Reply_in_support_of_motion_to_tax_costsReplyCal. Super. - 2nd Dist.June 25, 2010Electronically FILED by Superior Court of California, County of Los Angeles on 01/30/2019 07:15 AM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk © 0 9 NN wn hh W N N N N N N N N N N m e e m e m e m p m e m e m e a 0 N d A N Wn B A R W O N = O 0 0 N D B R A W L N = John D. Rowell, CSB #77971 CHEONG, DENOVE, ROWELL BENNETT & HAPUARACHY A Law Partnership including Professional Corporations 1925 Century Park East, Suite 800 Los Angeles, California 90067 (310) 277-4857 Fax No.: (310) 277-5254 Cherie Brown (In Pro Per) P.O. Box 6061-244 Sherman Oaks, CA 91413 Attorneys for Plaintiff CHERIE BROWN SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES CHERIE BROWN, CASE NO. BC440484 Plaintiff, Assigned to the Honorable Ernest Hiroshige, Department 54 REPLY IN SUPPORT OF YOUVAL ZIVE, et al., DCAINITRIES MOTION TO TAX Date: February 5, 2019 Time: 9:00 a.m. Dept.: 54 V. Defendants. RES ID: [Hearing reservation scheduled directly with the Clerk in Department 54 per instruction]. Complaint Filed: ~~ 6/25/10 Trial Date: 9//5/18 A. THE PLAINTIFF WAS THE PREVAILING PARTY The defense has argued that the plaintiff Cherie Brown's motion to tax the entirety of the memorandum of costs should be rejected because the defendants were the prevailing parties. Not so. As explained in the motion to tax, the jury found for the plaintiff on liability, causation and damages. This is confirmed by the judgment. The defense argues that the judgment does not make the plaintiff the prevailing party because the amount of the fraud verdict is less than the prior verdict for failure to disclose seller H:\_B\Brown, Cherie\Plead BC440484\Post-Trial Pleadings\Reply ISO Plaintiff's Motion to Tax dosts: 901.wpd JFH REPLY IN SUPPORT OF PLAINTIFF'S MOTION TO TAX COSTS © 0 9 ON wn BA W N N O N N N N ND N N O N m= e m em p m mk e m e m e m p m c o NN O N Wn hh W N = OO VO N N N B R A W N = O financing. No on point authority is cited for this proposition. Further, in the plaintiff's response to the defense objection to the proposed judgment’, plaintiff Brown pointed out there is no authority for the proposition that a plaintiff who prevails on one count of a complaint is not a prevailing party if she recovers more on a different count arising out of the same transaction. Moreover, the fraud verdict has independent legal significance. If defendants declare bankruptcy again, it will prevent discharge of the judgment as a debt. Next, the defense argues that the judgment did not exceed a C.C.P. 998 joint offer made by defendants Zive and Vaca Partnership on August 29, 2018. That Offer, to pay $20,000 in return for dismissal of the "remainder of the case", each side to bear its own costs and fees, is ambiguous, at best. The Offer does not state that the payment is in addition to the existing judgment. The Offer does not say anything about whether or not the $20,000 payment can be used by defendnants as a credit against the 2013 judgment on the complaint, as would ordinarily be the case. As this Court is aware, no portion of the 2013 judgment in this case has been paid by the defendants. The defense has failed to cite to any case presenting a similar or analogous fact pattern. It is well settled that the party asserting a 998 offer as a basis for claiming to be the prevailing party, has the burden of proving the offer is valid and, as to defense offers, that the judgment entered does not exceed the offer. The judgment on the fraud count in this case does exceed the Offer. Because no portion of the 2013 judgment has been paid, the plaintiff may enforce this fraud portion of the judgment before collecting on the earlier failure to disclose seller financing judgment. In short, the judgment in this matter awards the plaintiff $25,000. The Offer was to pay $20,000. Plaintiff is the prevailing party here. The defense objected to the inclusion of costs in the judgment. (Exhibit 1 [defense objection].) The Court rejected !' The defense Objection, Exhibit 1, sought to have costs disallowed on the grounds that the fraud verdict was less than the verdict on the claim of failure to disclose seller financing. H:\_B\Brown, Cherie\Plead BC440484\Post-Trial Pleadings\Reply ISO Plaintiff's Motion to Tax Posts1901.wpd JFH REPLY IN SUPPORT OF PLAINTIFF'S MOTION TO TAX COSTS © 0 NN ON nn hk W N N O N N N N N N N O N m e e m e m e m e m p m p m p d e d C 0 N N O N nn bh W N = O VV N N N D R A W N = o the defense objection and signed the judgment, finding plaintiff the prevailing party. (Exhibit 2 [minute order of 