Notice of Motion And Motion To Strike Or Tax Defendants Memorandum of Costs And Fees as UnreasonableMotionCal. Super. - 2nd Dist.September 28, 2016Electronically FILED by Superior Court of California, County of Los Angeles on 07/18/2019 03:31 PM Sherri R. Carter, Executive Officer/Clerk of Court, by J . Lara,Deputy Clerk pos t DR. MAHNAZ SALEM 10600 Wilshire Blvd. 2 Ste. 4323 Los Zngeles, CA 90024 3 |iPh: 316-993-1784 4 || PLAINTIFF, In PRO PER 5 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNTZ 8 COUNTY OF LOS ANGELES, CENTRAL DISTRICT K i0 DR. MAHNAZ SALEM, Case No.: BCE3541% Assigned to Dept. 47 1 Hammock 11 Plaintiff, 12 vs. PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX DEFENDANTS MEMORANDUM OF COSTS AND FEES as UNREASONABLE and/or UNRECOVERABLE AS A MATTER OF LAW i3 CFHS HOLDINGS, INC., & California Corporation; PAULETTE HEITMEYER, an 14 Individual; JEFFREY WALLACE, an Individuoali et al., Tt S t Se d Na i S t Sa d Nd f r ed d Se Mt ew Md WU E Ma rk at Sp l Se nt Na r et 18 Defendants. [ELiG goucarantly with: i. Plaintiff’s Memorandum of Points 16 and Authorities in Support of this Motion to Strike OR Tax L7 Defendants’ Memorandum of Costs & Fees; 18 xi. Exhibit A: CFHS Employee Acknowledgment Form re 1% Arbitration pursuant to AAA and Responsibility of Each Party to 20 } BEAR ITS OWN COSTS & FEES; } iii. Exhibit B: Declaration of 21 3 Shahram Khizl, Ph.D.; ) 22 } } 23 } Date: St tember 5,201 } Time: B- 0am 24 } Place: Dept. 47 ) 25 ) rEsErvaTToN 1: |U} WARS 14S) } 26 ) 27 } 28 Plaintiff’s Notice of Motion & Motion & Memorandum of Points & Authorities in Support of Plaintiff‘s Motion te Strike OR Tax Defendants’ Memorandum of Costs and Fees ~ 1 tN ~] 11 12 i3 i5 i6 17 18 18 20 22 23 26 27 28. TO ALL PARTIES AND THEIR COUNSEL OF RECORD: Please take notice that on . 2 20319, at 8:30 a.m. in Department 47 of the above-entitled court located at 1311 N. Hill Street, Los Angeles, California 20017, Plaintiff, DR. MAHNAZ SALEM will and hereby does move to strike OR TAX Defendants’ Defendants’ CFHS Holdings, Inc., Paulette Heitmeyer and Jeffrey Wallace Memorandum of Costs on grounds that Defendants costs and fees are UNREASONABLE and/or NOT RECOVERABLE AS & MATTER OF LAW because Defendants were NOT the prevailing party as was intended by the law in that a Dismissal was not entered to favor Defendants or to concede their position. The Motion is brought pursuant to Code of Civil Procedure section 1033.5 and rule 3.1700{b) of the California Rules of Court, on the grounds that Defendants’ ENTIRE Memorandum of costs and fees {dated and filed May 30, 2019, and seeking $15,141.88 in costs and fees!] should be taxed iprefexably strickeniin general, and specifically, that the following items of costs and fees claimed in Defendants’ same | Memorandum of Costs should be taxed because they were unnecessary, excessive or unrecoverable. l.Item No. 1. The Court should disallow recover of the $1325.00 in filing and motion fees assoclated with Defendants’ unnecessary, oppressive and often malicious motions, which motions were made voluntarily to intimidate Plaintiff, especially once she was no longer represented by counsel, and proceeding in pro per. Defendants piled on one motion after another asking for thousands of dollars in sanctions without giving Plaintiff any procedural or substantive right to dus process. Defendants motions were prejudicial to Plaintiff and designed to have a chilling effect on her right to Arbitration, or any legal recourse whatsoever. Defendants MUST NOT be rewarded for this conduct, as it is unlawful to maliciously harangue and harass a seif representing party with endless motions and sanctions, all designed to penalize her for reasonably believing that she had a lawful basis on which to seek redress against Defendants, her former employer. Plaintiff's Notice of Motion & Motion & Memorandum of Points & Authorities in Support of Plaintiff's Motion to Strike OR Tax Defendants’ Memorandum of Costs and Fees - 2 ft wn ~d we 14 15 16 17 i8 ig 29 26 27 2. Item No. £4. The Court should tax Defendants’ outrageous and sxorbitant deposition costs. Because this matter should have proceeded to arbitration, and never did due to Defendants constant filing of motions and sanctions that financially broke Plaintiff, have a chilling effect on her constitutional right to avail herself of a civil action, or in this case, her right to Arbitrate