Stephanie M. Duran vs. Quantum Auto Sales, Inc.

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.June 20, 2013

M A D I S O N H A R B O R , A L a w C o r p o r a t i o n 1 7 7 0 2 Mi tc he fl No rt h Ir vi ne , Ca li fo rn ia 9 2 6 1 4 Te l: {9 49 ) 7 5 6 - 9 0 5 0 e e e Fa x: (9 49 ) 7 5 6 - 8 0 6 0 2 da Ww 11 12 13 14 15 16 17 18 19 20 22 23 24 26 27 28 o o N D 0 1 n L h STEPHANIE M. DURAN: Ali Parvaneh, SBN 218320 aparvaneh@madisonharbor.com James S. Stfers, SBN 259105 jstfers@madisonharbor.com Jenos Firouznam-Heidari, SBN 266257 jheidari@madisonharbor.com MADISON HARBOR, ALC 17702 Mitchell North Irvine, California 92614 Telephone: 949-756-9050 Facsimile: 949-756-9060 Attorneys for Defendants Quantum Auto Sales, Inc. and Veros Credit, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER Case No.: 30-2013-00657740 Plaintiff ASSIGNED FOR ALL PURPOSES to: Cramtit, Hon. Gregory H. Lewis V. Dept. C26 QUANTUM AUTO SALES, INC, a California DEFENDANT QUANTUM AUTO SALES, Corporation; VEROS CREDIT LLC, a Nevada INC. AND VEROS CREDIT, LLC’S NOTICE Limited Liability Company; WESTERN SURETY|OF MOTION AND MOTION TO STRIKE COMPANY; a South Dakota corporation; Does | [OR TAX COSTS; MEMORANDUM OF through 75, inclusive, POINTS AND AUTHORITIES: DECLARATION OF JAMES S. SIFERS Defendants. Hearing on Motion: Date: March 21, 2016 Time: 10:30 a.m. Dept: C26 Action Filed: June 20, 2013 Trial Date: Post-Trial TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that on March 21, 2016, at 10:30 a.m, or as soon thereafter as the mater may be heard, in Department C26 of this Court, located at 700 Civic Center Drive West, Santa Ana, CA 92701, Defendants Quantum Auto Sales, Inc. (the “Dealer”) and Veros Credit, LLC (the “Lender”™) (collectively “Defendants™) will, and hereby do, move the Court pursuant to Cal. Code Civ. Proc. § 1033.5 and California Rules ofCourt Rule 3.1700 for an order striking and/or taxing the costs DEFENDANT QUANTUM AUTO SALES, INC. AND VEROS CREDIT, LLC'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS -1- M A D I S O N H A R B O R , A L a w Co rp or at io n 1 7 7 0 2 Mi tc he ll No rt h ir vi ne , Ca li fo rn ia 9 2 6 1 4 Te l: (9 48 ) 7 5 6 - 9 0 5 0 w e e Fa x: (9 49 ) 7 5 6 - 9 0 6 0 w h B s W W M o N D o o e ~ ~ O Y (“Motion”) set forth by the Memorandum of Costs filed by Plaintiff Stephanie Duran (“Plaintiff”), as follows: By striking the costs for the following reasons: 1. Plaintiff 1s not the prevailing party. 2. Cal. Civ. Code § 1782 creates an exception to the recovery of costs by right under Cal. Code Civ. Proc. § 1032. 3. CalCiv. Code § 2983.4 creates an exception to the recovery of costs by right under Cal. Code Civ. Proc. § 1032. By taxing the following costs: 1. Item No. 1.d seeking costs for filing the first amended complaint. 2. Item No. 1.g seeking costs regarding Plaintiff’s ex parte application to appear at the mandatory settlement conference by telephone. 3. Item No. 2 seeking jury fees. 4. Item No. 12 seeking court reporter fees. 5. Item No. 8.b seeking expert fees pursuant to Plamtiff’s Cal. Code Civ. Proc. 998 offer. 6. Item No. 11 seeking costs for models, biowups, and photocopies of exhibits. 7. Item No. 13 seeking costs for court call appearances, travel expenses to trial, parking/mileage expense, meal expenses, towing fees, and prejudgment interest, The Motion is based on this Notice of Motion, the accompanying Memorandum of Points and Authorities and attached Declaration of James S. Sifers, the concurrently filed Compendium ofExhibits and the exhibits attached thereto, the records and file herein, and such other argument or evidence that | the Court may wish to hear or consider. Respectfully submitted this 7" day of December, 2015, by: MADISON HARBOR, ALC lendsFiroriz iam-Heidari, Attorney for Defendants DEFENDANT QUANTUM AUTO SALES, INC. AND VERQOS CREDIT, LLC'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS Bo M A D I S O N H A R B O R , A L a w Co rp or at io n 1 7 7 0 2 Mi tc he ll N o r t h Ir vi ne , Ca li fo rn ia 9 2 6 1 4 T e l { 5 4 9 } 7 5 6 - 0 0 5 0 w e e F a x ( 8 4 9 ) 7 5 6 - 8 0 6 0 d a w r f e m = A 12 13 14 15 16 17 18 19 20 2] 22 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1. FACTS RELEVANT TO THIS MOTION The Judgment ofthis action awarded Plaintiff $2,856.30 against Defendants, for rescission ofthe subject vehicle, $172 against the Dealer for incidental costs, and $41,800 in punitive damages against the Dealer. (Exhibit “1.”) On or about November 18, 2015, Plaintiff filed her Memorandum of Costs (“Memo of Costs”), requesting reimbursement of costs totaling $24,434.41. As herein discussed, said costs should be stricken in their entirety, or, at a minimum, should be taxed as they are not allowed to be recovered under the law. HR LEGAL ARGUMENT A. Plaintiffs Memo of Costs Should be Stricken in its Entirety Because Plaintiff is Not the Prevailing Party Pursuant to Cal. Code Civ. Proc. § 1032(a)(4), only a “prevailing party” is entitled to costs under Cal. Code Civ. Proc. § 1032. (See Cal. Code Civ. Proc. § 1032(a)(4).) Pursuant to Defendants” Motion for Judgment Notwithstanding the Verdict (“JNOV™), which is fully incorporated by reference herein, Plaintiff’s entire Memo of Costs should be stricken. As shown in the JNOV, the Correction Offers’ constituted an appropriate offer under Cal. Civ. Code § 1782(b). (See Cul. Civ. Code § 1782(b) [stating that no action for damages under the CLRA can be maintained when an appropriate offer is given}.) As a matter of law, Plaintift’s CLRA action must fail, including her non-CLRA claims (fraud, concealment, and ASFA), which were premised on the exact same conduct alleged under her CLRA claim. If | Plaintiff’s entire action fails, then she is clearly not a prevailing party and not entitled to attorneys’ fees under the CLRA, ASFA, or Cal. Civ. Code § 1032. "The term “Correction Offers” as used herein shall refer to the Dealer’s June 25, 2013 