David Hurwitz vs. Sobertec LLC

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.May 28, 2015

ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 ZFATY |BURNS ISAAC R. ZFATY, State Bar No. 214987 GARRETT M.PRYBY LO, State Bar No. 304994 660 Newport Center Drive, Suite 470 Newport Beach, CA 92660 Telephone: (949) 398-8080 Facsimile: (949) 398-8081 irz@ zfatyburns.com gp@ zfatyburns.com Attorneys for Defendants JOSEPH SCOLARI, REBECCA SCOLARI, JOSEPH SCOLARI AND REBECCA SCOLARI, as trustees of the J oseph and Rebecca Scolari Revocable Trust, and SOBER NETWORK PROPERTIES, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER DAVID HURWITZ, an individual; EMILY QUINN, an individual; IRENE LIN- DILORINZO, an individual; ROBERT DILORINZO; NICOLE WEATHERBEE, an individual; JOSEPH WEATHERBEE, an individual. Plaintiff, VS. SOBERTEC LLC, a California Corporation; JOSEPH SCOLARI, an individual; REBECCA SCOLARI, anindividual; JOSEPH & REBECCA REVOCABLE TRUST; JOSEPH SCOLARIAND REBECCA SCOLARI, TRUSTEES OF THE JOSEPH AND REBECCA SCOLARI REVOCABLE TRUST; SOBER NETWORK PROPERTIES, LLC and Does 1 through 100 inclusive, Defendants. Case No.: 30-2015-00790256-CU-PO-C)C Assigned for All Purposes to: Hon. Craig Griffin NOTICE OF MOTION AND MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS OF PLAINTIFFS DAVID HURWITZ AND EMILY QUINN FiledConcurrentlyHerevith: 1. Memorandum of Points and Authorities; 2. Declaration of Garrett M. Prybylo; 3. [PROPOSED] Order D ate: November 6, 2017 Time: 2:00 p.m. Reservation No.: 7267020 MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 JOSEPH SCOLARI, an individual; REBECCA SCOLARI, anindividual; JOSEPH & REBECCA REVOCABLE TRUST; JOSEPH SCOLARIAND REBECCA SCOLARI, TRUSTEES OF THE JOSEPH AND REBECCA SCOLARI REVOCABLE TRUST; SOBER NETWORK PROPERTIES, LLC; a California Limited Liability Company and DOES 1 through 50 inclusive, Cross-Complainants, VS. DAVID HURWITZ, an individual; CITY OF SAN CLEMENTE, a municipal corporation; TALEGA MAINTENANCE CORPORATION, a California Corporation; and DOES 1 through 50 inclusive Cross-D efendants. TO THE PARTIESAND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on November 6, 2017 at 2:00 p.m. or as soon thereafter as this matter may be heard in Department C-17 of the above-entitled Court, located at 700 Civic Center Drive, West, Santa Ana, CA 92701, Defendants JOSEPH SCOLARI, REBECCA SCOLARI, THE JOSEPH & REBECCA SCOLARIREVOCABLE TRUST, JOSEPH SCOLARI AND REBECCA SCOLARIASTRUSTEES OF THE JOSEPH AND REBECCA SCOLARI REVOCABLE TRUST, AND SOBER NETWORK PROPERTIES, LLC, (collectively, “D efendants™), will and hereby do move this Courtto strike or tax costs sought by Plaintiffs DAVID HURWITZ and EMILY QUINN (collectively, “Plaintiffs”). This Motion is made pursuant to Cal. Civ. Proc. § 1033.5 and California Rules of Court rule 3.1700 on the grounds that: (1) Plaintiffs have filed their M emorandum of Costs pursuant to Defendants’ voluntary dismissal of their Cross-Complaint, yet are asking for all costs incurred in this action, (2) Plaintiffs are not entitled to recover expert costs and (2) Plaintiffs should not recover for excessive and unreasonable costs for service of process. 1111 1111 MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 This Motion is based upon this Notice of Motion, the accompanying M emorandum of Points and A uthorities, the pleadings, record and files in this action, such matters of which the Court may take judicial notice, and such further evidence and argument as may be presented at or before the hearing on this Motion. Dated: August 3, 2017 ZFATY |BURNS ISAAC R. ZFATY GARRET M.PRYBYLO Attorneys for Defendants JOSEPH SCOLARI, REBECCA SCOLARI, JOSEPH SCOLARI AND REBECCA SCOLARI, as trustees of the J oseph and Rebecca Scolari Revocable Trust, and SOBER NETWORK PROPERTIES, LLC 1 MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIESicici-1- I. INTRODUCTIONcoors-1- Il. LEGAL ANALYSIS e-3- A. Plaintiffs Motion is Premature, As All of the Costs Plaintiffs Seek to Recover Are Costs Incurred Prosecuting/Defending