12/3/18].) B. THE DEFENDANTS’ MEMORANDUM OF COSTS SHOULD BE REJECTED The defendants’ Memorandum of Costs also fails because it is materially incomplete. The Memorandum does not have any of the worksheets which are required to be attached. (See plaintiff's Memorandum of Costs by comparison.) In addition, the opposition makes assertions of fact concerning the basis for the numbers which are not made under oath. In other words, the presumption of accuracy does not attach to statements made in an unsworn memorandum. It is the obligation of the party presenting the Memorandum of Costs to support the numbers by evidence when, as here, they are questioned by a Motion to Tax. Here the defense has failed to produce evidence that the statements made regarding the basis for the summary are accurate. Further, although plaintiff questioned the summary cost amounts by way of her Motion to Tax, no bills or evidence of payment have been produced. Although failing to submit any bills or proof of payment, the defense has argued that the cost of having someone in the courtroom to assist in running the projection of exhibits is an allowable cost. Itis not. See Science Applications International Corporation v. Superior Court (1995) 39 Cal. App.4th 1095. Nor, even assuming evidence was offered of same, should mileage and parking for daily attendance at trial by defendant Zive, the defense counsel and co-counsel considered to be a recoverable cost. See Ladas v. California State Auto. Assn. (1993) 19 Cal. App.4th 761. Dated: January 30, 2019 CHEONG, DENOVE, ROWELL BENNETT & HAPUARACHY By: SH John D. Rowell Attorney for Plaintiff CHERIE BROWN H:\_B\Brown, Cherie\Plead BC440484\Post-Trial Pleadings\Reply ISO Plaintiff's Motion to Tax Bosts1001 .wpd JFH REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO TAX COSTS Exhibit 1 N OO 0 NN a Ln b w 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MICHAEL B. KUSHNER (State Bar No. 196224) MICHAEL C. LUBIN (State Bar No. 293487) Kushner Carlson A Professional Law Corporation 85 Enterprise, Suite 310 Aliso Viejo, CA 92656 Telephone: (949) 421-3030 Telecopier: (949) 421-3031 Attorneys for Defendants Youval Zive and VACA Partnership THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES-STANLEY MOSK COURTHOUSE CHERIE BROWN, Case No.: BC440484 Plaintiffs, : OBJECTION TO [PLAINTIFF'S Vs. PROPOSED] JUDGMENT ON SPECIAL VERDICT YOUVAL ZIVE, et al., Defendants. Assigned for All Purposes to: The Honorable Ernest Hiroshige Dept. 54 Defendants Youval Zive and Vaca Partnership (collectively “Defendants™) object to Plaintiff's Proposed Judgment on Special Verdict. Plaintiff's Proposed Judgment states: “IT IS HEREBY ADJUDGED AND DECREED that plaintiff CHERIE BROWN shall recover, and have judgment, from and against defendants YOUVAL ZIVE and VACA PARTNERSHIP, jointly and severally, in the amount of $25,000, together with interest thereon at the legal rate from October 15, 2018, plus costs and disbursements in the sum of $ ? The Court of Appeal determined that in the first trial of this matter, Plaintiff was already awarded $325,283.00, her maximum recoverable actual damages based on her claims. (Ct. of Appeal 1 DEFENDANTS’ OBJECTION TO PLAINTIFF’S PROPOSED JUDGMENT ON SPECIAL VERDICT N N B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o N Opinion, p. 16 & 22.) Plaintiff’s proposed judgment is an impermissible attempt to recover an additional $25,000 on top of the previous award. The only damages evidence offered by Plaintiff at trial were related to actual dames, As the Court of Appeal further noted, Civil Code Section 3294 allows for the recovery of punitive damages when the defendant is been found guilty of oppression, fraud, or malice. (Ct. of Appeal Opinion, p. 17.) The jury in the present case found that Plaintiff failed to prove oppression, fraud, or malice by a preponderance of the evidence. To the extent that Plaintiff is attempting to augment her prior recovery, Defendants object, and ask the Court to deny and refuse this portion of the proposed judgment. Dated: October 31, 2018 KUSHNER CARLSON, PC MICHAEL B. KUSHNER GARRETT M. WAIT MICHAEL C. LUBIN Attorneys for Defendants Youval Zive and VACA Partnership 2 DEFENDANTS’ OBJECTION TO PLAINTIFF'S PROPOSED JUDGMENT ON SPECIAL VERDICT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) X I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 85 Enterprise, Suite 310, Aliso Viejo, CA 92656. On October 31, 2018, I served the following document(s) described as follows: OBJECTION TO [PLAINTIFF'S PROPOSED] JUDGMENT ON SPECIAL VERDICT On the following interested