Jason Kane vs. Schear, Inc

Opposition

Cal. Super. - 4th Dist.May 26, 2015

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Katherine J. Odenbreit (SBN: 184619) kodenbreit@kjolaw.com ODENBREIT LAW, APC 1635 Algonquin Street, Suite 221 Huntington Beach, CA 92649 Telephone: (888) 490 3510 Facsimile: (714) 908-7628 Briana M. Kim (SBN: 255966) Briana@Briana.Kim BRIANA KIM, PC 249 E. Ocean Blvd., Ste. 814 Long Beach, CA 90802 Telephone: (714) 482-6301 Facsimile: (714) 482-6302 Attorney for Plaintiffs JASON KANE and CHRISTOPHER SIMRAK ELECTRONICALLY FILED Superior Court of California, County of Orange 1010/2017 at 02:44:00 Av Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE JASON KANE and CHRISTOPHER SIMRAK as individuals; Plaintiffs, SCHEAR, INC. dba CLEAR VIEW SYSTEMS; and DOES 1 through 10, inclusive, Defendants. Case No.: 30-2015-00789533-CU-WT-CJC PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE AND/OR TAX COSTS; DECLARATION OF KATHERINE J. ODENBREIT IN SUPPORT THEREOF Assigned for All Purposes to the Honorable Judge Gregory Lewis Dept: C31 Date: October 23, 2017 Time: 10:30 a.m. PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE AND/OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiffs JASON M. KANE and CHRISTOPHER SIMRAK (hereinafter collectively referred to as “Plaintiffs”) respectfully submit their opposition to Defendant SCHEAR, INC.’s (hereinafter referred to as “Defendant”) motion to strike and/or tax costs, as well as Defendant’s late and improper supplemental brief. First, Plaintiffs are entitled to costs under Code of Civil Procedure § 1032 as the prevailing parties because they were awarded a monetary recovery and Defendant was awarded nothing. However, even without a net monetary recovery Plaintiffs would be the prevailing parties. Prevailing on the issue of liability has been recognized as sufficient by itself to determine a prevailing party under the court’s discretionary power pursuant to California Code of Civil Procedure section 1032 where other than monetary relief is recovered. See Pirkig v. Dennis (1989) 215 Cal.App.3d 1560, 1566; see also Zamora v. Shell Oil Co. (1977) 55 Cal.App.4th 204, 214. Here, however, Defendant cannot and does not refute that Plaintiffs were the prevailing party in their moving action as well as the related cross-action filed by Defendant in retaliation. Second, Defendant has made no showing whatsoever in its moving papers, including its late-filed supplemental brief which should be excluded in its entirety, countering the reasonableness or necessity of any of Plaintiffs’ costs. Instead, Defendant first contends (without any legal or factual proof) that Plaintiffs should only recover fifty percent (50%) of their costs and then changes its mind forty-nine (49) days after its initial deadline to now contend that Plaintiffs should recover nothing. Third, Plaintiffs are not required to submit invoices to bring a motion for costs. In fact, California Rules of Court, Rule 3.1700(a) merely requires the memorandum of costs to be “verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case,” a requirement that Plaintiffs’ Memorandum of Costs clearly met here. Fourth, to the extent Defendant’s supplemental brief is even considered, despite being filed forty- nine (49) days after its deadline to file a motion to tax costs, it is inapplicable because the cases therein concern whether the trial court should look at the Fair Employment and Housing Act (“FEHA”) policies -1- PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE AND/OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and Code of Civil Procedure section 1033 in determining whether to award attorney fees to the prevailing party. Plaintiffs currently seek ordinary costs arising out of prevailing on Labor Code claims against Defendant. For all these reasons, as delineated in depth below, the Court should deny Defendant’s motion to strike and/or tax costs; and more specifically, the Court should ignore Defendant’s supplemental brief and the legal arguments contained therein as late, irrelevant, and improper. IL. PLAINTIFFS ARE ENTITLED TO RECOVER COSTS AS THE PREVAILING PARTY Code of Civil Procedure section 1032(4) defines “prevailing party” as the party: [W]ith a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recovery any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034. Plaintiffs succeeded in their claims for minimum