Plaintiffs’ Complaint. ........ccocuvvvriiiriiinsisiennsnnieserinne sree, -3- 1. Plaintiffs Are Not Entitled to Filing Fees for M otions Solely In Connection with Their Complaint Until There is a Determination As to W ho the Prevailing Party Is......c..ccceuu.. -4- B. Plaintiffs Improperly Seek Costs for 14 Depositions Unrelated to Defendants’ Cross- Complaint Under SECtion 4(a) = (8). ecviiveieiiieiiiecestasree sree -7- C. Plaintiffs Are Not Entitled to Expert Fees for Greg Horvath... -9- 1. Plaintiffs Cannot Seek Fees for Expert Witness Greg Horvath Until A Prevailing Party Is Determined In Relation to Defendants’ Statutory Offer to Compromise. ............. -9- D. Plaintiffs’ Memorandum of Costs Improperly Seeks $1,459.78 for Service of Process Costs Under Section 5 (a) - (e) Incurred in Serving Witnesses Unrelated To Defendants Cross- [Oo] To] 11 1CO TS-10 - E. Plaintiffs’ Memorandum of Costs Improperly Seeks $500.28 for Witness Fees Under Section 8 (a) - (e) For Witnesses Unrelated to Any Claims or Defenses In Connection with Defendants’ Cross-COMPIaINt......cccciiiiiiiiiicecessesreese sees sree sree -12 - F. Plaintiffs Improperly Seek Reimbursement of $2,512.61 for Every Court Filing Fee In This Matter Under SECON 13.o.ooee-13- II. CONCLUSION Locreesrsbeseeberebesr eesti eben ener nes -14 - MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 TABLE OF AUTHORITIES Cases Ladas v. Cal. State Automobile ASSOC., (1993) 19...eee6 Statutes Cal. CIV. Proc. § 1033.5icese sb esbessb ass b bear beets steer ee sraas 6 (OTROA Tol TE 1TR12 MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 Defendants JOSEPH SCOLARI, REBECCA SCOLARI, THE JOSEPH & REBECCA SCOLARI REVOCABLE TRUST,)JOSEPH SCOLARI AND REBECCA SCOLARI AS TRUSTEES OF THE JOSEPH AND REBECCA SCOLARI REVOCABLE TRUST,AND SOBER NETWORK PROPERTIES, LLC, respectfully submit the following M emorandum of Points and Authorities in support of this Motion to Strike (or Tax) the Memorandum of Costs filed by Defendants DAVID HURWITZ and EMILY QUINN (collectively, “Plaintiffs”). MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiffs’ shameless M emorandum of Costs seeks costs to which Plaintiffs are not entitled. Plaintiffs filed their Memorandum of Costs in connection with Defendants’ voluntary dismissal without prejudice of their Cross-Complaint, yet seek costs incurred during the litigation that are provably only attributed to Plaintiffs’ yet to be adjudicated Complaint. Specifically, the M emorandum of Costs improperly demands reimbursementfor the following items, which total $15,893.35 o Section 1- Filing Fees: a) Motions to Compel (9/15/16): $ 120.00 b) Motions to Compel (6 @ $60 each; 10/7/16): $ 360.00 c) Motions to Compel (11/30/16): $ 60.00 d) Motions to Compel (11/30/16): $ 60.00 e) Ex Parte (11/30/16): $ 60.00 f) Proposed Stipulation and Protective Order: $ 20.00 g) Attachment 1(g): $ 140.00 o Total for Section 1: $ 820.00 e Section 4 - Depositions a) Deposition transcription and video tape of Plaintiff David Hurwitz (Vol. 1): $1,676.90 b) Deposition transcription of Plaintiff David Hurwitz (Vol. 2): $ 701.14 -1- MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 c) Deposition transcription of Plaintiff of Emily Quinn: $ 954.99 d) Deposition transcription of Plaintiff Robert Dilorinzo: $ 499.49 Attachment 4(e) = Plaintiff Robert Dilorinzo: $ 473.24 . Thomas Van Sky: $ 782.00 . Plaintiff | oseph W eatherbee: $ 576.00 . Defendant J oseph Scolari, (Vol. 1): $ 576.99 . Beth Belkofer: $ 297.00 . Plaintiff Irene Lin-Dilorinzo: $ 555.00 . Joseph Scolari, (Vol. 2): $1,698.25 . Greg Horvath: $1,063.17 . South Orange County Endocrinology: $ 76.30 " Wiegel, Szekel & Frisby: $ 52.71 Total for Section 4: $10,499.68 Section 5 - Service of Process Fees: a) Dual Diagnostics Treatment Center: $ 39.63 b) Thomas Van Sky: $ 87.50 ¢) Karen Dimmick: $ 257.50 d) Attachment 5(d) = Beth Belkofer: $ 114.95 = Capitol Indemnity Corp.: $ 36.50 = Arch Insurance Company: $ 143.95 = Wiegel, Szekel & Frisby: $ 126.95 = Greg Horvath: $ 109.95 = Scott Haushalter: $ 19.95 22. MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 = Vesna M eehan: $ 51.95 = RobHess: $ 105.95 = Michael Ambrosi: $ 365.00 o Total for Section 5: $ 1,459.78 e Section 8 - Ordinary Witness F ees: o Total for Section 8: $ 501.28 o Section 13 - Other: o Total for Section 13: $ 2,512.61 For the reasons set forth herein, the Court should deny Plaintiffs’ improper requests for these costs. II. LEGAL ANALYSIS California law recognizes three types oflitigation costs: (1) allowable; (2) disallowable; and (3) discretionary. Cal. Civ. Proc. § 1033.5, subds.