and July 12, 2013, letters providing Plaintiff with rescission of the purchase contract, a refund ofall payments made by Plaintiff, satisfaction of her obligations under the finance agreement with Veros, and $500.00 for incidental costs, in return for the Vehicle and execution of a settlement agreement. (Exhibit “2.”) DEFENDANT QUANTUM AUTO SALES, INC. AND VEROS CREDIT, LLC'S NOTICE OF MOTION AND MOTION TG STRIKE OR TAX COSTS -3- M A D I S O N H A R B O R , A L a w C o r p o r a t i o n 1 7 7 0 2 Mi tc he ll No rt h ir vi ne , Ca li fo rn ia 9 2 6 1 4 Te l: (9 49 ) 7 5 6 - 3 0 5 0 e s s Fa x: (9 49 ) 7 5 6 - 0 0 6 0 O 0 0 a Ov th B W b h B o D Y B D e e m e e m m e e e e e ee t e m pe e e e b o o e D e y h B W h e - O D 24 25 26 27 28 Plamtiff’s remaining judgment in her favor under the CLRA for injunctive relief also does not provide Plaintiff with attorneys’ fees or costs given it too must fail as a matter of law. Pursuant to Defendants’ Motion to Set Aside and Vacate the Judgment and Enter a Different Judgment, which is also fully incorporatedby reference herein, Plaintiff is not entitled to injunctive relief under the CLRA as a matter of law. Accordingly, Plaintiff is not the prevailing party for purposes of obtaining attorneys’ fees and costs under the CLRA or Cal. Civ. Code § 1032. B. Even if Plaintiff is the Prevailing Party, Plaintiff's Memo of Costs Should be Stricken in its Entirety Pursuant to Cal. Code Civ. Proc. § 1032(b) 1. The CLRA provides an exception prohibiting Plaintiff from recovering her costs in this action As shown in Defendants” INOV and Motion to Vacate, it is undisputed that Plaintift’s First Amended Complaint sought damages against Defendants under the CLRA, after an appropriate offer was provided via the Correction Offers. (Exhibits “27-3.”). Pursuant to Cal. Code Civ. Proc. § 1032(b), ...a prevailing party is entitled as a matter of right to recover costs in any action or proceedings,” “[e]xcept as otherwise expressly provided by statute...” (Emphasis added.) Pursuant to Cal. Civ. Code § 1782(b) of the CLRA, “...no action for damages may be maintained under Section 1780 if an appropriate correction. ..is given, or agreed to be given...within 30 days after receipt of the notice.” In Benson v. Southern California Auto Sales, Inc., (2015) 239 Cal.App.4th 1198 (“Benson™), | despite the plaintiff receiving $30,000.00 in a settlement for an action alleging violations of the CLRA, the unfair competition law, the false advertising law, various California vehicle codes, negligent and intentional misrepresentation, and the Automobile Sales and Finance Act (“ASFA”), the court ofappeal affirmed the trial court’s denial of the plaintiff's motion for attorneys’ fees and costs and held that the CLRA states that if a consumer receives an appropriate offer within the 30 days under Cal. Civ. Code § 1782(b), then “[a]ttorney fees are not recoverable in actions for damages under the CLRA...” (/d. at pp. 1204, 1212.) Benson reasoned that a “.. plaintiff should not be able to make the defendants pay his or her attorneys for filing and maintaining...” an action that was defective from the beginning. (/bid.) Furthermore, in response to the plaintiff’s argument that he was the prevailing party, Benson held that DEFENDANT QUANTUM AUTO SALES, INC, AND VEROS CREDIT, LLC'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS 4. M A D I S O N H A R B O R , A L a w Co rp or at io n 1 7 7 0 2 Mi tc he ll No rt h Ir vi ne , Ca li fo rn ia 9 2 6 1 4 T e l ( 9 4 9 ) 7 5 6 - 9 0 5 0 w e e F a x : { 9 4 8 ) 7 5 6 - 9 0 6 0 S a W r B O D 0 0 0 1 G n L h 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 even if the plaintiff was the prevailing party, he could not recover fees because he could still not maintain the CRLA claim for damages after the appropriate offer. (Benson, supra, atp. 1212, fn. 11.) Benson cited Frei v. Davey, (2004) 124 Cal.App.4th 1506 (“Frei”), for this finding where in Frei the court ofappeal denied prevailing parties their fees based on the parties refusal to mediate. (Jd. at p. 1512.) Thus, Benson mterpreted Cal. Civ. Code § 1782(b) as prohibiting attorneys’ fees and costs to a prevailing plaintiff who fails to abide by the prerequisite of the CLRA when a CLRA claim is brought. Furthermore, in Outboard Marine Corp. v. Superior Court, {1975) 52 Cal. App. 3d 30 (“Outboard Marine”), the court held that “the Consumers Legal Remedies Act provides the exclusive remedy for conduct encompassed by the act, regardless of the language utilized in the pleading. To hold otherwise would allow avoidance of the coverageof the act merely by pleading language not specified by the statute.” (Outboard Marine, supra, at p. 36.) The court continued by explaining “[tJhe Supreme Court has made it clear in Vasquez that the legislative intent was not to grant consumers the unfettered discretion whether or not to sue under the act. The court pointed out that consumers have no choice if the defendant’s conductfalls within the purview ofthe act, for it provides the exclusive remedy.” (1bid.) As shown in Defendants NOV,it is apparent on the face of Plaintiff’s complaint that Plaintiff’s non- CLRA claims were identical to Plaintiff's allegations under her CLRA claim and added no value to Plaintiff’s claim. (Exhibit “4.”) Hence, Plaintiff”s action was and should have been a CLRA action and thus, Cal. Civ. Code § 1782(b) should prohibit all of Plaintiff's costs. Given the aforementioned, the CLRA provides an exception to Cal. Code Civ. Proc. § 1032 and expressly disallows costs and attorneys’ fees to Plaintiff. 