auto. Club (2008) 164 Cal. App.4th 117, 123, the issue was that three claims were made on the insurance coverage but only two of those claims were asserted in litigation. The third claim was never presented during litigation. The claims inside and outside the litigation both covered similar damages. Therefore, in Chen 9 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS Oo 0 9 Ln BA W N N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo there was a specific concern in that case about ambiguity in the scope of the general release since the Court could not determine if the general release covered only the two claims in litigation or all three claims. (Id. at 123-124.) No such ambiguity exists here. Plaintiff had one cause of action against Defendant for Malicious Prosecution. As explained in detail below, and as Plaintiffs discovery responses shows, there were no other claims presented, asserted, or made known, during litigation. Plaintiff has not pointed to any ambiguity or uncertainty in Defendant’s Offer to Compromise in this case which unequivocally is limited solely to the accident at issue in this case. Plaintiff’s belated claims of trespass and Intentional Infliction of Emotional Distress as a result of trespass, are arguments without factual basis. In Valentino v. Elliott Sav-On Gas, Inc. (1988) 201 Cal.App.3d 692, 695, the Court of Appeal held that an Offer to Compromise was invalid when it required plaintiff to not only release the claims in the personal injury action but also release the defendant, its attorneys and insurance carriers from any and all claims and causes of action arising out of appellant’s claims including insurance bad faith and violation of Insurance Code section 790.03. In Valentino, the problem was including in the release, an outside the litigation claim with the inclusion of insurance bad faith claim in the release. (/d. at 699.) In Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 271, the Court of Appeal upheld a general release in an Offer to Compromise pursuant to Code of Civil Procedure section 998, holding that “[t]he release portion of the section 998 offer in Valentino, unlike the offer here, expressly included causes of action that were outside the scope of the litigation.” (/d. at 271.) Here, Defendant’s Offer to Compromise, like the Offer to Compromise in Linthicum, which was upheld, did not reference claims outside the scope of the litigation and therefore, should be upheld as valid. Ignacio v. Caracciolo (2016) Cal.App.5th 81, further supports Defendant’s position in this case. “The rule to be taken from Goodstein is not that a ‘general release’ does not invalidate a section 998 offer; the rule is that a release of unknown claims arising only form the claim underlying the litigation itself does not invalidate the offer.” (Id., at 88; citing Linthicum, 175 Cal.App.4th at 272.) The rule in Ignacio, which followed the rule established in Goodstein is that a general release is valid so long as the claims released (known or unknown) are limited to the scope of the litigation (emphasis added). Ignacio 10 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS © o o J O N nm BA W N = N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo reinforced the holding in Goodstein in that regard. In Ignacio, the Court of Appeal was concerned that the release was not limited to the litigation itself. That is the fatal flaw identified by the Court of Appeal in Ignacio, a flaw that is not present here. In fact, in this case, the attached release consistently limits the scope of the release to the action between Plaintiff and Defendant. In an effort to bootstrap Ignacio, Plaintiff claims that she would have been barred from a future privacy cause of action. In Ignacio, there is a reference to a potential trespass action that the plaintiff in that case claimed could have been brought against defendant, and the process server for trespassing and intentional infliction of emotional distress. However, if any hypothetical related claim that might, through great creativity and imagination, have been brought in the action is sufficient to invalidate a general release, that would essentially overrule the Court of Appeal decisions in Linthicum, Goodstein and Ignacio. As the Court of Appeal further articulated in Ignacio, the problem in Ignacio was that the express language of that release was not limited to the accident itself, which is contrary to the situation here. (Ignacio, Cal. App.5th 81.) i. There is No Reason to Believe There were Any Other Claims In contradiction to her verified discovery responses during litigation, for the first time Plaintiff now asserts that the release in the 998 would