Opposition_to_plaintiffs_492020_motion_to_tax_costsMotionCal. Super. - 2nd Dist.April 18, 2017Electronically FILED by Supe ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES MORGAN, LEWIS & BOCKIUS LLP Lisa Weddle, Bar No. 259050 lisa.weddle @morganlewis.com Abtin Amir, Bar No. 305091 abtin.amir@morganlewis.com 300 South Grand Avenue Twenty-Second Floor Los Angeles, CA 90071-3132 Tel No: +1.213.612.2500 Fax No: +1.213.612.2501 Attorneys for Defendants, BMW OF NORTH AMERICA, LLC and INC. dba NEW CENTURY BMW DAVID HONG and KANDICE RO, Plaintiffs, VS. BMW OF NORTH AMERICA, LLC, a Delaware Limited Liability Company, NEW CENTURY ALHAMBRA AUTOMOBILES, INC., a California Corporation dba NEW CENTURY BMW, and DOES 1 through 10, inclusive, Defendants. NEW CENTURY ALHAMBRA AUTOMOBILES, or Court of California, County of Los Angeles on 05/29/2020 11:40 PM Sherri R. Carter, Executive Officer/Clerk of Court, by W. Moore,Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES Case No. BC658215 Assigned to: Hon. Anthony J. Mohr Department: 96 DEFENDANT BMW OF NORTH AMERICA, LLC’S OPPOSITION TO PLAINTIFFS’ 4/9/2020 MOTION TO STRIKE OR TAX COSTS Hearing Date: June 23, 2020 Time: 1:30 p.m. Dept.: 96 Date Action Filed: April 18, 2017 pe 39 EFENDANT BMW OF NORTH AMERICA, LLC’S OPPOSITION TO PLAINTIFFS’ 4/9/2020 MOTION TO STRIKE OR TAX COSTS 1 Table of Contents 2 || MEMORANDUM OF POINTS AND AUTHORITIES ......ccccociiiiiiiiiniinineceeeeee s rs 5 3 | L INTRODUCTION AND SUMMARY OF ARGUMENT ......cocoiviiiiiiiiienieneeienecieeene 6 4 A. Statement of Relevant Facts...........coceiriiiniiiiiiiiiieiccccceee ce e 7 5 | IL ARCGUIIVIEINT 5: ic ssn ns sn oman sis 5 75555 5555550585555 5755555. 55537555 S553 5065 555555 S55357085 5535 F335 5.45 40 9 6 A. BMW NA Timely Filed its Memorandum of COSES .......cccccocverveenieeieenieennienneen 9 7 B. BMW NA Filed Only One Memorandum of Costs, and Co-Defendant New Century Independently and Appropriately Filed Only One of Its Own................ 10 ° C. All of BMW NA’s Requests for Recovery of Costs Were Reasonable and 9 Necessary For its Successful Defense of this Action..........coccceevvieeinieiiniiienniennn. 11 10 I. Item 1 - Motion and Filing Fees..........ccoceeiiiniiiniiiiiieneiccececeee 11 11 2- HEMT 2, ~ JULY FOES cu secu svuuson su sams amis ss sss ss sss su assis suv os 3 AEH SRF T30 11 12 3. Item 11 - Models, Enlargements, And Photocopies of Exhibits .............. 11 13 4. Item 12 - Court Reporter Fees as Established by Statute ............ccccc....... 13 14 5. Item 13 - Korean Interpreter Fees ........ccoevviriiinienieiieeniinnicciececeeenne 14 15 6. Item 14 - Fees for Electronic Filing or S€rvice .........cccccvveenieeveenecnnnenne 15 16 7. Item 16 - Other Reasonable Costs .........c.coceeriiiinienieiieinienie c ce 15 IT || OL: CONCLUSION ois sums cosnss avvsssnss oss issss se 595555 55555 5.05 5535555 55555 57.08 555/455 55553 55 45 S500 5535508 15 18 19 20 21 22 23 24 25 26 27 28 Mol LLP | DEFENDANT BMW OF NORTH AMERICA, LLC'S Aromas a 2 OPPOSITION TO PLAINTIFFS’ 4/9/2020 MOTION DB2/ 39058043.1 TO STRIKE OR TAX COSTS ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES TABLE OF AUTHORITIES Page(s) CASES Am. Drug Stores, Inc. v. Stroh (1992) 26 10 Cal. APP. 4th 1446 ......eieiieiee eee eee seers sbeebs eee a 9 American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (A002) 96 "Cal APPL, 10 T yess osmosis oom sso os mo 5s oss seas 12 Applegale v. St. Francis Lutheran Church (1994) 23 Cal. APPA 3601 «connie eee ste eee este sate sateen ease ee eae eee 12 Benach v. County of Los Angeles (2007) 149 Cal APP-ALh 836 neice eee eee teste eee este sbae sabes b ee eaee eee 12 Bender v. County of Los Angeles (2013) 217 CalLAPP-Ath O08... eee eee ste eee este sb ae este e ieee e essa eee 12 Burd v. Barkley Court Reporters, Inc. 17 Cal. ApP.Sth 1037, TO4S o.oo eee eee ete ete eesti esate sabes e ete e saa eene 14 El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc. (2007) 150 Cal APA B12 «co smmssin ssn ss sumans cnssn on mss 555555. 5055555 545555518 5555558 55035.5 35555508 SR555573855 12 Green v. County of Riverside (2015) 238 Cal. APP.Ath 13603... eerste sate sabe e eee 12,13 Jay v. Mahaffey (2013) 218 Cal. APP. 4th 1522 eee eee eee etter sates estes st ee sbbe sabe e nesses 9 Jones v. Dumrichob (1998) 63 ‘Cal. Ai AH 1.2598) snus sors ov mms sm somes sass ss ws 9 Ladas v. California State Auto. Assn. (1993) 19 Cal. APPA TOL connie eee eee eee este sabe e eee e essa eee 12 Rappenecker v. Sea-Land Service Inc. (1979) 93 Cal. APP. 3A 256... eee ete sees st ae sates estes ste esbbe sabe e nee e teens 9 Reichardt v. Hoffman (1997) 52 Cal. APP. Ath 754 eee eee eerste sates eases sbeebs sabe a eee neee ns 9 San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal. App. 4th 308,310 ....eeeiiiiieiie