wage, meal breaks, rest breaks, accurate itemized wage statements, wrongful termination, and retaliation against Defendant!. As Cross- Defendants, Plaintiffs also succeeded in defending themselves against all claims brought in retaliation against them by Defendant/Cross-Complainant. (See Declaration of Katherine J. Odenbreit (“Odenbreit Dec.”) [P2, Exhibit A.) In fact, the Court even ultimately held at the end of a 6-day jury trial, after years of litigation, that Defendant/Cross-Complainant had provided no factual evidence to substantiate its conversion claim. (Odenbreit Dec., 3.) As a result, Defendant has not and cannot refute that Plaintiffs are the prevailing party in this lawsuit; and therefore, costs should be awarded. Because costs are not recoverable at common law, “he who would claim costs must put his finger on a statute which awards the same. The measure of the statute is the measure of the right.” (Sime v. Hunter (1921) 55 Cal. App.157, 159; see also Heimann v. Los Angeles (1949) 91 Cal.App.2d 311, 314.) In the present case (and as discussed in more detail in Plaintiffs’ motion for attorney fees) the ! Brian Schear’s addition as a defendant close to the eve of trial could have been done even after the case had been tried, once Plaintiffs/Cross-Defendants prevailed, through a motion to amend judgment to add him under an alternate theory of recovery - alter ego liability. Plaintiffs/Cross-Defendants would have litigated this case no differently with or without the addition of Brian Schear as they were arguing that he and Defendant Schear, Inc. were alter egos of one another. 2- PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE AND/OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 operative statute is Labor Code section 226(e), which provides that prevailing parties are “entitled to an award of costs and reasonable attorney’s fees.” (Lab. Code § 226(e).) Moreover, whenever plaintiffs, as here, recover damages on their complaint only, but judgment is entered in their favor upon a cross-complaint, they may be awarded costs upon the cross-complaint. (Borror v. Berry (1942) 51 Cal.App.2d 552, 554.) All the items in sections I through V of Plaintiffs’ memorandum of costs include costs related to litigating both Plaintiffs’ claims and Defendant’s cross- claims, to which Brian Schear was a necessary party and person most qualified deponent. Plaintiffs are entitled to costs for prevailing on their second amended complaint as well as prevailing on Defendant’s cross-complaint; and therefore, Plaintiffs’ costs regarding Brian Schear should neither be stricken nor reduced. III. DEFENDANT FAILS TO PUT FORTH ANY SHOWING THAT PLAINTIFES’ COSTS ARE INAPPROPRIATE As the prevailing party seeking costs, California Rules of Court, Rule 3.1700(a)(1) simply requires Plaintiffs to submit a memorandum of costs and sign it. Since a verified memorandum of costs is prima facie evidence of their propriety, the burden is on a defendant seeking to tax costs to show that they were not reasonable or necessary. Ladas v. California State Auto. Ass’n. (1993) 19 Cal.App.4th 761, 774-776; see also Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265-1266 (mere statements in points and authorities and declaration of counsel insufficient to rebut prima facie showing). Moreover, Defendant’s “motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” (Cal. Rules of Court, rule 3.1700(b)(2). Defendant has not provided any factual/legal bases countering the reasonableness or necessity of any of plaintiff’s costs, instead proffering bald assertions like the rest of its motion.. As such, Defendant’s motion should be denied. IV. PLAINTIFFS ARE NOT REQUIRED TO SUBMIT INVOICES IN SUPPORT OF THEIR MEMORANDUM OF COSTS Defendant baldly contends that Plaintiffs’ reimbursement requests for mileage and parking are unreasonable. Defendant then contends that some of these costs “may also pertain to Defendant Brian 3 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE AND/OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Schear” without providing any evidence. Defendant’s argument regarding mileage and parking costs is premature because there “was no requirement that copies of bills, invoices, statements or any other such documents be attached to the memorandum” at the time of filing. Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308 (holding that a “properly verified memorandum of costs is considered prima facie evidence that the costs listed in the memorandum were necessarily incurred”). Defendant also contends that docket imaging downloads are specifically not allowed under Code of Civil Procedure section 1033.5(b)(3), which precludes photocopying charges. However, the statute does not preclude costs for securing the court record or filed documents; and therefore these costs are allowed. An item neither specifically allowable under Code of Civil Procedure section 1033.5(a) nor prohibited under section 1033.5(b) may nevertheless be recoverable in the court’s discretion. Code Civ. Proc. § 1033.5(c)(4). Since the documents retrieved from the online court service were necessary because they were minute orders that were not always electronically transmitted to counsel, these costs are recoverable. (Odenbreit Dec., {4.) For all these reasons, Plaintiffs’ costs regarding the items mentioned above are appropriate and were necessary to the litigation and were reasonable in amount. The motion to strike and/or tax costs should be denied. V. DEFENDANT HAS FAILED TO COMPLY WITH CALIFORNIA RULES OF COURT Defendant’s supplemental brief should be ignored because it is late. California Rules of Court Rule 3.1700(b)(1) provides that “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013.” (Cal. Rules Court Rule 3.1700(b)(1).) Because plaintiffs served their memorandum of costs by mail within the state of California, Code of Civil Procedure section 1013(a) allowed Defendant’s motion deadline to be “extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California.” (Code Civ. Proc. § 1013(a).) Following the subsequent filing of Plaintiffs’ motion for award of reasonable attorneys’ fees, Defendant suddenly filed “supplemental” briefing in support of its motion to tax costs attempting to dispute the issue of attorney’s fees not yet before this Court. Besides being irrelevant to this motion and exclusively including case law which existed at the time the motion to tax costs was 4- PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE AND/OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 originally filed by Defendant, Defendant’s arguments in its supplemental brief are waived as untimely made. Jimenez v. City of Oxnard (1982) 134 Cal.App.3d 853, 858; see also Santos v. Civil Service Bd. (1987) 193 Cal.App.3d 1442, 1447; see also Douglas v. Willis (1994) 27 Cal.App.4th 287, 289-90. Defendant filed its motion to strike and/or tax costs on July 18, 2017, the last day of its extended deadline, and cannot file supplemental moving papers afterward. Nevertheless, in defiance of the law, Defendant elected to file a supplemental brief citing law which had existed at the time of Defendant’s original filing forty-nine (49) days after its cut-off date of July 18, 2017. As this supplemental brief is untimely, it should be stricken and not considered. V. THE CASE LAW TO WHICH DEFENDANT CITES DOES NOT EVEN SUPPORT ITS MOTION TO TAX COSTS BECAUSE THIS CASE CONCERNS RECOVERY OF ORDINARY COSTS ARISING FROM DEFENDANT’S LABOR CODE (NOT FEHA) VIOLATIONS Plaintiffs remain perplexed as to why Defendant relies on FEHA cases where courts may exercise discretion before awarding reasonable attorney’s fees and costs. Defendant cannot refute that Plaintiffs, as the prevailing party, shall recover costs “as a matter of right” and Code of Civil Procedure section 1033.5(a) outlines the “ordinary costs” which can be recovered. Code Civ. Pro. §§ 1032, 1033.5(a). In fact, nothing in Chavez v. City of Los Angeles (2010) 47 Cal. 4th 970 denies Code of Civil Procedure section 1032(b)’s mandate for award of ordinary costs to the prevailing party, notwithstanding FEHA’s discretionary standard under Government Code section 12965(b). Similarly, Steele v. Jensen Instrument Co. (1997) 59 Cal. App.4th 326 is also inapplicable because it again concerned a FEHA plaintiff governed by FEHA’s discretionary standard under Government Code section 12965(b). In Steele, the plaintiff also refused a 998 offer before trial and failed to recover more than the 998 offer at trial. In sum, Defendant’s (late) reliance on cases concerning FEHA statutes simply underscores its inability to find any case law to tax Plaintiffs’ recovery of costs arising out of Defendant’s Labor Code violations. Here, because attorney fees and costs are mandatory under the Labor Code to the prevailing employee, denying