Reply Reply In Support of Motion To Tax Costs

Reply

Cal. Super. - 2nd Dist.December 20, 2016

Electronically FILED by Superio eo 0 9 & Wn RA W N == N O N O R N S O N N N N O N Ee m k mm pm fe d pe s fe l j e fe d eR C 0 ~~ O N Wn hs Ww NN O m D 8 0 g a N WU! le W N = 2 r Court of California, County of Los Angeles on 02/07/2019 03:49 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Pryor,Deputy Clerk SCHEPER KIM & HARRIS LLP DAVID C. SCHEPER (State Bar No. 120174) dscheper@scheperkim.com 601 West Fifth Street, 12th Floor Los Angeles, California 90071-2025 Telephone: (213) 613-4655 Facsimile: (213) 613-4656 CHRISTOPHER J. KOORSTAD (State Bar No. 105942) cjkoorslaw@aol.com 1235 North Harbor Boulevard, Suite 200 Fullerton, California 92832-1349 Telephone: (714) 871-1132 Facsimile: (714) 871-5620 Attorneys for Plaintiff Daniel Wang SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT DANIEL WANG, CASE NO. BC 644582 [Assigned for All Purposes to Plaintiff, The Hon. Michael P. Linfield, Dept. 34] V. REPLY IN SUPPORT OF MOTION TO TAX COSTS FETOLUMINA TECHNOLOGIES CORPORATION; CYTOLUMINA [CORPORATIONS CODE §1604] TECHNOLOGIES CORPORATION, INC.; THOMAS LEE; HSIAN-RONG TSENG; DATE: February 15, 2019 AND DOES 1-50, TIME: 8:30 a.m. DEPT.: 34 Defendants. Reservation No. 181126368365 AND RELATED CROSS-ACTIONS Action Filed: December 20, 2016 Trial Date: December 4, 2017 REPLY IN SUPPORT OF MOTION TO TAX COSTS eo XR 3 S N U t RA W N = N O R O R O R N N N N N E E E R em E R EE b m es d E k em LL uO S N W i A WwW N = S 8 3 a N N T Es W N = OD Plaintiff Daniel Wang ("Plaintiff" of "Wang") hereby submits his Reply to Defendant FetoLumina Technologies Corp.'s ("FTC") Opposition ("Opp." ) to Wang's Motion to Tax Costs (the "Motion" or "Mot."). I. COSTS NOT ALLOWED BY STATUTE ARE PROPERLY TAXED FTC concedes the right to recover costs is purely statutory. See Ladas v. California State Auto Assn., 19 Cal. App. 4th 761, 774 (1993). Likewise, FTC does not dispute that section 1033.5(b) of the California Code of Civil Procedure ("CCP") lists items that are not allowable costs. II. FTC DOES NOT MEET ITS BURDEN TO JUSTIFY THAT THE OBJECTED-TO ITEMS ARE RECOVERABLE Pursuant to the Court's order, FTC is entitled to recover allowable costs from Mr. Wang as the prevailing party. See Declaration of David Scheper in Support of Daniel Wang's Motion to Tax Costs ("Scheper Decl."), § 3 and Ex. A. As the only prevailing party, FTC is only entitled to recover its own costs. CCP §1032(b). In his Motion, Mr. Wang challenged the follow items as non-allowable costs: Item 1: FTC Cannot Claim Filing Fees for Other Defendants. In its Cost Memorandum filed with the Court, FTC seeks to recover first appearance fees for three defendants. CCP §1032. However, it is axiomatic that FTC may not recover filing fees incurred on behalf of other non-prevailing defendants. This has been the rule in California for more than a century. See Benson v. Braun, 134 Cal. 41 (1901). FTC offers no authority to the contrary. Whether the non-prevailing defendants were necessary parties, had an indemnity agreement, or were employees of the prevailing defendant, as asserted by FTC (Opp. at 1-2), is of no moment. Item 8: Non-Testifying Witnesses are "Not Reasonably Necessary". Flaine Zhao, the witness in question, did not testify at trial. See Opp. at 5 (Declaration of Judy M. Lam, § 2). The fact that she did not testify is prima facie evidence that her testimony and appearance was not "reasonably necessary to the conduct of the litigation" and therefore her witness fees, which might otherwise be allowed, are not reimbursable. See CCP §1033.5(c)(2); 2 REPLY IN SUPPORT OF MOTION TO TAX COSTS oo 0 I S N n l A W N = N O R N N N N E R E R E E f m mm f d fe ml ed p m LL I S Wn AEA W O N = S $ E d S N UN R W Ne = 2 CCP §1033(a)(7). When objected to, the burden is on the party claiming the costs to show they were reasonable and necessary. Ladas v. California State Auto. Ass'n, 19 Cal. App. 4th 761, 774- 776 (1993); Sanford v. Rasnick, 246 Cal. App. 4th 1121, 1128 (App. 1 Dist. 2016) (burden of proof is on party