Angela Wergechik vs. Anaheim Arena Management, LLC

Reply to Opposition

Cal. Super. - 4th Dist.May 7, 2015

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WORKPLACE JUSTICE ADVOCATES, PLC Tamara S. Freeze, California Bar No. 239037 Robert Odell, California Bar No. 286488 9891 Irvine Center Drive, Suite 200 Irvine, California 92618 Telephone: (949) 378-9794 Fax: (949) 266-9388 tf@freezelawoffice.com Attorneys for PLAINTIFF ANGELA WERGECHIK ELECTRONICALLY FILED Superior Court of California, County of Orange 0313/2018 at 04:51:00 PM Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF ORANGE ANGELA WERGECHIK, an individual, Plaintiff, VS. ANAHEIM ARENA MANAGEMENT, LLC, a California Limited Liability Company (dba “HONDA CENTER”), ANAHEIM DUCKS HOCKEY CLUB, LLC, a California Limited Liability Company, and DOES 1 through 50, inclusive, Defendants. _i- CASE NO. 30-2015-00786670-CU-WT-CJC Hon. Derek W. Hunt DEPT. C-23 REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE OR TAX COSTS Date: Time: Dept: March 20, 2018 9:00 a.m. C-23 Reservation Number: 72753563 REPLY TO DEFENDANT’S OPPOSITION TO LAINTIFF’S MOTION TO STRIKE OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS L INTRODUCTION Lutter seeaes ae seeeeieseeee 1 11. DISCUSSION cotinine ete see steer eben seein sees 1 A. Defendant Is Not Entitled to Costs Pursuant to Case Law and Public Policy of CCP §998 and the FEHA .......cooiiiiiiniiiicccce cece eee 1 1. Defendant’s Statutory Offer to Compromise Was Not Valid.............. 1 2 Plaintiff is the Prevailing Party and Was Not Required to File her Claims in Limited Civil Court .........cccovivininiininiciiicienccsce ee & 3. Defendant is Not Entitled to its Post-CCP §998 Offer Costs as California Law and Public Policy Hold That the Express Cost Shifting Provision in Gov. Code §12965(b) Overrides CCP §998.................... 3 B. Plaintiffs FEHA Claims Were Not Frivolous, Therefore Defendant Should Not Be Awarded Any Of ItS COSES ....eeviieiiieiieiiieiie siete eee eee 4 C. Defendant Did Not Prevail on Plaintiff’s Non-FEHA Claims and Thus Should Not Be Entitled to Its COStS ........eeuieiuiiiiiiiieciieeieeeceee e 6 D. Defendant’s Costs Were Not Reasonable, Necessary, Or Authorized By EUBETIER mm mmm 05501, 8568650 5H 50.5 5 HER A 5 ST 7 1. Expert Witness Fees. ......covuiiiiiiiiiiiieniieeie cece eee ee ¥ 2. Trial Exhibits TIemonstfaives sues amma susssanmmss ssmmsemmess a 8 3. Defendant’s Hotel, Parking and Mileage Costs for Trial .................... 9 4. Other Unchallenged COStS .......c.covieeiieiiiiiiieiie cece cece 10 111. CONCLUSION... cites esate etee sate ete este estae sate esse essee esses esse esse anseesnsaens 10 -1 - REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L INTRODUCTION Notwithstanding Defendant’s lengthy discussion on the validity of its statutory offer to compromise or whether Plaintiff did not obtain a “more favorable” judgment, Defendant is not entitled to its costs pursuant to CCP §998 and the FEHA. Defendant first argues that its statutory offer to compromise was valid, but this argument does not add value to the correct issue at hand here: whether Defendant is not entitled to its costs. As the discussion below will reiterate, California courts and public policy hold that, even after a defendant prevails in a nonfrivolous action after offering a statutory settlement under CCP §998, the express cost shifting provision in Gov. Code §12965(b) overrides CCP §998, regardless of the offer’s validity. See Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (2018) 19 Cal. App.5th 525. In addition, regardless of whether Defendant is considered the prevailing party or not, Plaintiff’s FEHA claims were not frivolous or without merit, therefore Defendant is not entitled to its costs. See Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97. Furthermore, Defendant’s costs were not reasonable, necessary, or authorized by statute. Accordingly, this Court should deny Defendant’s improper requests for costs. II. DISCUSSION A. Defendant Is Not Entitled to Costs Pursuant to Case Law and Public Policy of CCP §998 and the FEHA 1. Defendant’s Statutory Offer to Compromise Was Not Valid. Defendant argues that it was the prevailing party, alleging that Defendant’s offer pursuant to CCP §998 was valid and made in good faith. However, the offer was not realistically reasonable under the circumstances of this particular case, as Defendant was well-aware that it was smaller than Defendant’s previously-offered severance package, which was also rejected by Plaintiff. Thus Defendant simply availed itself