them altogether is contrary to California Labor Code’s public policies and objectives. In a case decided last year, Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal. App.4th 761, the court awarded $98,535.50 in attorney fees for damage awards of only $6,620.00 -5- PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE AND/OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 under a statute providing mandatory attorney fees: Civil Code sections 4000 through 6150 (Davis-Stirling Act). (Id. at p. 772.) Section 5975(c) of the Davis-Stirling Act provides that the “prevailing party shall be awarded reasonable attorney’s fees and costs.” (Civ. Code § 5975(¢c).) The court in Almanor Lakeside Villas Owners Assn. v. Carson held that “[t]he reasoning of Chavez is of limited applicability here. Unlike the fee provision under FEHA, which is discretionary and therefore not irreconcilable with section 1033, subdivision (a), the fee-shifting provision of the Davis-Stirling Act is mandatory.” (Id. at pp. 778- 779.) Similarly, Labor Code section 226(e) provides that Plaintiffs are “entitled to an award of costs and reasonable attorney’s fees.” (Lab. Code § 226(e).) Further, there is no dispute that the jury had awarded Plaintiffs monetary damages for minimum wages; and under Labor Code section 1194, “...any employee receiving less than the legal minimum wage. ..is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage..., including interest thereon, reasonable attorney’s fees and costs of suit.” Cal. Lab. Code §1194(a). The Labor Code, like the Davis-Stirling Act, provides for mandatory costs and attorney fees. The mandatory fee provision under the Labor Code is irreconcilable with section 1033(a) and with the discretionary cost/fee standard under the FEHA, such that Defendant’s (late) reliance on Chavez v. City of Los Angeles and Steele v. Jensen Instrument Co. is immaterial and improper. In other words, Defendant is arguing for apples when oranges are at issue. Therefore, the case law to which Defendant cites in its late and improper supplemental brief does not support its motion and its motion to tax costs should be denied. III. CONCLUSION For all the above reasons and pursuant to the authorities cited herein, the Court is respectfully requested to exercise its discretion to deny Defendant’s motion in its entirety. Dated: October 10, 2017 ODENBREIT LAW, APC By: Attorney for Plaintiffs JASON KANE AND CHRISTOPHER SIMRAK -6- PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE AND/OR TAX COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF KATHERINE J. ODENBREIT I, Katherine J. Odenbreit, declare as follows: 1. I am an attorney at law, duly authorized to practice law before the courts in the State of California. I am one of the attorneys of record for Plaintiffs Jason Kane and Christopher Simrak in the instant action. I am familiar with the files, pleadings, and facts in this case, and if called as a witness | could and would competently testify to the following facts on the basis of my own personal knowledge, information, and belief. 1 am submitting this declaration in support of Plaintiffs’ Opposition to Defendant’s Motion to Strike and/or Tax Costs. 2. Plaintiffs succeeded in their claims for minimum wage, meal breaks, rest breaks, accurate itemized wage statements, wrongful termination, and retaliation against Defendant. As Cross- Defendants, Plaintiffs also succeeded in defending themselves against all claims brought in retaliation against them by Defendant/Cross-Complainant. Attached hereto as “Exhibit A” is a true and correct copy of the Jury’s Verdict Forms in this matter. FN1: Brian Schear’s addition as a defendant close to the eve of trial could have been done even after the case had been tried, once Plaintiffs/Cross-Defendants prevailed, through a motion to amend judgment to add him under an alternate theory of recovery - alter ego liability. Plaintiffs/Cross- Defendants would have litigated this case no differently with or without the addition of Brian Schear as they were arguing that he and Defendant Schear, Inc. were alter egos of one another. 3. In fact, the Court even ultimately held at the end of a 6-day jury trial, after years of litigation, that Defendant/Cross-Complainant had provided no factual evidence to substantiate its conversion claim. 