Reply_to_kamareis_opp_to_mtn_to_taxstrikeReplyCal. Super. - 6th Dist.March 17, 2016W N Oo 0 9 O N Dn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Alan L. Martini SB#77316 SHEUERMAN, MARTINI, TABARI, ZENERE & GARVIN A Professional Corporation 1033 Willow Street San Jose, CA 95125 (408) 288-9700 Fax: (408) 295-9900 Email: amartini@smtlaw.com Attorneys for Plaintiff, SETAYESH PADIDEH Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/4/2020 12:29 PM Reviewed By: S. Crabtree Case #16CV292889 Envelope: 4306056 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA SETAYESH PADIDEH, Plaintiff, V. RAMIN MORADI, D.D.S; ALI KAMAREI, ESQ., dba InHouse Co.; and DOES 1 TO 10, inclusive, Defendants. N r ’ N r ’ N r ’ N r N r N r N a N r N r N r N r N a N r ’ No. 16CV292889 PLAINTIFF’S REPLY BRIEF IN RESPONSE TO DEFENDANT KAMARET’S OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE DEFENDANT ALI KAMAREI'S EXPERT WITNESS FEES AND COSTS UNDER CCP SECTION 998 AND TAX COSTS Hearing Date: TBD Time: 9:00 a.m. Dept. 21 Honorable Thang Barrett PLAINTIFF’SREPLY BRIEF IN RESPONSE TO KAMAREI'S OPPOSITION TO MOTION TO STRIKE DEFENDANT ALI KAMAREI'S EXPERT WITNESS FEES AND COSTS UNDER CCP SECTION 998 AND TAX COSTS 1 W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Defendant’s Kamarei’s CCP 998 Offer Was Invalid Insofar as it Required the Release of Claims and Parties Not Involved in the Litigation. “It is well-established that a purported section 998 offer ‘requiring the release of claims and parties not involved in the litigation is invalid.” [Citation.] ‘That limitation exists because of the difficulty in calculating whether a jury award is more or less favorable than a settlement offer when the jury’s award encompasses claims that are not one in the same with those the offer covers.’” Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81, 86-87. Further, “ambiguity as to whether the offer encompasses claims beyond the current litigation is sufficient to render the offer invalid under section 998.” (See Ignacio v. Caracciolo, supra, 2 Cal.App.5th at 87-88.) “The burden is on the offering party to demonstrate that the offer is valid under Code of Civil Procedure section 998. [Citation.] The offer must be strictly construed in favor of the party sought to be bound by it.” (Ignacio, supra, at p. 86.) As pertinent here, the instant 998 settlement offer specifically required the “parties” [undefined] to “release, discharge, and agree to hold each other and their respective . . . agents, attorneys, . . . principals, insurers . . . , jointly and severally, free and harmless from and against any and all rights, claims, debt . . . liabilities, obligations, damages . . . actions and/or causes of action of every nature, character and description, whether known or unknown, suspected or unsuspected, which are, or could have been alleged in the Action.” (Emphasis added.) Contrary to defendant’s argument, the release does purport to include claims which were not only brought in the action, but “which could have been alleged in the action” and purports to release others such as defendant’s agents (including his process server) and “principals,” including his client, Dr. Moradi, who would be subject to different or additional liabilities. The instant offer is similar to the one invalidated in Ignacio v. Caracciolo (“Ignacio”). In Ignacio, the section 998 offer sought the release of “‘any and all claims . . . including . . . any and all claims that were, or could have been alleged in connection with [the] accident [that was] . . . the subject of the lawsuit . . .”” (See Ignacio, supra, 2 Cal.App.5th at pp. 84, 89-90.) Ignacio held that this language called for an “unlimited release” that “goes well beyond the scope of the litigation.” (See Ibid. at p. 89.) Defendant’s offer was similar. PLAINTIFF’SREPLY BRIEF IN RESPONSE TO KAMAREI'S OPPOSITION TO MOTION TO STRIKE DEFENDANT ALI KAMAREI'S EXPERT WITNESS FEES AND COSTS UNDER CCP SECTION 998 AND TAX COSTS 2 W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant’s settlement offer contained language requiring plaintiff to release claims that are outside the scope of this litigation, including, specifically, claims which could have been, but had not been alleged in the action for the benefit of parties other than defendant Kamarei, including his agents and principals, including claims other than for malicious prosecution and which were not purely derivative of Kamarei’s liability in this action. Given the liberal