eects eee eee saae sabe eee ea a 9 San Paolo United States Holding Co. v. 816 S. Figueroa Co. (1998) 62 Cal APPA. TONY «co smmssin assis ss suman cnmsn on mms ommnssn.o6 5505555 555555515 5555558 S55055 55555558 5555573855 15 DEFENDANT BMW OF NORTH AMERICA, LLC’S 3 OPPOSITION TO PLAINTIFFS’ 4/9/2020 MOTION DB2/ 39058043.1 TO STRIKE OR TAX COSTS ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES STATUTES Cal. Civ. Proc. Code § 1033.5 (A)(IL) ..uvreeieeeeeieiiieeeee cece eects eects ee sees reer ee sees e earanee es 14 Cal. Gov. Code § 68086, subd. (C) & 3 (A)(2) wuveverreieriirieeiie eects see ens 14 Code Civ. Proc., §§ 1033.5, subd. (¢)(2) and 1033.5, subd. (C)(3) ..cceeverrrrrrrreereiiiiirrereeeeeeeeenns 13,15 Code of Civil Procedure Section 664.5 ..........cccccoiiiiiiiiiiiiiiiiiiiciie cies 9 Code of Civil Procedure SECHION 908 ......cooouiueiiiiiiiiiiiiieeee eects eee e eevee sees ee eeseasanss eese sens 6,7 Code of Civil Procedure section 1033.5, Subdivision (@) ........cccceeeeriueieessiiieeeeiiieeeeeiieee ee sinaee enns 12 Code of Civil Procedure Section 1033.5, subdivision (2)(12) .......ccccevveurrerereeeeiiiiirrereeeeeeeeenns 11, 15 Code of Civil Procedure, section 1033.5, subdivision (C)(4) .......ceeeveeeveuereeeeeeeeieciirreeeeeen. 12, 14, 15 OTHER AUTHORITIES Cal, R. Court; RULE 2.9500) cuss ss swumsms suv. os samnsss swwmsss.ss sami s5vmssie ss sums 5 amsms osama 5 miss sms ss ssomsa sess 14 Rule 3.1700, subdivision (Q)(1)....cuuieeeiiiiiieeeiieie ee eiiie eects esses ee etae ee estae ae ee sasaae ee snnrae ee ennsaeaeeessnens 9 DEFENDANT BMW OF NORTH AMERICA, 4 LLC’S OPPOSITION TO PLAINTIFFS’ 4/9/2020 DB2/ 39058043.1 MOTION TO STRIKE OR TAX COSTS ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES MEMORANDUM OF POINTS AND AUTHORITIES Defendant BMW of North America, LLC (“BMW NA”) respectfully submits the following Opposition to Plaintiff’s Motion to Strike or Tax Costs, filed by Plaintiffs on April 9, 2020. As a preliminary matter, BMW NA would like to clear up any confusion potentially caused that misleading motion in response to BMW NA’s separate and independent Memorandum of Costs, which it timely filed on its own behalf on March 20, 2020. As explained in co-defendant New Century Alhambra Automobiles, Inc’s (“New Century”) Opposition to Plaintiffs’ Motion to Tax Costs, which Plaintiffs filed on February 18, 2020, Plaintiffs’ feigned confusion in their April 9, 2020, motion about why the two separate and distinct Defendants in this case filed two separate memoranda of costs is not only irrelevant to the Court’s determination here, nor is there any universe in which it would be reasonable for Plaintiffs or their counsel to be so confused in this case about the independent rights of the two separate and distinct defendants to file and recover on their independent memoranda of costs. At no point did Plaintiffs’ counsel ever reach out to Defendants’ counsel to seek clarification, because their purported confusion is a fabrication. The fact that these two defendants are distinct cannot possibly come as a surprise to Plaintiffs or their counsel at this point in this litigation, especially given (1) Plaintiffs’ lead trial counsel attempted to avoid the possibility of co-defendant New Century separately seeking its costs by making a token offer to dismiss New Century in exchange for waiver of its costs just before trial began, (2) the repetitious arguments Plaintiffs raised about the liability of the distributor (BMW NA) versus the dealership (New Century) under the law, (3) the fact that Plaintiffs deliberately chose to sue and separately serve each of the distinct Defendants in this lawsuit with their various papers, and (4) where Plaintiffs ultimately dismissed one of the Defendants (New Century) while pursuing their jury trial against the other (BMW NA). Simply put, the Court should simply ignore Plaintiffs’ attempt to treat both defendants as one entity as Plaintiffs repeatedly but improperly tried to do at trial. I" DEFENDANT BMW OF NORTH AMERICA, LLC’S 5 OPPOSITION TO PLAINTIFFS’ 4/9/2020 MOTION DB2/ 39058043.1 TO STRIKE OR TAX COSTS ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES I. INTRODUCTION AND SUMMARY OF ARGUMENT This was a simple lemon-law action involving a single leased vehicle with a clean service history that clearly demonstrated it did not qualify for repurchase, and where New Century and BMW NA (collectively, “Defendants”) knew they had complied with all their obligations under the relevant contracts and laws. Despite this, Defendants promptly served Plaintiffs with an incredibly generous offer in July of 2017, pursuant to section 998 of the Code of Civil Procedure, to put a quick end to what Defendants knew would be another of the countless similar needlessly protracted and