Felczer vs. Apple Inc

Opposition Other

Cal. Super. - 4th Dist.December 16, 2011

AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 JEFFREY L. HOGUE (SBN 234557) TYLER J. BELONG (SBN 234543) ERIK A. DOS SANTOS (SBN 309998) ANDREW B. DORR (SBN 317546) HOGUE & BELONG 170 Laurel Street San Diego, CA 92101 Tel.: (619) 238-4720 Fax: (619) 270-9856 Attorneys for the Class SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO BRANDON FELCZER, individually, RYAN GOLDMAN, individually, RAMSEY HAWKINS, individually, and JOSEPH LANE CARCO, on behalf of themselves and all others similarly situated, Plaintiffs, VS. APPLE INC., a California corporation; and DOES 1 through 300, inclusive. Defendants. ELECTRONICALLY FILED Superior Court of California, County of San Diego 01/29/2018 at 04:00:00 Ph Clerk of the Superior Court By Katelin O'Keefe, Deputy Clerk CASE NO.: 37-2011-00102593-CU-OE-CTL THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS Judge: Hon. Eddie C. Sturgeon Dep’t: C-67 Action Filed: December 16, 2011 Trial Date: October 14, 2016 Hearing Date: February 9, 2018 Time: 9:00 a.m. Dept: C-67 Entry of Judgment: September 13, 2017 Judgment Served: September 19, 2017 THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 TABLE OF CONTENTS TABLE OF AUTHORITIES \..cousscusssunnssnomss cocamnsnsmommasessnsnsan ores ones sss 00m isos oss 4 a o i I. INTRODUCTION .....ooiiiiitiiettet ieee cece sects sees sree sere sees snee sere ene 1 IL. RELEVANT PROCEDURAL. HISTORY cucu se usuzes acussan sn sesuss swnsss os cunssssn avan ans sswasss svsssn oz 2 II. LEGAL STANDARD cotter sects ee s ee eae eters sree sere ee 3 Iv. LEGAL ARGUMENT a: se cansusn sven cums sess. ss sms sass so 26s 5555 i 5455558 $4555 4545 5555558 500535.083 4 A. Hawkins and Carco are Prevailing Parties and are Entitled to Costs Because the Prevailing Party 1S The Class ......eeiiuiiiiiieiiiie cites eee eee sites sates ee sabes sabe ee sabe ee sabe ee sabe eee 4 B. Felczer, Goldman, and the Class Can Recover All Costs Related to the Prosecution of Class CaM... co rs sae sree sees sane 6 C. The Class is Entitled to Costs for its Consultants Prior to those Persons being Designated AS EXPIETES ccs own svcnsusosssumns osics wwe. 50855 555080005 HAAS 505 5 R30 SA A 5 6 ARTS FR EG NRE 97S 7 D. The Class is Entitled to Costs Incurred to Locate Potential Class Members....................... 9 E. The Class is Entitled to Filing Fees in this Case, Including Fees to Unseal Records in CAMULL V. APPLE veo eee eee eases eet ae asset ae ee ebae eee sae eee essnsae ae ensaaae ann 9 F. The Class is Entitled to Deposition Costs for Witnesses that did not Testify at Trial ...... 10 G. The Witness Fees that the Class Seeks to Recover are Proper............ccoccevviieineenncnnnnn 10 H. The Class Ought to Recover its Costs for Models, Blow-Ups, and Copying ................... 11 I. Martin Buchanan’s Fees are Appropriately Sought - Either by Way of this Motion or Via the Class’s Motion for Attorney's FEEs.......ccivriiiiiiiiiiiiiiiiieeie cee 12 J. The Class Properly Included its Reasonably Necessary Miscellaneous Expenses ........... 12 V. CONCLUSION cotter estes sate eee e estes sae sere eee snes sees sane ense es nee nanan 14 i- THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 TABLE OF AUTHORITIES Cases Chaaban v. Wet Seal, Inc. (2012) 203 Cal. App.4th 49 ......cooiiiiiiiiiieeeeeeeee 10, 11 Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.App.4th 1043 8 ARS 5 5 AS55055 53 HH 5055 45.00. SH S55 3059 T3000 4555556 BAS E5555. 08 S55 SA 50 S55 598 SR BS8 12 County of Los Angeles v. Superior Court (1990) 222 Cal. App.3d 647 .....ccceeveiiiiiiiiiiiieiieeeieeene 8 De Luca v. State Fish Co. (2013) 217 Cal. App.4th 671 ......ooiiiiiiiiiiiiieeece eee 8 El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc. (2007) 150 Cal.App.4th 612 .......... 7 Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11................. 4,11 Fox v. Hale & Norcross S. M. Co. (1898) 122 Cal. 219 .......coooiiiiiiieeieieeeeceeeeeee cece 6,7 Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44 ......ccoviiiiiiiiiiiiiiiiieieee 4 Jones v. Dumrichob (1998) 63 Cal. App.4th 1258... 4 Ladas v. California State Auto Ass’n. (1993) 19 Cal. App.4th 761 ....cccccveviininnineiniiiecienienne 4,10 Ling v. P.F. Chang's China Bistro, Inc. (2016) 245 Cal. App.4th 1242 ........ccoooieiviiiiniiinnieenne. 6,7 Michell v. Olick (1996) 49 Cal. App.4th 1194 ......coiiiiiiieieeiee cece eee 6,7 Nelson v. Anderson (1999) 72 Cal. APpP.4th T11 o.oo eee 4 Quiles v. Parent (2017) 10 Cal.LAPP.Sth 130...cccuuiiiiiiiie ieee eee 4 Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095 .................... 