of the CCP §998 terms at no real risk. See Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 63 (holding that, despite the defendant’s “tenuous” liability in light of the potential damages, the defendant could not expect that its offer would be accepted, therefore “the sole purpose of the offer was to make [the defendant] eligible for the recovery of [costs] -1- REPLY TO DEFENDANT’S OPPOSITION TO LAINTIFF’S MOTION TO STRIKE OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 at no real risk). Nevertheless, regardless of a CCP §998 offer’s validity, case law and sound public policy dictate that the express cost shifting provision in Gov. Code §12965(b) overrides CCP §998. Thus, Defendant should not be able to recover costs pursuant to CCP §998 if it would not be able to recover costs pursuant to Gov. Code §12965(b), as Plaintiff’s Motion to Strike or Tax Costs and this reply to Defendant’s Opposition to Plaintiff’s Motion to Strike or Tax Costs reiterate. See again Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc., supra. 2. Plaintiff is the Prevailing Party and Was Not Required to File her Claims in Limited Civil Court Defendant further argues that Plaintiff is not properly awarded costs because she should have sought to vindicate her Labor Code claim in Limited Civil court. Defendant’s reliance on Steele v. Jensen Instrument Company (1997) 59 Cal.App.4th 326 is counteracted by the abundant case law supporting Plaintiff filing an unlimited civil case. Trial courts may award costs and fees to a plaintiff who recovers less than the jurisdictional amount for an unlimited civil case when the plaintiff reasonably and in good faith brought the lawsuit believing that the ultimate recovery would exceed the jurisdictional limit of $25,000. See Carter v. Cohen (2010) 188 Cal. App.4th 1038; see also Valentino v. Elliott Sav-On Gas, Inc. (1988) 201 Cal.App.3d 692 (finding that plaintiff reasonably brought case in a superior court rather than municipal court even though her recovery was less than the jurisdictional amount); See also Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 987 (holding that if the plaintiff's attorney reasonably expected to present evidence supporting damages in excess of $25,000, the trial court should not deny attorney fees just because the trier of fact did not rule in favor of the plaintiff). Here, notwithstanding that Plaintiff reasonably combined all her claims into one action, as they were related to some degree, instead of wasting judicial resources and filing multiple lawsuits, Plaintiff did obtain a more favorable judgment, as the jury returned the verdict in her favor on her Seventh cause of action - Labor Code Sec. 1198.5. As such, she was awarded a monetary remedy in the amount of $750 and can thus recover attorneys’ fees and costs under CCP section 1032(b), even -2- REPLY TO DEFENDANT’S OPPOSITION TO LAINTIFF’S MOTION TO STRIKE OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 though she did not prevail on all causes of action asserted. See Michell v. Olick (1996) 49 Cal. App. 4th 1194 (even though plaintiff only prevailed on one cause of action (a partial recovery), court held plaintiff was prevailing party because she was the party with a “net monetary recovery” and thus, entitled to costs as a matter of right). These attorneys’ fees and costs are well in excess of the jurisdictional limit. Possibly the best indicator that Plaintiff reasonably believed that her claims would result in a recovery greater than $25,000 is the fact that Defendant itself agreed and thus offered Plaintiff $119,375 pursuant to CCP § 998. Believing that she would recover a greater amount from a jury verdict, Plaintiff thus rejected that offer. Even then, Defendant’s argument that Plaintiff is not the prevailing party based on Plaintiff not being able to recover a monetary award exceeding the CCP §998 offer should not apply to this case, as Defendant did not make a valid offer in the first place. Nevertheless, Defendant presents incorrect facts to support its position. 