incredibly expensive lawsuits by these specific plaintiffs’ attorneys at Knight Law Group and the Law Offices of Michael Rosenstein. Had Plaintiffs accepted that offer, they would have received $23,000 (more than all the money they had paid for the lease of the Subject Vehicle), plus all their reasonable attorneys’ fees and costs. (Amir, Decl.,! Exh. 1.) Instead, Plaintiffs’ did exactly what Defendants tried to avoid, and needlessly dragged this lawsuit out for nearly four years, costing Defendants hundreds of thousands of dollars in attorneys’ fees and costs to rightfully defend themselves while Plaintiffs continued to repeatedly reject every subsequent good-faith offer made by Defendants over the years despite the obviously weak nature of their claims. Ultimately, Plaintiffs voluntarily dismissed two of their meritless claims just before trial commenced, and the remaining two were rejected by the Court following motions for nonsuit and directed verdict, and following the jury’s nearly unanimous defense verdict on the final count which found no substantial defect in the Subject Vehicle over the course of the three-year lease. Now, Plaintiffs make a series of disingenuous contentions about the recoverability, reasonableness, or necessity of Defendants’ separate requests for recovery of their reasonable costs necessarily incurred for the proper and ultimately successful defense of this lawsuit. Specifically, while Plaintiffs claim these costs are not recoverable or necessary under section 1033.5 in the body of their motion, their own counsel routinely request, argue for, and actually recover these exact same challenged costs on behalf of their successful lemon-law clients, and I All references to “Amir Decl” correspond to the Declaration of Abtin Amir in support of the corresponding Brief by BMW NA and New Century. Thus, all such references herein are to the Amir Declaration supporting this brief by BMW NA. DEFENDANT BMW OF NORTH AMERICA, 6 LLC’S OPPOSITION TO PLAINTIFFS’ 4/9/2020 DB2/ 39058043.1 MOTION TO STRIKE OR TAX COSTS ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES will never submit a declaration under oath to the contrary. A. Statement of Relevant Facts On April 18, 2017, Plaintiffs filed a Complaint against two separate and distinct defendants; New Century, the dealership which serviced Plaintiffs’ vehicle on a few occasions, and BMW NA, the distributor of the vehicle. Plaintiffs’ Complaint alleged three Song-Beverly causes of action specifically and solely against BMW NA, and alleged a single count of “negligent repair” specifically and solely against co-defendant New Century. On May 22, 2017, BMW NA filed its Answer to the Complaint. On June 1, 2018, co- defendant New Century filed its Answer to the Complaint. On July 13, 2017, Plaintiffs were served with a valid, unambiguous, and more-than-generous offer pursuant to Code of Civil Procedure section 998 for more than a full refund of all monies paid by Plaintiffs for the Subject Vehicle, plus all their costs and attorneys’ fees. (Amir, Decl., Exh. 1.) On October 4, 2018, Plaintiffs successfully moved ex parte to continue the original trial date due to the unavailability of its key witness, Ms. Young Kang, Plaintiffs’ mother/mother-in- law, and the primary driver of the Subject Vehicle whom was the only witness to claim she had experienced the alleged defects. Plaintiffs’ basis was that Ms. Kang was out of the country and would be unavailable to testify. The trial date was subsequently continued a few more times outside the control of Defendants due to the congestion of the Court’s calendar and scheduling conflicts with other trials already underway in this Department. On November 5, 2018, the law firm Morgan, Lewis & Bockius LLP substituted in for the law form Bowman and Brooke LLP, as new counsel for both Defendants. On January 13, 2020, Plaintiffs voluntarily dismissed their third cause of action for alleged failure to repair within 30 days, which was solely against BMW NA, and commenced their jury trial against both Defendants on the three remaining claims. On January 14, 2020, prior to voir dire, head counsel for Plaintiffs, Mr. Richard Wirtz, approached sole trial counsel for Defendants, Mr. Abtin Amir, and bluffed a “deal” to drop Plaintiffs’ negligent repair claim and to dismiss New Century from the lawsuit in exchange for New Century waiving its right to recover its costs in this matter. (Amir Decl., at 2.) Because DEFENDANT BMW OF NORTH AMERICA, 7 LLC’S OPPOSITION TO PLAINTIFFS’ 4/9/2020 DB2/ 39058043.1 MOTION TO STRIKE OR TAX COSTS ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES co-defendant New Century felt it had been needlessly dragged through this lawsuit by Plaintiffs solely as some kind of bargaining chip against BMW NA, and because