4 Seever v. Copley Press (2006)141 Cal. App.4th 1550 .....ccoiiiiiiiiiiiieeeeee 4 Slavin v. Fink (1994) 25 Cal. APP.Ath T22....c..ooiiiiiiiieieecie cesses sess ee eae sees 6 Smith v. Circle P Ranch Co. (1978) 87 Cal. APP-3d 267 -cusucu snus sosumasss seusson sssssnsss suwasss sa samsuasawsassn sass 6 Zamora v. Shell Oil Co. (1997) 55 Cal. App.4th 204 ......oooiiiiiie ieee eee 4 1" In -11- THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 Statutes Coll. Be OO0EE 2D 5 Tce messmo senses resins sss oma a FE GRR Ses 10 CCP § 1032 cece eee eee eee see shee ease eae see sees shee eae eee seen 3,4,6 CCP § 1033.5 ceteris sate sabes ee shee sabe eee e ee shee subtest enna enna sane eaae es passim -11i- THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 I. INTRODUCTION The Court should overwhelmingly deny Defendant’s Motion to Tax Costs. Nearly all of the costs claimed by the Class are either explicitly provided for in California Code of Civil Procedure section 1033.5 or are allowable because they were reasonably necessary to this litigation. As a preliminary matter, Defendant argues that Class Representatives Carco and Hawkins cannot obtain costs because they are not prevailing parties. Defendant’s argument is flawed in that it ignores that the prevailing party is the Class and not each individual class representative. Thus, because the Class obtained a net monetary recovery, it is the prevailing party.’ In addition to ignoring that the Class is the prevailing party, Defendant also argues that Felczer and Goldman can only obtain costs associated with their meal break claims because that is the only claim they prevailed on at trial. But, this argument fails because Code of Civil Procedure section 1032? and controlling case law allow a plaintiff as a matter of right all costs even if they ultimately only prevail on one cause of action. Next, Defendant challenges the Class’ inclusion of costs that Defendant alleges are impermissible expert witness fees. While this may be true for some costs after the recipient was designated as an expert, these individuals were consultants up until that point. Thus, the Court should allow the Class to recover all of the costs associated with individuals that were never designated as experts, as well as the remainder of the consultant costs that were incurred before those individuals were designated as experts. Further, Defendant wrongfully argues that some costs are disallowed investigation expenses. To the contrary, as is stated in the Memorandum of Costs, these expenses were actually incurred to locate putative class members during the pre-certification stage and are thus allowable. Moreover, Defendant complains that the Class should not be reimbursed for virtually every ! Further, Carco and Hawkins catalyzed change in Defendant’s meal and rest break policies and opened-up a national awareness of the need for meal and rest breaks. (See Exs. “C” and “D”; Belong Decl. 9.) 2 All other references to sections will be to the California Code of Civil Procedure unless otherwise stated. -1- THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 other cost incurred over the course of this 6-year class litigation. For instance, Defendant argues that certain costs are not recoverable because they were associated with another case. This is not true. As is clear from the Memorandum of Costs, the Class was required to pay a filing fee to unseal records from another case in order to advance the instant action through gathering additional evidence, including impeachment evidence. Because section 1033.5 explicitly allows recovery of filing fees, this cost should not be stricken. Additionally, Defendant erroneously assumes that the Class is not entitled to costs for certain depositions because the deponent did not ultimately testify at trial, but because all of these depositions were reasonably necessary at the time they were taken the Class is entitled to these costs. Defendant even seeks to tax the witness fees claimed by the Class. But, with regard to each witness except for the Plaintiffs, the Class is entitled to these fees because these individuals were legally required to appear in court. Further, despite Defendant’s arguments to the contrary, the Class is also entitled to recover its costs for models, blow-ups, and copying because they were reasonably necessary to the litigation. Similarly, the Class is entitled to recover the money paid to Martin Buchanan for his work in the case, either here or as part of an award of attorneys’ fees.’ Finally, the Class should recover all other challenged expenses because these expenses are also reasonably necessary to this litigation. II. RELEVANT PROCEDURAL HISTORY On September 11, 2013, the Class filed its Fourth Amended Complaint for Damages alleging causes of action for (1) failure to provide meal periods in violation of California Labor Code §§ 226.7 and 512; (2) failure to provide rest periods in violation of California Labor Code § 226.7; (3) failure to pay all wages due upon ending of employment in violation of California Labor Code §§ 201-203; (4) Failure to provide accurate itemized employee wage statements in violation of California Labor Code § 226 and §§1174-1175; (5) Unfair Business Practices in violation of California Business and Professions Code §§ 17200 et seq.; and (6) the Private > If disallowed here, Mr. Buchanan’s fees will be claimed in a supplemental declaration to the Class’ motion for attorneys’ fees. 3 THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 Attorney General Act pursuant to California Labor Code § 2698. Importantly, the operative complaint sought injunctive relief and class certification. On July 21, 2014, the Court (Judge Prager presiding) granted the Class’ motion for certification, appointed Hogue & Belong as Class Counsel, and appointed Brandon Felczer, Ryan Goldman, Ramsey Hawkins, and Joseph Carco as Class Representatives. On the day before trial, the Court bifurcated this action into a jury trial and a bench trial. The jury would hear the class’ retail meal and rest period claims arising between December 16, 2008 and July 31, 2012. The Court would hear the Class’s retail meal and rest period claims arising between December 16, 2007 and December 15, 2008, Hawkins’ PAGA rest break claim, and four years of the Class’s corporate meal and rest period UCL claims. The jury trial portion of this case began on October 14, 2016. Evidence was presented for approximately six weeks. On December 9, 2016, the jury returned its verdict. The jury found in favor of the Class and awarded them Two Million Dollars. On September 13, 2017, the Court filed its Amended Statement of Decision on Bench Trial, and found in favor of Defendant. Throughout the action, Defendant started to implement changes to its breaks policies that benefited and will benefit a large class of employees. III. LEGAL STANDARD The right of a prevailing party to recover costs is created by statute. (Catello v. I.T.T. General Controls (1984) 152 Cal.App.3d 1009, 1013.) Pursuant to section 1032(b), the prevailing party in an action is entitled to recover costs as a matter of right, and includes, “the party with 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 recover any relief against that defendant.” (CCP § 1032(a)(4).) In addition to specified costs identified as recoverable by section 1033.5, there is also a “catch-all” provision that states, “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.” (CCP § 1033.5(c)(4); see also A THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 Quiles v. Parent (2017) 10 Cal.App.5th 130, 141; Seever v. Copley Press (2006)141 Cal. App.4th 1550, 1558; Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1103.) All items must be “reasonably necessary to the conduct of the litigation” and “reasonable in amount.” (CCP § 1033.5(c)(2), (3).) Importantly, where an expense is expressly provided for by statute and appears to be proper, the filing of a verified memorandum is prima facie evidence that the expense was reasonably incurred. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) “On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” (Ladas v. California State Auto Ass n. (1993) 19 Cal.App.4th 761, 774; Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.) But, the mere filing of a motion to tax is not necessarily a proper objection. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) Rather, the burden will only shift where an item is not expressly allowable by statute and does not appear proper. (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.) “The court's first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face.” (Nelson, supra, 72 Cal. App.4th at 131.) IV. LEGAL ARGUMENT A. Hawkins and Carco are Prevailing Parties and are Entitled to Costs Because the Prevailing Party is The Class. “[A] prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (CCP § 1032(b)). A prevailing party is “the party with a net monetary recovery”. (CCP § 1032(a)(4).) “[A] plaintiff will be considered a prevailing party when the lawsuit yields the primary relief sought in the case. (See Zamora v. Shell Oil Co. (1997) 55 Cal. App.4th 204, 214 [awarding costs to a class of plaintiffs because they obtained a credit from the HOA despite the fact that they recovered nothing.].) Here, the prevailing party is not each individual class representative, but the Class as a whole. 4- THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 Plaintiffs bring this class action on behalf of themselves and all other similarly situated, with Plaintiffs proceeding as the representative members of the proposed class defined as follows: All current, former, or prospective non-exempt employees in the State of California who have worked for Apple from December 16, 2007 up to and including the time of trial for this matter without receiving compensation for missed or late meal periods in violation of the California Labor Code and applicable wage orders. ("Plaintiff Class.") (Register of Actions (“ROA”) No. 332- Fourth Amended Complaint at paragraph 34. [emphasis added]; see also ROA No. 442- Order Certifying this Class composed of several subclasses.) The instant action also catalyzed a massive overhaul in Defendant’s meal and rest period policies to benefit its non-exempt employees as well as created national awareness regarding the issue.* Here, Carco and Hawkins are representatives of the Class which prevailed at trial because 4 In addition to the $2,000,000.00 jury verdict, Felczer v. Apple has conferred significant nonpecuniary benefits such as: e Revision of Defendant’s retail scheduling chart. Initiating a Process for employees to obtain meal or rest period premiums. e Defendant’s time keeping system is now programmed correctly and now automatically flags work shifts over 5 hours without a meal period. e Defendant s current Meal and Rest Period policy now states the law correctly. (Ex. “A”) e Defendant changed its policy on its wage statements by adding a new pay code so that it now itemizes meal and or rest period premium wages on its paystubs. (EX. “B”.) e Defendant enhanced its time certification issued when non-exempt employees clock- out for the day by (1) being more precise concerning what the nonexempt employee is certifying, and (2) making it easier to report potential break violations by creating a hyperlink to the HR Helpline. eo Felczer v. Apple was also referenced in the largest Human Resources Group in the United States - the Society for Human Resource Management (“SHRM”) - reiterating the importance of meal and rest periods and describing the law for all California employers and benefitting potentially millions of non-exempt employees. (Exs. “C”, “D”.) 5 THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 massive changes were made to Defendant’s break policies, in addition to achieving a net monetary recovery of $2,000,000.00. Therefore, the Class, inclusive of Hawkins and Carco, are the prevailing parties because the action resulted in a $2,000,000.00 recovery on behalf of the Class and positive change in Defendant’s meal and rest period policies - the primary relief sought. (See Fox v. Hale & Norcross S. M. Co. (1898) 122 Cal. 219, 223; Michell v. Olick (1996) 49 Cal.App.4th 1194, 1199-1200 [A plaintiff is entitled to recover the whole of his or her costs, even despite a limited victory]; Ling v. P.F. Chang's China Bistro, Inc. (2016) 245 Cal.App.4th 1242, 1254.) Furthermore, even if Carco and Hawkins were not prevailing parties, Defendant is not a prevailing party towards Hawkins and Carco. “In those instances in which several [parties] are united in interest and/or join in making the same [claims], the allowance or disallowance of an award to prevailing defendants lies within the sound discretion of the court.” (Smith v. Circle P Ranch Co. (1978) 87 Cal.App.3d 267, 272.). Where there are collective actions that are “united in interest and shared the same counsel the specific circumstances ... do not fall within the specific situations specified in Code of Civil Procedure section 1032, subdivision (a)(4).” (Slavin v. Fink (1994) 25 Cal.App.4th 722, 726.) Thus, because the Class was and is represented by the same counsel and were united in interest, and joined in making claims against Defendant regarding its wage and hour practices and policies, Defendant cannot be considered a prevailing party. B. Felczer, Goldman, and the Class Can Recover All Costs Related to the Prosecution of Class Claims. In its motion, Defendant ignores the fact the Class was the prevailing party and argues that Class Representatives Felczer and Goldman can only recover costs associated