Hrg 032219 Dept 303 Reply To Opposition To Motion By Defendant Shah To Tax And Disallow All Costs Claimed By Plaintiff Hwang

Reply

Cal. Super. - 1st Dist.September 8, 2010

Law Offices of wm B W = o e 3 10 11 12 13 14 15 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 CRAIG]. BASSETT 25 W. First Street Morgan Hill, CA 95037-4559 (408) 779-0007 Craig J. Bassett (SB# 106825) Attorney at Law 25 W. First Street Morgan Hill, CA 95037-4559 TEL (408) 779-0007 EMAIL cbassett@garlic.com Yauheni V Halavanau (SB# 267280) Law Offices of Gene Halavanau 55 Francisco Street, Suite 403 San Francisco, CA 94133-2115 TEL (415) 692-5301 EMAIL gene@halavanau.com Attorneys for Defendant JAY CHANDRAKANT SHAH ELECTRONICALLY FILED Superior Court of California, County of San Francisco 03/11/2019 Clerk of the Court BY:VANESSA WU Deputy Clerk SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO Civil Division, 400 McAllister Street, San Francisco, California 94102-4514 (Unlimited Jurisdiction Civil Case) COMMONWEALTH LAND TITLE INSURANCE COMPANY; Plaintiff, Vs. FEDEX OFFICE AND PRINT SERVICES, INC.; WINSTON LUM; KAUSHAL NIROULA; JAY CHANDRAKANT SHAH; ELVIA PALOMINO; MORAD AFRAIM]I; MELVIN LEE EMERICH; MARTINI & CHNOOGLE; GRACHELLE LANGUBAN; and MERCHANT’S BONDING COMPANY; Defendants. AND RELATED CONSOLIDATED ACTION of Hwang v. FedEx Office and Print Services, Inc. (CGC-11-512102) Lead Case No. CGC-10-503332 (Consolidated with CGC-11-512102) REPLY TO OPPOSITION TO MOTION BY DEFENDANT SHAH TO TAX AND DISALLOW ALL COSTS CLAIMED BY PLAINTIFF HWANG Hearing: Date: Day: Time: Dept: Judge: Place: March 22, 2019 Friday 9:00 a.m. 303 Hon. Newton J. Lam Clerk, Dept. 303: 415-551-3726 Superior Court, San Francisco County 400 McAllister Street San Francisco, California 94102-4514 Complaint Filed: Sep 08 2010 Judgment Entered: Dec 102018 Reservation Number: 02190320-09 (dept. 302) Defendant and moving party Shah replies to the opposition as follows: o1- Reply to Opposition to Motion by Def. Shah to Tax and Disallow All Costs Claimed by Pl. Hwang March 9, 2019 wn B W 10 11 12 13 14 15 17 18 19 20 21 22 23 24 25 26 27 n 28 Law Offices of CRAIG]. BASSETT 25 W. First Street Morgan Hill, CA 95037-4559 (408) 779-0007 L Reply Argument. 1. The Department in Which this Case Was Tried Will Hear this Motion; The Calendar Clerk Initially Assigned it to the Wrong Department, Not the Attorney for the Moving Party Shah- a Completely Innocuous Circumstance in Any Event. Hwang’s attorneys make too much of the fact that the court calendar clerk assigned this matter to department 302 instead of department 303. Shah’s attorney specifically requested the calendar clerk to have the matter heard in the trial department. 1t is the clerk who assigned this matter to the “wrong” department. Shah’s attorney simply respected what the court clerk instructed. Contrary to the false and misleading story told by Hwang’s attorneys, the undersigned never refused to have the matter transferred to department 303 and heard in that department. He told them that he was not going to withdraw the pending motion and re-file it as Hwang’s attorneys absurdly demanded. That way of resolving the matter would be completely unnecessary as has been demonstrated by what has subsequently occurred. On Mar 08 2019 the undersigned re-scheduled this matter by calling the court clerk of department 303. It is set for the date first shown above. He then gave notice of the change in departments and continued hearing date. The draconian, inappropriately acrimonious, and over-the-top argument of Hwang's attorneys that this makes the entire motion procedurally defective is unsupported by any legal precedent. It is moreover inequitable under the circumstances to view the procedural posture of this motion in that way. Under Hwang's attorneys’ outrageous hyper-critical and over-zealous view of the world, a failure to follow rules means “death” to the rule breaker. Hwang’s attorneys engage in one unprofessional ad hominem attack after another unbefitting of the dignity of their profession and of this court. Their arguments are unprofessional. And this particular argument made by them is a prime example. If the court adopts this acrimony, then it must sternly deal with its own failure to follow the rules. The judgment was filed in this matter on Dec 10 2018 prematurely without the court following the rules affording Shah a minimum period of time to object to the proposed form of judgment. [See Cal. Rules of Court, rule 3.1590(g).] What would Hwang's attorney’s say should be the consequence to the judge for such rule violation? i. Reply to Opposition to Motion by Def. Shah to Tax and Disallow All Costs Claimed by Pl. Hwang March 9, 2019 Law Offices of Po = o e 3 N n Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 CRAIG]. BASSETT 25 W. First Street Morgan Hill, CA 95037-4559 (408) 779-0007 2. Hwang’s Argument about Who Bears the “Burden of Proof” Here in this Motion to Tax Costs Is Wrong as a Matter of Law and Therefore Misleading. If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. 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. Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. However, because the right to costs is governed strictly by statute a court has no discretion to award costs not statutorily authorized. [ Ladas v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774 (citations omitted). ] It must be first observed here that the items in Hwang’s costs summary do not appear to be proper charges in the first instance. They are way too high for this litigation. The “burden” on the moving party recited above, is not to produce evidence that the costs were improper or that they are not reasonable or necessary. That is not what is meant. Shah has challenged (i.e., “objected to”), line item by line item, each of Hwang's claimed costs because they are unspecified and unreasonable on their face. And since they are “properly objected to ... the burden of proof is on the party claiming them as costs.” Has Hwang sustained ser burden to produce evidence to show, by evidence, that the costs were regularly incurred and are reasonable? Absolutely not. This court cannot exercise any discretion to allow costs claimed by Hwang because she is playing “hide the ball”. The court would have to be guessing in order to approve of her costs. On Jan 29 2019 Hwang filed a costs memorandum which is a summary only claiming costs on the most general of terms and in a vacuum. There is no detail to determine any breakdown or how that party claiming costs arrived at the totals. Hwang did not file the Worksheet breaking down the costs, item by item. She still has not done that. For example, a filing fee for a complaint filed in 2010 when this action began would be about $370. So where does Hwant get over $4,000 of filing and motion fees? She refuses to say hiding behind her failure to disclose the details. 1t is prima facie unreasonable to claim $4,000 of fees when they are reasonably only $400. The moving party cannot say anything more than this, and that is exactly what the moving party has said by their motion which specifies that these fees claimed are 5. Reply to Opposition to Motion by Def. Shah to Tax and Disallow All Costs Claimed by Pl. Hwang March 9, 2019 Law Offices of 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CRAIG]. BASSETT 25 W. First Street Morgan Hill, CA 95037-4559 (408) 779-0007 unreasonable. As with all other costs claimed, those costs are likewise unreasonable on their face. How does Hwang remedy her failure to submit any kind of detail substantiating how she came up with the total unreasonable costs in each category claimed? The sole and only detail provided by the opposition is the explanation of what item 16 (which was left blank) consists of: allegedly mediation fees. [See Decl. Morgan Lopez (Mar 07 2019) 2:1-3.] There is no other support provided for any other claimed costs. Who was the neutral at this mediation? When did it take place? Who were the parties to it? What exactly are these “expenses relating to that mediation” [Decl. Lopez, 2:3]? Hwang does not say. They could be the cost of lunch for everyone. Shah has no recollection of a mediation at which he was in attendance. So was this the mediation with FedEx where Hwang recovered a significant sum known to the court and she now wants Sha to pay for that mediation?!! Who can say? There has been absolutely no showing here by Hwang that these fees were necessarily incurred in pursuing Shah. It is obvious that Hwang and her attorneys believe they have the court in their pocket here and that they do not need to provide any proof of their claim for costs which appear unreasonable on their face. They believe that their “say-so” is good enough. Because, after all, Shah is a criminal, a point which they like to remind everyone of, especially this court, over and over again. Shah’s incarceration status does not wipe out the law or the rules applicable to claiming costs to say the least. Hwang has not met her burden to demonstrate that the costs, all of which are challenged, were actually incurred and are reasonably necessary to the conduct of this litigation, and are recoverable under the applicable statute and case law precedent. During the trial of this matter the judge said: “Are you folks ordering a transcript? If you are, I want a copy of'it ...”. [Ex. C to Decl. Morgan Lopez, at transcript p. 695:7-8.] Who ordered the transcript? “you folks”, not the court. The court asked for a copy. The court thus did not order the transcript. Hwang’s attorneys therefore intentionally misrepresent what occurred here to illegitimately claim those costs. The claim for costs for a court-ordered transcript fails here. There is no evidence that the court ordered a transcript. The evidence is to the contrary. The transcripts in this matter were not in fact court ordered. 4 - Reply to Opposition to Motion by Def. Shah to Tax and Disallow All Costs Claimed by Pl. Hwang March 9, 2019 Law Offices of CRAIG]. BASSETT 25 W. First Street Morgan Hill, CA 95037-4559 (408) 779-0007 10 11 12 Moreover, Hwang’s attorneys mischaracterize the rule regarding pro tempore court reporter fees. First of all, she cites to the court’s website, not the Rules of Court. This is diversionary. The rule has a caveat at the end of it. It is not a blanket rule that fees incurred to a privately hired reporter during trial are recoverable costs. The rule ends with: “the expense may be recoverable as part of the costs, provided by law.” [Cal. Rules of Court, rule 2.956(c).] Shah has appealed the within judgment. He will pay for a copy of the transcript on appeal. He should not be made to pay Hwang for her copy she voluntarily ordered. Again, Hwang has failed to sustain ser burden to substantiate that this cost is necessary to this litigation or that it should be assessed one-sided against Shah. 11. Conclusion. For the foregoing reason, all costs claimed by Hwang should be taxed. . Digitally signed by Craig J. Bassett C ra 19 J : Ba ssett Date: 2019.03.09 12:32:34 -08'00' Dated: March 9, 2019 Craig J. Bassett, Attorney for Defendant Shah -5- Reply to Opposition to Motion by Def. Shah to Tax and Disallow All Costs Claimed by Pl. Hwang March 9, 2019