it knew that Plaintiffs could never hope to succeed on their meritless negligence claim, it rejected the offer and Mr. Amir advised Mr. Wirtz that New Century would in fact seek to rightfully recover its costs after being vindicated. (/bid.) Later that day, on January 14, Plaintiffs apparently conceded that their negligence claim against co-defendant New Century was meritless, and they voluntarily dismissed that claim part way through voir dire without New Century having agreed to any kind of “deal.” That was the only claim Plaintiffs had brought against New Century, and the clerk accordingly entered the Court’s order of dismissal of New Century from the lawsuit that same day. On January 29, 2020, co-defendant New Century timely filed its own Memorandum of Costs, and the Court’s docket unambiguously reflects that its Memorandum of Costs was “Filed by New Century Alhambra Automobiles, Inc (Defendant) on that date. Co-defendant New Century’s Memorandum of Costs appropriately sought to recover only its own costs, and not the costs of BMW NA, which was still actively defending itself at trial. On February 3, 2020, the jury returned a nearly unanimous verdict in favor of BMW NA. On February 18, 2020, Plaintiffs filed their motion to tax co-defendant New Century’s costs (“P’s 1st Mtn.”), which New Century had filed on January 29, 2020. On March 11, 2020, BMW NA timely filed and served its notice of entry of judgment and, on March 20, 2020, BMW NA timely filed its own independent Memorandum of Costs, and this Court’s docket unambiguously reflects that BMW NA’s Memorandum of costs was timely “Filed by BMW of North America, LLC (Defendant)” on that date. BMW NA appropriately sought to recover only its own costs after prevailing at trial, and did not seek to recover either co-defendant New Century’s costs, or any overlapping costs already sought by New Century’s Memorandum of Costs which it had independently filed on January 29, 2020. On April 9, 2020, Plaintiffs filed their Motion to Strike or Tax BMW NA'’s independent Memorandum of Costs (“P’s 2nd Mtn.”), which BMW NA had filed on March 20, 2020. BMW NA files this Opposition to that motion by Plaintiffs. DEFENDANT BMW OF NORTH AMERICA, 8 LLC’S OPPOSITION TO PLAINTIFFS’ 4/9/2020 DB2/ 39058043.1 MOTION TO STRIKE OR TAX COSTS 1 | IL ARGUMENT “If items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (Jones v. Dumrichob (1998) 63 Cal. App. 4th 1258, 1266) (emphasis added).) Here, just as with their Motion to Tax New Century’s costs, Plaintiffs have again failed to support their arguments to tax New Century’s costs with any declaration ~N O Y a B A W setting forth legitimate factual reasons why the challenged items are unreasonable or 8 || unnecessary. (See Jones, 63 Cal. App. 4th 22 at 1266; see also Rappenecker v. Sea-Land Service 9 || Inc. (1979) 93 Cal. App. 3d 256, 266 (holding “[a party’s] mere statements in the points and 10 || authorities accompanying its notice of motion to strike cost bill and the declaration of counsel are 11 || insufficient to rebut the prima facie showing [that costs were reasonably incurred]”).) As 12 || Plaintiffs failed to put before this Court any legitimate factual basis for their objections, and are 13 || relying solely on a series of conclusory statements, Plaintiffs failed to carry their burden and this 14 || Court should deny their Motion to Tax Costs on this ground alone. 15 A. BMW NA Timely Filed its Memorandum of Costs 16 Rule 3.1700, subdivision (a)(1), of the California Rules of Court provides, in pertinent 17 || part, as follows: 18 A prevailing party who claims costs must serve and file a memorandum of costs within 15 19 || days after the date of service of the notice of entry of judgment or dismissal by the clerk under 20 || Code of Civil Procedure section 664.5 or the date of service of written notice of entry of 21 || judgment or dismissal, or within 180 days after entry of judgment, whichever is first. 22 Here, BMW NA timely filed and served its own Memorandum of Costs on March 20, 23 || 2020 (Amir Decl., Exh. 2), which was well before its March 26 deadline to do, based on its 24 ? Plaintiffs should not be permitted to cite new evidence or raise new arguments on reply, as they did in their Reply in support of their unsuccessful Motion for New Trial, in light of the resulting prejudice to 25 Defendant (Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1538 [points raised for the first time in a reply brief at the trial court level will ordinarily not be considered, because such consideration would deprive the 26 respondent of an opportunity to counter the argument]; Am. Drug Stores, Inc. v. Stroh (1992) 26 10 Cal. App. 4th 1446, 1453 [same]; Reichardt v. Hoffman (1997) 52 Cal. App. 4th 754. 