Motion-Secondary: MATTHEW PENNYPACKER VS. DENNIS YUEN ET AL

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Davis J. Reilly, No. 272431

Maria Nozzolino, No. 302368
BLEDSOE, DIESTEL, TREPPA &
CRANE LLP

601 California Street, 16th Floor

San Francisco, California 94108-2805
Telephone: (415) 981-5411
Facsimile: (415) 981-0352

Attorneys for Defendants DENNIS YUEN
AND AMY YUEN

ELECTRONICALLY
FILED

Superior Court of California,
County of Sar Francisco

02/20/2019
Clerk of the Court
BY: SANDRA SCHIRO-

Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN FRANCISCO

MATTHEW PENNYPACKER,
Plaintiff,
v.

DENNIS YUEN, AMY YUEN, and DOES 1
through 10,

Defendants.

No. CGC-16-555507

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANTS DENNIS YUEN AND
AMY YUEN’S MOTION TO STRIKE
AND/OR TAX PLAINTIFF MATTHEW
PENNYPACKER’S MEMORANDUM
OF COSTS

Date: March 20, 2019

FAC: August 17, 2017
Complaint: November 23, 2016

Trial: April 23, 2018
Honorable Judge Anne-Christine Massullo

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS DENNIS YUEN
AND AMY YUEN’S MOTION TO STRIKE AND/OR TAX PLAINTIFF’S MEMORANDUM OF COSTSCer nd nn BF wWwN

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TABLE OF CONTENTS

LT. INTRODUCTION o.oo cccecee cscs cece es eecereuessececacacacececececauersusssseseseesscacacacecseesneeeeseeaeatess 4
Il. FACTUAL BACKGROUND ...0.. cece es ceee ces cseeseeeesesneacssesessesesnsseeseensucseassesseanenesneaeaneneae 4
Til. LEGAL AUTHORITY FOR TAXING COSTS .Q.0....ccccccscccesscseseseseseeeeceneseneeneaeneneseaeeeeeee 5

A. DEFENDANTS MAY SEEK TO STRIKE OR TAX COSTS......cssessessesssessessseecsseerecsessensessessnersessesies 5

B. ALL Costs Must BE REASONABLY NECESSARY TO THE CONDUCT OF THE LITIGATION... 6

C. PLAINTIFF HAS THE BURDEN OF ESTABLISHING HIS CLAIMED COSTS .....-s.ssesesesseserseeneseseees 6
IV. LEGAL ARGUMENT ...0...ccccccccssessesessesceseseesesesseeesesessessseesesesneessissessscseseesneneaseesnasenes 7
A. PLAINTIFF’S COSTS SHOULD BE DENIED IN THEIR ENTIRETY ......-ssesscssesesssesesseessseeeseeteesnees 7

B. PLAINTIFF FAILED TO OBTAIN A MORE FAVORABLE JUDGMENT THAN DEFENDANTS’ APRIL
14, 2017 C.C.P. 998 OFFER TO COMPROMISE .....cssssessessssesesssesevenecesssneeeeeseneeeessnaeessannnreesenneteeses 7

C. PLAINTIFF FAILED TO OBTAIN A MORE FAVORABLE JUDGMENT THAN DEFENDANTS’

JANUARY 11, 2018 C.C.P. 998 OFFER TO COMPROMISE ......scsssessseesssesesessesseeereseeessiesseessessneessees 9
D. DEFENDANTS SEEK TO STRIKE AND/OR TAX THE FOLLOWING COSTS........-s:scesseeseesreeeeseess 10

1. Plaintiff's Costs for Jury Fees are Unreasonable and Plaintiff is Not Entitled to Costs

for Jury Food and Lodging ou... eescesecseeseeseseseeeeseseseecesessceessesseeeseeneeessssesneneeneseeassnaneneeneane 10

2. Plaintiff's Costs for Jury Fees are Unreasonable and Plaintiff is Not Entitled to Costs

for Jury Food and Lodging... 10

3. Plaintiff Cannot Recover Deposition Costs Which are Unreasonable or Unrelated to

This Litigation ccc ecscesesseseeseseseseeresssesnssesiesesessescssesisassesesnssesnsecauesessasenssessseaneaeenas 10