joinder rules in California, claims such as trespass to plaintiff’s land against defendants and their process server as well as other claims such as abuse of process and intentional infliction of emotional distress arising from the service and maintenance of the underlying action which could have been alleged in the action and would thus be released under the required release agreement. This is significant because in addition to constituting separate causes of action they would not be subject to the “unclean” defense, insofar as no California case has so held. Contrary to the 998 settlement offer in Goodstein v. Bank of San Pedro (1994) 27 Cal. App.4th 899 [upholding a section 998 offer providing that, ““/i]/n full settlement of this action, [the defendant offers to pay a sum] in exchange for . . . [t]he execution and transmittal of a General Release by [the plaintiff] in favor of [the defendant],”” (italics added). The 998 offer here differed insofar as it was not limited to a “full settlement of this action,” but included claims not only alleged in this action, but which could have been alleged against not only defendant, but others, including not Dr. Moradi, who might be subject to different or additional liabilities. Defendant’s argument that “boilerplate language identifying individuals and entities beyond the named parties in the case as releasers [sic] and releasees does not invalidate the offer, if the claims released relate only to the subject matter of the current litigation” (Citing Ignacio, supra, 2 Cal. App.5th at 88) is misplaced. Defendant’s citation to Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 767 is distinguishable. The court in Fassberg Construction Co. recognized that a defendant will typically include such boilerplate language in an offer in order to “identify all persons and entities whose potential liability may derive from or depend on that of [the defendant] in th[e] action.” Consequently, the value of a plaintiffs claims against these other releasees usually will not differ from that of the claims being litigated against the defendant. (See Ibid. [ Absent some indication of the existence of a viable claim in favor PLAINTIFF’SREPLY BRIEF IN RESPONSE TO KAMAREI'S OPPOSITION TO MOTION TO STRIKE DEFENDANT ALI KAMAREI'S EXPERT WITNESS FEES AND COSTS UNDER CCP SECTION 998 AND TAX COSTS 3 W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of a related person or entity [to be released], independent of [the plaintiff's] actual and potential claims arising from the subject matter of th[e] action, that would be extinguished by the release, . . . the release is not overbroad or incapable of valuation”). Here, however, there is an indication that plaintiff potentially had claims against the other releasees that are independent of her claim for malicious prosecution against Kamarei, and their inclusion in the release does undermine the validity of a section 998 offer. The overbroad release would have released defendants and their agents and principals for their liability for plaintiff’s independent claims against them other than the pleaded claim for malicious prosecution. A provision in a section 998 offer that contains a waiver of all claims “known and unknown” which is not limited only to the claims made in the action has been held to invalidate a section 998 offer. See McKenzie v. Ford Motor Co. (2015) 238 Cal.App.4th 695, 706 [section 998 offer conditioned upon release of all known and unknown claims and release of claims that had not yet accrued invalid]. As stated above, Goodstein v. Bank of San Pedro, supra, 27 Cal. App.4th 899 is distinguishable on this point, because the 998 offer specifically provided that it was made “in full settlement of this action . . .”” and was thus, by its terms, limited to the claims actually made in the action, as opposed to, as is the case here, all claims made and which could have been made, but were not. Defendant also cites Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 272, which recognized that a section 998 offer that includes a release of claims outside the scope of litigation is invalid. (Ibid. at p. 271.) The court concluded, however, that the release at issue there, was limited to the instant lawsuit. (/bid. at p. 272.) The release required “‘each side to bear [its] own costs and fees, with a mutual release of all current claims against one another and a mutual dismissal with prejudice of the parties’ lawsuits against one another.’ (Ibid.) The court noted that “[t]he terms costs, fees and ‘mutual dismissal” were obviously limited to the instant lawsuit and there was no reason to interpret the term ‘all current claims’ found in the same sentence as to referring to anything other than the same lawsuit.” (/bid.) While it is true that “a release of unknown claims arising only from a claim underlying a litigation itself does not invalidate the offer,” (emphasis added) (Ignacio, supra, 2 Cal.App.5th at PLAINTIFF'S REPLY BRIEF IN RESPONSE TO KAMAREI’S OPPOSITION TO MOTION TO STRIKE DEFENDANT ALI KAMAREI’S EXPERT WITNESS FEES AND COSTS UNDER CCP SECTION 998 AND TAX COSTS 4 W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 89), it is also true that “an unlimited release [which] goes well beyond the scope of the litigation. . . renders the offer invalid under section 998.” (Ibid.) Here, in contrast, the section 998 offer required plaintiff to forego any claims which could have, but were not, alleged in the action. This language necessarily contemplates the release of claims outside the scope of the instant lawsuit. (See Ignacio, supra, 2 Cal.App.5th at pp. 83, 90.) At best, defendant’s section 998 offer, by its terms, was ambiguous. “Indeed, because the proponent of the offer has the burden of establishing its validity, ambiguity as to whether the offer encompasses claims beyond the current litigation is sufficient to render the offer invalid under section 998.” (Ignacio, supra, 2 Cal.App.5th at pp. 87-88, citing Chen v. Interinsurance Exchange of Automobile Club (2008) 164 Cal. App.4th 117, 122, fn. 5. Plaintiffs discovery responses neither did, nor could, preclude her from bringing such claims in a separate action. Defendant cites no authority, and none exists, for the proposition that a party could be barred from bringing claims in a subsequent suit as a form of discovery sanction in another case. Plaintiff’s responses to Form Interrogatory Nos. 9.0 and 10.0 are not inconsistent would certainly not preclude a subsequent suit. Form Interrogatory No. 9.1 requests “Are there any other damages that you attribute to the INCIDENT? [INCIDENT is defined as ‘the circumstances and events surrounding the alleged accident, injury or other occurrence or breach of contract giving rise to the action or proceeding.’]” Thus, the interrogatory requests only whether there are other damages that plaintiff attributed to the meritless lawsuit brought against her by defendants. It did not include damages which plaintiff may have claimed as a result of the trespass on her property at the time she was served, or for intentional infliction of emotional distress or abuse of process resulting from the service and maintenance of the underlying lawsuit. Similarly, Form Interrogatory No. 10.2 requested plaintiff to “[1]ist all physical, mental, and emotional disabilities you had immediately before the INCIDENT. Form Interrogatory No. 10.3 inquired: “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 injury state: . . . Thus, Form Interrogatory No. 10.0 Medical History inquired only as to the existence of PLAINTIFF’SREPLY BRIEF INRESPONSE TO KAMAREI’S OPPOSITION TO MOTION TO STRIKE DEFENDANT ALI KAMAREI'S EXPERT WITNESS FEES AND COSTS UNDER CCP SECTION 998 AND TAX COSTS 5 W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 physical, mental and emotional disabilities plaintiff had before she was sued and served with the lawsuit in the underlying action, and injuries of the same kind for which she was then claiming damages that occurred subsequently. Here, plaintiff had a cause of action for trespass to her property, abuse of process, and intentional infliction of emotional distress that accrued at the very same time she was served with the lawsuit in the underlying action. Here, plaintiff’s damages for malicious prosecution and unpled claims of intentional infliction of emotional distress and abuse of process would have all accrued at the same time: when plaintiff was served with the lawsuit and were therefore not the subject matter of Form Interrogatory No. 10.0 or any of its subparts. Furthermore, the cause of action for trespass supports an award for actual damages, nominal damages where actual damages are not shown, and exemplary damages. Staples v. Hoefke (1987) 189 Cal.App.3d 1397 at p. 1406; Armitage v. Decker (1990) 218 Cal. App.3d 887, 905, which are separate and distinct from plaintiff’s emotional distress damages incurred as a result of being sued in the underlying action. In the same way that the release in Ignacio