764 [refusing to consider 27 new issues raised in reply brief]; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal. App. 4th 308,310 [reversing summary judgment where the moving party submitted for the first time with 28 its reply papers a supplemental declaration containing new facts].) MORGAN, LEWIS & BOCKIUS LLP DEFENDANT BMW OF NORTH AMERICA, ATTORNEYS ATLAW 9 LLC’S OPPOSITION TO PLAINTIFFS’ 4/9/2020 Los ANGELES DB2/ 39058043.1 MOTION TO STRIKE OR TAX COSTS ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES service of notice of entry of judgment on March 11, 2020. (Amir Decl., Exh. 3 [Court’s docket establishing that BMW NA’s Memorandum of Costs was timely “Filed by BMW of North America, LLC (Defendant) on March 20, 2020].) Likewise, co-defendant New Century timely filed its own Memorandum of Costs on January 29, 2020, 15 days after the clerk’s entry of dismissal on January 14, 2020. B. BMW NA Filed Only One Memorandum of Costs, and Co-Defendant New Century Independently and Appropriately Filed Only One of Its Own Plaintiffs confusing and incorrect contentions in sections II(A) and (B) of their Second Motion can be ignored, as they are based entirely on Plaintiffs’ purported failure to understand that BMW NA and New Century are not the same defendant. (See e.g. P’s 2nd. Mtn. at pp. 1-2 [failing to recognize BMW NA and New Century are separate defendants whom each filed their own separate Memorandum of Costs].) Specifically, those first two sections make the false claims that “BMW?” (referring to both Defendants as one) “prejudiced” Plaintiffs by making them respond to a “premature” memorandum of costs (which was actually timely filed by co-defendant New Century), and by the fact that “BMW” filed a second memorandum without labeling it “supplementary” or “amended.” (Ibid.)> The obvious answer to this fabricated dilemma is that BMW NA had no reason to label it’s one and only Memorandum of Costs as “supplemental” or “amended.” Its memorandum is separate and distinct from the one filed by co-defendant New Century, and seeks recovery of a separate set of costs. Likewise, the fact that BMW NA and New Century had different costs when it came to trial exhibit preparation are obvious when not pretending both defendants are the same entity. New Century was dismissed on the first day of trial, so its costs for preparing and photocopying exhibits ended on January 14 when it was dismissed, while BMW NA continued to incur such costs as it proceeded to successfully defend itself at trial. BMW NA did not seek to recover the costs requested by New Century’s memorandum, which is why BMW NA’s costs were lower. The same answer applies to Plaintiffs’ confusion about two separate “initial answer” fees, 3 To the extent it is even possible Plaintiffs’ counsel genuinely failed to understand this obvious distinction between Parties, their intentional “ignorance is bliss” approach in hoping to surprise Defendants with a motion to “strike” BMW NA’s memorandum should not be rewarded, as they made no effort to seek clarification from Defendants. DEFENDANT BMW OF NORTH AMERICA, 10 LLC’S OPPOSITION TO PLAINTIFFS’ 4/9/2020 DB2/ 39058043.1 MOTION TO STRIKE OR TAX COSTS ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES because BMW NA filed its Answer to the Complaint on May 22, 2017, and New Century filed its own Answer on June 1, 2018, as it was represented by different counsel, as tends to happen when different Parties are represented by different counsel. Finally, the Court should ignore any cost Plaintiffs claims to be “duplicitous” because all such claims are based on Plaintiffs’ incorrect assertion that BMW NA’s and New Century’s independent memoranda are supposed to be considered to be from the same defendant when they clearly are not. C. All of BMW NA'’s Requests for Recovery of Costs Were Reasonable and Necessary For its Successful Defense of this Action 1. Item 1 - Motion and Filing Fees Plaintiffs’ request to strike what they refer to as a “second” initial answer as duplicative must be rejected for the reasons explained above. BMW NA and New Century necessarily filed separate answers, as they were not represented by the same counsel at the time, and they were both named in this lawsuit. If Plaintiffs did not want two different defendants to recover their separate costs, they should not have named and sued two separate defendants. (Amir Decl., Exh. 3) 2. Item 2 - Jury Fees Plaintiffs contend that BMW NA should not be able to recover jury fees not sought in “BMW's original memorandum.” As explained above, Defendants acted appropriately by not attempting to double recover on costs. Accordingly, New Century did not seek to recover these jury fees because Defendants agreed that BMW NA would seek to recover them following its successful defense at trial. It would not have made sense for New Century to seek the jury fees when it was dismissed on the first day of trial and where it was BMW NA who proceeded to trial. (Amir Decl., Exh. 4.) 