per thes agreement that she signed with Defendant CFHS Holdings, her former employer! Furthermore, the issues presented were a pure question of law, therefore FOUR depositions of plaintiff herself were NOT reascnably necessary to conduct the ligation/arbitration. Moreover, Plaintiff was never even given the final deposition transcript, as it was unfairly withheld by counsel for Defendant. Finally, 811 amounts sought for deposition for multiple attorneys and transcription and priority mail in excess of ONE deposition are excessive and unrgasonable. On its face, Defendants are seeking $12,041.83 for Deposition costs, which is unconscionable on its face as unreasonable, but also they are unrecoverable as a matter of law. pe + + 3. Item No. 5. The Court should tax the service of process costs ciaimed Attachment 5{d) as presumptively unnecessary, ambigucus, unsupported, and/or unrecoverable as a matter of law. 4. Item No. 8. The Court should tax the witness fees as presumptively unnecessary, ambiguous, unsupported, and/or unrecoverable as a matter of law. Instead of arbitrating in good faith per its own contractually forced Employes Acknowledgment /Arbitration Form, Defendants have acted to block Arbitration and effectively cause a moratorium by filing endless motions against Plaintiff and asking for over $6,000 in Sanctions and now over $15,141.88 in costs and fees that are undoubtedly unreasonably on their face, but also unrecoverable as a matter of law, because as an action that was intended for submission to arbitration in the AAR each party was to bear ITS OWK COSTS AND FEELS, per standard arbitration/ARA protocol under the CA Code of Civil Procedure. There was never any intent otherwise, which i wn why Plaintiff reasonably believed that she did not have to specify that each party was Plaintiff’s Notice of Motion & Motion & Memorandum of Points & Authorities in Support f Plaintiff's Motion to Strike OR Tax Defendants’ Memorandum of Costs and Fees - 3 0 ot 0 11 iz 14 15 16 17 18 26 27 28 te bear its own costs and fees, since she reasonably and in good faith pelisved that to be true, based on the legal terminology and interpretation of Defendants Of Employee Acknowledgment Form requiring her to submit to arbitration through the AAR forum at the time she was hired! As such, Defendants’ Motion for Judgment Against Plaintiff and Defendants’ Motion for Memorandum of Costs and Fees..both conveniently and QUICKLY filed the moment Plaintiff was cowed into dismissing the case IN PRC PER without prejudice AND FOR WHICH DEFENDANTS SEEK COSTS & FEES FROM PLAINTIFF, is an outrageous abuse of legal process and an extortionate act of bad faith. Plaintiff PRAYS that the Court not further prejudice her by granting Defendants’ undeserved, unreasonable and unrecoverable costs and fees. Further GOOD CAUSE & GOOO FAITH grounds exist to Support Plaintiff’s Motion herein, based on Exhibits AsB, attached hereto, and incorporated herein by reference as though fully set forth. The Emplovee Acknowledgement Form in Exhibit A that she signed with CFHS mandating Arbitration pursuant to AAA makes it clear that the understanding between the parties, Plaintiff and Defendants, at the time the Arbitration Form was signed, was that EACH PARTY WAS TO BEAR ITS OWN COSTS AND FEES, as that is the standard legal agreement in employer mandated arbitration clauses. Defendants’ costs and fees must therefore be TAXED in their entirety as unreascnable, 5 § and unrecoverable as a matter of law. Dated this 12% day of July, 2019 3 DR. MAENAZ SALEM Plaintiff, In Pro Per Plaintiff’s Notice of Motion & Motion & Memorandum of Points & Authorities in Support of Plaintiff's Motion to Strike OR Tax Defendants’ Memorandum of Costs and Fees - 4 14 15 ie 17 i8 HG 20 21 26 27 28 DR. MAENAZ SALEM 1060C Wilshire Blvd. Ste. 433 Los Angeles, CA 96024 Ph: 310-953-1784 PLAINTIFF, In PRO PER SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT DR. MAHNAZ SALEM, Case No.: BC6E35419 Assigned to: Hon. Randelph Hammock Plaintiff, Dept. 47 vs. PLAINTIFF’ S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF PLAINTIFF’ S MOTION TO STRIKE OR TAX DEFENDANTS MEMORANDUM OF COSTS AND FEES AS UNREASONABLE and/or UNRECOVERABLE AS A MATTER OF LAW CFHS HOLDINGS, INC., a California Corporation; PAULETTE HEITMEYER, an Individual; SEFFREY WALLACE, an Individual; et al., Defendants. Date: July 12, 201% Time: Piace: Dept. 47 