would have encompassed plaintiff ’s potential privacy violation claim against the defendant, defendant’s attorney, and their investigator, which was not related to the accident alleged in the underlying action, and therefore invalidated the CCP section 998 offer, the release required by defendant’s CCP 998 offer would also release defendants and their agents and principals from potential other claims. Thus, the release encompassed more than section 998 permits and defendant’s offer was invalid under section 998. Defendant’s argument that “Plaintiff could still bring a trespass action had she accepted the defendant’s offer to compromise” makes no sense and is wrong. The required release states that the “parties release . . . each other and their respective current and former . . . agents, . . . servants, . . . principals, . . . free and harmless from and against any and all rights, claims, . . . or causes of action of every nature, character and description, whether known or unknown, suspected or unsuspected, which are, or could have been alleged in the Action.” That would certainly include a trespass action against defendants and their process server, insofar as that separate cause of action could have been joined in the action. The second sentence of paragraph 4 of defendant’s statutory offer does not 2 <6 change the scope of the “release of all claims,” “whether known or unknown, suspected or PLAINTIFF’SREPLY BRIEF IN RESPONSE TO KAMAREI'S OPPOSITION TO MOTION TO STRIKE DEFENDANT ALI KAMAREI'S EXPERT WITNESS FEES AND COSTS UNDER CCP SECTION 998 AND TAX COSTS 6 W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unsuspected, which are, or could have been, alleged in the action”. It merely adds a specific waiver of California Civil Code section 1542 insofar as it might apply to the release of all claims which were, or could have been, alleged in the action. Finally, defendant’s argument that the offer to compromise did not require plaintiff to dismiss her case against Dr. Moradi misses the point. There is a difference between a dismissal and a release. The CCP 998 offer required plaintiff to release Kamarei and his “principals” from liabilities “which are or could have been alleged in the Action.” Whether or not the offer only required plaintiff to “dismiss” her case against Mr. Kamarei or whether the claims against Dr. Moradi were independent of the claims against Mr. Kamarei, the offer also required “the parties” to release each other and their “agents” and “principals” from claims which were or could have been alleged in the action. This raises two problems. The first is that the offer is ambiguous insofar as it could reasonably mean that the parties in the action each agree to release the other for such claims. Secondly, the agreement unambiguously requires plaintiff to release Kamarei and his “principals” which would, by definition, include Dr. Moradi, insofar as Dr. Moradi is the client of Mr. Kamarei and therefore the “principal” in the principal-agency relationship which exists between an attorney and a client. “As a general proposition the attorney-client relationship, insofar as it concerns the authority of the attorney to bind his client by agreement or stipulation, is governed by the principles of agency.” Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 406. The “‘“client as principal is bound by the acts of the attorney-agent within the scope of his actual authority (express or implied) or his apparent ostensible authority; or by unauthorized acts ratified by the client.” . . .” [Citation.] Channel Lumber Co. v. Porter Simon (2000) 78 Cal.App.4th 1222, 1230. Thus, when Kamarei filed the underlying action against plaintiff, he did so as the agent of Dr. Moradi, his principal. Insofar as the offer to compromise required plaintiff to release Kamarei’s principals, that would necessarily include Dr. Moradi. “Although outside trial attorneys are independent contractors, they also fall within the category of agents.” (/bid. p. 1230.) Thus, defendant is not entitled to an award of expert witness fees pursuant to CCP section 998. PLAINTIFF’SREPLY BRIEF IN RESPONSE TO KAMAREI'S OPPOSITION TO MOTION TO STRIKE DEFENDANT ALI KAMAREI'S EXPERT WITNESS FEES AND COSTS UNDER CCP SECTION 998 AND TAX COSTS 7 W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Even If Defendant Was Entitled to Expert Fees Pursuant to CCP Section 998, the Court Should Not Allow Fees for Defendant’s Experts, Carol Langford and Dr. Gloria Kardong Defendant