have required her to waive additional claims for trespass and intentional infliction of emotional distress as a result of the trespass when she was served. Plaintiff asserts, that these additional claims of trespass and any resulting emotional distress were as a result of being served the Cross-Complaint in the underlying action. Accordingly, these claims would have been known to Plaintiff from the outset of when she filed her Complaint. As stated above, On July 7, 2016, Defendant Kamarei served written discovery requests on Plaintiff, including Form Interrogatory Nos. 9.1, 9.2, 10.1 and 10.2. Each of the Form Interrogatories request information as to additional damages or any other causes of damages that Plaintiff was asserting against Defendant. As part of Form Interrogatories, Kamarei sought responses from Plaintiff, to Form Interrogatory No. 9.1 and 9.2, which inquire whether there are any other damages that Plaintiff attributes to her claims against Defendant. (Decl. Prada, 42, Exhibit 1.) --11 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS © o o J O N nm BA W N = N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo ii. Plaintiff’s Response to Form Interrogatory 9.1 Demonstrates That Plaintiff Had No Other “Potential” Claims Against Defendant nor Any Other Third Party On July 7, 2016, Defendant propounded Form Interrogatories on Plaintiff. Form Interrogatory No. 9.1 asks “Are there any other damages that you attribute to the INCIDENT? If so, for each item of damage state: (a) the nature; (b) the date it occurred; (c) the amount; and (d) the name, ADDRESS and telephone number of each PERSON to whom an obligation was incurred. ” On September 9, 2016, Plaintiff provided a verified response of “Unknown at this time.” (Decl. Prada, 42, Exhibit 1.) Form Interrogatory No. 9.2 asked “Do any Do any DOCUMENTS support the existence or amount of any item of damages claimed in interrogatory 9.1? If so, describe each document and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.” Like Interrogatory No. 9.1, Plaintiff responses “Unknown at this time.” (Id. at 43, Exhibit 2.) Furthermore, on June 4, 2018, Plaintiff provided verified supplemental responses to interrogatories that there were “no changes to discovery and no further information than already provided.” (Decl. Prada, 411, Exhibit 8.) Plaintiff’s discovery responses show that she had no actual or potential claims against third parties arising out of the incident. Moreover, Plaintiff did not try to amend her complaint throughout litigation to include additional claims. Therefore, there is no ambiguity or possibility that Plaintiff may have had claims that arose of the lawsuit filed against her in the Underlying Action. Thus, Plaintiff’s claim that Defendants’ Offer to Compromise was ambiguous as to what litigation it released has no merit. iii. ~~ Plaintiff’s Response to Form Interrogatory 10.2 and 10.3 Demonstrates That Plaintiff Had No Other “Potential” Claims Against Defendant nor Any Other Third Party On July 7, 2016, Defendant propounded Form Interrogatories on Plaintiff. Form Interrogatory No. 10.2 asked “List all physical, mental, and emotional disabilities you (a) who witnessed the INCIDENT or the events occurring had immediately before the INCIDENT.” (Id. at 2, Exhibit 1.) Form Interrogatory No. 10.3 asked “At any time after the INCIDENT, did you sustain injuries of the kind for which you are now claiming damages? If so, for each incident giving rise to an injury state: (a) the date and the place it occurred; (b) the name, ADDRESS and telephone number of each HEALTH --12 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS © o o J O N nm BA W N = N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo CARE PROVIDER who you consulted with or who examined and treated you; and (e) the nature of the treatment and its duration. In both Interrogatory No. 10.2 and 10.3, Plaintiff provided verified responses indicating that no such damages occurred. (/d.) Again, on June 4, 2018, Plaintiff provided verified supplemental responses to interrogatories that there were “no changes to discovery and no further information than already provided.” (/d. at 11, Exhibit 8.) Initially, Plaintiff’s discovery responses are devoid of any information that she had any claims for trespass and intentional infliction of emotional distress as a result of any trespass. Furthermore, Interrogatory No. 10.2 and 10.3 specifically asked Plaintiff whether there are any other causes for any damages of the kind Plaintiff is now seeking damages for. Plaintiff was seeking damages for mental and emotional stress as a result of being named as a defendant in the underlying action. Plaintiff responded “no” meaning that she had no mental or emotional distress related to any other circumstance or cause. Now Plaintiff claims that she had a claim for Intentional Infliction of Emotional Distress as a result of trespass. [Motion to Tax, p3:18-21. ] Plaintiff’s responses indicated that she had no mental or emotional distress related to any other cause. If Plaintiff had any claims of emotional distress as a result of a service that was trespass, then she should have responded to these Form Interrogatories in the affirmative. At the time of her discovery responses, Plaintiff failed to disclose any other circumstances or causes of her mental and emotional suffering. What Plaintiff now asserts she had as a claim, which is that she had emotional distress as a result of trespass, is contradictory to her verified discovery responses during litigation. Kamarei’s 998 Offer to Plaintiff was after Plaintiff’s verified discovery responses. Further, at no time did Plaintiff make any attempt to amend her Complaint, even through trial, to add additional claims, causes of action, or parties. Therefore, Kamarei had no motive and there was no need to have the releases be broad beyond the claims in this Action in Kamarei’s 998. Plaintiff’s arguments without factual support, is simply a ploy to back into a claim of an invalid 998 by claiming that she had additional claims that she was allegedly required to release. Plaintiff attempts to create ambiguity in Defendant’s Offer to Compromise and fabricates potential “claims” that Plaintiff may have had against Defendant and other third parties, 13 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS © o o J O N nm BA W N = N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo where no such ambiguity exists. Nor does Plaintiff offer any facts that these claims were known to Defendant Kamarei. The Chen case cited by Plaintiff is clearly distinguished from the present case. In Chen, appellants filed three separate claims with respondent for insurance coverage. All of the claims were known to the insurance company. One of the claims was for wind damage, and two of the claims involved the same type of damage-one inside the lawsuit for water damage in the upstairs bathroom, and one outside the lawsuit for water damage in the kitchen. Appellants’ assertion of ambiguity in the scope of respondent's settlement offer in Chen was therefore well-taken. iv. Plaintiff Could Still Bring a Trespass Action Had She Accepted Defendant’s Offer to Compromise As indicated above, Defendant’s Offer to Compromise included language that the “parties waive all benefits under California Civil Code Section 1542, as well as any other statutes or common law principles of similar effect, to the extent that such benefits may contravene these releases.” (Decl. Prada 95, Exhibit 4.) (emphasis added) If Plaintiff wanted to bring an action against Defendant or any other third party because she believed someone trespassed on her property to serve her with the lawsuit, she could have because the language of Defendant’s Offer to Compromise did not conflict with contemplated language. Plaintiff indicated in her response to Form Interrogatory No. 9.1 that she had no other damages arising out of the action, and second, the language of Defendant’s Offer to Compromise specifically says that Plaintiff would only release to the extent that the release conflicts with claims asserted in Plaintiffs lawsuit against Defendant. (/d.) E. IDENTIFYING INDIVIDUALS AND ENTITIES BEYOND THE NAMED PARTIES DOES NOT INVALIDATE AN OFFER TO COMPROMISE Plaintiff cites no authority that the naming of individuals or parties in boiler plate language invalidates a 998 offer, and indeed such is not required under California law. “Boilerplate language identifying individuals and entities beyond the named parties in the case as releasers and releasees does not invalidate the offer, if the claims released relate only to the subject matter of the current litigation.” (Ignacio v. Caracciolo (2016) Cal. Ct. App. Aug. 3, 2016 at *4; citing Fassberg Constr. Co. v. Housing 14 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS Oo 0 9 Ln BA W N N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo Authority of City of Los Angeles (2007) 152 Cal. App.4th 720, 767. The Court of Appeal specifically has approved listing releasees beyond the named parties so long as the claims released relate only to the subject matter of the current litigation. As set forth above, this requirement is met as the release relates only to claims that are connected with or arise from the litigation between Plaintiff and Defendant. F. ACCEPTING DEFENDANT’S OFFER TO COMPROMISE WOULD NOT REQUIRE PLAINTIFF