RESERVATION ID: C r R t Ma h N h et h r rt m t At m t N d Se t b d it e d Be ? S t er MEMORANDUM OF POINTS AND AUTHORITIES Piaintiff Dr. Mahnaz Salem, appeared in pro per after her counsel inappropriately withdrew from representation, on an ex parte basis on May 17, 201%, in Department 47 of the Los Angeles County Superior Court, the Honorable Randolph Hammock presiding. Defendants CFHS Holdings, Inc., Paulette Heitmever and Jeffrey Wallace, appeared through their counsel of record, Daniel J. McQueen. Plaintiff requested dismissal without prejudice of her entire lawsuit, reasonably believing at the time that she had no choice but to take this action, since her efforts to avail herself of her contractual right to siete under the emplover agreement that was mandated by Pilaintiff’s Notice of Motion & Motion & Memorandum of Points & Authorities in Support of Plaintiff’s Motion to Strike OR Tax Defendants’ Memorandum of Costs and Fees - 5 Ny wn ow iQ 12 i3 14 ie 17 18 19 20 21 22 23 25 26 28 ‘her former employer, CFHS, was being thwarted, unfairly prejudiced, and chilled in effect, by Defendants conduct in filing endless motions to punish Plaintiff in every way, but especially financially. The Court granted Plaintiff's request. Defendants thereafter immediately filed an entirely legally inappropriate ‘Proposed Judgment Against Plaintiff’ requesting that judgment be entered in favor of Defendants. This is NOT a standard practice, and was done for no other purpose than to continue to harass, intimidate, bully, oppress and penalize Plaintiff for daring to = . try te avail herself of xights to which she reasonably believed she was entitled to pursue under the employer mandated arbitration clause, to which Plaintiff agreed in the Employee Acknowledgment Form, attached zs Exhibit 'A7 hereto and incorporated herein by reference as though fully set forth. On May 30, 2019, Defendants then filed yet another motion, this time a Memorandum of Costs requesting $15,141.88 as costs of suit from Plaintiff, making sure to include the costs of these two motions that they wasted no time in unfairly filing, as neither is legally necessary, or relevant, to the disposition ¢of this action. The bottom line is that these actions show Defendants bad faith intentions and actions toward Plaintiff, and Defendants’ shamelessness in thereafter asking the court to make | Plaintiff pay for the extortionate costs of these legally irrelevant motions. The Defendants sole purpose was to harass and penalize Plaintiff, then have the audacity to essentially demand that she pay for their bad faith to the tune of $15,141.88. Thus far, the cour: has granted all of Defendants unreasonable motions, We ask that this time, the court see through Defendants transparent efforts to punish Plaintiff and break her financially, thereby ensuring that she ‘know better’ then to ever try to seek legal recourse. If is not Defendants role to play judge, jury and executioner here. Defendants feel that Plaintiff did not have a meritorious case, but that is only Defendants’ opinion. It was not established as a matter of law. Plaintiff reasonably believe at all times that her claims were meritorisus and made in good faith. On June. 5, 20619, Plaintiff filed z Memorandum of Costs, which was thrown cub by the court in an ex parte hearing on July 3, 2019. Plaintiff was not even fully aware that she had waived her right to oppose Defendants Memorandum of Costs at the time, since she was in pro per. However, the court was kind enough to allow Flaintiff’s Notice of Motion & Motion & Memorandum of Points & Authorities in Support of Plaintiffs Motion to Strike OR Tax Defendants’ Memorandum of Costs and Fees - & 18 11 12 13 14 i5 i6 17 18 19 20 21 25 26 28 the chance to file a motion to tax Defendants costs and fees. That is the purpose of this motion, and Plainti implores the court to tax all of Defendants fees and costs as unreasonable and unrecoverable as a matter of law or by operation of law. et By law, taxing costs means that the costs are reduced to a certain amount because the claimed costs are excessive for some reason, striking costs are stricksn because they are not authorized by law, or for other reasons. The statutory authorization for a motion for an order taxing costs in California is found in California Rule of Court 3.1700(b} {1}. The deadline to file and serve a motion for an order t in California is fs w Jot 3 «y O © @ or [73 the cost memorandum was served ¥-4 Fi ob = = He po Pe a jo] po d Fy 5 days after service of the cost memorandum. by mail, the period is extended as provided in Code of Civil Procedure section 1013. See California Rule of Court 3.1700(b} {1} .The party filing the motion must also 0 pecify which item or items listed on the memorandum of costs should be taxed or he entire cost memorandum. + stricken, unless they are objecting to “Unless objection is made to the entire cost memorandum, ths motion to strike or tax costs must refer to each item ob order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable. ” Sse California Rule of Court 3.1700i{b) {2}. Note that there is alse a deadline for serving and filing az memorandum of costs. California Rule of Court 3.1700{a} (I) states that < costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section §64.5 or the date of service of written notice of entry © judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or It agent that to the best of his or her knowledge the items of cost are correct and wers 7” necessarily incurred in the case. Plaintiff's Notice of Motion & Motion & Memorandum of Points & Authorities in Support of Plaintiff's Motion fo Strike OR Tax Defendants’ Memorandum of Costs and Fees - 7 ~J Ww 13 i4 5 16 17 i8 ig 20 22 23 28 jattemps to undermine her in that regard. As a party to the matte ¥ 0 [0] 9] jo] on fa 2 y [2 4 i of i «cl 7 © ¥ o w If the memorandum of costs was not served and filed in motion to strike the entire cost memorandum could be filed. Code of Civil Procedure section 1033.5 states in pertinent part: w “Any award of costs shall be subject to the following: Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient ox beneficial to its preparation. Allowable costs shall be reasonable in amount.” Even if a cost claimed is authorized by law, if it was not reasonably necessary to the conduct of the litigation, or is not reasonable in amount, a motion taxing costs can be filed. And once items in a cost memorandum are properly objected to, the burden of proof is placed on the party claim ng them as costs. See Ledas v. falifornia State Auto Assn. (1883) 19 Cal.App.4th 761, 774, rehearing denied [internal citations and guotations omitted.) Requesting an order si ng certain cost w Fr 0 fu fe @ O {i "3 I © Ts rs foi s ur tt @ foo pe] 0 @ 4 cf Wm Jers 3 situations. This is due fo the Fact that many times a party will attempt to claim costs that are not authorized by any California law, such as fess for experts that were not ordered by the Court, for example, or attorney fees when there is no contractual or other basis for claiming them. In this case, Defendant has no right to recover for witness fess, let aleone for fess associated with deposing the Plaintiff herself! It was Defendants decision to notice FOUR depositions, and Plaintiff gig cooperate in good faith, despite Defendants [a In o or w ke a) 2] a ct om of © £0 w Defendants have no legal bases on which to recover any fees a Plaintiff, as a matter of law. It is also Plaintiff’s contanticn discretion to award costs not statutorily authorized. See Ladas v. Auto Assn. 19 Cal.App. 4% supra at 774. DEFENDANTS NOT A PREVAILING PARTY: Defendants’ outrageous costs and fees MUST be taxed, preferably stricken entirely, because they are URECOVERABLE AS 2A MATTER OF LAW. Pursuant to Code of Civil Procedure sections 1032, et seg., a prevailing party is entitled to costs of Piaintiff’s Notice of Motion & Motion & Memorandum of Points & Authorities in Support of Plzintiff’s Motion to Strike OR Tax Defendants’ Memorandum of Costs and Fees - 8 Ww in < “3 1G 13 12 13 i4 ] t ob 34 3 ps ] Defendants have harped on this characterizatiecn of a “Prevailing party” as ™ = Ww o 5% a by 0, 6] 5 ot i a in » on je} o B o & wn o whose favor & dismissal is entered,” [defendant of both the connotation 3 leg 3 tion [23 ili rts Defendant's argument that it is is nothing more than apocrypha and sophistry. Neither the court nor the judge entered a dismissal ‘in favor of’ defendants, and that is a isT Defendants are entitled to the court to = day of July, Li Sm os Tarn SIENGU CF iff’s } & Authorities in Support morvandum of Costs and Fees = 9 11 12 13 14 DECLARATION OF DR. MAHNAZ SALEM 1, Dr. Mahnaz Salem, declare as follows: 1. I have personal knowledge of the following facts and can and will testify to them competently and willingly in a court of law. 2. On July the 3%, 2019, I received the “Notice of Rulings” authored by the Defendant. 