with their late first meal period claims. (See Motion at 3:18-25.) In support of its claim, Defendant cites only to CCP § 1032(a)(4) - the section that merely defines “prevailing party” but is silent as the scope of costs that are recoverable. Defendant ignores the other subsections of section 1032 which confirms that such costs for the entire “action” are recoverable by the prevailing party - the party with a net monetary recovery in the entire action: “[A] prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (CCP § 1032(b)) (emphasis added).) A prevailing -6- THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 party is “the party with a net monetary recovery”. (CCP§ 1032(a)(4).) In sum, Defendant ignores the clear language of the statute that allows a prevailing party to recover all costs associated with its prosecution of its case. Thus, under the clear language of the statute, Goldman and Felczer - and the Class - are entitled to recover all costs associated with the action. Case law supports this proposition. (See Fox, supra, at 223 [A prevailing plaintiff is “entitled to costs incurred by him whether his recovery be for the whole or a portion of his claim, or whether his claim be made up of one or several causes of action.”]; Michell v. Olick (1996) 49 Cal.App.4th 1194, 1199-1200 [Finding a plaintiff who only prevailed on one cause of action was entitled to all costs as a matter of right, and specifically rejecting defendant’s argument that plaintiff could not recover for costs for causes of action on which she did not prevail because “[t]he successful plaintiff is entitled to recover the whole of his or her costs, despite a limited victory.” (emphasis added)]; (Ling v. P.F. Chang's China Bistro, Inc. (2016) 245 Cal. App.4th 1242, 1254 [“An opposing party is not entitled to an offset, even if the prevailing party's net monetary gain reflected a partial or limited recovery”].) Thus, contrary to Defendant’s assertion, because the Class obtained a net monetary recovery, are entitled to all costs incurred in the prosecution of all of their claims. C. The Class is Entitled to Costs for its Consultants Prior to those Persons being Designated as Experts. Defendant challenges costs related to Dr. Jon Krosnick, Michael O’Brien, Dr. Robert Fountain, and Gil Figueroa. (Motion at 4:21-5:7.) Defendant also challenges costs related to Harry Plotkin, The Strategy Team, and SSRS. (Motion at 5:8-20.) Defendant cites California Code of Civil Procedure section 1033.5(b)(1): “Fees of experts not ordered by the court” are expressly not allowable as costs. Defendant’s argument is overbroad, imprecise, and, therefore, wrong. Costs for consultants that “process the raw data” involved in creating exhibits are allowable under section 1033.5. (El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc. (2007) 150 Cal. App.4th 612, 617-618.) Furthermore, a consultant is not an expert unless and until 7- THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 designated as such; thus costs are recoverable for experts’ pre-designation work - that work performed as consultants. (See, e.g. County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 658 [pre-designation communications with consultants are privileged, while post- designation communications are not because those individuals are then considered expert witnesses]; De Luca v. State Fish Co. (2013) 217 Cal.App.4th 671, 688 [drawing a bright line regarding which communications were discoverable where a consulting expert was later designated as a testifying expert] Here, on May 13, 2016, the Class designated Dr. Fountain, Dr. Krosnick, Mr. O’Brien, and Mr. Figueroa as experts. That same day, Defendant designated Dr. Speakman as an expert. Prior to May 13, 2016, no person had been designated as an expert in this action. The class respectfully concedes that costs incurred after Dr. Fountain, Dr. Krosnick, Mr. O’Brien, Mr. Figueroa, and Dr. Speakman were designated as experts are not recoverable. But, prior to that May 13, 2016 designation, these individuals were merely consultants. Thus, all costs for these individuals prior to that date are recoverable consultant fees. Additionally, Mr. Tomz assisted the Class and Dr. Krosnick, but was never designated as an expert. The Strategy Team and SSRS were likewise never designated as experts, and only performed necessary analysis of the raw data. Mr. Tomz, as well as The Strategy Team and SSRS, were never designated as experts and were never anything other than consultants. Thus, these costs are recoverable. Similarly, Mr. Plotkin does not