(a), (b), (c)(4). For allowable and discretionary costs to be recoverable, they must also be both “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” Cal. Civ. Proc. § 1033.5, subd. (c)(2)-(3). If specifically allowable under the Code, the party challenging the costs has the burden of showing that the costs sought are not reasonable or necessary. However, if the costs not specifically allowable are objected to, then the burden of proof lies with the requesting party to demonstrate that the costs were necessary and reasonable. (Ladasv. Cal. State Automobile Assoc., (1993) 19. Cal.App.4th 761, 774.) A. Plaintiffs M otion is Premature, As All of the C osts Plaintiffs Seek to Recover Are Costs Incurred Prosecuting/D efending Plaintiffs’ Complaint. All ofthe costs Plaintiffs seek to recover were incurred in Plaintiffs’ prosecution of Plaintiffs’ Complaint. This is highlighted by the fact that many ofthe costs Plaintiffs over- zealously include in their Memorandum of Costs were incurred prior to Defendants ever filing their Cross-Complaint. -3- MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 1. Plaintiffs Are Not E ntitled to Filing F ees for Motions Solely In Connection with Their Complaint Until There is a Determination As to W ho the Prevailing Party Is. Plaintiffs improperly seek filing fees for nine motions to compel, all of which were provably filed seeking information only relevant to the prosecution of Plaintiffs’ Complaint. Y et, Plaintiffs filed this Memorandum of Costs in connection with Defendants’ voluntary dismissal of their Cross-Complaint. a. Plaintiffs Are Not Entitled to Recover Costs for the Two Motions to C ompel Filed on September 15, 2016, W hich W ere Filed Seeking I nformation Relevant Only to Plaintiffs’ Complaint. Plaintiffs filed two motions to compel on September 15, 2016 (Docket Entries 317-318). Plaintiffs’ shameless pursuit of improper costs is highlighted by their requests in Section 1(a) of their M emorandum of Costs. Both of the September 15, 2017 Motions to Compel (Docket Entries 317-318), were filed against Defendant Sobertec, LLC. Both Emily Quinn’s Motion to Compel Defendant Sobertec, LLC to Provide Further Responses to Special Interrogatories and to Compel Defendant Sobertec, LLC to Provide Further Documents,state “Quinn propounded basic interrogatories and requests for production designed to identify witnesses and documentsto conclusively establish Sobertec and the Scolari’s and SNP were operating business beginning in November, 2014, but Sobertec refuses to answer these straightforward questions.” (See Docket Entries 317-18.) Notably, Plaintiffs’ stated purpose in filing these two motions against Defendant Sobertec, was expressly to gain information necessary to prove one of Plaintiffs’ key allegations - that Defendants were “operating a business.” Importantly, Sobertec was never a party to Defendants’ Cross-Complaint. Regardless, Plaintiffs have no basis for requesting costs from Defendants for Motionsfiled against Sobertec, based on the theory that Plaintiffs are a prevailing party because Defendants” dismissed their Cross-Complaint. Plaintiffs are attempting to bootstrap all of their fees to Defendants’ dismissal of the Cross-Complaint, with absolutely no apportionment of costs whatsoever. The Court must deny Plaintiffs improper request for costs in Section 1(a) of Plaintiffs’ “4 - MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 Memorandum of Costs. b. Plaintiffs Are Not E ntitled to Recover C osts for the Six