TO DISMISS HER CASE AGAINST DR. MORADI Contrary to Plaintiff issuing separate 998 Offers to Dr. Moradi and Mr. Kamarei, Plaintiff now disingenuously argues that had “plaintiff accepted the 998 and the release agreement upon which it was conditions she would have also been required to release co-defendant, Dr. Moradi.” (Mtn. 4:10-12) This is simply incorrect. First, Defendant’s Offer to Compromise specifically identifies the Defendant as “Ali Kamarei, Esq.” (Decl. Prada 95, Exhibit 4.) Paragraph 3 of Defendant’s Offer to Compromise specifically states that “Plaintiff shall dismiss the above-mentioned action and all causes of action against Defendant” (/d.) Thus, there is no confusion as to who Defendant’s Offer to Compromise pertained to and who was being released. Additionally, Plaintiff sued Dr. Moradi on the basis of providing false information to Mr. Kamarei during Mr. Kamarei’s representation of Dr. Moradi. Mr. Kamarei was sued for filing a lawsuit that had no legal merit because it was devoid of facts. The facts supporting a malicious prosecution case against Dr. Moradi and Mr. Kamarei are separate and distinguished from each other. Plaintiff could have sued each of the defendants separately and alternatively could have sued one, but not the other. There is no reason why Plaintiff could not have accepted Mr. Kamarei’s offer and still maintained her lawsuit against Dr. Moradi for providing false information to Mr. Kamarei. Plaintiff’s false assertions is also demonstrated by the fact that Plaintiff herself made two separate 998 offers, one to Dr. Moradi and another to Mr. Kamarei, each for $124,999.99. (Id. at 47, Exhibit 6; 98, Exhibit 7.) If Mr. Kamarei had accepted Plaintiff’s 998 offer and Dr. Moradi not, Mr. Kamarei would have been dismissed from the lawsuit while Plaintiff would have maintained her lawsuit against Dr. Moradi. 15 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS © o o J O N nm BA W N = N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo Plaintiff’s suggestion and argument that by accepting Defendant’s Offer to Compromise would require Plaintiff to dismiss Dr. Moradi flies in the face of her own separate 998 Offer to each defendant, and has no factual or legal basis. G. DEFENDANT'S COSTS IN HIS MEMORANDUM OF COSTS ARE REASONABLE AND ALLOWABLE Plaintiff challenges several items claimed by Defendant as unreasonable or unnecessary, each of which is addressed below. Preliminarily, however, Defendant submits that there is no dispute that as the prevailing party, it is absolutely entitled to costs. As Plaintiff acknowledges, the only requirement is that the costs were reasonably necessary and reasonable in amount. (Code Civ. Proc. §§ 1033.5(c)(2-4); Cal. Rules of Court, rule 3.1700 et seq.; Davis v. KFO-T.V., Inc. (1998) Cal.4th 436, 442.) Thus, when examining Plaintiff’s objections, it is important to recall the proper standard for an award of costs in these circumstances. The prevailing party in a lawsuit is entitled as a matter of right to recover allowable costs under section 1032(b) which provides: “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.” As the court in Seever v. Copley, 141 Cal.App.4th 1550, explained: “If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred.” (Id. at 1557, quoting Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) Given that the verified memorandum of costs constitutes prima facie evidence that the charges claimed were actually and necessarily incurred, the majority of Plaintiff’s objections to the memorandum are contrary to law. Further, as the court in Seever v. Copley stated in language that is equally applicable here: “[I]t is not enough for the losing party to attack submitted costs by arguing that he thinks the costs were not necessary or reasonable. Rather, the losing party has the burden to present evidence and prove that the claimed costs are not recoverable.” (Id.) This is because, unlike the cost memorandum, the motion to tax is not verified and thus, must be accompanied by supporting declarations where objections are based on factual matters. (County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113-1114 [“Where the ‘reasonableness’ of a cost item is challenged by the plaintiff, conclusory allegations that the item was 16 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS © o o J O N nm BA W N = N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo ‘neither necessary nor reasonable’ does not satisfy the objections party’s burden]; Jones v. Dumrichob, 63 Cal.App.4th at 1266 [party’s “mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of its counsel are insufficient to rebut the prima facie showing [that the costs were necessarily