parties in this action: John D. Rowell, Esq. Katherine E. Orletsky, Esq. Cheong, Denove, Rowell, Bennett & In-House Counsel Hapuarachy Pacific Holdings Group 1925 Century Park East, Suite 800 8484 Wilshire Boulevard, Suite 870 Los Angeles, CA 90067 Beverly Hills, CA 90211 Tel: (310) 277-4857 Email: legal@pacificholdingsgroup.com Fax: (310) 277-5254 Email: firm@cdrb-law.com Attorneys for Plaintiff, Cherie Brown VIA MAIL -- CCP §1013(a). I caused a true copy of said document(s) to be placed in a sealed envelope, addressed as above and placed for collection and processing under the firm’s ordinary course of business. Iam readily familiar with Kushner Carlson’s practice of collecting, processing and depositing correspondence for mailing. Under this practice, envelopes would be deposited with the United States Postal Service at Aliso Viejo, California the same day with postage thereon fully prepaid. VIA ELECTRONIC MAIL -- CCP §1010.6. Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I cause the documents to be sent to the interested parties herein at the e-mail addresses included above. Idid not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury, under the laws of the State of California that the foregoing is true and correct. Executed on October 31, 2018, at Aliso Viejo, California. eA Diane D. Actdna Proof Of Service Exhibit 2 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES Civil Division Ceniral District, Stanley Mosk Courthouse, Department 54 BC440484 December 3, 2018 CHERIE BROWN VS YOUVAL ZIVE ET AL 1:53 PM Judge: Honorable Ernest M. Hiroshige CSR: None Judicial Assistant: Steve Temblador ERM: None Courtroom Assistant: None Deputy Sheriff: None APPEARANCES: For Plaintiff(s): No Appearances For Defendant(s): No Appearances NATURE OF PROCEEDINGS: Court Order The Court hereby issues it's written ruling re: Plaintiff's proposed judgment on special verdict which is signed and filed this date. Clerk to notice via email. Clerk's Certificate of Service By Electronic Service is attached. Clerk's Certificate of Service By Electronic Service 1s attached. Clerk's Certificate of Service By Electronic Service is attached. Minute Order “Page of | Minute Order Dept. 54 December 3, 2018 Cherie Brown v Youval Zive, Vaca Partnership, BC440484 (Plaintiffs Proposed) Judgment on Special Verdict The Court has read and considered (Plaintiff's Proposed) Judgment on Special Verdict (received October 22, 2019); Defendants’ Objection to Plaintiff's Proposed Judgment (filed October 31, 2018); Plaintiff's Response to Defense Objection to Proposed Judgment (filed November 8, 2018). Ruling: The Court overruled the Defense objections and signed the (Plaintiff's Proposed) Judgment on Special Verdict. The Court adopts the reasoning of the Plaintiff's response to Defendants’ objection as the basis for this ruling. The Clerk will notice this ruling by email notice to counsel of record. iy 2% Fong pes 27 Ld revmin es December 3, 2018 feral ba, MiEoBhige Judge Ernest Hiroshige Reserved for Clerk's Fite Stamp SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES COURTHOUSE ADDRESS: FILE D Stanley Mosk Courthouse Superior Court of Calioreia 111 North Hill Street, Los Angeles, CA 90012 nla oss PLAINTIFF: 12/03/2018 Cherie Brown Seen B. Caviar, Saecutve Ofer F Bak of Ceyt fy Steva Tembladot any DEFENDANT: Be msn issn EEA) Youval Zive et al CASE NUMBER: CERTIFICATE OF ELECTRONIC SERVICE CODE OF CIVIL. PROCEDURE 1010.6 BC440484 I, the below named Executive Officer/Clerk of Court of the above-entitled court, do hereby certify that | am not a party to the cause herein, and that on this date | served one copy of the Minute Order and Copy of the Court's written ruling. entered herein, on 12/03/2018 | upon each party or counsel of record in the above entitled action, by John D. Rowell at 12/03/2018 from my place of electronically serving the document(s) on firm@cdrb-law.com on business, Stanley Mosk Courthouse 111 North Hill Street, Los Angeles, CA 90012 in accordance with standard court practices. Sherri R. Carter, Executive Officer / Clerk of Court Dated: 12/03/2018 By: Steve Temblador Deputy Clerk LACIV XXX CERTIFICATE OF ELECTRONIC SERVICE CODE Civ. Proc. § 1013(1) CODE OF CiviL PROCEDURE 1010.6 LASC Approved 00-00 Reserved for Clerk's File Stamp SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES Stanley Mosk Courthouse Suparior Count of Catforria 111 North Hill Street, Los Angeles, CA 90012 RBA SETTERS PLAINTIFF: 12/03/2018 Cherie Brown Sea 2 Ste, Eaduive Oo ? Ces of Chu By, DEFENDANT: Youval Zive et al CASE NUMBER: CERTIFICATE OF ELECTRONIC SERVICE CODE