fit the description of an expert. Mr. Plotkin did not provide any reports and has no training on statistics or any matter relevant to the substance of this case. Rather, Mr. Plotkin assisted in the jury selection process and the presentation of this case to the jury, and was thus a recoverable cost because he was reasonably necessary to prevail. Tellingly, Defendant retained a counterpart to Mr. Plotkin - Michael D. Cozzins, Ph.D. (See Trial Trns., Oct. 20, 2016, at 518:25 -519:10.) Accordingly, these costs were properly included in Attachment 16a. 1" 1" _8- THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 D. The Class is Entitled to Costs Incurred to Locate Potential Class Members. The Class incurred costs associated with locating putative class members. Defendant seeks to tax these costs as investigative expenses related either to “preparing the case for trial” or “investigation of jurors.” (Mot. at 8:5-7.) First, these expenses are clearly not for the purpose of investigating jurors, but rather, gathering information regarding “punitive class members” (sic) as is stated in the Memorandum of Costs.” None of the expenses listed state that they are for the purpose of investigating jurors and any such conclusion would be wholly baseless. Moreover, the expenses incurred to locate class members were not “in preparation for trial” but were a result of Defendant providing bad contact information. Conversely, the investigative costs were to interview appropriate witnesses and potential additional class representatives, as well as obtain information to gather facts in order to get past the certification stage. Notably, the vast majority of these costs were incurred in 2012, well before trial began. Because expenses involved with certifying the class were reasonably necessary to prevail in this action, these costs are proper. E. The Class is Entitled to Filing Fees in this Case, Including Fees to Unseal Records in Camuti v. Apple. Defendant falsely claims that the Class is attempting to recover costs related to another case - Camuti v. Apple (San Francisco Superior Court case number CGC-09-492590). (Mot at 9:1- 11.) Camutiv. Apple was a similar case in which a plaintiff sought class certification against Apple on various wage and hour causes of action, but was ultimately denied. (Belong Decl. at 3.) The court subsequently sealed the records that had been lodged in support of Apple’s motion to strike class allegations, or in the alternative deny certification. (Id.) In this case, the Class sought to unseal these records for the purpose of obtaining records and identification of witnesses that would help advance their own case. The Class was forced to proceed in this manner because Defendant refused to de-designate the records, nor respond substantively to Plaintiffs’ reasonable formal and informal discovery requests. (Id.) The expense challenged here was simply the filing J Additionally, Defendant provided incorrect contact information for numerous class members and then essentially mandated Class Counsel to produce them at trial, which required Class counsel to expend virtually all of the associated costs. (Belong Decl. at 2.) 9. THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 fee for the motion to unseal these records. (Id.) Under section 1033.5(a)(1), the class is entitled to recover costs for filing fees. Further, Defendant states that the class should not recover costs to serve Scott Cole & Associates, because they are “plaintiff’s counsel not related to this case.” This is incorrect because Scott Cole & Associates served as counsel of record for the plaintiffs in Camuti v. Apple, and therefore needed to be served with the motion to unseal records in that case. (Id. at 2; Cal. R. Court 2.551(h)(2) [“Notice of any motion, application, or petition to unseal must be filed and served on all parties in the case”].) Thus, this item was proper. F. The Class is Entitled to Deposition Costs for Witnesses that did not Testify at Trial. Section 1033.5, subdivision (a)(3) allows a prevailing party to recover certain costs related to the taking of depositions. Defendant first argues that the Class should be unable to recover costs for individuals that were deposed but did not testify, but does not cite to any authority for this proposition. Defendant’s contentions are legally incorrect. “The recovery of deposition costs does not depend on whether the deponent ultimately testifies at trial.” (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 57 [emphasis added.].) Even where an individual does not testify at