3. Defendant is Not Entitled to its Post-CCP §998 Offer Costs as California Law and Public Policy Hold That the Express Cost Shifting Provision in Gov. Code §12965(b) Overrides CCP §998 Defendant attempts to downplay the court’s reasoned discussion in Arave, supra, 19 Cal. App.5th 525 holding that the express cost shifting provision in Gov. Code §12965(b) overrides CCP §998. Defendant instead instead relies on Sviridov v. City of San Diego (2017) 14 Cal. App.5th 514, 520-21, which is not on-point and simply supports the general policy notion that CCP §998 “was designed to create economic incentives on both parties to settle rather than try their lawsuits [and t]o do so, both sides must face some economic consequences if it turns out they miscalculate and lose.” However, as Plaintiff explained in her Motion to Strike or Tax Defendant’s Costs, the Arave court specifically addressed the issue at-hand (i.e., a CCP §998 offer vs the FEHA cost- shifting provision) and specifically holding that the FEHA cost-shifting provision overrides CCP §998 “because it properly takes into account the public policy of encouraging FEHA plaintiffs to bring meritorious claims.” Sviridov does not mention this countervailing public policy other than to -3- REPLY TO DEFENDANT’S OPPOSITION TO LAINTIFF’S MOTION TO STRIKE OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 note plaintiff did ‘not establish[ ] the court did not properly consider the policies of both provisions in making the award.” Arave, supra, 19 Cal.App.5Sth at 555 (citing Sviridov, supra, 14 Cal. App.5th at p. 521). Indeed, allowing prevailing FHEA defendants to recover CCP §998 costs would essentially undermine the effectiveness of the FEHA in the first place and thus discourage plaintiffs to bring meritorious claims. Plaintiff brought her claims in good faith and evaluated Defendant’s CCP §998 offer, ultimaltey rejecting it because she did not believe it to be a fair settlement in relation to her legitimate claims - indeed, at that time, Plaintiff’s lost wages, costs and attorney’s fees already outweighed Defendants’ CCP § 998 offer by nearly a factor of ten. Defendant now uses 20-20 hindsight in order to argue that “Plaintiff could have avoided years of litigation and the attendant waste of the parties’ and Court’s resources if she simply evaluated her case at the time Defendant made its Section 998 Offer and accepted it.” (Defendant’s Opposition to Plaintiff’s Motion to Strike or Tax Costs, Page 12, Lines 11-13). However, accepting a settlement offer that is unfair or offered in bad faith is not reasonable, as the California Court of Appeal pointed-out in Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692: “[Aln offeree cannot be expected to accept an unreasonable offer. Hence, any subsequent punishment of the offeree for nonacceptance does not further the purpose of section 998, because the offeree would not have acted differently at the time of the offer despite the threat of later punishment. In these circumstances, later punishment of the offeree merely provides a windfall to the offeror and does not encourage settlements.” Id. at 699. Thus in FEHA cases like this, CCP §998 should be read in conjunction with the purpose of FEHA to encourage plaintiffs to bring meritorious claims, as soundly reasoned in Arave, supra, 19 Cal. App.5th 525. To read CCP §998 independently of Gov. Code §12965(b) would defeat the legislature’s goal of providing how costs and fees should be awarded in such proceedings. See In re Marriage of Green (1989) 213 Cal. App.3d 14 (holding CCP §998 does not apply to family law cases since the Legislature specifically provided how costs and fees were to be awarded in those cases). B. Plaintiff’s FEHA Claims Were Not Frivolous, Therefore Defendant Should Not -4 - REPLY TO DEFENDANT’S OPPOSITION TO LAINTIFF’S MOTION TO STRIKE OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Be Awarded Any of Its Costs In hopes to satisfy the cost exception from Williams, supra, 61 Cal. 4th at 99-100, Defendant also argues that Plaintiff’s entire action was frivolous. However, in replying on Guthrey v. State of California (1998) 63 Cal.App.4th 1109, 1111, Defendant conveniently omits a critical fact: in Guthrey, the Defendant prevailed on summary judgment because the plaintiff could not establish even a prima facie case for any of his claims. Accordingly, the Guthrey court noted that the plaintiff had no case of arguable merit because he did not present any evidentiary support to even indicate the existence of triable issues of fact on his claims. /d. at 1111. In complete contract to Guthrey, Plaintiff had numerous claims of arguable merit and did ultimately prevail on at least one of those claims. Defendant even filed a massive, 600+ page Motion for Summary Judgment, which was denied by the court as there were numerous triable issues of fact that were highly disputed by both parties. Ultimately, because of Plaintiff’s meritorious claims, Defendant’s MSJ was denied in full. As further evidence of the arguable merit of Plaintiff’s claims, several jurors still voted in favor of Plaintiff