claims $34,038 in expert witness fees for two experts that never testified at trial: Carol Langford, an attorney who this court determined had no relevant testimony to give and Dr. Kardong, a psychiatrist, whose testimony was entirely redundant to that of Dr. Freeburg, a psychiatrist, who did testify regarding plaintiff’s emotional distress damages. Defendant must provide documentation to support his request for expert witness fees, in the event they are allowed under CCP section 998. Defendant provides nothing other than a single line entry listing an amount for each expert, along with invoices, making it impossible for the court to determine whether the charges are reasonable or unreasonable or, more importantly, whether the charges at issue were necessary to the conduct of the litigation. Once objected to, the party claiming expert fees must “produce[] sufficient documentation” enabling the “determin[ation of] the necessity” of expert fees including a declaration from counsel “as well as [] the paid invoices themselves.” Jones v. Dumrichob (1998) 63 Cal. App.4th 1258, 1266-1268; see also Leby v. Toyota Motor Sales (1992) 4 Cal.App.4th 807, 816 [affirming trial court’s taxation of costs where claiming party “offered no substantiation of the challenged charges in response to [the] objections” raised in motion to tax.] CCP section 1033.5(b)(1) provides that “[f]ees of experts not ordered by the court” “are not allowable as costs.” Defendant has not provided such substantiation. An award of expert witness fees would only be allowable in this case if the court finds that the defendant’s CCP section 998 offer was valid. If the court does find the statutory offer valid, the court should nevertheless tax the entire amount of expert witness fees claimed for Carol Langford and Dr. Kardong because the defendant has not sustained his burden of demonstrating that said claimed fees were reasonably necessary to the conduct of the litigation and reasonable in amount. (See CCP section 1033.5(c)(2), (©)(3).) As indicated in defendant’s opposition, defendant retained Carol Langford as his “legal expert.” Defendant acknowledges that Ms. Langford’s testimony was not relevant to the first phase (probable cause) of the trial but argues that it “may have been required to refute the element of malice.” Defendant provides no argument or evidentiary support for this premise. Ms. Langford is an attorney and this court granted a motion in /imine No. 2 that her opinion testimony as to probable PLAINTIFF’SREPLY BRIEF IN RESPONSE TO KAMAREI’S OPPOSITION TO MOTION TO STRIKE DEFENDANT ALI KAMAREI'S EXPERT WITNESS FEES AND COSTS UNDER CCP SECTION 998 AND TAX COSTS 8 W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cause, or that Mr. Kamarei “reasonably believed” the cause of action for fraud and fraudulent conveyance were reasonably tenable and that Mr. Kamarei’s motive for suing plaintiff in the underlying action was not malicious, were all inadmissible. The court already determined that all of the subjects for which Ms. Langford was offered as an expert were entirely irrelevant and inadmissible. Defendant provides no substantiation that the claimed fees were reasonable and necessary to the conduct of the litigation. With regard to Dr. Kardong, defendant argues that he retained her “to testify about plaintiff’s emotional stress damages, but she was never called as a witness to testify at trial due to the fact that her testimony was duplicative of Dr. Freeburg, who also testified as to the nature and extent of plaintift’s claimed emotional distress. Rather than providing evidence, in the form of a declaration from counsel and other sufficient documentation enabling the court to determine the necessity of the expert witness fees claimed, defendant offers only the declaration of Marisella Prada, stating that “defendant retained Dr. Kardong as psychologist expert” and attached a copy of her invoices to defendant. There is no showing that Dr. Kardong’s testimony was reasonably necessary to the litigation efforts and the full amount of her claimed fees should be taxed. Should the court rule that the CCP 998 offer was valid, the court should nevertheless tax defendant’s claim for expert witness fees in the amount of $34,038 claimed for Carol Langford and Dr. Kardong. C. Item Nos. 9 “Court Ordered Transcripts” - $1,300 and No. 11 “Court Reporter Fees” - $11,876.55) Costs associated with obtaining transcripts of court proceedings that are not ordered by the court are not