3. Item 11 - Models, Enlargements, And Photocopies of Exhibits Code of Civil Procedure Section 1033.5, subdivision (a)(12) provides that expenses of creating trial exhibits “may be allowed if they were reasonably helpful to aid the trier of fact,” and expenses for computerized forms of models or blow-ups, such as imaging documents and DEFENDANT BMW OF NORTH AMERICA, 11 LLC’S OPPOSITION TO PLAINTIFFS’ 4/9/2020 DB2/ 39058043.1 MOTION TO STRIKE OR TAX COSTS ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES video and graphic exhibit boards, are recoverable as well. (See American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1057; El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc. (2007) 150 Cal.App.4th 612, 618-619.) In cases like this, where the case went to trial, the courts have determined that it would not be equitable or reasonable to require either a party claiming exhibit costs, or this Court in awarding exhibit costs, to identify which exhibits were or were not helpful to the trier of fact. For example, in Benach v. County of Los Angeles (2007) 149 Cal. App.4th 836, 856-857, the court held: Although the [party] did not use the majority of its exhibits at trial, nothing indicates it could have anticipated that they would not be used. An experienced trial judge would recognize that it would be inequitable to deny as allowable costs exhibits any prudent counsel would prepare in advance of trial. The Court also has discretion to allow costs for exhibits not actually used at trial, pursuant to Code of Civil Procedure, section 1033.5, subdivision (c)(4). (Applegale v. St. Francis Lutheran Church (1994) 23 Cal.App.4th 361, 364.) BMW NA had to prepare exhibits to defend against every argument Plaintiffs might have raised at trial. It was also necessary to assemble the exhibits into a form in which the exhibits could be easily accessed. Plaintiffs were provided copies of all the potential exhibits and have not pointed to any exhibit which was wholly irrelevant or could not have been used at trial for any purpose. In Green v. County of Riverside (2015) 238 Cal. App.4th 1363, 1373-1374, the Court of Appeal upheld an award of $40,610.68 “for preparation and presentation of electronic evidence, including videos of deposition testimony, exhibits and excerpts from audio recordings, at trial.” The Court ruled as follows: These costs are neither specifically allowable under Code of Civil Procedure section 1033.5, subdivision (a) nor prohibited by subdivision (b). They may be awarded provided they are “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” ((/d., subd. (c)(2); see Ladas v. California State Auto. Assn. (1993) 19 Cal. App.4th 761, 774.) Whether such costs were reasonably necessary is a question of fact for the trial Court and its decision is reviewed for abuse of discretion. (Ladas, at p. 774.) Use of such technology, including a technician to monitor the equipment and quickly resolve any glitches, has become commonplace, if not expected by jurors. (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 990.) The trial Court did not abuse its discretion in allowing these costs as reasonably helpful to aid the jury. (Ibid.; see American Airlines, Inc. v. Sheppard, Mullin, Richter & DEFENDANT BMW OF NORTH AMERICA, 12 LLC’S OPPOSITION TO PLAINTIFFS’ 4/9/2020 DB2/ 39058043.1 MOTION TO STRIKE OR TAX COSTS ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES Hampton (2002) 96 Cal. App.4th 1017, 1057.) (Id. at p. 1374.) In light of this authority, BMW NA should be awarded the costs it incurred to prepare exhibits to digitally projected at trial, particularly where such exhibits were, in fact, used at trial. Some examples include the costs involved in obtaining and creating video clips used to impeach Ms. Kang, charts, diagrams, photos, and other exhibits prepared for impeachment, some of which were not ultimately used but needed to be prepared nonetheless. As set forth in the accompanying Declaration of Abtin Amir, these costs were both reasonably necessary to the conduct of the litigation and reasonable in amount. (Code Civ. Proc., §§ 1033.5, subd. (¢)(2) and 1033.5, subd. (¢)(3).) To avoid duplication of supporting receipts/documents in the Amir Declaration in support of this brief from BMW NA, BMW NA respectfully refers the Court to Exhibit 9 attached to the Amir Declaration filed in support of New Century’s brief for further supporting documents. 