OF CIVIL PROCEDURE 1010.6 BC440484 [, the below named Executive Officer/Clerk of Court of the above-entitled court, do hereby certify that | am not a party to the cause herein, and that on this date | served one copy of the Minute Order and Copy of the Court's written ruling entered herein, on 12/03/2018 | upon each party or counsel of record in the above entitled action, by Michael C. Lubin at on 12/03/2018 from my place of electronically serving the document(s) on mlubin@kuchnercarlson.com business, Stanley Mosk Courthouse 111 North Hill Street, Los Angeles, CA 90012 in accordance with standard court practices. ‘Sherri R. Carter, Executive Officer / Clerk of Court Dated: 12/03/2018 By: Steve Temblador Deputy Clerk EY 8 CERTIFICATE OF ELECTRONIC SERVICE CODE Civ. Proc. § 10131) LASC Approved 00-00 CODE OF CIVIL PROCEDURE 1010.6 Reserved for Clerk's Fite Stamp SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES COURTHOUSE ADDRESS: FILED Stanley Mosk Courthouse Superior Cour of California 111 North Hill Street, Los Angeles, CA 90012 di a PLAINTIFF; 12/03/2018 Cherie Brown Seno Eaaabee Gf 7 Gad of Cau DEFENDANT: BY. Youval Zive et al CERTIFICATE OF ELECTRONIC SERVICE CODE OF CIVIL PROCEDURE 1010.6 BC440484 CASE NUMBER: I, the below named Executive Officer/Clerk of Court of the above-entitled court, do hereby certify that | am not a party to the cause herein, and that on this date | served one copy of the Minute Order and Copy of the Court's written ruling. | entered herein, on 12/03/2018 | upon each party or counsel of record in the above entitled action, by electronically serving the document(s) on Katherine Orletsky at legal@pacificholdingsgroup.com on 12/03/2018 from my place of business, Stanley Mosk Courthouse 111 North Hill Street, Los Angeles, CA 90012 in accordance with standard court practices. - Sherri R. Carter, Executive Officer / Clerk of Court Dated: 12/03/2018 By: Steve Temblador Deputy Clerk Eig CERTIFICATE OF ELECTRONIC SERVICE CODE Giv. Proc. § 1013(1) LASC Approved 00-00 CODE OF CIVIL PROCEDURE 1010.6 Oo 00 9 O N n h W N N N N N N N N N N m m e e e m e m e m p m p m p m p m C O ~~ O N Wn ph W N = O vO 0 N N N l A N = Oo PROOF OF SERVICE Case Name: Brown v. Zive, et al. Case Number: BC440484 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 eighteen years and not a party to the within entitled action; my business address is1925 Century Park East, Suite 800, Los Angeles, CA 90067. On January 30, 2019, I caused the documents described as REPLY IN SUPPORT OF MOTION TO TAX COSTS to be served on the interested parties in said action as follows: Xx by placing [7] the original [{ a true copy thereof enclosed in sealed envelope(s) addressed as follows: SEE ATTACHED SERVICE LIST O BY MAIL: I sealed and placed such envelope for collection and mailing to be deposited in the mail on the same day in the ordinary course of business at Los Angeles, California. The envelope was mailed with postage thereon fully prepaid. I am readily familiar with this firm’s practice of collecting and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. O BY OVERNIGHT COURIER: I caused such envelope to by placed for collection and delivery on this date in accordance with standard delivery procedures. O BY FAX: In addition to service by mail, I transmitted a copy of the foregoing document(s) this date via telecopier to the facsimile numbers shown above. BY PERSONAL SERVICE: I personally delivered such envelope by hand to the offices of the addressee(s). ® BY ELECTRONIC MAIL: The foregoing document(s) was transmitted to the interested parties through electronic transmission, to the email address(es) listed below (CCP §1010.6 (a), CRC 2.251). Xl [State] I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. O [Federal] I declare under penalty of perjury that the foregoing is true and correct. I am employed in the office of a member of the bar of this court, at whose direction the service was made. Executed on January 30, 2019, at Los Angg¢les, California. PROOF OF SERVICE oO 0 3 O N Wn Bk W N = N O N N O N N N N N N N N = mm e m e m e m e m e m pe d pe d pe 00 1 A N WL bh WW N = O V 0 0 N N N R A W N R O PROOF OF SERVICE Case Name: Brown v. Zive, et al. Case Number: BC440484 Katherine E. Orletsky, Esq. Pacific Holdings, In-House Counsel 8484 Wilshire Boulevard, Suite 870 Beverly Hills, CA 90211 Cherie Brown P.O. Box 6061-244 Sherman Oaks, CA 91413 SERVICE LIST Attorney for Defendant YOUVAL ZIVE; PACIFIC HOLDINGS; VACA PARTNERSHIP 800) 403-3407 x 113 (O) 818) 988-7030 (F) legal@pacificholdingsgroup.com Plaintiff In Pro Per PROOF OF SERVICE