trial, costs relating to his or her deposition are recoverable so long as they are “reasonably necessary to the conduct of the litigation.” (Ibid; see also CCP § 1033.5.) Whether a cost is reasonably necessary is left to the discretion of the trial court. (Ladas, supra, 19 Cal.App.4th at 774.) Here, the only depositions that Plaintiffs took were in opposition to Defendant’s motion to deny certification and experts, on which Plaintiffs prevailed. Further, Plaintiffs had to order the deposition transcripts for all of the witnesses Defendant deposed because (1) Defendant refused to the normal stipulation where the party taking the deposition, sends the original straight to the party that did not take the deposition, and (2) Defendant refused to disclose who it was calling as a witness up until the day prior to trial. (Belong Decl. at 4.) G. The Witness Fees that the Class Seeks to Recover are Proper. Defendant challenges certain witness fees included in the Class” memorandum of costs. (Mot. at 11:1-12.) Section 1033.5 subdivision (7) allows a prevailing party to recover ordinary -10- THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 witness fees pursuant to California Government Code 68093. First, Defendant contends that Plaintiff has listed witnesses that did not testify at trial. The only witness that the Class seeks to collect fees from that did not testify at trial is Jeff Nye. Mr. Nye had signed an agreement to remain on-call and was in San Diego and prepared to attend, until the Class’ corporate claims were bifurcated and required to be tried 7 weeks later than originally scheduled. That agreement, executed pursuant to California Code of Civil Procedure section 1985.1, was signed on October 6, 2016 and required Mr. Nye to remain on-call to testify in person at the Hall of Justice on October 16,2016. Thus, Mr. Nye was “legally required” to attend court within the meaning of this section because he would have violated this agreement had he not been present. It is immaterial that this witness did not actually testify. (Foothill-De Anza, supra, 158 Cal. App.4th at 30.) Additionally, Defendant makes a bald assertion that some fees for some witnesses were higher than authorized by law, or otherwise not credible. Because these expenses are proper on their face, and expressly provided for in section 1033.5, Defendant bears the burden of showing they should be taxed. Defendant’s claims are unsupported; thus, must be rejected. H. The Class Ought to Recover its Costs for Models, Blow-Ups, and Copying. In Attachment 16a, the Class included several items of copying. Section 1033.5, subdivision (a)(14) allows a party to recover costs for models, enlargements, and photocopies of exhibits as long as they are “reasonably helpful to aid the trier of fact.” As an initial matter, Defendant’s claim that the Class’s witnesses frequently wrote on butcher paper is both untrue and irrelevant. As the Court is well aware, the Class showed numerous witnesses digital records of employee schedules and time punches throughout the trial, and then admitted those records into evidence. That the witnesses were not shown paper copies of these exhibits does not mean that photocopies of these exhibits fall outside the scope of this subdivision. (See Chabaan, supra, 203 Cal.App.4th at 59 [holding that costs of photocopying exhibits that were presented digitally could be recovered because “counsel (for both sides), the witnesses, and the judge all used paper exhibits” without which, “it would have been even more difficult to conduct this trial than it already was”].) Further, the charges listed in this section “direct the [trier of fact’s] attention to 11- THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 material the party maintains is especially relevant” and is therefore reasonably helpful. (Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.App.4th 1043, 1061.) Moreover, the statute bars only costs for “photocopying charges, except for exhibits” and does not bar recovery for printing or other production charges. (CCP 1033.5(b)(3).) Many of the items that Defendant seeks to tax in this section are costs related to printing and production, and not copying. As a result, the Court still has discretion to allow the Class to recover these costs. These items were crucial to the progress of the trial, and greatly assisted the Class in managing and presenting an organized case against a defendant who repeatedly demonstrated its access to practically unlimited resources. Accordingly, the Court should exercise its discretion to permit recovery of these