Motions to C ompel Filed on October 7, 2017,! W hich Were Filed Seeking I nformation Relevant Only to Plaintiffs’ Complaint. Three of the six motions filed on October 7, 2017 sought further documents responsive to RFPs. The three Motions to Compel RFPs argued, “Quinn propounded discovery to establish SNP improperly operated a business out of the home located at 14 Via Lampara. Ata minimum, Quinn needs to know how many people stayed at 14 Via Lampara from November 2014 through the present and the average length of stay of those persons.” (See Docket Entries, 376, 374, 372.) The other three motions filed on October 7, 2017 sought further responses to special interrogatories. The three Motions to Compel SPROGS argued, “Quinn propounded interrogatories to establish Scolari improperly operated a business out of the home located at 14 Via Lampara from November 2014 through the present and the average length of stay of those persons.” (See Docket Entries, 375, 373, 371.) Plaintiffs’ entire Complaint is focused on the theory that Defendants were “operating business” out of their home in violation of local municipal ordinances and the community CC&Rs. All six of these Motions to Compel RFPs by Plaintiff Emily Quinn were filed in pursuit of information relevant only to Plaintiffs” allegations Plaintiffs are not permitted to recover costs they incurred in prosecuting their Complaint, simply because Defendants dismissed their Cross-Complaint without prejudice. As such, the court should deny Plaintiffs request for costs under Section 1(b) of the M emorandum of Costs. 1111 1111 1111 1111 -5- MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS 1 ¢. Plaintiffs Are Not E ntitled to C osts for Two Motions to Compel and One Ex 2 ParteApplication Filed on November 30, 2016,2 W hich Were Filed Seeking 3 Information Relevant Only to Plaintiffs’ Complaint. 4 Plaintiffs include in their M emorandum of Costs, two Motions to Compel SPROGs, 5 [which Plaintiffs indicate were filed on November 30, 2016 and an Ex Parte A pplication to 6 ||Advance the hearings on the Motion to Compel filed on the same date, November 30, 2017. A 7 [review of the docket however, indicates that the M otion to Compelfiled on November 30, 2017 8 ||was filed against Defendant Sobertec, LLC. (See Docket Entry No. 450.) Sobertec was never a 9 [party to Defendants’ Cross-Complaint. Plaintiffs are not permitted to recover costs for a motion 10 [filed against a party that Plaintiffs have settled with, because Defendants separately dismissed 11 [their Cross-Complaint. 12 Assuming that the other motion referenced in Plaintiffs’ inaccurate Memorandum of Costs 13 [lis the November 28, 2017 Motion to Compel Further Responses to Hurwitz’s Special 14 Interrogatories against Defendant Sober Network Properties, LLC (Docket Entry No. 461), 15 [[Plaintiffs have another problem. 16 Plaintiffs” November 28, 2017 Motion to Compel was expressly filed seeking further 17 [responses to “two interrogatories to ascertain theidentitiesof SNP’s accountants.” Plaintiffs 18 [argued in those Motions, that “the accountants will likely have information ad evidence relevant 19 [to one of the key issues in this case: whether defendants operated a business out of the home at 14 20 [Via Lampara.” 21 As Plaintiffs state themselves, ad nauseum, one ofthe key issues in Plaintiffs’ Complaint 22 [lis “whether defendants operated a business out of the home at 14 Via Lampara.” In fact, 23 24 ||? Plaintiffs Memorandum of Costs indicate in Sections 1(c)-(e) that Plaintiffs are seeking costs related to two 25 [Motions to Compel and an Ex Parte Application, all of which, according to Plaintiffs M emorandum of Costs, were 26 [filed on November 30, 2016. A review of the docket and pleadings indicates that these motions were in fact filed on 27 ||INovember 30, 2016 and November 22, 2016. Defendants assume that these are the motions referenced in Section 28 |[1(c) -(e). Claromn258) (049)396-8080 -6- MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 Plaintiffs’ entire Complaint is focused on the theory