4. Plaintiff's Costs for Service of Process Are Not Authorized by Statute or are

Unrelated to the Instant Litigation... cscs cenesesesessesssseseesesessessseraesesssaeersecenesesneaeenss 11
5. Plaintiff is Not Entitled to Recover Any Expert Witness Fees or Cost.......0ccceee 13
6. Plaintiff is Not Entitled to Recover Court Reporter Fees ......ccesscesesssseeneneesesesneneees 13

7. Plaintiff Cannot Recover for Unreasonable and Unnecessary Models, Blowups, and

Photocopies of Exhibits

8. Plaintiff Cannot Recover Interpreter Fees For Depositions Not Used At Trial........... 14
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9. Plaintiff is Not Entitled to Any of His “Other” Expenses .........0ccccsseeeseeeeeeeeeees 15

V. CONCLUSION oo eecessessesseseestesessssesseesessseseesneasesusesssseesesssaseesssscsneeseansesssaseresaeseeseneesneeresse 15

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TABLE OF AUTHORITIES

Cases

Seever v. Copley Press, Inc. (2006) 141 Cal. App. 4th 1550... ce ceesseseeseeseenseresnsenteanenteneerenes 14
Benach v. Co. of L.A. (2007) 149 Cal. App.4th 836 w..ccccceceeceeseeseesesserseuesesrsseseesssieseseseenearsneee ll
California Code of Civil Procedure, section 1033 .....c.ccsesseesecsseesseessesssesseesseessesssecssesnessnessseesees 7
Carver v. Chevron U.S.A., Inc. (2002) 97 Cal. App.4" 132 wecssessesssessssescessessssecesseessuseesneeenneeesseees 8
Gorman vy. Tassajara (2009) 178 Cal.App.4! 44 v.cccecccssescssssscsssecsssescesecssssssssssesssecssssseesuseesseesesse 13
Hogan v. Ingold (1952) 38 Cal.2d 802 ..ceccseccesesessesesseceesesesseecsseseseesnssesessesnseesresesesassnssesusseseeseeees 6
Ladas v. California State Auto Assn. (1993) 19 Cal. App.Ath 761 oo... cece eeseeeeeeeteeeeteeneeeees 6, 11
Lubetzky v. Friedman (1991) 228 Cal. App.3d 35 v.ccccsssesscssesessesessescsessesssneaeenessscaeenesseneaneneeeesease 7
Melnyk v. Robledo (1976) 64 Cal. App.3d 618, 624 ....cccccsessesccsssessesssscstesssesseersseseeasseeseensseensereees 7

Moss v. Underwriters’ Report (1938) 12 Cal.2d 266.
Murphy v. F.D. Cornell Co. (1930) 110 Cal.App. 45
Nelson v. Anderson (1999) 72 Cal.App.4th 111 .
Oak Grove School District v. City Title Ins. Co. (1963) 217 Cal.App.2d 67
Rappenecker y. Sea-Land Services (1979) 93 Cal.App.3d 256
Ripley v. Pappadopoulos (1994) 23 Cal.App.4" 1616.
Statutes

Code of Civil Procedure, section 998 ......c.ceccccecccesessseseseseesseeseeececeseceseenstensteseeaeecaee 4,5, 7, 8,9, 10
Code of Civil Procedure, section 1013 ..cccccceccsescsesssesessssssssssesescsescsescseacsnsstansssscacsescseaeseacstacsnenseess 5
Code of Civil Procedure section 1032 .......ceceecccecesesesesseseseneseseeeeeevserseseeensecseseeeeseearsesteeeaeeee 4,13
Code of Civil Procedure, section 1033 .....cecsscsscsseesseersesssesssesssecesseesecnseesssesseessessssissseeeneeneesnee 4,7
Code of Civil Procedure section 1033.5 ....cccscssssscssscsssssseesecssstssssesessnseseeesecensesese 4, 6, 10, 13, 14
Evidence Code, section 500 .........scsssssssssssssseessssnssessesnsesssesssecssessscssaessessacssecssessecsnessesssssncesnetsses 6
Rules