claiming cost items at issue). Item 11: FTC Offers No Evidence Exhibits Were Provided to the Court or Admitted. FTC does not challenge that a party may recover costs of photocopies of exhibits only if “they were reasonably helpful to aid the trier of fact” and expressly prohibits other photocopying charges. CCP §§ 1033.5(a)(13), 1033.5(b)(3). Furthermore, FTC does not dispute that costs for photocopying unused trial exhibits are not allowable. Mot. at 4; see Seever v. Copley Press, Inc., 141 Cal. App. 4th 1550, 1557-58 (2006) (unused trial exhibits are not reasonably helpful to court). Despite these requirements, FTC offers no evidence, nor even asserts, that these charges pertained to exhibits provided to the Court, or states that any of these exhibits were admitted into evidence. Once objected to, the burden is on FTC to show these were allowable costs. Ladas, 19 Cal. App. 4th at 774-776; Sanford, 246 Cal. App. 4th at 1128. Item 12: FTC Cannot Recover Cost of Transcripts Not Requested by the Court. Court reporter fees for “transcripts of court proceedings” are not allowable as costs when “not ordered by the court.” CCP Section 1033.5(b)(5). FTC does not dispute that the Court did not order any transcripts, and may not recover costs for transcripts it requested for its own convenience. Mot. at 4-5; see Scheper Decl., 9 5-7. FTC's attempt to read California Rule of Court 2.956 as providing authority for a universal right to collect court reporter costs incurred at its behest is incorrect. First, the Court did not order a transcript in the trial of this matter, nor did FTC provide one to the Court. Mot. at 4. Second, this relief is only available if an official court reporter is not available. FTC does not assert either of these were the case, nor provide any evidence to support its claim to these costs. Ladas, 19 Cal. App. 4th at 774-776; Sanford, 246 Cal. App. 4th at 1128. \\ \\ \\ 3 REPLY IN SUPPORT OF MOTION TO TAX COSTS ee 0 9 a wv hE W O N = N O N N N N N N N ER E E E k e d E m E m f d e m E R e d = 0 NN S N WN AE W N = D Y 2 S S N Wn R W = O As FTC has not met its burden to provide support for the contested items set forth in the Memorandum of Costs and improperly requests reimbursement for ordering of transcripts, the Court should tax FTC's costs as set forth in Mr. Wang's Motion. Ladas, 19 Cal. App. 4th at 774- 776; Sanford, 246 Cal. App. 4th at 1128. DATED: February 7,2019 SCHEPER KIM & HARRIS LLP DAVID C. SCHEPER By: cheper Attorneys for Plaintiff D 4 REPLY IN SUPPORT OF MOTION TO TAX COSTS iel Wang eo XX 9 Sa wn t RA W N = [ N S E EE H E I = T E 2 ~~ O N U T Ea L N = 8 I S N lt ER L N = 2 PROOF OF SERVICE Daniel Wang v. Fetolumina, et al. - Case No. BC644582 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. Iam employed in the County of Los Angeles, State of California. My business address is 601 West Fifth Street, 12th Floor, Los Angeles, CA 90071-2025. On February 7, 2019, I served true copies of the following document(s) described as REPLY IN SUPPORT OF MOTION FOR TAX COSTS on the interested parties in this action as follows: CHRISTOPHER J KOORSTAD JUDY M LAM 1235 NORTH HARBOR BLVD STE 200 MAYNARD COOPER & GALE FULLERTON CA 92832-1349 1901 AVE OF THE STARS 19TH FL T: 714.871.1132 LOS ANGELES CA 90067 F: 714.871.5620 T: 310.596.4388 cjkoorslaw@aol.com jlam@maynardcooper.com Attorneys for Plaintiff Attorneys for Defendants BY ELECTRONIC SERVICE: I served the document(s) on the person listed in the Service List by submitting an electronic version of the document(s) to One Legal, LLC, through the user interface at www.onelegal.com. BY OVERNIGHT DELIVERY: I enclosed said document(s) in an envelope or package provided by the overnight service carrier and addressed to the persons at the addresses listed in the Service List. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight service carrier or delivered such document(s) to a courier or driver authorized by the overnight service carrier to receive documents. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 7, 2019, at Los Angeles, California. 0/(D a Connie Gonzale J