that Defendants were “operating business” out of their home in violation of local municipal ordinances and the community CC&Rs. The Ex Parte Application (Docket Entry No. 455), sought to advance the November 30, 2017 Motion to Compel against Sobertec, LLC, and the November 28, 2017 Motion to Compel against Sober Network Properties, LLC. Plaintiffs have no valid basis for requesting costs for any of these motions, which only relate to Plaintiffs’ claims and Complaint, because Defendants dismissed their Cross-Complaint. Plaintiffs are not permitted to recover costs incurred in prosecuting their Complaint, simply because Defendants dismissed their Cross-Complaint without prejudice. As such, the Court should deny Plaintiffs request for costs under Section 1(c) - 1(e) of the Memorandum of Costs. d. Plaintiffs Further Seek Further Costs In Attachment G, To W hich Plaintiffs Are Not E ntitled. Plaintiffs further requests costs in Attachment 1(g) to their M emorandum of Costs to which they are not entitled. All five of the filing fees sought in Attachment 1(g) are for filings that have no relation to Defendants” Cross-Complaint. Plaintiffs seek costs for a Motion to Continue a Deposition, a Proposed Stipulation and Order Continuing Trial, a Proposed Stipulation and Order, a Stipulation to Continue Trial, and a Stipulation to Continue M andatory Settlement Conference. All of these costs are requested by Plaintiffs in bad faith, knowing full well that Defendants’ dismissal oftheir Cross-Complaint does notentitle to them to recover any of the included costs. All of the costs included in attachment 1(g), as with Section 1(a) - 1(e), were provably incurred by Plaintiffs in their own prosecution of the Complaint, and in no way related to Defendants’ Cross-Complaint. B. Plaintiffs Improperly Seek Costs for 14 Depositions Unrelated to Defendants’ C ross- Complaint Under Section 4(a) - (e). Plaintiffs’ Memorandum of Costs includes the full costs of transcriptions of depositions for all six original Plaintiffs to this action, David Hurwitz, Emily Quinn, J oseph W eatherbee, Nicole W eatherbee, Irene Lin-Dilorinzo and Robert DiLorinzo. Plaintiffs also include the cost of -7- MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 purchasing a video tape of David Hurwitz’s deposition. Notably, the first deposition of David Hurwitz was taken on April 22, 2016. (See Exhibit 3.) Defendants did notfile their Cross- Complaint until June 14, 2016. (See Docket Entry No 233.) Itis impossible for Plaintiffs to argue in good faith that they are entitled to costs under a prevailing party theory pursuant to Defendants’ dismissal of their Cross-Complaint, for costs incurred prior to Defendants everfiled their Cross-Complaint. A's to the remaining five Plaintiffs’ deposition transcripts - it is impossible for Plaintiffs to argue that they are entitled to those costs based on a prevailing party theory due to Defendants’ dismissal of their Cross-Complaint. None of the remaining Plaintiffs were in any way included in any ofthe claims in Defendants” Cross-Complaint. In fact all of the 14 depositions included in Plaintiffs’ Memorandum of Costs Section 4(a) - 4(e) were depositions that were provably taken by both Parties in relation to only Plaintiffs’ Complaint. Greg Horvath By way of example, Plaintiffs include their own expert, Greg Horvath, under Section 4(e), who was designated to testify that Defendants were running a business. Plaintiffs also include the deposition costs of deposing they key Defendant, J oseph Scolari. [tis impossible for Plaintiffs to argue that they deposed Joseph Scolari in furtherance of Defendants” Cross-Complaint, and not in furtherance of their own claims. South Orange County Endocrinology Plaintiffs also include “South Orange County Endocrinology” under Section 4(e). The only claimsrelated to an endocrinologist are the allegations made by Emily Quinn in Plaintiffs’ Complaint. Beth Belkofer Plaintiffs also include costs for the deposition of Beth Belkofer, Sobertec, LLCs accountant. Sobertec was never a party to