2. Pursuant to Cal. Civ. Code § 2983.4 of the AFSA, Plaintiff is not entitled to her costs The ASFA also creates an exception to Cal. Code. Civ. Proc. § 1032 in Cal. Civ. Code § 2983 4. Under the ASFA a prevailing party is entitled to reasonable attorneys’ fees and costs unless “the defendant alleges in his answer that he tendered to the plaintiff the full amount to which he was entitled, and thereupon deposits in court, for the plaintiff, the amount so tendered, and the allegation is found to be true...” If these circumstances exist, “.. the defendant is deemed to be a prevailing party within the meaning of this section.” (Cal. Civ. Code § 2983.4.) In light of Plaintiff’s refusal to accept the DEFENDANT QUANTUM AUTO SALES, INC. AND VERGS CREDIT, LLC'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS -5. M A D I S O N H A R B O R , A L a w C o r p o r a t i o n 1 7 7 0 2 Mi tc he ll N o r t h Ir vi ne , Ca li fo rn ia 9 2 6 1 4 Te l: (9 49 ) 75 6- 00 50 we s Fa x: (9 49 ) 75 6- 90 60 B W N o N e 3 o n L n 10 11 12 14 15 16 17 18 19 21 22 23 24 25 26 27 | Correction Offers, the Dealer and Defendant Western Surety Company (the “Surety™) applied to this Court on or about August 2, 2013, to deposit the funds necessary to effectuate the rescission of Plaintiff’s purchase of the Vehicle pursuant to Cal. Civ. Code § 2983.4 (“Deposit.”). (Exhibit “5.”) The Deposit was granted by this Court and the funds were deposited in the amount of $4,156.15. (Ibid) On or about August 2, 2013, the Dealer and Surety’s answer to Plaintiff’s Complaint alleged as its 26" affirmative defense that the Dealer and the Surety tendered to Plaintiff the full amount which she was entitled. (Exhibit “6.”) This same defense is found in the Dealer and the Surety’s answer to Plaintiff's First Amended Complaint. (Exhibit *7.”) This court subsequently found that Plaintiff's damages totaled $2,856.30 (monthly finance payments and down payment) plus $172.00 for replacementtires. (Exhibit “1 » } Hence, the amount tendered in the Deposit was more than the amount found by this Court to be the amount Plaintiff was entitled to. (Exhibits “1” and “5.”} Accordingly, Plaintiff is also barred from recovering her costs under Cal. Code. Civ. Proc. § 1032 and Cal. Civ. Code § 2983.4 by virtue of the Deposit. The aforementioned statutes under the CI.LRA and the ASFA were enacted to forbid a party, such as Plaintiff, who ignores appropriate offers to be compensated from recovering their costs andattorneys’ fees. The California Legislature has made clear that a party who pursues an action after being offered compensation for all of her damages, shouldnot be rewarded evenif she prevails. The very fact that the CLRA and the ASFA prohibit a “prevailing party” from recovering costs, shows that the Legislature intended that a party who seeks relief by court action may only recover amounts beyond her damages. C. Defendants May Tax Plaintiff’s Costs That Are Not Recoverable California Rules of Court Rule 3.1700(b) authorizes Defendants to move to tax any costs which | are objectionable. If an item of cost is expressly allowed by statute and appearsto be a proper charge, the verified memorandum of costs is prima facie evidence that the item is necessarily incurred, and the burden of proving otherwise 1s on the objecting party to show it is unnecessary or unreasonable. (See Nelson v. Anderson (1999) 72 Cal.App.4th 111 (“Nelson”), 131.) If, however, the item of cost does not on its face appear proper and necessary and the item is properly challenged by a motion to tax costs, the burden of showing that it is reasonable and necessary shifts to the party claiming the cost. (Nelson, DEFENDANT QUANTUM AUTO SALES, INC. AND VEROS CREDIT, LLC'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS -6- M A D I S O N H A R B O R , A L a w Co rp or at io n 1 7 7 0 2 Mi tc he ll N o r t h Ir vi ne , Ca li fo rn ia 9 2 6 1 4 T e l (9 49 ) 7 5 6 - 9 0 5 0 w e e Fa x: (9 49 ) 7 5 6 - 8 0 6 0 o w 9 S N o e 1 O N W n amount of the claimed costs, based on the circumstances under which the costs were incurred. For supra, at p. 131; see also Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, 1114-1115.) Thus, in awarding an item of costs, the court must first determine whether the statute expressly allows the particular item and whether it appears proper on its face. (Nelson, supra, at p. 131.) If the claiming party] fails to prove the charges are proper and fails to introduce evidence to that effect, such charges will be stricken. (See Murphy v. F.D. Cornell Co. (1930) 110 Cal.App. 452, 454.) Moreover, “[a]nitem not specifically allowable under [Cal. Civ. Code § 1033.5(a)] nor prohibited under [Cal. Civ. Code § 1033.5(b)] may nevertheless be recoverable in the discretion ofthe court if ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (§ 1033.5, subd. (c¥2).)" (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761 (“Ladas™), 774.) Additionally, a party subject to liability for costs, may seek to reduce the claimed items or the example, costs recoverable under Cal. Code Civ. Proc. § 1032 are restricted to those that are (1) reasonably necessary to the conduct ofthe litigation and (2) reasonable in amount. (See Cal. Code of Civ. Proc. § 1033.5(c)(2); see also Nelson, supra, 72 Cal. App. 4th at p. 130.) The total costs claimed, if} unreasonable or unnecessary, may therefore be reduced to amounts that are reasonable and necessary to the litigation. (7bid). Plaintiff has sought reimbursement for costs that should be stricken and costs that should be reduced as they were not reasonable in amount or reasonably necessary to the litigation. I. Plaintiffs cost requested for filing of First Amended Complaint (Item No. 1.d) and for the Plaintiff’s ex parte application (ItemNo. 