4. Item 12 - Court Reporter Fees as Established by Statute Plaintiffs bizarrely dispute the fact that BMW NA incurred substantial court reporter costs despite the fact that (1) BMW NA obviously defended itself through the end of trial, and (2) Plaintiffs even concede their awareness of what the details of those charges were. Plaintiffs then go on to dispute the court reporter’s fees for equipment related to her services without citing any authority that hold, as Plaintiffs contend, that the related services (such as the reporter’s parking and real-time screens for the Court) are not part of the recoverable fees under Item 12. Further, the “laptop rental” fee Plaintiffs refer to are the i-Pads the reporter requires a Party to use in order to see the real-time transcript. BMW NA’s counsel used his own laptop and did not charge Plaintiffs for it. Aside from the prima facie proof that these costs were reasonably and necessary incurred based on the Memorandum of Costs, BMW NA further supports them with exhibits. (Amir Decl., Exh. 5.) Further, as the Court and Plaintiffs are aware, the Los Angeles Superior Court does not provide official court reporters, and the Parties must privately retain court reporters as official reporters pro tempore for hearings and proceedings-the process used here. Accordingly, the costs for such official pro tempore court reporters “shall be recoverable as taxable costs by the DEFENDANT BMW OF NORTH AMERICA, 13 LLC’S OPPOSITION TO PLAINTIFFS’ 4/9/2020 DB2/ 39058043.1 MOTION TO STRIKE OR TAX COSTS 1 || prevailing party as otherwise provided by law.” (Cal. Gov. Code § 68086, subd. (c) & 3 (d)(2). And see Cal. R. Court, Rule 2.956(c); see also Burd v. Barkley Court Reporters, Inc. 17 Cal. App.5th 1037, 1045 [“The plain language of the statutes indicates that the prescribed transcription fees are intended to apply to court reporters generally, and are not limited to court reporters employed by the Superior Court”]. Accordingly, the court reporter fees are “established by statute” and recoverable as costs. (Cal. Civ. Proc. Code § 1033.5 (a)(II).) ~N O Y a B A W Nevertheless, even if these related fees are not recoverable under Item 12, they are 8 || recoverable under Item 16 “Other” where the Court has broad discretion to grant such reasonable 9 || costs. (Code Civ. Proc. § 1033.5, subdivision (c)(4).) 10 5. Item 13 - Korean Interpreter Fees 11 Plaintiffs are correct that this $800 fee for a certified court-approved Korean language 12 || interpreter is for the one day of interpreter services during Ms. Kang’s testimony. The fact that 13 || Plaintiffs brazenly arranged to have their own personal interpreter secretly convey testimony and 14 || hand gestures of other witnesses to Ms. Kang throughout the proceedings after she had been 15 || ordered to stay out of the courtroom during other witness testimony, and then attempted to use 16 || that very same interpreter for Ms. Kang’s testimony during trial without advising opposing 17 || counsel or the Court of such activities, was sanctionable in Defendants’ opinion. Especially 18 || where it became infinitely obvious that Plaintiffs fully intended to use that same biased* 19 || interpreter to claim that all of Ms. Kang’s contradictory deposition testimony was improperly 20 || translated and should be ignored, despite never having raised any such objections prior to trial. 21 BMW NA was improperly forced to scramble to hire this Korean language interpreter at a 22 || moments’ notice in order to avoid interrupting the trial proceedings and Plaintiffs should be 23 || required to reimburse them for this incredible scam they attempted to perpetuate upon the Court, 24 || the jury, and Defendants. To the extent these costs are not permitted under Item 13, they are 25 || appropriate under the Court’s discretion for Item 16 “Other.” (Code Civ. Proc. § 1033.5, 26 * As noted by BMW NA'’s counsel at trial, Plaintiffs’ strategy for this interpreter’s conduct was a clear 27 violation of multiple provisions of her ethical and professional duties which expressly required her to avoid creating even the slightest hint of bias or partiality. This scam would have justified a defense 28 motion for new trial had it been allowed to be successfully perpetuated. MORGAN, LEWIS & BOCKIUS LLP DEFENDANT BMW OF NORTH AMERICA, STORNEXSATLAY 14 LLC’S OPPOSITION TO PLAINTIFFS’ 4/9/2020 Los ANGELES DB2/ 39058043.1 MOTION TO STRIKE OR TAX COSTS ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES subdivision (c)(4).) (Amir Decl., Exh. 6.) 6. Item 14 - Fees for Electronic Filing or Service First of all, electronic filing is necessary and these costs were reasonable because the Superior Court requires it, despite Plaintiffs’ contention to the contrary, and is expressly made recoverable by section 1033.5, subdivision (a)(14). (Amir Decl, Exh. 7.) Further, any other option for these necessary expedited filings would cost significantly more, making electronic filing the most reasonable. 