Defendants’ Cross-Complaint and there is no connection between Ms. Belkofer, and any claims made by Defendants in their Cross-Complaint. Plaintiffs are not entitled to any of the costs listed under Section 4 of their M emorandum of Costs, as all of the costs included therein were provably incurred in Plaintiffs prosecution of -8- MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 their own Complaint, and unrelated to Defendants’ Cross-Complaint. At the very least, this renders Plaintiffs” Memorandum of Costs premature, until after prevailing party is determined, taking into account Defendants Statutory Offer to Compromise Under CCP § 998. C. Plaintiffs Are Not E ntitled to E xpert F ees for Greq Horvath 1. Plaintiffs Cannot Seek Fees for E xpert Witness Greg Horvath Until A Prevailing Party Is Determined In Relation to Defendants’ Statutory Offer to Compromise. Plaintiffs designated Greg Horvath as their expert witness in relation to their case in chief. Plaintiffs are not entitled to recover costs of their own experts. The recovery of costs for expert fees is authorized pursuant to Cal. Civ. Proc. § 998(c), which states, in pertinent part: “(1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her post offer costs and shall pay the defendant's costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover post offer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.” On May 31, 2017, Defendants sent Plaintiffs an “Offer to Compromise Pursuant to Code of Civil Procedure §998.” (Prybylo Decl., 92, Attached as Exhibit “1”is a true and correct copy of Defendants’ §998 offer.) The terms of Defendants’ § 998 offer were: 1. “A monetary judgment in the amount of one hundred thousand dollars ($100,000.00) may be taken against Defendants jointly and severally, in favor of Plaintiff. 2. The parties are to bear their own costs and fees, including attorneys’ fees, in connection with the above-captioned action. Such offer is made in satisfaction of all claims for damages, costs and expenses, attorneys’ fees and interest in this action, and shall dispose of the First Amended Complaint filed on October 9, 2015, as well as Defendants’ Cross-Complaint filed on June 14, 2016. A cceptance of this offer must be made within thirty (30) days of issuance, or July 31, 2017, or the commencement oftrial, whichever is sooner.” -9- MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 There can be no determination until after the trial as to which party prevailed under §998. D. Plaintiffs’ Memorandum of C osts | mproperly Seeks $1,459.78 for Service of Process Costs Under Section 5 (a) - (e) Incurred in Serving Witnesses Unrelated To Defendants C ross-C omplaint. As with Section 4, itis impossible for Plaintiffs to argue that they are entitled to recover costs incurred in service of process for serving 12 witnesses completely unrelated to any of the claims in Defendants’ Cross-Complaint. Dual Diagnosis Treatment Center - Section 5(a) In Section 5(a) of their M emorandum of Costs, Plaintiffs seek reimbursement for service of a company called Dual Diagnosis Treatment Center. This request for costs is improper, as there is no connection whatsoever between Defendants’ Cross-Complaint and Dual Diagnosis. Any information obtained from Dual Diagnosis would only be relevant to the allegations made in Plaintiffs’ Complaint. As such Plaintiffs request in Section 5(a) is either premature, as Plaintiffs’ Action has yet to be adjudicated, or improperifbased on Defendants’ dismissal of their Cross- Complaint. Thomas Van Sky - Section 5(b) In Section 5(b) of their Memorandum of Costs, Plaintiffs seek reimbursement for service of process of Mr. Van Sky. This request for costs is improper, as there is no connection whatsoever between Defendants’ Cross-Complaint and Mr. Van Sky. Any information obtained from Mr. Van Sky would only be relevantto the allegations made in Plaintiffs’ Complaint. As such Plaintiffs’ request in Section 5(b) is either premature, as Plaintiffs’ Action has yet to be tried, or improper,ifbased on Defendants” dismissal oftheir