recoverable. (Code of Civ. Proc., § 1033.5, subd. (b)(5).) However, there were no “court ordered transcripts” in this action. Yet defendant seeks to recover $1,300 for “court - ordered transcripts” (Item No. 9) and $11,676.55 erroneously claimed as “court reporter fees as established by statute (Item No. 11), insofar as the invoices establish that the court reporter fees are intermingled with charges for “certified transcripts” and fees to expedite and transmit such transcripts to defendant, which are not recoverable. Defendant is entitled to recover a lesser amount for “[c]ourt reporter fees as established by statute. (Code of Civ. Proc., § 1033.5, subd. (a)(11)), which are “an entirely different expense” from PLAINTIFF’SREPLY BRIEF IN RESPONSE TO KAMAREI’S OPPOSITION TO MOTION TO STRIKE DEFENDANT ALI KAMAREI'S EXPERT WITNESS FEES AND COSTS UNDER CCP SECTION 998 AND TAX COSTS 9 W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 transcripts. Chaabin v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58. Although defendant would be entitled to recover court reporter fees, as opposed to costs of obtaining transcripts, the information provided by defendant is inadequate to make that determination, and therefore defendant has failed to sustain his burden of proving the amount he would be entitled to for “court reporter fees as established by statute.” It should be noted that during phase one of the trial, the judge stated that it would probably be helpful for him to be provided with a daily transcript of the trial. However, this does not amount to an order for the transcripts, making them not taxable. Although the parties made every effort to comply, the statement was not, in fact, an order and the court could not hold counsel in contempt or otherwise sanction counsel for failing to conform to an expression of interest or indication that something might be “helpful.” The costs for “court ordered transcripts” and “court reporter fees” should be taxed in their entirety. D. Most of Item No. 16 (“Other Costs”) Are Not Allowable - $5,864.21 Although defendant acknowledges that the “Thomson Reuters Research” is not recoverable, he continues to argue that the costs for “CourtCall appearance” ($86), Process server to find address of witnesses ($280), daily parking fees during trial ($160), and parking at deposition of Alan L. Martini ($24), meals during trial ($72), and certified transcript of Setayesh Padideh trial testimony ($212.86) for a total of $834.86, which are not recoverable, and should be taxed. Section 1033.5 lists certain allowable costs (in subdivision (a)) and certain excluded costs (in subdivision (b)); it also gives the trial court discretion (in subdivision (c)(4)) to allow or deny any other costs that are not specifically enumerated in either subdivision (a) or subdivision (b). E/ Dorado Meat Co. v. Yosemite Meat & Locker Serv., Inc. (2007) 150 Cal. App.4th 612, 616. Here, defendant seeks to recover costs that either fall into the prohibited categories or the court should deny in its discretion. Defendant seeks to recover costs for investigation but subdivision (b) (2) of section 1033.5 plainly bars recovery of “[i] investigation expenses in preparing the case for trial.” Ladas v. California State Auto Ass'n (1993) 19 Cal. App.4th 761, 776. Defendant also seeks $86 for CourtCall appearances. These costs may have been convenient PLAINTIFF’SREPLY BRIEF IN RESPONSE TO KAMAREI’S OPPOSITION TO MOTION TO STRIKE DEFENDANT ALI KAMAREI'S EXPERT WITNESS FEES AND COSTS UNDER CCP SECTION 998 AND TAX COSTS 10 W N Oo 0 9 O N Dn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to defendant, but were not reasonably necessary to the conduct of the litigation under section 1033.5(¢c)(2) and should be taxed. As indicated above, defendant is not entitled to recover the cost of a certified transcript of plaintiff’s trial testimony ($212.86) because the transcript was not court ordered (Code of Civ. Proc., § 1033.5(b)(5).) Defendant also claims costs for parking and meals during trial ($232). Plaintiff objects because only deposition - related travel and section 1033.5 “does not provide for recovery of local travel expenses by attorneys and other firm employees unrelated to attending depositions.” (Gorman v. Tassajara Development Corp., supra, 178 Cal.App.4th 44 at p. 72-73; see also Ladas, supra, 19 Cal. App.4th at p. 775-776 [“reversing trial court’s allowance of “‘Local Travel Expenses unrelated to depositions . . . includ[ing] parking fees, cab