incurred]”; party opposing costs must make showing “beyond their own pleadings™].) Clearly then, the burden is on Plaintiff as the party seeking to tax such costs to show that they were not reasonable or necessary. (Id.; Ladas v. Cal. State Auto. Ass’n (1993) 19 Cal.App.4th 761, 774- 776.) Although not required to do so, Defendant has included back-up invoices, charges, and/or receipts for every costs sought. (Decl. Prada, 412, Exhibit 9; 913, Exhibit 10; 914, Exhibit 11; 415, Exhibit 12; 917, Exhibit 13; 918, Exhibit 14.) Here, it is evident from the cost memorandum, the worksheet attached to it, and the back-up documentation provided that each item challenged in the motion to tax was reasonably necessary and reasonable in amount. (/d.) Indeed, most are mandatory costs under Code of Civil Procedure section 1033.5, save for the expert witness fees, which are properly awarded pursuant to Code of Civil Procedure section 998. (Code Civ. Proc. § 1033.5(c)(4).) Plaintiff's summary conclusions and assertions offer no persuasive opposition and no evidence whatsoever to suggest that any item included in the memorandum is not recoverable. Consequently, the Court should award all costs sought as reasonable and necessary. i. Item 8 - Expert Witnesses Fees Are Allowable Costs Pursuant to CCP §998 Other than making conclusory statements, Plaintiff cites to no legal authority to support her position that Defendant’s experts Carol Langford and Dr. Kardong were not reasonable or necessary. (Mtn. P.5:25-27). It should be noted that Plaintiff should have provided an affidavit to support any statements made about either of Plaintiff’s experts. As discussed above, CCP 998, specifically authorizes the recovery of Defendant’s expert witness fees on the basis that Plaintiff failed to obtain a more favorable judgment. (Holman v. Altana, 186 Cal. App.4™ 262, Chaaban v. Wet Seal, 203 Cal.App.4th at 55; Code Civ. Proc. §998(c)(1).) Pursuant to this statutory language in section 998 alone, Defendant is entitled to recover all of his expert witness fees incurred in defending this action because all of these fees were incurred after the rejection of Defendant’s Offer to Compromise. Moreover, 17 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS Oo 0 9 Ln BA W N N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo Plaintiff has failed to cite to any authority showing a party is not entitled to recover expert fees pursuant to a 998 offer when that expert does not testify at trial. As the Court is fully aware, in the interest of time, both Defendants rested immediately after Plaintiff rested. Therefore, the only remaining question for the Court is whether such fees were reasonably necessary and reasonable in amount, which they were. (Code Civ. Proc. § 1033.5(c).) a. Carol Langford’s Fees of $21,060 Were Reasonably Necessary to The Conduct of Litigation Initially it should be noted that while Plaintiff asserts that it was not reasonable and necessary by Kamarei to hire Carol Langford, Plaintiff herself hired John Steele as an expert on the same subjects as Carol Langford. Mr. Steele remained on Plaintiff's witness list through trial. Defendant Kamarei retained Carol Langford to offer expert opinion concerning duties relating to ethics and competence, Mr. Kamarei’s compliance with such duties in prosecuting Plaintiff in the Underlying Action. (Decl. Prada, 912, Exhibit 9.) While Ms. Langford’s testimony may not have been required as to the first phase of the trial, her testimony may have been required to refute the element of malice. This required Ms. Langford to review the case file and deposition testimony in the Underling Case. The examination and review of records was done after the service of the C.C.P. § 998 offer, and were not isolated costs. The testimony of the expert was dependent upon the examination and review of records. Plaintiff took Carol Langford’s deposition in this case, and further, retained her own “ethics expert” John Steele. Thus, Plaintiff can hardly claim that a legal expert was not reasonable and necessary to the conduct of litigation. “The determination of the necessity and reasonableness of a particular expense was within the broad discretion of the court,” (Perko's Enterprise, Inc. v. RRNS Enterprises, (1992) 4 CA.4th 238, 243, see also C.C.P. § 1033.5(c)(1) & § 1033.5(c)(2). Only costs and disbursements necessarily incurred are recoverable, Williams v. Atchinson, T. & S.F.R. Co, (1909) 156 Cal. 140, 103 P. 885.) b. Dr. Kardong’s Fees of $12,978 Were Reasonably Necessary to the Conduct of Litigation Defendant retained Dr. Kardong to offer an expert opinion as to Plaintiff’s current, historical, and underlying medical condition, lack