7. Item 16 - Other Reasonable Costs Plaintiffs do not dispute that the Court has discretion to allow costs for items not expressly mentioned in the statute, pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(4). As set forth in the accompanying Declaration of Abtin Amir, all the costs that BMW NA has requested were both reasonably necessary to the conduct of the litigation and reasonable in amount. (Code Civ. Proc., §§ 1033.5, subd. (c)(2) and 1033.5, subd. (¢)(3).) The fact that BMW NA actually incurred and paid the costs it is seeking to recover means that those costs represent the fair market value of the services rendered, which is “‘[a]n actual price, agreed to by a willing buyer and a willing seller, [and] is the most accurate gauge of the value the market places on a good.” (San Paolo United States Holding Co. v. 816 S. Figueroa Co. (1998) 62 Cal. App.4th 1010, 1026.) There is nothing to suggest that BMW NA overpaid or that its costs were extravagant compared to the usual costs of such services. Here, Plaintiffs challenge BMW NA’s research costs on Westlaw and Lexis, which were reasonably necessary and reasonable in amount for BMW NA'’s successful motion for nonsuit and motion for directed verdict, as well as regarding the admissibility of the sham expert testimony of Plaintiffs second expert, who Plaintiffs impermissibly attempted to use to inject improper opinions into the trial despite the expert expressly testifying that he knew he was not allowed to. The research was critical for these motions which were successful, and BMW NA seeks only the amounts actually spent under their respective subscription plans. (Amir Decl., Exh. 8.) III. CONCLUSION For the foregoing reasons, as well as for such other and further reasons as may be adduced DEFENDANT BMW OF NORTH AMERICA, 15 LLC’S OPPOSITION TO PLAINTIFFS’ 4/9/2020 DB2/ 39058043.1 MOTION TO STRIKE OR TAX COSTS ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES upon the hearing of Plaintiffs’ motion, BMW NA respectfully asks that Plaintiffs’ Motion to Tax Costs be denied, and that New Century be allowed their costs in the sum of $21,321.46. Finally, the Court should be aware that co-defendant New Century’s Memorandum of Costs sought the entire amount of certain costs shared with BMW NA that it knew BMW NA would not separately seek, which Defendants did in order to: (1) avoid double recovery for any particular cost by Defendants; (2) avoid the confusion that would result if Defendants each sought their portion of the same cost in their separate memoranda, which could have been misinterpreted as an attempt to double recover rather than a split for the same cost; and (3) avoid submitting duplicitous exhibits for their own portions of the same costs. Therefore, in the event the Court identifies a cost sought by New Century that the Court feels would be better suited for BMW NA (who avoided seeking such cost for itself to avoid double recovery), or visa versa, Defendants have agreed that the Court may simply award the requested amount to the requesting Defendant for simplicity. (Amir Decl. at 14.) Dated: May 29, 2020 MORGAN, LEWIS & BOCKIUS LLP Lisa Weddle Abtin Amir By Le Abtin Amir Attorneys for Defendants BMW OF NORTH AMERICA, LLC and NEW CENTURY ALHAMBRA AUTOMOBILES, INC. dba NEW CENTURY BMW DEFENDANT BMW OF NORTH AMERICA, 16 LLC’S OPPOSITION TO PLAINTIFFS’ 4/9/2020 DB2/ 39058043.1 MOTION TO STRIKE OR TAX COSTS ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES PROOF OF SERVICE I, Tyler Patton, declare: I am a resident of the State of California and employed in Los Angeles County, California. I am over the age of eighteen years and not a party to the within entitled action. My business address is 300 South Grand Avenue, 22nd Floor, Los Angeles, California 90071-3132. On May 29, 2020, I served a copy of the within document(s): DEFENDANT BMW OF NORTH AMERICA, LLC’S OPPOSITION TO PLAINTIFFS’ 4/9/2020 MOTION TO STRIKE OR TAX COSTS BY ELECTRONIC SERVICE: the parties listed below were served electronically with the document(s) listed above by e-mailed PDF files. The transmission was reported as complete and without error. My electronic notification address is 300 S. Grand Avenue, 22nd Floor, Los Angeles, CA 90071. My email address is tyler.patton @morganlews.com Richard M. Wirtz, Esq. Attorneys for Plaintiffs Amy Rotman, Esq. David Hong and Kandice Ro WIRTZ LAW APC 4370 La Jolla Village Dr., Ste. 800 San Diego, CA 92122 Email: rwirtz @ wirtzlaw.com arotman @wirtzlaw.com revans @wirtzlaw.com amunoz @wirtzlaw.com dinscore @wirtzlaw.com ebarns @wirtzlaw.com Executed on May 29, 2020, at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. -_- = Tyler Patton DEFENDANT BMW OF NORTH AMERICA, 17 LLC’S OPPOSITION TO PLAINTIFFS’ 4/9/2020 DB2/ 39058043.1 MOTION TO STRIKE OR TAX COSTS