fares and ‘mileage/parking’ fees for attorneys and paralegals]. Moreover, the Ladas court held: “Routine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation.” (Ladas, supra, 19 Cal. App. at p. 761.) Item 16 “Other Costs” should be taxed in the amount of $931.70. CONCLUSION Plaintiff respectfully requests the court to grant this motion to strike the claim for expert witness fees and costs under Code of Civil Procedure section 998 and to tax and reduce defendant’s Memorandum of Costs as argued herein. The costs to be taxed are: ° Carol Langford and Dr. Kardong $34,038 ° Item 9 “Court Ordered Transcripts” and Item 11 “Court Reporter Fees: $ 13,176.55 ° Item 16 “Other Costs” $931.70. TOTAL: §$ 48,416.25 Dated: May 4, 2020 SHEUERMAN, MARTINI TABAR]I, ZENERE & GARVIN A # Woes By: / ih ALAN L. MARTINI Attorneys for Plaintiff SETAYESH PADIDEH PLAINTIFF'S REPLY BRIEF INRESPONSE TO KAMAREI’S OPPOSITION TO MOTION TO STRIKE DEFENDANT ALI KAMAREI'S EXPERT WITNESS FEES AND COSTS UNDER CCP SECTION 998 AND TAX COSTS 11 Oo 0 9 O N Wn hk W N = N N N N N N N N N mm e m e m e m e m e m e m e m e p co NN O N Un BAA W D = D O O N N RE W N = O CASE NAME: PADIDEH v. MORADI, DDS Superior Court of California, County of Santa Clara ACTION NO. 116CV292889 PROOF OF SERVICE [CCP §§ 1012.5, 1013a and 2015.5; CRC 2008] I am a citizen of the United States. My business address is 1033 Willow Street, San Jose, CA 95125. I am employed in Santa Clara County where this service occurred. I am over the age of 18 years and not a party to the within cause. Iam readily familiar with my employer's normal business practice for collection and processing of correspondence for mailing and facsimile. In the case of mailing [other than overnight delivery], the practice is that correspondence is deposited in the U.S. Postal Service the same day as the day of collection in the ordinary course of business. On May 4, 2020, I served the within: PLAINTIFF’S REPLY BRIEF IN RESPONSE TO DEFENDANT KAMAREI’S OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE DEFENDANT ALI KAMAREI’S EXPERT WITNESS FEES AND COSTS UNDER CCP SECTION 998 AND TAX COSTS on the PARTIES in said action as follows: Ronald J. Cook WILLOUGHBY, STUART, BENING & COOK 50 W. San Fernando Street, Suite 400 San Jose, California 95113 Telephone: 408.289.1972 Facsimile: 408.295.6375 Email: ron@wsbclawyers.co Attorneys for Defendants RAMIN MORADI, D.D.S. Marisella Prada InHouse Co. Law Firm City National Bank Bldg. 1 Almaden Blvd., Suite 810 San Jose, CA 95113 Telephone: 408.918.5393 Facsimile: 408.918.5373 Email: mprada@inhouseco.com alik@inhouseco.com Attorney for Defendant, Ali Kamarei (BY MAIL) I caused a true copy of each document identified above to be placed in a sealed envelope with first-class postage affixed. Each such envelope was deposited for collection and mailing that same day in the ordinary course of business in the United States mail at San Jose, California. (BY PERSONAL SERVICE) I caused a true copy of each document identified above to be delivered by hand to the offices of each addressee above. (BY OVERNIGHT DELIVERY) I caused a true copy of each document identified above to be sealed in an envelope to be delivered to an overnight carrier with delivery fees provided for, addressed of each addressee above. Oo 0 9 O N Wn hk W N = N N N N N N N N N mm e m e m e m e m e m e m e m e p co NN O N Un BAA W D = D O O N N RE W N = O _XX (BY ONE LEGAL): I caused a copy of the documents to be transmitted via an electronic mail account maintained at the law office of Sheuerman, Martini, Tabari, Zenere & Garvin to the email addresses as listed on the Santa Clara County Superior Court’s website for the case through the electronic service provider, OneLegal to counsel. (BY FACSIMILE SERVICE) I caused each of the above-named documents to be delivered by facsimile transmission to the office at each fax number noted above at .m., by use of facsimile machine telephone number (408) 295-9900. The facsimile machine used complied with CRC §2003(3), and no error was reported by the machine. A copy of the transmission record is attached to this declaration. ___ (BY ELECTRONIC MAIL) I caused a copy of the document to be transmitted via an electronic mail account maintained at the law office of Sheuerman, Martini, Tabari, Zenere & Garvin to the email addresses listed above. The transmission was reported as complete and without error. XX (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on May 4, 2020 [Lnnemas ie Muy Annamarie Obey