of causation between Defendant’s prosecution of Plaintiff in the 18 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS Oo 0 9 Ln BA W N N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo underlying case and Plaintiff’s alleged mental health damages. (Decl. Prada, 413, Exhibit 10.) Dr. Freeburg’s testimony was taken out of order and during Plaintiff’s case in chief. Again, in the interest of time, both Defendants rested immediately after Plaintiff’s case in chief and therefore, Dr. Kardong was not called in order to save the Court’s time. Without citing to any facts or deposition testimonies, Plaintiff summarily claims that Dr. Kardong was duplicative and cumulative of Defendant’s mental health expert, Dr. Freeburg. It is worth mentioning that Dr. Freeburg conducted a mental health exam of Plaintiff, but Dr. Kardong did not. Regardless, Plaintiff failed to bring a motion in limine to exclude either expert based on any duplicity of expert testimony. Accordingly, Plaintiff has failed to carry her burden that Dr. Kardong’s testimony was not necessary or required. ii. Item No. 9 Court Ordered Transcripts are Allowable Costs - $1,300 Plaintiff attempts to combine Court Ordered Transcripts with Court Reporter Fees in her Motion. Each item should be looked at independently, and each item is recoverable by statute. The $1,300 that Defendant added to Item No. 9 of his memorandum are allowable costs. (Decl. Prada, 14, Exhibit 11.) Code of Civil Procedure section 1033.5(9) specifically allows “Transcripts of proceedings ordered by the Court.” Defendant added the transcripts from the probable cause portion of the trial to his Memorandum. In August 2018, after the probable cause portion of the trial was completed, the Court requested the parties provide him with a copy of the Reporter’s Transcript. Therefore, the Court ordered the transcripts from the probable cause portion of the trial, and the $1,300 for such transcripts are authorized pursuant to Code of Civil Procedure section 1033.5(9) (Id. at 914, Exhibit 11.) iii. Item No. 12 Court Reporter Fees are Allowable Costs - $11,876.55 Plaintiff challenges Defendant’s $11,876.55 in court reporter fees and erroneously argues that such costs “must be ordered by the court.” (Mtn. P.5:18) However, this argument has no merit. Section 1033.5, subdivision (a)(11) includes “court reporter fees established by statute” among the items allowable as costs. First, Plaintiff’s counsel cannot dispute that the court reporter fees of $10,855.95 for both phases of the trial is not a statutorily recoverable cost. (Benach v. Cnty. of LA (2007) 149 Cal. App.4™ 858; Heppler v. J.M. Peters Co. (1999) 73 Cal. App.4" 1265, 1298; Gov’t Code. §68086.) 19 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS Oo 0 9 Ln BA W N N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo Recognizing the need for a court reporter, the parties agreed to share the costs of a court reporter before trial commenced. (Decl. Prada, 914, Exhibit 11; 915.) Allowing Defendant costs for the court reporter services used for trial is not a windfall to Defendant; it merely reimburses Defendant for the out of pocket cost of paying the reporter’s fee. Likewise, the court reporter fees of $1,020.60 were for a hearing where Plaintiff erroneously attempted to have Defendant’s counsel disqualified and a motion to compel hearing. Given the outcome of the case, with Defendant prevailing on an affirmative defense of unclean hands despite a very generous section 998 offer, the recovery of $11,876.55 in court reporter fees is reasonable and appropriate. (/d. at 15, Exhibit 12.) iv. Item No. 16 “Other” Costs are Allowable - $5,864.21 Plaintiff has not claimed any basis for each individual cost Defendant identified in Item No. 16, other than “None of these items are authorized as awardable costs under CCP section 1033.5 and should therefore not be awarded.” (Mtn. P.5:22-23.) As discussed below, although Plaintiff misstates the law, Plaintiff’s objections are partially-invalid and partially-valid. The Court should tax $578.80 and award $5,281.41 of these fees rather taxing the entire line item. v. Trial Equipment Rental Costs of $4,888.65 For Demonstrative Exhibits Are Recoverable Both Plaintiff and Defendant used digital presentations to display trial exhibits during trial and agreed to split the costs. (Decl. Prada, 17, Exhibit 13.) Given the voluminous exhibits, the importance of the detailed information in them, and the frequent use of displaying the materials for the jury to see was “reasonable necessary” at trial. That is why both sides operated identically at trial in this respect. Moreover, like the court reporter fees listed above, the