1.g) should be stricken On or about April 2, 2014, Plaintifffiled an ex parte application to allow Plaintiff to appearat the mandatory settlement conference by telephone. (Exhibit “8.7). Pursuant to Cal. Code Civ. Proc. § 1033.5(c)(2), even allowable costs must be reasonably necessary to the conduct oflitigation rather than merely convenient or beneficialto its preparation. Clearly, an ex parte application to allow Plaintiffto appear by telephone is a cost incurred merely to make appearance by Plaintiff more convenient. {See Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal App 4th 238.) The Court 1s authorized to disallow such costs pursuant to Cal. Code Civ. Proc. § 1033.53(c)¥2). (Ibid) DEFENDANT QUANTUM AUTO SALES, INC. AND VERGCS CREDIT, LLC'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS 1. M A D I S O N H A R B O R , A L a w C o r p o r a t i o n 1 7 7 0 2 Mi tc he ll N o r t h Ir vi ne , Ca li fo rn ia 9 2 6 1 4 Te l: (8 49 ) 75 6- 00 50 se s Fa x: (9 48 ) 75 6- 90 60 w o e ~ 3 y w B y W h e B Y B D B g r e rm a e m pe d p k e m m t mm m h d fe ed b o o e O D N D 0 1 N h l s W r e s O D 24 25 26 27 28 Further, Defendants also request that Plaintiff’s request under ftem No. 1.d be stricken. Plaintiff| has sought $9.95 for her costs incurred in filing her first amended complaint. Plaintiffs first amended complaint was amended to request damages under the CLRA. (Exhibits “37-%4.”") As explained in the JNOV and Motion to Vacate, the Correction Offers and Cal. Civ. Code § 1782 strictly prohibited Plaintiff from amending her complaint to seek damages under the CLRA. Thus, Defendants should not be required to reimburse Plaintiff for such an amendment. Accordingly, Item No. 1.g. requesting $60.00 for filing the aforementioned ex parte application, $9.95 for e-filing the same, and $9.95 for e-filing the notice of ruling on the same, should be stricken, in addition to $9.95 sought under Item No. 1.d for filing of the First Amended Complaint, so as to reduce | the total costs sought under Item No. I by $89.95. 2. Plaintiff’s costs requested for jury fees and court reporter fees (Item Nos. 2 and 12) are excessive Plaintiff has soughta total of $2,061.58 for jury fees (Item No. 2) and §1,919.22 for court reporter fees (Item No. 12). Thus, Plaintiff has requested a total of $3,980.80. While a prevailing party is entitled to jury fees and court reporter fees pursuant to Cal. Code Civ. Proc. § 1033.5, the total costs appear excessive, unreasonable, and improperon the face of the Memo of Costs. (See Nelson, supra, 72 Cal.App.4th at p. 131.) According to Defendants’ costs sheet obtained in Defendants’ file for this action, and this Court’s registrar, Defendants paid $1,500.00 for court reporter fees. (Exhibit “8.7.) Pursuant to the registrar, Defendants have identified only $3,186.30 in total payments by the Plamtifffor recoverable court reporter fees and jury fees for trial. (Exhibit “8.") Thus, Defendants respectfully | request that these costs be reduced by $794.50 if Plaintiff cannot prove that these additional costs were actually incurred and allowable by statute. (See Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761 (“Ladas™), 774 [holding that items that are properly objected to shift the burden to the party claiming costs}.) 3. Plaintiff's costs requested for expert fees (Item No. 8b) are not applicable to the Lender and should be stricken/reduced as to the Dealer Plaintiff has sought $5,421.00 in expert witness fees. On or about March 21, 2014, the Dealer received Plaintiff's Cal. Code Civ. Proc. 998 Offer (“998 Offer”) requesting $3,511.10 in costs DEFENDANT QUANTUM AUTO SALES, INC. AND VEROS CREDIT, LLC'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS -8- M A D I S O N H A R B O R , A L a w Co rp or at io n 1 7 7 0 2 Mi tc he ll N o r t h Ir vi ng , Ca li fo rn ia 9 2 6 1 4 T e l (9 40 ) 7 5 6 - 8 0 5 0 e e e F a x (9 43 8) 7 5 6 - 9 0 6 0 L U D < < N e 0 0 = O h l A | Court has discretion whether or not to require a defendant to pay to cover postoffer costs ofthe services | of expert witnesses. Given the Correction Offers (which provided Plaintiff with rescission, her down expended by Plaintiff, $16,357.30" to pay offthe remaining balance on the subject vehicle, and $40,000 in attorneys’ fees. (Exhibit “9”, RISC). Given the 998 Offer was only served onthe Dealer, the Lender is not required to reimburse Plaintiff for any additional costs permitted under Cal. Code Civ. Proc. § 998. Thus, Plaintiff's costs sought for expert witness fees under [tern No. 8.b should be stricken in there entirety against the Lender. With respect to the Dealer, should this Court findthat Plaintiff is the prevailing party entitled to costs despite the Correction Offers and the Deposit, the Dealer respectfully requests that any costs for expert fees be stricken given the Correction Offers and Deposit provided Plaintiff with a full remedy before litigation began and any experts were retained. Pursuant to Cal. Code Civ. Proc. § 998(d), the payment and any payments made on the subject vehicle, and an additional $500) and the Deposit (which provided Plaintiff with rescission, $3,656.15, and an additional $500) the Dealer was at all times willing to provide Plaintiff with a rescission of the RISC and any actual damages she incurred. (Exhibits “2” and “5.”y However, Plaintiff rejected these offers only in an effort to obtain punitive damages and attorneys’ fees. Such tactics have been routinely enticized by California courts. In Benson, in response to the plaintiff's argumentthat the CLRA offer was incapable of being accepted due to the requirementthat the plaintiff execute a settlement requiring a release of all other claims in the compliant, the court ofappeal observed that the defendants would have been foolish to correct the CLRA claimif eight other identical claims were going forward based on the same conduct. (Benson, supra, 239 Cal.App.4th at p. 1210.) Benson also observed that the additional claims were likely included for the sole purpose of terrorem effect. (Ibid) In Dominguez v. American Suzuki Motor Corp., (2008) 160 Cal.App.4th 53 (“Dominguez”), the court of appeal reversed the denial of a defendant’s motion for summary ? Pursuantto the Retail Installment Sales Contract (“RISC™),the total sale price for the subject vehicle was $19,213.60. This amount includes the $1,000 down payment made by Plaintiff, the $12,713.34 financed by Plaintiff and the $5,500.25 finance charge. Accordingly, the payotf balance for the loan at the time of the 998 Offer was $16,357.30 (519,213.60 - $1,000 - $1,856.30). DEFENDANT QUANTUM AUTO SALES, INC. AND VERGS CREDIT, LLC'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS 9. M A D I S O N H A R B O R , A L a w Co rp or at io n 1 7 7 0 2 Mi tc he ll No rt h Ir vi ne , Ca li fo rn ia 9 2 6 1 4 Te l: (9 49 ) 7 5 6 - 0 0 5 0 s e e Fa x: (9 49 ) 7 5 6 - 9 0 6 0 I Ld rd o O 3 O n W A 10 11 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 judgment/adjudication motion in a Song-Beverly Consumer Warranty Act (“SBA”) action. (Dominguez, supra, at p. 55.) Dominguez held that the buy-back settlement offer offering to buy back the motorcycle and additional $750 for reasonable attorneys’ fees was sufficient and that by rejecting this offer and filing suit the plaintiff was only filing suit to recover civil penalties and/or attorneys’ fees, not to require the defendant to comply with the SBA. (/d. at pp. 56, 59.) Dominguez ultimately foreclosed the plaintiff’s tactic of only filing suit to garner the civil penalties and attorneys’ fees. Plaintiff's 998 Offer confirmed that Plaintiff was seeking this actionin an effort to obtain attorneys’ fees. The 998 Offer | requested everything the Correction Offers provided except that it sought $40,000.00 in attorneys’ fees. (Exhibits “27 and 9.”) Hence, Plaintiff's 998 Offer was nothing more than an attempt to extort attorneys’ fees out of the Dealer. (See Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1026-1027 [holding ifan offer “.. results in mischief or confusion, or any gamesmanship appears,the court may address such concerns when considering what postoffer expert fees to award.”].) Furthermore, if this Court determines the expert fees should not be stricken in their entirety, only those costs for services of expert witnesses actually incurredpostoffer are recoverable. (See Cal. Code Civ. Proc. § 998(d).) Thus, the $750 sought by Plaintiff under Item No. 8.b.1 for the initial inspection by Wreck Car Centers, which was conductedin February of 2014, one month before the 998 Offer,is not recoverable from the Dealer. (Exhibits “97- “10.”") Additionally, Item No. 8.b.]1 and 8.b.2 appear excessive on ther face based on Rocco J. Avellini’s own testimony at trial. On or about June 11, 2015, Mr. Avellini testified that Plainti{f paid him approximately $600.00 a piece for the two inspections that he conducted on Plaintiff's behalf. (Exhibit “11.” trial transcript pp. 387-389.) Given this discrepancy, the amounts requested by Plaintiff in the Memo of Costs appear unreasonable. (See Nelson, supra, 72 Cal.App.4th at p. 131.) Should Plaintiff fail to show that she incurred $750.00 and $751.00 in costs for the two inspections, the Dealer requests that Item Nos. 8.b.] and 8.b.2 be reduced to reflect the proper/actual amount incurred. Further, Plaintiff has requested $1,560.00 at Item No. 8.b.5 for an expert identified as a “Q9 Expert.” No further information has been provided by Plaintiff, thus, the Dealeris DEFENDANT QUANTUM AUTO SALES, INC. AND VEROS CREDIT, LLC'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS ~-10- M A D I S O N H A R B O R , A L a w Co rp or at io n 1 7 7 0 2 M i c h e l l N o r t h ir vi ne , Ca li fo rn ia 9 2 6 1 4 Te i: (9 49 ) 7 5 6 - 9 0 5 0 s w e Fa x: ( 9 4 9 ) 7 6 6 - 9 0 6 0 unable to properly address this cost. However, despite Jeremy Mendoza’, who is not in fact an expert but a party witness not entitled to expert witness costs, no other expert was deposed, identified, designated, or testified at the trial. (Exhibits “12- “13.”) Given the aforementioned, Defendants request that Item No. 8.b.5 be stricken in its entirety, as, on its face, such cost does not appear allowable and Plaintiff has failed to show that this expert was necessary to the conduct of her litigation. 4. Plaintiff’s costs requested for models, blowups, and photocopies of exhibits (Item No. 11) should be reduced Plaintiff has requested $843.00 in Item No. 11. Plamtiff has failed to specify if such costs are for models, blowups or photocopies of exhibits. Defendants are not aware of any blow ups or models prepared or used by Plaintiff in this action. Thus, on its face this cost appears excessive and unreasonable. (See Laduas, supra, 19 Cal.App.4th at p. 774 [holding costs that do not appear as proper charges properly objected to shift the burden ofproofto the party claiming the cost}.) Assuming these costs are photocopies of exhibits, pursuant to Cal. Code. Civ. Proc. § 1033.5(b)(3), costs for photocopies are allowable only if they are copies of exhibits. At trial, around [85 exhibits were produced. However, $843 appears excessive for the number of exhibits used, given many ofthe trial exhibits were only one page and many ofthe exhibits produced by Plaintiff were not reasonably necessary to the conduct of litigation. (See Cal. Code Civ. Proc. § 1033.5(c)(2).) For example, Plamtiff’s exhibit list included 14 payment stubs which were unnecessary and not admitted into evidence. (See Exhibit “14.”) In Ef Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc., (2007) 150 Cal.App.4th 612 (“Yosemite Meat), the claimant sought $30,495 for photocopying exhibits. (Yosemite Meat, supra, at p. 618.) The claimant sought around .19 cents per page. (/hid.) The court of appeal held that .19 cents for copies of 160,000 pages ofbusiness records produced and admitted into evidence was not abnormally high. (/bid.) Here, given there were only 185 exhibits, with 107 of those being one page images of the subject vehicle, Plaintiff”s request for $843 appears excessive on its face. Thus, Defendants request that this amount be reduced. 