Cross-Complaint. Karen Dimmick - Section 5(c) In Section 5(c) of their M emorandum of Costs, Plaintiffs seek reimbursement for service of process of Ms. Dimmick. This request for costs is improper, as there is no connection whatsoever between Defendants’ Cross-Complaint and Ms. Dimmick. Any information obtained from Ms. Dimmick would only be relevant to the allegations made in Plaintiffs’ Complaint. As such Plaintiffs’ request in Section 5(c) is either premature, as Plaintiffs’ Action has yet to be -10 - MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 tried, or improper,ifbased on Defendants” dismissal oftheir Cross-Complaint. Beth Belkofer - Attachment 5(d) In Attachment 5(d) of their M emorandum of Costs, Plaintiffs seek reimbursement for service of process of Beth Belkofer, Sobertec LLC’s accountant. This request for costs is improper, as there is no connection whatsoever between Defendants” Cross-Complaint and Ms. Belkofer. Any information obtained from Ms. Dimmick would only be relevant to the allegations made in Plaintiffs’ Complaint against Sobertec, LLC. Notably, Sobertec was not a party to Defendants’ Cross-Complaint. As such Plaintiffs’ request in Attachment 5(d) either premature, as Plaintiffs’ Action has yet to be tried, or improper,ifbased on Defendants’ dismissal of their Cross-Complaint. Greg Horvath - Attachment 5(d) In Attachment 5(d) of their M emorandum of Costs, Plaintiffs seek reimbursement for service of process of Greg Horvath. This isillogical, as Greg Horvath was designated by Plaintiffs as their own expert witness. It does not make sense that Plaintiffs would have to engage a process server to get subpoena their own expert to appear for a deposition. Further, any information obtained form Mr. Horvath would only be relevantto the allegations made in Plaintiffs’ Complaint. Mr. Horvath was not designated as an expert in defense of any claims alleged in Defendants’ Cross-Complaint. Specifically, Plaintiffs indicated, “Horvath will testify regarding the business model of sober living homes.” (Exhibit 2, p. 2 112.) As such Plaintiffs’ request in Attachment 5(d) as to Mr. Horvath is either premature, as Plaintiffs’ Action has yet to be tried, or improper, ifbased on Defendants’ dismissal of their Cross-Complaint. Remaining Witnesses In Attachment 5(d) The remaining witnesses in Section 5(d) for which Plaintiffs” seek costs, were all provably served in pursuit of Plaintiffs’ prosecution of their Complaint. That is, there is no relation between any information (1) Capitol Indemnity Corporation, (2) Arch Insurance Company, (3) Wiegel, Szekel & Frisby, (4) Scott Haushalter, (5) Vesna M eehan, (6) Rob Hess, or (7) Michael Ambrosi, may provide to Plaintiffs, and any claims or defenses connected to Defendants’ Cross-Complaint. -11 - MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 Plaintiffs have simply taken all of the costs incurred in their prosecution of their Complaint, and included them in this Memorandum of Costs in order to take advantage of Defendants’ voluntary dismissal without prejudice oftheir Cross-Complaint. E. Plaintiffs’ Memorandum of C osts | mproperly Seeks $500.28 for Witness F ees Under Section 8 (a) - (e) For Witnesses Unrelated to Any Claims or Defenses In Connection with Defendants’ Cross-C omplaint Plaintiffs improperly seek witness fees under Section 8(a) - (e) of their M emorandum of Costs, for Witnesses that have no connection whatsoever to any information relevant to any claims or defenses related to Defendants’ Cross-Complaint. These are largely the same people/entities listed in Sections 5 and 8. Dual Diagnostics Treatment Center - Section 8(a)(1) Plaintiffs improperly seek costs for witness fees in Section 8(a)(1) for Dual Diagnostics Treatment Center, which Plaintiffs sought to depose in furtherance of their theory that D efendants were running a “business.” This is the central theme of Plaintiffs” Complaint. There is no connection between this witness and D efendants now dismissed Cross-Complaint Thomas Van Sky Section - Section 8(a)(2) Plaintiffs