4. Since the documents retrieved from the online court service were necessary because they were minute orders that were not always electronically transmitted to counsel, these costs are recoverable. I declare, under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. Executed on this 10th day of October, 2017, at Long Beach, California. Katherine J. Odenbreit -7- DECLARATION OF KATHERINE J. ODENBREIT EXHIBIT A L I BS Q e = O N A A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPERIOR COURT oF UNTY OF CALIFORNIA ORAN CENTRAL JUSTICE CenieR MAR 2 4 2017 CAVID H, YAMASAKL, Clerk of the Gout SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER UNLIMITED CIVIL JASON M. KANE and CHRISTOPHER SIMRAK, individuals, Plaintiff, SCHEAR, INC. dba CLEAR VIEW SYSTEMS; and DOES 1 through 10, inclusive, Defendants. AND ALL RELATED CROSS-ACTIONS =] VERDICT FORM Case Number: 30-2015-00789533 VERDICT FORM -- 1900 [INTENTIONAL MISREPRESENTATION - JASON KANE] - 1900 VF-1900 VERDICT Intentional Misrepresentation We answer the questions submitted to us as follows: 1. Did Jason Kane make a false representation to Schear, Inc.? Yes / No If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. 2. Did Jason Kane know that the representation was false, or did he make the representation recklessly and without regard for its truth? Yes No If your answer to question 2 is yes, then answer question 3. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. 3. Did Jason Kane intend that Schear, Inc. rely on the representation? Yeu No If your answer to question 3 is yes, then answer question 4. If you answered no, stop here, answer no further questions, and have the presiding juror si gn and date this form. 4. Did Schear, Inc. reasonably rely on the representation? Yes No If your answer to question 4 is yes, then answer question 5. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. 5. Was Schear, Inc.’s reliance on Jason Kane’s representation a substantial factor in causing harm to Schear, Inc.? Yes No If your answer to question 5 is yes, then answer question 6. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. VF-1900 6. What are Schear, Inc. damages? a. Past economic loss $ lost earnings $ lost profits $ other past economic loss $ Total Past Economic Damages: $ TOTAL § Signed: Dated: After all verdict forms have been signed, notify the court attendant that you are ready to present your verdict in the courtroom. U o N O L 0 0 T R Y E R E 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPERIOR coy CoUNIVRT OF CALIFORNIA CENTRAL JUSTICE CENTER MAR 2 4 2017 H. YAMASAK), Clerk of the Coygy eee omy PAviD SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER UNLIMITED CIVIL JASON M. KANE and CHRISTOPHER Case Number: 30-2015-00789533 SIMRAK, individuals, Plaintiff, ) VERDICT FORM - 300 [BREACH OF CONTRACT -- JASON V. KANE] SCHEAR, INC. dba CLEAR VIEW SYSTEMS; and DOES 1 through 10, inclusive, Defendants. AND ALL RELATED CROSS-ACTIONS ia VERDICT FORM - 300 VF-300 VERDICT Breach of Contract We answer the questions submitted to us as follows: 1. Did be a and Jason Kane enter into a contract? Yes No If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. 2. Did Schear, Inc. do all, or substantially all, of the significant things that the contract required it to do? Yes J No If your answer to question 2 is yes, skip question 3 and answer question 4. If you answered no, answer question 3 if excuse is at issue/stop here, answer no further questions, and have the presiding juror sign and date this form 3. Was Schear, Inc. excused from having to do all, or substantially all, of the significant things that the contract required it to do? J No Yes If your answer to question 3 is yes, then answer question 4. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. 4. Did all the conditions that were required for Jason Kane's performance occur? Yes No If your answer to question 4 is yes, skip question 5 and answer question 6. If you answered no, answer question 5 if waiver or excuse is at issue/stop here, answer no further questions, and have the presiding juror sign and date this form 5. Were the required conditions that did not occur excused/waived? Yes No If your answer to question 5 is yes, then answer question 6. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. VE-300 6. Did Jason Kane fail to do something that the contract required him to do? Yes No Or Did Jason Kane do something that the contract prohibited him from doing? Yes No If your answer to [either option for] question 6 is yes, then answer question 7. If you answered no to both options, stop here, answer no further questions, and have the presiding juror sign and date this form. 7. Was Schear, Inc. harmed by Jason Kane’s breach of contract? Yes No If your answer to question 7 is yes, then answer question 8. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. 8. What are Schear, Inc.’s damages? a. Past economic loss $ b. Future economic loss $ TOTAL § Signed: Dated: 3) M | $) After all verdict forms have been signed, notify the court attendant that you are ready to present your verdict in the courtroom. L I Oo 80 3 & t h 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FILED COURT OF CALIFORNIA SUPER BUNTY OF ORANGE CENTRAL JUSTICE CENTER MAR 2 4 2017 DAVID H. YAMASAKI, Clark of the Court BY; comme DEPUTY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER UNLIMITED CIVIL JASON M. KANE and CHRISTOPHER SIMRAK, individuals, Plaintiff, SCHEAR, INC. dba CLEAR VIEW SYSTEMS; and DOES 1 through 10, inclusive, Defendants. AND ALL RELATED CROSS-ACTIONS SEs VERDICT FORM Case Number: 30-2015-00789533 VERDICT FORM -- 1900 [INTENTIONAL MISREPRESENTATION - CHRISTOPHER SIMRAK] - 1900 VF-1900 VERDICT Intentional Misrepresentation We answer the questions submitted to us as follows: 1. Did Christopher Simrak make a false i to Schear, Inc.? Yes No If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. 2. Did Christopher Simrak know that the representation was false, or did he make the representation recklessly and without regard for its truth? Yes No If your answer to question 2 is yes, then answer question 3. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. 3. Did Christopher Simrak intend that Schear, Inc. rely on the representation? Yes No If your answer to question 3 is yes, then answer question 4. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. 4. Did Schear, Inc. reasonably rely on the representation? Yes No If your answer to question 4 is yes, then answer question 5. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. 5. Was Schear, Inc.’s reliance on Christopher Simrak’s representation a substantial factor in causing harm to Schear, Inc.? Yes No If your answer to question 5 is yes, then answer question 6. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. VE-1900 6. What are Schear, Inc. damages? a. Past economic loss $ lost earnings $ lost profits $ other past economic loss $ Total Past Economic Damages: $ Signed: SELAIANG (hmene 7 (} Plesiding Jukor (/ Dated: 3a T TOTAL § After all verdict forms have been signed, notify the court attendant that you are ready to present your verdict in the courtroom. M D L O E O N R R i E 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FILED SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE CENTRAL JUSTICE CENTER MAR 2 4 2017 DAVID H. YAMASAKI, Clark of the Court |; ; T-- 1d SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER UNLIMITED CIVIL JASON M. KANE and CHRISTOPHER SIMRAK, individuals, Plaintiff, SCHEAR, INC. dba CLEAR VIEW SYSTEMS; and DOES 1 through 10, inclusive, Defendants. AND ALL RELATED CROSS-ACTIONS SE Case Number: 30-2015-00789533 VERDICT FORM - 300 [BREACH OF CONTRACT - CHRISTOPHER SIMRAK] VERDICT FORM - 300 VERDICT Breach of Contract We answer the questions submitted to us as follows: 1. Did Schear, Inc. and Christopher Simrak enter into a contract? Yes No If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. 2. Did Schear, Inc. do all, or substantially all, of the significant things that the contract required it to do? Yes J No If your answer to question 2 is yes, skip question 3 and answer question 4. If you answered no, answer question 3 if excuse is at issue/stop here, answer no further questions, and have the presiding juror sign and date this form . 3. Was Schear, Inc. excused from having to do all, or substantially all, of the significant things that the contract required it to do? Yes No If your answer to question 3 is yes, then answer question 4. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. 4. Did all the conditions that were required for Christopher Simrak’s performance occur? Yes No If your answer to question 4 is yes, skip question 5 and answer question 6. If you answered no, answer question 5 if waiver or excuse is at issue/stop here, answer no further questions, and have the presiding juror sign and date this form 5. Were the required conditions that did not occur excused/waived? Yes No If your answer to question 5 is yes, then answer question 6. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. 6. Did Christopher Simrak fail to do something that the contract required him to do? Yes No Or Did Christopher Simrak do something that the contract prohibited him from doing? Yes No If your answer to [either option for] question 6 is yes, then answer question 7. If you answered no to both options, stop here, answer no further questions, and have the presiding juror sign and date this form. 7. Was Schear, Inc. harmed by Christopher Simrak’s breach of contract? Yes No If your answer to question 7 is yes, then answer question 8. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. 8. What are Schear, Inc.’s damages? a. Past economic loss $ b. Future economic loss $ TOTAL $ Signed: [ Presiding Juror Dated: 3/4 | El After all verdict forms have been signed, notify the court attendant that you are ready to present your verdict in the courtroom. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FILED SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE CENTRAL JUSTICE CENTER MAR 2 4 2017 DAVID H. YAMASAKI, Clerk of the Court SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF ORANGE JASON M. KANE, and CHRISTOPHER SIMRAK, individuals, Plaintiff, VS. SCHEAR, INC. dba CLEAR VIEW SYSTEMS; and DOES 1 through 10, inclusive, Defendants. Case No. 30-2015-00789533-CU-WT-CIC JUDGE GREGORY H. LEWES VERDICT FORM 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SPECIAL VERDICT We, the jury in the above action, find the following Special Verdict on the questions submitted: Preliminary Questions: Question No. 1: Was Jason Kane employed by Schear, Inc. from December 23,2013 to October 15, 2014? Yes J No Question No. 2: Was Jason Kane’s employment with Schear, Inc. terminated on October 15, 2014? Yes J No For each claim, select one of the two options listed. 1. of Jason Kane’s claim for unpaid wages for time worked during meal breaks: We find in favor of Jason Kane and against Schear, Inc. We find in favor of Schear, Inc. and against Jason Kane. 2. On Jason Kane’s claim for failure to provide meal and rest breaks: We find in favor of Jason Kane and against Schear, Inc. We find in favor of Schear, Inc. and against Jason Kane. 3. On Jason Kane's claim for waiting time penalties for Schear, Inc.’s failure to pay all wages due and owing upon separation of employment: We find in favor of Jason Kane and against Schear, Inc. We find in favor of Schear, Inc. and against Jason Kane. 4. i Kane’s claim for failure to provide accurate, itemized wage statements: We find in favor of Jason Kane and against Schear, Inc. We find in favor of Schear, Inc. and against Jason Kane. 10 1: 12 13 14 1a 16 17 18 19 20 21 22 23 24 25 26 27 28 On Jason Kane’s claim for wrongful termination in violation of public policy: \/__ We find in favor of Jason Kane and against Schear, Inc. We find in favor of Schear, Inc. and against Jason Kane. On Jason Kane's claim for retaliation for threatening to go to the California Labor Commissioner with his complaints regarding unpaid wages and Schear, Inc.’s failure to provide meal and rest breaks: J We find in favor of Jason Kane and against Schear, Inc. We find in favor of Schear, Inc. and against Jason Kane. If you found in favor of Jason Kane on any of the claims listed above, please respond to the corresponding questions: Damages: L On Jason Kane’s claim for unpaid wages: s 400-00 On Jason Kane's claim for failure to provide meal and rest breaks: sd, 300-00 On Jason Kane's claim for waiting time penalties: $ ¢ On Jason Kane’s claim for failure to provide accurate wage statements: $ $1,850.00 On Jason Kane’s claim for wrongful termination: Past Economic Loss: $ $ Lost Earnings: $ |0, 560-00 Past Noneconomic Loss, including mental suffering, anxiety, _ humiliation, emotional distress: go 2 00.0 0 10 11 12 13 14 15 16 I 18 18 20 21 22 vik 24 25 26 27 28 6. On Jason Kane’s claim for retaliation: Past Economic Loss: $ 7 Lost Earnings: $ q Past Noneconomic Loss, including mental suffering, anxiety, 4, 900-00 humiliation, emotional distress: $ Signed: Cems Oh mony 7 (/ Hresiding ror Dated: svg After all verdict forms have been signed, notify the court attendant that you are ready to present your verdict in the courtroom 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FILED COURT OF CALIFORNIA SUPER ORUNTY OF