parties agreed to share the costs of the trial equipment before either phase of trial commenced Thus, Defendant seeks to recover the costs Defendant seeks recovery of the costs incurred to an outside vendor ($4,888.65) for the audio and visual display. (Id) Such demonstrative evidence actually used in court and shown to the jury. Plaintiff does not challenge the reasonableness of the charges, but merely argues this is a non-recoverable cost that does not fit within section 1033.5. (Mtn. P.5:22-23.) -20 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS Oo 0 9 Ln BA W N N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo First, Defendant’s trial equipment rental to enlarge exhibits to the jury is a permissible cost under section 1033.5, subdivision (a)(13). Code of Civ. Proc. §1033.5(a)(13) (“Models and enlargements of exhibits... may be allowed if they were reasonably helpful to aid the trier of fact.”) The law on this is clear: “Section 1033.5 ... allows an award for ‘blowups of exhibits’ if ‘reasonably helpful to aid the trier of fact.” The trial court had discretion to both interpret ‘blowups’ as including blowing up documents by projecting them on a screen and to find the projection equipment reasonably helpful.” (E/ Dorado Meat Co., 150 Cal.App.4th at 619; see also Am. Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1057 (awarding costs for display of trial exhibits through computer projection as such methods were “highly effective, efficient, and commensurate with the nature of the case”); Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1623 (same).) Second, if these costs are deemed outside of section 1033.5(a)(13), they are recoverable in the Court’s discretion under section 1033.5(c)(4) as out-of-pocket expenses a fee-paying client would reimburse. See e.g., Bender, 217 Cal. App.4th at 990-991 (permitting costs for importing exhibits and depositions into trial display software under 1033.5(¢c)); EI Dorado Meat Co., 150 Cal. App.4th at 619; Ripley, 23 Cal.App.4th at 1623.) vi. The Certified Trial Transcript of Plaintiff of $212 is Recoverable in the Court’s Discretion and Should be Awarded Here The cost of a daily transcript $212 is not an expressly-permitted cost under section 1033.5(a). Nonetheless, under the facts of our case, and there is authority for doing so as a discretionary cost. An item not specifically allowable as costs under statute generally setting out allowable costs, and not specifically prohibited under that statute, may be allowed as costs at the discretion of the trial court if reasonably necessary to the conduct of the litigation. (Landwatch San Luis Obispo County v. Cambria Community Services District (2018) 236 Cal.Rptr.3d 150. Here, the daily transcript of Plaintiff was reasonably necessary to conduct the litigation because on the stand, Plaintiff changed her testimony as to what she had previously testified to. Defendant needed to review her testimony for the day in order to prepare the following day’s cross-examination. (Decl. Prada, 418, Exhibit 14.) Therefore, the $212 for Plaintiff’s certified trial transcript was necessary to conduct Defendant’s litigation. -21 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS Oo 0 9 Ln BA W N N N N N N N N N N N mm e m e m e m e m e m p m p m co JI O N nm BRA W I N D = D O O N N N R A W ND = Oo vii. ~~ Parking Costs of $184.00 are Fully Recoverable Costs and Should Be Permitted Plaintiff seeks to tax $184.00 in parking costs. Section 1033.5, subdivision (a)(3) permits a prevailing party to recover travel expenses. Travel expenses include hotels, car rentals, gas, and parking. Chaaban v. Wet Seal (2012) 136. Cal. Rptr. 3d. 607, 203. Therefore, the Court should not tax the parking costs Defendant is claiming in Attachment 16(a). viii. ~~ Defendant Agrees to Taxing of $578.80 for the Computerized Research, Court Call Appearances, Process Server to Find the Addresses of Witnesses and Meals During Trial Defendant does not oppose taxing the following: $97.70 for computerized research; $129.00 for Court call telephonic appearances; $280.00 for process server fee to find addresses of witnesses; and $72.00 for meals during trial that were included in Attachment 16a of Defendant’s memorandum of costs. IV. CONCLUSION For the above mentioned reasons, Defendant Ali Kamarei respectfully requests this Court to deny Plaintiff’s Motion to Tax costs, except for the $578.80 that Defendant does not oppose under Attachment 16a to Defendant’s Memorandum of Costs. Respectfully Submitted, INHOUSE CO. DATED: April 1, 2020 ; By: Marisella Prada, Esq. INHOUSE CO. Attorney for Defendant Ali Kamarei -22 DEFENDANT ALI KAMAREI, ESQ’S OPPOSITION TO MOTION TO TAX COSTS