on the claims she lost at trial, illustrating perfectly how reasonable jurors could (and did) find in favor of Plaintiff. Defendant now makes incongruous, self-serving arguments in an attempt to illustrate that Plaintiff could not have believed in the merit of her own claims. First, these arguments are entirely irrelevant, as Plaintiff did ultimately prevail on one of her claims. Second, Plaintiff presented ample evidence at trial linking Defendant’s termination of her employment to her complaint raising concerns of gender-based discrimination (i.e. how after nearly twenty (20) years of employment and impeccable performance and promotions, Plaintiff was terminated just months following her complaint of gender-based discrimination). Additionally, mere fact that (1) Defendant actually placed value on Plaintiff’s claims via its CCP § 998 offer and (2) the court denied Defendant’s Motion for Summary Judgment, demonstrably prove that Plaintiff’s claims, although only partially successful at trial, were not frivolous. In examining this very issue, both the California Court of Appeal and the Supreme Court has firmly warned against this type of post hoc reasoning that Defendant offers: “In applying these criteria, it is important that a [court] resist the understandable -5- REPLY TO DEFENDANT’S OPPOSITION TO LAINTIFF’S MOTION TO STRIKE OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest ones believe that he has been the victim of discrimination, and a matter how meritorious one said claims may appear at the outset, the course of litigation is rarely predictable. Besides the facts may not emerge until discovery or trial... Even when the law or the facts appear questionable at the outset, a party may have an entirely reasonable ground for bringing suit . . . To take the further steps of assessing attorneys fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of title VII” See Christianburg Garment Co. v. EEOC (1978) 434 U.S. 412. Both California and Federal courts have also repeatedly stressed the fact that costs and attorneys’ fees should be awarded to a prevailing civil rights defendant only under rare circumstances where Plaintiff’s conduct is unbelievably extreme or outrageous, i.e. where plaintiff's claims are demonstrably and intentionally false and given with malice and subjective bad faith. See Rosenman vs. Christiansen, Miller, Fink and Jacobs (2001) 91 Cal. App. 4th 859, 871-72. Thus, California courts have been clear that simple “lack of merit” is not the proper standard for awarding costs against a losing plaintiff under Government Code section 12965(b). Such costs should be awarded to a prevailing defendant “only where the action brought is found to be unreasonable, frivolous, meritless or vexatious” and that “the term ‘meritless’ is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case.” See Jersey v. John Muir Medical Center, 97 Cal. App. 4th 814, 831 (2002) (Emphasis added); See again Christianburg, supra. Therefore, Plaintiff’s case was not frivolous under FEHA, and accordingly, under the Williams rule, Defendant should not be awarded its costs pursuant to FEHA. C. Defendant Did Not Prevail on Plaintiffs Non-FEHA Claims and Thus Should Not Be Entitled to Its Costs -6- REPLY TO DEFENDANT’S OPPOSITION TO LAINTIFF’S MOTION TO STRIKE OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant also argues that it actually prevailed on Plaintiff's non-FEHA claims, however, that assertion is completely unsupported and holds no merit. First, Defendant did not prevail on Labor Code §1198.5, as the jury clearly returned a verdict, 11 to 1, in favor of Plaintiff on this issue. One need only glance at the the jury’s signed verdict form in order to confirm this. Second, with regards to tortious wrongful termination in violation of public policy and violation of Business and Professions Code § 17200 et seq., Defendant does not explain how it was the prevailing party in these causes of action, other than to claim that the statute of limitations limited Plaintiff’s actions and losses to those dating back to May 2014 rather than May 2011. However, as detailed in Plaintiff’s Complaint, the majority of Plaintiff’s factual allegations took place after May 2014, thus, dismissing the cause of action under Business and Professions Code § 17200 et seq. had no practical effect on limiting the remaining causes of action and Defendant fails to explain otherwise. Even then, the Court has discretion to conclude there is no prevailing party for purposes of those claims. See Gilbert v. National Enquirer, Inc. (1997) 55 Cal. App.4th 1273, 1277-79 (where plaintiff voluntarily dismissed complaint to expedite case, the court determined that it was not possible to determine whether either side had prevailed on a practical level). D. Defendant’s Costs Were Not Reasonable, Necessary, Or Authorized By Statute Additionally, even if it were possible for Defendant to recover costs in this context, it is not entitled to recover costs that are excessive or barred by statue. 