costs. I. Martin Buchanan’s Fees are Appropriately Sought - Either by Way of this Motion or Via the Class’s Motion for Attorney’s Fees. On December 13, 2017, the Class filed its Motion for Attorneys’ Fees. This motion explained that the Class is entitled to its attorneys’ fees under California Code of Civil Procedure section 1021.5. In this motion, the Class did not request fees for Martin Buchanan, who served as appellate counsel to the Class during writ proceedings before the Fourth District Court of Appeal. (Belong Decl. at 5.) Mr. Buchanan’s work was crucial to successfully opposing Defendant’s writs challenging Class certification. (/d.) If the Court is not inclined to grant these fees as a recoverable cost, then the Class will include Mr. Buchanan’s fees in their supplemental declaration to their motion for attorneys’ fees. These fees are most certainly recoverable here, either as a cost or as a fee. J. The Class Properly Included its Reasonably Necessary Miscellaneous Expenses. Defendant challenges several of the expenses listed as “Other” in Section 16 of the Memorandum of Costs. But, these costs are properly included because they are reasonably necessary to the conduct of the litigation. Defendant states the Class should not recover costs associated with its use of a conference -12- THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 room at the Sophia Hotel, located at 150 West Broadway in downtown San Diego. (Mot. at 13:14- 15.) But, given its close proximity to the courthouse, Class counsel used this conference room next door to the Court house in order to meet with witnesses and prepare them for testimony, which was necessary given the pace of trial and the volume of witnesses. (Belong Decl. at 6.) Without this space, many important meetings with witnesses would not have been logistically possible. (Id.) Additionally, Defendant argues that the Class should not recover costs related to class member testimony because it speculates that this testimony could not be used to determine liability or damages. (Mot. at 13:15-18.) To the contrary, this testimony was helpful to assist the trier of fact in evaluating and appreciating the evidence of liability and damages. Defendant’s blanket assumption that this testimony did not have any impact is not based in reality. This testimony was likely persuasive to the jury because it helped supplement the exhibits and expert testimony with a more human element. To be sure, it provided helpful context, complaints, and credibility to the Class’ claims during trial. Additionally, these witnesses helped move uniformly applicable exhibits into evidence that were reasonably necessary to prove the Class’s case. Defendant also attacks costs related to travel for witnesses that did not testify. (Mot. at 13:18-19.) These witnesses, however, were still reasonably necessary to the conduct of the litigation. It is important to remember that this case was not bifurcated until the day before trial began.’ Thus, corporate witnesses had already traveled to San Diego, and were prepared to testify. When class counsel attempted to bring these witnesses back to testify during the bench trial, some were not available. (Belong Decl. at 7.) In other instances, those witnesses were cumulative and would thus be superfluous to the case. (Id.) These witnesses were still reasonably necessary because strategic flexibility was important in allowing the Class to prevail at trial. (Id.) In any event, Defendant failed to meet its burden of submitting any factual bases to overcome the presumption of reasonable necessity. For other items that Defendant challenges as not reasonably necessary, Defendant likewise does not state why it believes they should be taxed. a In addition to the timing, Defendant always maintained that it wanted a jury trial, and did not request a bench trial until the eve of trial. -13- THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 Z7 28 For these items, which facially appear to be proper, Defendant has similarly not met its burden to show why they should not be allowed. Thus, the Class should be permitted to recover these costs. V. CONCLUSION For all of the foregoing reasons, the Class respectfully requests that the Court deny Defendant’s Motion to Tax Costs, except as to the specific concessions referenced above. Dated: January 29, 2018 HOGUE & BELONG By: /s Andrew B. Dorr JEFFREY L. HOGUE TYLER J. BELONG ERIK A. DOS SANTOS ANDREW B. DORR Attorneys for the Class -14- THE CLASS’ OPPOSITION TO DEFENDANT’S MOTION TO STRIKE OR TAX COSTS CASE NO. 37-2011-00102598-CU-OE-CTL