ORANGE CENTRAL JUSTICE CENTER MAR 2 4 2017 DAVID H. YAMASAKI, Clerk of the Coust BY isin DEPUTY SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF ORANGE JASON M. KANE, and CHRISTOPHER SIMRAK, individuals, Plaintiff, VS. SCHEAR, INC. dba CLEAR VIEW SYSTEMS; and DOES 1 through 10, inclusive, Defendants. Case No. 30-2015-00789533-CU-WT-CJC JUDGE GREGORY H. LEWIS VERDICT FORM 10 kd 12 13 14 15 16 17 18 15 20 21 22 23 24 29 26 27 28 SPECIAL VERDICT We, the jury in the above action, find the following Special Verdict on the questions submitted: Preliminary Questions: Question No. 1: Was Christopher Simrak employed by Schear, Inc. from April 28, 2014 to October 15, 2014? Yes of No Question No. 2: Was Christopher Simrak’s employment constructively terminated on October 15,2014? Yes No For each claim, select one of the two options listed. 1. On Plaintiff Christopher Simrak’s claim for unpaid wages for time worked during meal breaks: of We find in favor of Christopher Simrak and against Schear, Inc. We find in favor of Schear, Inc. and against Christopher Simrak. 2. On Christopher Simrak’s claim for failure to provide meal and rest breaks: iL We find in favor of Christopher Simrak and against Schear, Inc. We find in favor of Schear, Inc. and against Christopher Simrak. 3. On Christopher Simrak’s claim for waiting time penalties for Schear, Inc.’s failure to pay all wages due and owing upon separation of employment: We find in favor of Christopher Simrak and against Schear, Inc. J We find in favor of Schear, Inc. and against Christopher Simrak. 4. On Christopher Simrak’s claim for failure to provide accurate, itemized wage statements: 7 We find in favor of Christopher Simrak and against Schear, Inc. We find in favor of Schear, Inc. and against Christopher Simrak. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. On Christopher Simrak’s claim for constructive termination in violation of public policy: We find in favor of Christopher Simrak and against Schear, Inc. a We find in favor of Schear, Inc. and against Christopher Simrak. 6. On Christopher Simrak’s claim for retaliation for threatening to go to the California Labor Commissioner with his complaints regarding unpaid wages and Schear, Inc.’s failure to provide meal and rest breaks: We find in favor of Christopher Simrak and against Schear, Inc. We find in favor of Schear, Inc. and against Christopher Simrak. If you found in favor of Christopher Simrak on any of the claims listed above, please respond to the corresponding questions: Damages: 1. On Christopher Simrak’s claim for unpaid wages: 5s 983.00 a 2. On Christopher Simrak’s claim for failure to provide meal and rest breaks: $ ls. DO 3. On Christopher Simrak’s claim for waiting time penalties: tne 4. On Christopher Simrak’s claim for failure to provide accurate wage statements: $1058. DO 5. On Christopher Simrak’s claim for wrongful termination: Past Economic Loss: $ $ Lost Earnings: $ ¢ Past Noneconomic Loss, including mental suffering, anxiety, humiliation, emotional distress: $ 10 11 12 13 14 15 16 13 18 19 20 21 22 23 24 25 26 27 28 6. On Christopher Simrak’s claim for retaliation: Past Economic Loss: $ ¢ Lost Earnings: $ ¢ Past Noneconomic Loss, including mental suffering, anxiety, humiliation, emotional distress: $ J, Hi 06-00 Signed: Stein Grane \ Presidiny Juror J Dated: 32d) After all verdict forms have been signed, notify the court attendant that you are ready to present your verdict in the courtroom. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Code of Civ. Proc. § 1013a, subd. (3) STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 249 East Ocean Boulevard, Suite 814, Long Beach, California, 90802. On October 10, 2017, I served true copies of the following document(s): PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE AND/OR TAX COSTS; DECLARATION OF KATHERINE J. ODENBREIT IN SUPPORT THEREOF I served the document(s) on the person(s) below as follows: Sean B. Janzen, Esq. Law Offices of Thomas F. Nowland 20241 SW Birch St., Ste. 203 Newport Beach, CA 92660 The document(s) were served by the following means: IX] By electronic service: Based on a court order, I caused the document(s) to be sent to the persons at the electronic service addresses listed above by transmission through ONE LEGAL. IX] (State): I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 10, 2017, at Long Beach, California. Daniel Torres PROOF OF SERVICE