1. Expert Witness Fees Defendant incorectly summarized Plaintiff’s argument in its Opposition by stating that Plaintiff’s only argument against Defendant’s expert witness fees was that Defendant was not entitled to them pursuant to the FEHA or CCP § 998. However, as Plaintiff’s motion clearly contends, in addition to the FEHA and CCP § 998 arguments, Defendant is not entitled to its expert witness fees because “CCP § 1033.5(a)(8) allows the recovery of expert witness fees when ‘ordered by the court.’ ... Fees for experts not ordered by the court as excluded as recoverable costs... Defendant should not 299 be entitled to recover expert witness fees as none of the expert witnesses were ‘ordered by the court. -7- REPLY TO DEFENDANT’S OPPOSITION TO LAINTIFF’S MOTION TO STRIKE OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Plaintiff’s Motion to Strike or Tax Costs, page 12, Lines 15-21). To expound on Plaintiff’s position that Defendant is not entitled to expert witness fees, Courts have repeatedly upheld this position, even in the face of contractual stipulation among which entitled parties to recover attorneys’ fees and costs. See Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330 (The trial court awarded plaintiff Hsu $136,824.98 in costs, which included $69,466.08 for expert witness fees and general photocopying expenses, which defendants contend are not recoverable as costs. Court of Appeal found that Defendants were correct because these two categories of expenses are “not allowable as costs, except when expressly authorized by law.” (Code Civ. Proc., § 1033.5, subd. (b)(1) & (3).) See also, Robert L. Cloud & Associates, Inc. v. Mikesell (1999) 69 Cal.App.4th 1141. (In light of the Legislature's express prohibition against inclusion of expert witness fees within a cost award (Code Civ. Proc., § 1033.5, subd. (b)(1)), the appellate court modified the trial court’s judgment and deleted the expert witness fees of $18,217.) Based on the foregoing, and because Defendant failed to provide any contrary argument or authority, the court should strike all of Defendant’s expert witness fees (here, the court should strike $151,411.24). 2. Trial Exhibits/Demonstratives Defendant also alleges that it is entitled to recover $12,718.85 in trial exhibits/demonstrative costs by suggesting that these exhibits/demonstratives were “reasonably helpful to the trier of fact.” (Defendant’s Opposition to Plaintiff’s Motion to Strike or Tax Costs, Page 18, line 7-8). However, when an exhibit or demonstrative is not used in trial, California courts hold that it cannot reasonably be argued that such items were helpful to a trier of fact. As the court explained in Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, “this statutory language [of CCP § 1033.5] excludes as a permissible item of costs exhibits not used at trial, which obviously could not have assisted the trier of fact.” Id at 1557-1558, emphasis added. Similarly, the court in Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 held that “because the right to costs is governed by statute, a court has no discretion to award costs not statute authorized” and that therefore, exhibits not used at trial were not considered “reasonably helpful to the trier of fact” under section 1033.5. -8- REPLY TO DEFENDANT’S OPPOSITION TO LAINTIFF’S MOTION TO STRIKE OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Thusly, based on the rationale presented by these courts, it follows that Defendant, here, should not be entitled to recover its costs for exhibits/demonstratives that were not used at trial. At most, Defendant used one or two demonstratives, if any, at trial. (Freeze Decl., 4 2). Rather, the vast majority of demonstratives were created electronically by Defendants. (Id.). Moreover, in Defendant’s Exhibit I, 108, there is a cost of $675 that was vaguely described as “project management.” There is nothing in the statute that allows for the recovery of a “project management” cost, nor does Defendant provide any information suggesting that this cost falls within an allowable cost under the statute. Thus, the court should strike $12,718.85 from Defendant’s costs or, at the very least, tax $5,976.89 for the project management cost and oversize printed exhibits not used at trial. 