3 Jeremey Mendoza conducted an appraisal on the subject vehicle prior to this action being initiated on or about March 30, 2013. (Carmax report,trial exhibit 11.) DEFENDANT QUANTUM AUTO SALES, INC. AND VEROS CREDIT, LLC'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS ~11- M A D I S O N H A R B O R , A L a w C o r p o r a t i o n 1 7 7 0 2 Mi tc he ll No rt h Ir vi ne , Ca li fo rn ia 9 2 6 1 4 Te l: (9 49 ) 7 5 6 - 9 0 5 0 s e e F a x (9 49 ) 7 5 6 - 3 0 6 0 I a N o h ~ 3 O h L n 10 11 12 13 14 16 17 18 19 20 22 - J 5. Plaintiffs various costs requested under Item No. 13 should be stricken and/or taxed Plaintiff has sought $172.00 for her counsel’s fees to appear for two hearings via court call. Court cal] fees are neither allowed by statute nor reasonably necessary to the conduct of litigation. (See Cal. Code Civ. Proc. 1033.5 and subdivision (c}(2).}) “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.” (§ 1033.5, subd. (¢)(2).)" (Ladas, supra, 19 Cal.App.4th at p. 774.) Clearly fees incurred to appear telephonically by Plaintiff’s counselare for mere convenience only. Thus, such costs should be stricken. Plamuifthas also sought parking expenses and mileage for Plaintiffs ex parte hearing to appear at the mandatory settlement conference via telephone ($98.00), counsels’ mileage for attendance at the May 1, 2014 hearing to continue trial ($92.00), counsels’ mileage for attendance at the May 29, 2014 mandatory settlement conference {$92.00), and for parking and mileage during the trial (5301.00). In Ladas, the court of appeal held that the trial court erred in failing to strike costs for local travel expenses unrelated to depositions, including parking fees, cab fares, and "mileage/parking" fees for attorneys and paralegals. (Ladas, supra, 19 Cal App 4th 761.) Ladas held that the only travel expenses authorized by the statute are those incurred to attend depositions (Cal. Code Civ. Proc. § 1033.5(a)3)). (/bid.} Thus any such costs should be stricken. Plaintiff has further sought her travel expenses for attending the trial and her attorneys’ travel expenses for trial as well. Plaintiff has sought a total of $845.00" for her airfare at the time of trial; $3,812.20 for hotel expenses, which include her hotel stay andher counsels’ hotel stay at the time of trial, and an unidentified person’s stay in October of 2014; and unidentified travel expenses including $92.00 in October 2014, $648.50 for client’s travel in April 2015, $92.00 for trial travel in April 20135, * Due to the need to continue trial, on or about November 24,2014, Defendants agreed to reimburse Plaintiff with $842.00 to compensate Plaintifffor the airfare she represented she incurred. (Exhibit “15.") Theparties did not agree that Defendants would reimburse Plaintiff for any other travel costs. DEFENDANT QUANTUM AUTO SALES, INC. AND VEROS CREDIT, LLC'S NOTICE OF MCTION AND MOTION TC STRIKE OR TAX COSTS -12- M A D I S O N H A R B O R , A L a w C o r p o r a t i o n 1 7 7 0 2 Mi tc he ll No rt h ir vi ng , Ca li fo rn ia 9 2 6 1 4 T e l (9 49 ) 7 5 6 - 5 0 5 0 « s e Fa x: (9 48 ) 7 5 6 - 9 0 5 0 a d S e N N t h 20 $212.00 for Rosner’s travel during trial, and $112.70 for travel expenses on December 2, 2014, totaling $1.157.20. As shown above, only travel expenses incurred to attend depositions are allowable as costs, (See Cal. Code Civ. Proc. § 1033.5(a)(3); see also Ladas, supra, 19 Cal App 4th 761.) At best, all of the aforementioned costs are merely convenient or beneficial to the preparation of litigation,the recovery of whichis prohibited under Cal. Code Civ. Proc. § 1033.5(c).) Moreover, a party in whose favor a judgmentis rendered, who voluntarily atiends the trial without being subpoenaed by the opposite party, and while there is called as a witness by the latter, is not entitled to witness fees or mileage. (Beal v. Stevens (1887) 72 Cal. 451, 458-459.) Plaintiffattended the trial to testify on her own behaif and the statute did not intend to allow compensation for her voluntary attendance at trial based on her own natural interest as a partyto the htigation. (/bid.) Thus, all such costs aforementioned should be stricken. The identical arguments made directly above apply to Plaintiff's costs sought for meals during trial. Specifically, Plaintiff has sought $1,065.00 for meal expenses. However, the only meal expenses recoverable under Cal. Code Civ. Proc. § 1033.5 are those for jurors during trial and deliberation. While Cal. Code Civ. Proc. § 1033.5(a)(3) permits travel expenses to attend depositions, it does not permit meals eaten while attending depositions. Nor can meal expenses be justified as “necessary to the conduct of litigation” since attorneys and parties have to eat whether they are conducting litigation or not. (See Ladas, supra, 19 Cal App 4th at pp. 774-775.) Accordingly, at best these costs are convenient and beneficial in the preparation oflitigation and are thus prohibited by Cal. Code Civ. Proc. § 1033.5(c). Plaintiff has also sought $350 for towing fees incurred by Plaintiff on or about April 4, 2014, when towing the vehicle for inspection. Such costs are investigation expenses and are strictly prohibited by Cul. Code Civ. Proc. § 1033.5(b)(2). (See Laduas, supra, 19 Cal App 4th at p. 776 [holding a party may not recover costs for investigation expenses incurred in preparing the case for trial].) Preparing the subject vehicle for inspection by both parties is an expense incurred in preparation of Plaintiff”s action. Absent an agreement by Defendants to compensate Plaintiff for such expenses they are not recoverable, (Id. at p. 776.) DEFENDANT QUANTUM AUTO SALES, INC. AND VEROS CREDIT, LLC'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS ~13- M A D I S O N H A R B O R , A L a w Co rp or at io n 1 7 7 0 2 Mi tc he if N o r t h Ir vi ne , Ca li fo rn ia 9 2 6 1 4 Te l: (9 49 ) 75 6- 90 50 we s Fa x: (9 48 ) 75 6- 50 60 Plaintiff has also sought $704 for prejudgmentinterest. Cal. Code Civ. Proc. § 998 only allows for prejudgment interest in a personal jury action, pursuant to Cal. Civ. Code § 3291, from the time of the offer to the time of a judgment that “beats™ the