California Rules of Court, Rule 3.1700(b).....0...cccceeeeeeceeseeeeeeesescecssereeeeseereeeesesesecneereeesneesseceneneeee 5

3.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS DENNIS YUEN
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I. INTRODUCTION

Plaintiff's Memorandum of Costs seeks costs which are unreasonable, unrecoverable, and
unrelated to his claims. Plaintiff makes a demand for costs totaling $46,167.37. However,
Plaintiff obtained a judgment that could have been rendered in a limited civil case. As such, costs
may be determined by this Court in its discretion. (Cal. Civ. Proc., §1033(a).) Defendants urge
this Court to deny Plaintiff's costs in their entirety. Moreover, Defendants issued two separate
California Code of Civil Procedure, Section 998 Offers to Compromise- one in the amount of
$15,000 and another for $100,000. Plaintiff failed to obtain a verdict more favorable than either
of these offers. As such, Plaintiff is precluded from recovering costs incurred after the issuance
of the first, $15,000, C.C.P. 998. Finally, a number of the costs requested by Plaintiff are either
not allowed by the relevant statutory authority and case law or were not reasonable or reasonably
necessary to conduct the litigation. (Cal. Civ. Proc., §1033.5(c)(1).) As such, should this Court
award costs, Defendants request that this Court tax the costs as set forth below.

IL. FACTUAL BACKGROUND

This matter involves a landlord tenant dispute regarding property located at 570 34th
Avenue in San Francisco, California (hereinafter, the “Subject Property.”) Defendant Dennis
Yuen owned the Subject Property during Plaintiffs tenancy. Defendants Dennis Yuen and Amy
Yuen (“Defendants”) managed the Subject Property during Plaintiff's tenancy. Plaintiff Matthew
Pennypacker (“Plaintiff”) filed the original Complaint in this matter on November 23, 2016,
alleging ten causes of action: (1) negligence; (2) breach of the implied warranty of habitability;
(3) breach of the warranty of quiet enjoyment; (4) intentional infliction of emotional distress; (5)
fraud; (6) private nuisance; (7) violation of the San Francisco Rent Arbitration and Stabilization
Ordinance; (8) Violation of San Francisco Proposition M; (9) negligent misrepresentation and;
(10) unfair business practices.. (See Exhibit A to Declaration of Davis J. Reilly In Support of
Defendants’ Motion to Strike and/or Tax Plaintiff's Memorandum of Costs, (‘DJR Decl.”’).)

On April 14, 2017, Defendants served an Offer to Compromise pursuant to California

Code of Civil Procedure Section 998 in the amount of $15,000. (See Exhibit B to DJR Decl.)

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Plaintiff did not accept Defendants’ April 14, 2017 Code of Civil Procedure Section 998 Offer to
Compromise. (DJR Decl., §5.)

On August 17, 2017, Plaintiff Matthew Pennypacker (“Plaintiff”) filed a First Amended
Complaint which continued to allege the same ten (10) causes of action asserted in the original
complaint. (See Exhibit C to DJR Decl.)

Thereafter, on January 11, 2018, Defendants served an Offer to Compromise pursuant to
California Code of Civil Procedure Section 998 in the amount of $100,000. (See Exhibit D to
DJR Decl.) Plaintiff did not accept Defendants’ January 11, 2018 Code of Civil Procedure
Section 998 Offer to Compromise. (DJR Decl., §8.)

Following trial, the jury awarded Plaintiff damages in the amount of $13,000.00. (See
Exhibit E to DJR Decl.) Notice of Judgment was entered against Defendants on January 23,
2019. (See Exhibit F to DJR Decl.)

On January 31, 2019, Plaintiff filed a memorandum of costs, a copy of which is attached

as Exhibit G to the DJR Decl.

Ill LEGAL AUTHORITY FOR TAXING COSTS
A DEFENDANTS MAY SEEK TO STRIKE OR TAX COSTS

California Rules of Court, Rule 3.1700(b) provides:

Any notice of motion to strike or to tax costs must be served and filed 15 days
after the service of the cost memorandum. If the cost memorandum was served by
mail, the period is extended as provided by Code of Civil Procedure Section 1013.