3. Defendant’s Hotel, Parking and Mileage Costs for Trial Defendant attempts to recover its hotel, parking and mileage costs, however, the authority cited by Defendant only concerns award of reasonable travel expenses beyond depositions and are grossly misapplied to the present case. Defendant argues that the local travel costs for its entire, six-person trial team were necessary, not excessive, and recoverable. Defendant erroneously relies on Bussey v. Affleck (1990) 225 Cal.App.3d 1162, which is entirely distinguishable, as the court’s decision was based on a contractual stipulation between the parties to recover costs and fees." Here, there was no such contract or stipulation between the parties for recovery of any and all costs and fees. Moreover, Defendant egregiously misapplies the holding in Page v. Something Weird Video (1996) 960 F. Supp. 1438 (C.D. Cal., 1996). The facts in the Page case are completely off-point in that the attorney had to travel across the country (New York to California) as reasonable costs necessary to conduct litigation. In the present case, there is zero out-of-state travel. More importantly, Defendant failed to apply the court’s holding in Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, which was specifically mentioned by the court in Page. In Ladas v. California State "Tt should also be noted that the Bussey decision has been abrogated by numerous subsequent decisions, with many courts declining the follow the court’s findings. -9- REPLY TO DEFENDANT’S OPPOSITION TO LAINTIFF’S MOTION TO STRIKE OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Auto. Assn, the court held that “local travel expenses,” which included parking fees and mileage/parking fees, were not recoverable by reasoning that “the only travel expenses authorized by section 1033.5 are those to attend depositions. (§ 1033.5, subd. (a)(3).) Routine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation.” 1d., at 775-776 (emphasis added). The court concluded that the expenses should not be allowed because the Defendant in the case failed to demonstrate how the charges were necessary to the conduct of litigation, as opposed to being merely convenient. Id., at 776, emphasis added. Identical to the attorneys in Ladas, the travel that was necessitated by Defendant’s counsel were local (Los Angeles to Orange County) and did not require flights or cross-country travel by a key attorney, let alone five (5) attorneys and support staff. Additionally, Defendant still did not provide evidence as to how the hotel charges were incurred out of necessity rather than mere convenience. Therefor these costs are not recoverable and the court should strike Defendant’s hotel, parking and mileage costs for trial ($20.115.74). 4. Other Unchallenged Costs Defendant erroneously misstates Plaintiff’s motion by arguing that all other costs are “unchallenged.” Plaintiff challenges a// of Defendant’s costs as unrecoverable as Defendant is not the prevailing party, and because Plaintiff’s claims were not frivolous. As such, Plaintiff believes that the court should strike all of Defendant’s costs as they are not entitled to recover any. III. CONCLUSION For the reasons outlined above, this Court should grant Plaintiff’s Motion to Strike or Tax Costs in its entirety, otherwise, to strike and tax costs as argued above and in Plaintiff’s Motion to Strike or Tax Costs, for Defendant overreaches and seeks to recover costs which it is not entitled to. Dated: March 13, 2018 WORKPLACE JUSTICE ADVOCATES, Tamara S. Freeze, Esq. Attorney for PLAINTIFF ANGELA WERGECHIK By: -10- REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed in the City and County of Orange, State of California. Iam over the age of 18 and not a party to the within action; my business address is: 9891 Irvine Center Drive, Ste 200, Irvine, CA 92618. On March 13, 2018, I served the document(s) described as REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE OR TAX COSTS DECLARATION OF TAMARA S. FREEZE IN SUPPORT OF PLAINTIFF'S REPLY TO DEFENDANT’S OPPOSITION in this action to REscalante@sheppardmullin.com and TKennedy@sheppardmullin.com x (BY ELECTRONIC SERVICE) I caused such papers to be delivered to the Defendants at the above email addresses. Executed on March 13, 2018, at Irvine, California x (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Tamara Freeze -1- REPLY TO DEFENDANT’S OPPOSITION TO LAINTIFF’S MOTION TO STRIKE OR TAX COSTS