offer. This is not a personal injury action, and thus prejudgment interest is not allowable as an item of costs. Moreover, to obtain pre-judgment interest in a non-personal injury action, such as this, Plaintiff would have necessarily had to put that issue before the jury, but failed to do so. (See Bullis v. Security Pac. Nat'l Bank (1978) 21 Cal. 3d 801, 814 [holding the trier of fact must determine prejudgment interest under Cal. Civ. Code § 3288]; see also Nordahi v. Department ofReal Estate (1975) 48 Cal. App. 3d 657, 665.) Accordingly. Plaintiff has no claim, whatsoever, to prejudgment interest. D. CONCLUSION Based on the forgoing, Defendants respectfully requests that Plaintiff”s Memo of Costs be stricken and/or taxed. Respectfully submitted this 7" day of December, 2015 by: MADISON HARBOR, ALC Jenos Firoytng m-Heidari, Attorney efendants DEFENDANT QUANTUM AUTO SALES, INC. AND VEROS CREDIT, LLC'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS “14. M A D I S O N H A R B O R , A l a w C o r p o r a t i o n 1 7 7 0 2 Mi tc he it N o r t h Ir vi ne , Ca li fo rn ia 9 2 6 1 4 T e l ( 9 4 9 ) 7 5 6 - 9 0 5 0 s e e F a o ( 9 4 8 ) 7 5 6 - 5 0 6 0 S w N D 0 0 1 Z h 26 27 28 DECLARATION OF JAMES S. SIFERS I, James S. Sifers, hereby declare as follows: 1. 2 I am an attorney licensed to practice law in the State of California. This law firm, Madison Harbor, and I represent Defendants in the above entitled action. 1 am one ofthe custodians ofrecords for Madison Harbor and I am one ofthe attorneys that appeared and represented Defendants at the trial of this action. I have personal knowledge as to the matters declared herein and if called upon to do $0, | can competently testify thereto. As to matters stated on my information and belief, I believe them to be true. On or about June 18, 20135,the jury. by special verdict, found the Dealer lable for violations ofthe CLRA and ASFA, intentional misrepresentation, and concealment, and awarded Plaintiff rescission of the RISC, the incidental cost ofreplacement tires, and punitive damages. This Court subsequently entered judgment on the jury’s verdict against the Dealer, and against the Lender, pursuant to the Holder Rule. The Surety settled with Plaintiff shortly before trial. Attached to the concurrently filed Compendium of Exhibits at Exhibit “1” is a true and correct copy ofthe Notice of Entry of the Judgment entered by this Court, which includes therein the Jury’s verdict, and which was served on my office on or about November 3, 2015, where it has been maintained in the ordinary course of business from the time it was received to the present. On or about June 25, 2013, within section 1782"s 30-day remedial period, I responded to a demand by Plaintiffby tendering a written offer, on behalfofthe Dealer, of complete rescission of the Vehicle transaction to resolve Plamtiff’s claims and avoid legal action. This response was admitted into evidence by the Courtat the time of the trial ofthis action, as Exhibit 180. Plaintiffrejected this offer on or about July 3, 2013. In response to Plaintiff's rejection, on or about July 12, 2013, prior to expiration of the CLRA’s 30-day notice period, on behalf of the Dealer and the Surety, 1 sent a letter to Plaintiffs counsel reaffirming the original offer offull rescission and also indicating that the Dealer had agreed to provide Plaintiff with an additional $500.00 for all incidental costs, e.g. $172.80 for replacement tires. The second offer was admitted into evidence by the Court at the time ofthe trial ofthis action, as Exhibit 182. Attached to the concurrently filed Compendium of Exhibits at Exhibit “27 is a true and correct copy of these letters (collectively referred to as “Correction Offers”), DEFENDANT QUANTUM AUTO SALES, INC. AND VERGS CREDIT, LLC'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS -15- M A D I S O N H A R B O R , A L a w C o r p a r a t i o n 1 7 7 0 6 2 Mi tc he l! N o r t h ir vi ne , Ca li fo ri a 9 2 6 1 4 T e t ( 9 4 9 ) 1 5 6 - 8 0 5 0 s e s F a x ( 2 4 9 ) 7 5 6 - 9 0 5 0 o o o e = o n W e l s L e r g e e 2 2 P R D R B r m m e a m e t m m e e me d m e om a p s t h B r b Y - O D N D e e 3 a h e R Y o - 26 27 28 which my office caused to be prepared and sent to Plaintiff's counsel, and which has been maintained by my office in the ordinary course ofbusiness from the timeit was preparedto the present. On or about August 20, 2013, Plaintifffiled her first amended complaint, which included a claim for damages under the CLRA. Attached to the concurrently filed Compendium of Exhibits at Exhibit “371s a true and correct copy ofthe First Amended Complaint, which was served on my office, where it has been maintained in the ordinary course ofbusiness from the time it was received to the present. On or about June 20, 2013, Plaintifffiled her original complaint. Attached to the concurrently filed Compendium of Exhibits at Exhibit “4” is a true and correct copy ofthe Complaint, which was served on my office, where it has been maintained in the ordinary course ofbusiness fromthe time it was received to the present. On behalf ofthe Dealer and the Surety, [ applied to the Court, on or about August 2, 2013,to deposit the funds necessary to effectuate the rescission of Plaintiff’s purchase of the Vehicle, pursuant to Section 2983.4 (“Deposit”). The Deposit was granted and funds were deposited in the amount of $4,156.15. Attached to the concurrently filed Compendium of Exhibits at Exhibit “3” is a true and correct copy ofthe Court’s Order on the above described application, which has been maintained by my office in the ordinary course of business from the time it was received to the present. On or about August 2, 2013, on behalfofthe Dealer and the Surety, filed the Dealer and Surety’s answer to Plaintiff's Complaint, which included the defense permitted under Cal. Civ. Code § 2983.4 at No. 26. Attached to the concurrently filed Compendium of Exhibits at