3. Defendant misrepresented the fact tin their notice section 3 “In opposing any such motion, the Court ruled that Defendant have not waived or forfeited any jurisdictional arguments they may have relating to the motion (e.g., untimeliness)”. 4. This is an absolute misrepresentation. The Court never ruled such a thing. 5. Defendant has no credibility and has constantly done these types of misconducts to abuse the Claim. .I have been quite disturbed due to Defendants harassing conduct. 6. I request Honorable Court to award a monetary Sanction in the amount of $2700 ($450/hr.) attorneys fee preparing this Motion. I declare that all that set forth herein is the truth under penalty of perjury under the laws of the State of California. Executed this 12% day of July 2019, at Los Angeles, California. Dr. Mahnaz Salem Ex-Parte Application - 1 j- ~~ 15 16 17 18 ig EXHIBIT ‘Af Plaintiff's Notice of Motion & Motion & Memorandum of Points & Authorities in Support S E A L ae Ca ta n rh e s i e n m e rm an n e 4 rw eke aa EMPLOYEE ACKNOWLEDGMENT FORM, I weknowledge thitt § lave vedelved a wapy of che CFS Employee Handbook amd Standards of Cenduee and that 1 underscnd Hue they contain nporiant informanon thout the company’s gedersl personel policies and about my privileges and obligarions as an employed. 1 firrther understand und acknowledge hac 1 am governed by the contents of dhe Employee Handlsouk. and Standaeds of Cundust 1nd tit | un expected to ead, understand, Bmiliaeize myself with snd comply wath the policies contained in theny, . ’ [also understind that the company may change, ceseind or add to any of che polices, benefits pr practices described in the Employee. Handbook, except the employment-ar-will policy and the Mutual Agreement uw Arblrrace referred to below, in its sole and absolute discretion, with or withour prior notice. | alts understnd thar the company will advise employees from time to time of materia) elnges to the pulicies, benefits or practices described in the Eniployse Handbouk, Furthermore, I understand, acknowledge ind agree that the Employer Handbook is nat vontract-of employment; tat my eniployment with the company is na for + specified term and that employment with the company is at the mutaal consent of the dmployee and the company. Thurefore, | hereby acknowledge har either 1 or the company cars terminate my employnient relurionslip ae will with ‘or without cause or notice. . In addition, | acknowledyse thie I have revived and mvlswed 4 copy of the CFHS Fair Treatrent Process brochure, 1 tisreby voharuarily sigiee os wie the Company's Fair Trdatinent Process and to submit to final snd binding arbitration any and all chims and disputes tha are related irs any way to my caplayment ar die wrniinaton of my enployment withGFHS 1 understand that final and binding arbitration will be the sols and exclusive remedy for avy such chin or dispure 1 pinst CES ar Its parent, subsidiary or ailinwtl companies or entities, and each of its and/or thelr employees, allicars, directors ur agents, and thar, by apresing vo usd arbitration to resolve my dispute, boch the Company and 1 agree 10 forego ivy right we sach wy have had ra a fury trial on issues covered by the Fair Treatment Process, © also agree Mae such arbieration will be conducted before an wxperienced urbivatay chissen by ne and the Company, and will he conducted under the Federal Arbitration Act and the procedunl rules of the American Arbimiion-Associacion ("AAA"), I further acknowledge that m exchange for my Jgresnent to arbitrace, die Coropany also agrees wo submit all claims und dispores ir vy lave wath me co, Gg and.bindings arbitrasion, and that the Company further agrees tne i1 submit veges tor binding arbitration, ny maximum euc-of pocket axpenges for the acbitiarr aed the adiministeative costs OF TE : ¢ an Aunt equal Toh duy's pay (161 am an exempe employed) sight thnes my houdy rate of pay (01 an 4 non-sxempe umployee), or the local civil fling fee, whichever 1 fess and that the Compagty will pay all of the remaining fees and administrative costs of the’ arbitiator und the AAA. E further ackuowledge that this muta] agrisment to arbitmte may tint be modified or rescinded pxvept bY 2 weitron starantent signed by both me and the Company, < x Af Cp By. oo G5 Employee Signature Date’ MAHA?