improperly seek costs for witness fees in Section 8(a)(2) for Thomas V an Sky, which Plaintiffs sought to depose in furtherance of their theory that Defendants were running a “business.” This is the central theme of Plaintiffs’ Complaint. There is no connection between this witness and Defendants now dismissed Cross-Complaint Karen Dimmick - Section 8(a)(3) Plaintiffs improperly seek costs for witness fees in Section 8(a)(3) for Karen Dimmick which Plaintiffs sought to depose in furtherance of their theory that D efendants were running a “business.” This is the central theme of Plaintiffs” Complaint. There is no connection between this witness and Defendants now dismissed Cross-Complaint Beth Belkofer - Section 8(a)(4) Plaintiffs improperly seek costs for witness fees in Section 8(a)(4) for Beth Belkofer, Defendant Sobertec, LLCs accountant. Plaintiffs sought to depose Ms. Belkofer in furtherance -12 - MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 of their theory that Defendants were running a “business.” This is the central theme of Plaintiffs’ Complaint. There is no connection between this witness and Defendants now dismissed Cross- Complaint Capitol Indemnity Corporation - Section 8(a)(5) Plaintiffs improperly seek costs for witness fees in Section 8(a)(5) for Capitol Indemnity Corporation, which Plaintiffs sought to depose in furtherance of their theory that Defendants were running a “business.” Thisis the central theme of Plaintiffs’ Complaint. There is no connection between this witness and Defendants now dismissed Cross-Complaint Remaining Witnesses In Attachment 8a In the Attachment to Section 8, Plaintiffs list an additional eight witnesses. At least two of these, Karen Dimmick and Thomas V an Sky are repeats from Section 8(a)(3). Four of the witnesses included in Attachment 8(a), are four of the original Plaintiffs, (1) Nicole W eatherbee, (2) Joseph W eatherbee, (3) Irene Lin-DiLorinzo, and (4) Robert DiLorinzo. Plaintiffs are not entitled to costs for appearing in their own action, at their own depositions. Regardless, none of the witnesses included in the Attachment 8a (including Michael Ambrosi and Arch Insurance Company) possess any information relevant to any of the claims or defenses in Defendants Cross- Complaint. F. Plaintiffs Improperly Seek Reimbursement of $2,512.61 for Every Court Filing Fee In This Matter Under Section 13. It is unclear what Plaintiffs’ basis for including every courtfiling fee in this action,in their Memorandum of Costs which is based on Defendants’ voluntary dismissal oftheir Cross- Complaint. Plaintiffs over-zealously include what appears to be every filing fee incurred in this case, many of which pre-date Defendants’ June 14, 2016 filing of their Cross-Complaint. Plaintiffs also include such improper costs as, “Video Technician fees, synchronization of video files to deposition transcripts for use in trial software,” and “Court reporter fees to attend 4/3/17 motion hearing.” All of the costs Plaintiffs seek in Section 13 are improper, as none of the costs can be provably linked to Defendants’ Cross-Complaint, which was neverlitigated. In fact, all of the -13- MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS ZFATY | BURNS © O 0 0 d N o o u r B A W w W N D R N S N S E S ~ ~ o o U U B A W N FP F O V W O N o O U l B A Ww W N N F P O o 28 660 NEWPORT CENTER DRIVE SUITE 470 NEWPORT BEACH CALIFORNIA 92660 (949)398-8080 costs in this action were incurred by Plaintiffs in prosecution of their own Complaint. As such the Court should deny entirely Plaintiffs’ request for costs under Section 13 of their M emorandum of Costs. Il. CONCLUSION For the foregoing reasons, Defendants request that the Court strike entirely Plaintiffs’ improper requests for costs. Dated: August 3, 2017 ZFATY |BURNS ISAAC R. ZFATY GARRET M.PRYBYLO Attorneys for Defendants JOSEPH SCOLARI, REBECCA SCOLARI, JOSEPH SCOLARI AND REBECCA SCOLARI, as trustees of the J oseph and Rebecca Scolari Revocable Trust, and SOBER NETWORK PROPERTIES, LLC -14 - MOTION TO STRIKE OR TAX MEMORANDUM OF COSTS