Exhibit “6” is a true and correct copy ofthe Dealer and Surety’s Answer to the Complaint, which was served on my office, where it has been maintained in the ordinary course of business from the time it was received to the present. On or about September 6, 2013, on behalf ofthe Dealer and the Surety, filed the Dealer and Surety’s answer to Plaintiff’s First Amended Complaint, which included the defense permitted under Cal Civ. Code § 2983.4 at No. 26. Attached to the concurrently filed Compendium of Exhibits at Exhibit “7”is a true and correct copy of the Dealer and Surety’s Answerto the First Amended Complaint, DEFENDANT QUANTUM AUTO SALES, INC. AND VEROS CREDIT, LLC'S NOTICE OF MOTION AND MOTION TOSTRIKE CR TAX COSTS-1 Gn M A D I S O N H A R B O R , A L a w C o r p o r a t i o n 1 7 7 0 2 M i t c h e l N o r t h Ir vi ne , Ca li fo rn ia 9 2 6 1 4 T e l ( 9 4 9 ) 7 5 6 - 0 0 5 0 s e e F a x ( 9 4 9 ) 7 5 6 - 5 0 6 0 12. which was served on my office, where it has been maintained in the ordinary course ofbusiness from the time it was received to the present. Attached to the concurrently filed Compendium of Exhibits at Exhibit “8” is a true and correct copy of this Court’s registrar, which 1 obtained from the Orange County Superior Court’s website. On or about March 21, 2014, Plaintiff served an “Offer to Allow Judgment to Be Entered Against Defendant Quantum Auto Sales, Inc. [C.C.P. § 998].” (“998 Offer”). Attached to the concurrently filed Compendium of Exhibits at Exhibit “9” is a true and correct copy of Plaintiff®s 998 Offer, which was served on my office, where it has been maintained in the ordinary course ofbusiness from the time it was received to the present. Attached to the concurrently filed Compendium of Exhibits at Exhibit “10” is a true and correct copy ofthe relevant portions ofthe reporter’s transcript of deposition of Rocco Avellini, taken on or about April 30, 2014, which was obtained from the court reporter by my office, where it has been maintained in the ordinary course ofbusiness from the time it was received to the present. Attached to the concurrently filed Compendium ofExhibits at Exhibit “117is a true and correct copy ofthe relevant portions ofthe reporter’s transcript ofthe trial proceedings of this action, which was obtained from the court reporter by my office, where it has been maintained in the ordinary course of business from the time it was received to the present. Attached to the concurrently filed Compendium of Exhibits at Exhibit “127is a true and correct copy of Plaintiff’s Designation of Expert Witness Pursuant to Code of Civil Procedure § 2034.260, which was served on my office, where it has been maintained in the ordinary course ofbusiness from the time it was recetved to the present. On or about March 30, 2013,prior to this action, Plaintiff sought an appraisal ofthe subject vehicle from Carmax. This appraisal was admitted into evidence by the Court at the time ofthe trial ofthis action, as Exhibit 11. Attached to the concurrently filed Compendium of Exhibits at Exhibit “137is a true and correct copy of Carmax’s Appraisal. On or about November 24, 2014, on behalfofthe Dealer, | provided Plaintiff with $842.00 as reimbursement for her airfare given the trial had to be continued. Attached to the concurrently filed Compendium of Exhibits at Exhibit “15”is a true and correct copy ofthis letter, which my office DEFENDANT QUANTUM AUTO SALES, INC. AND VERGCS CREDIT, LLC'S NOTICE OF MOTION AND MOTION TOSTRIKE OR TAX COSTS-17- M A D I S O N H A R B O R , A L a w C o r p o r a t i o n 1 7 7 0 2 Mi tc he l] No rt h ir vi ne , Ca li fo rn ia 9 2 6 1 4 T e l (9 49 ) 7 5 6 - 8 0 5 0 s w e Fa x: (9 49 ) 7 5 8 - 9 0 6 0 ta d O e 0 a S N 11 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 caused to be prepared and sent to Plaintiff’s counsel, and whichhas been maintained by my office in the ordinary course ofbusiness from the time it was prepared to the present. I declare under the penalty ofperjury under the laws ofthe State of California that the foregoing is true and correct. Executed at Irvine, California. Dated this 7" day of December, 2015, by: = James S. Sifers DEFENDANT QUANTUM AUTO SALES, INC, AND VEROS CREDIT, LLC'S NOTICE OF MOTION AND MOTION TC STRIKE OR TAX COSTS _18- F E O o N D 0 1 11 12 13 15 16 17 19 20 21 22 4} 23 24 25 26 28 PROOF OF SERVICE STATE OF CALIFORNIA ) ) SS COUNTY OF ORANGE ) I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action, my business address is 17702 Miichell North, Irvine, CA OnDecember 7, 2015, I served the foregoing documents: DEFENDANT QUANTUM AUTO SALES, INC. AND VEROS CREMT, LLC'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JAMES 8. SIFERS on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: | Mr. Greg Babbitt, Esq. Mr. Hal Rosner, Esq. Rosner, Barry & Babbitt, LLP 10085 Carroll Canyon Rd. Suite 100 San Diego, CA 92131 [X] 1amreadily familiar with the firms practice ofcollecting and processing of documents and correspondence for mailing with the United States Postal Service. Under that practice, on the above date, the envelope was sealed and placed for collection and mailing following the ordinary business practices of our office. This results in the envelope being delivered to the United State Postal Service that same day, with postage thereon fully prepaid. [ 1 Ideposited each such envelope in the mail at Irvine, CA, with postage thereon fully paid. [ 1 Icaused such envelope to be delivered by hand to the office of addressee. Executed at Irvine, CA. [X] [sent the attached documents via electronic mail: greg@rbblawgroup.com, hal@rbblawgroup.com [ 1] By delivering such documents to an overnight mail service or an authorized courier in an envelope or package designated by the express service courier addressed to the person(s) on whom 1t 1s to be served [X] Ideclare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 7, 2015, at Irvine, California. Crystal FATaro