Here, Plaintiff served his Memorandum of Costs on January 31, 2019, by electronic mail.
As such Defendants have fifteen (15) days from the service of the cost memorandum on January
31, 2019 to file a motion to strike or to tax costs. Based on the manner and date of service, the
deadline to file this motion is February 20, 2019. Accordingly, Defendants’ motion has been
timely filed pursuant to California Rules of Court, Rule 3.1700(b).
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B. ALL Costs Must BE REASONABLY NECESSARY TO THE CONDUCT OF THE
LITIGATION

Code of Civil Procedure section 1033.5(a) provides that the following items are allowable
costs if incurred by the prevailing party: (1) filing and motion fees; (2) jury fees, food and
lodging; (3) transcripts and videotape of necessary depositions plus reasonable travel expenses to
attend depositions; (4) service of process; (5) “ordinary” witness fees; (6) court reporter fees
established by statute; and (7) models, blowups of exhibits, and photocopies of exhibits if
“reasonably helpful to aid the trier of fact.” (Cal. Civ. Proc., § 1033.5.)

Further, Code of Civil Procedure section 1033.5(b) also delineates costs that are not
allowable except when expressly authorized by law: (1) fees of experts not ordered by the court;
(2) investigation expenses in preparing the case for trial; (3) postage, telephone, and
photocopying charges, except for exhibits; (4) costs in investigation of jurors or in preparation for
voir dire; and (5) transcripts of court proceedings not ordered by the court.

Costs recovered under Code of Civil Procedure section 1033.5 are restricted to those that
are both reasonable in amount and reasonably necessary to the conduct of the litigation. (Cal. Civ.
Proc., § 1033.5(c) (1)(2) & (3).) Costs merely convenient or beneficial to its preparation are
disallowed. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.) Plaintiff must show that the
costs requested are reasonable. (Murphy v. F.D. Cornell Co. (1930) 110 Cal.App. 452, 455
[Where an item of costs or disbursements is not necessarily incurred, it will not be allowed, and in
the absence of a showing of its necessity it will be stricken]: Evid. Code, §500; Moss v.
Underwriters' Report (1938) 12 Cal.2d 266, 275 [“But the right to reimbursement for expenses
depends upon the statutory provisions concerning costs and not upon the necessity”].)

CG PLAINTIFF HAS THE BURDEN OF ESTABLISHING His CLAIMED COSTS

Because the right to costs is governed strictly by statute, the Court has no discretion to
award costs not statutorily authorized. (Hogan v. Ingold (1952) 38 Cal.2d 802.) Where the items
are properly objected to, they are put in issue, and the burden of proof is upon the party claiming
them as costs. (Rappenecker v. Sea-Land Services (1979) 93 Cal.App.3d 256; Oak Grove School
District v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698-699.) As stated in Ladas v.
California State Auto Assn. (1993) 19 Cal.App.4th 761:

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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 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.

(id. at p. 774, citing to Meinyk v. Robledo (1976) 64 Cal.App.3d 618, 624; Oak Grove School
District v. City Tite Ins. Co. (1963) 217 Cal.App.2d 678, 698-699.)

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. (Lubetzky v. Friedman
(1991) 228 Cal.App.3d 35, 39.) In this case, a majority of the costs requested by Plaintiff are not
recoverable because they are not provided for in the applicable statutes, are expressly made
unrecoverable by the applicable statutes, were unrelated to the instant matter, and/or were not
reasonably necessary to the conduct of the litigation and were merely for convenience.

IV. LEGAL ARGUMENT

A PLAINTIFF’S COSTS SHOULD BE DENIED IN THEIR ENTIRETY

California Code of Civil Procedure, section 1033(a) provides as follows:

Costs or any portion of claimed costs shall be as determined by the court in its
discretion in a case other than a limited civil case in accordance with Section 1034
where the prevailing party recovers a judgment that could have been rendered in a
limited civil case.

Here, Plaintiff filed the Complaint in this matter as an unlimited civil case. The judgment
rendered in this matter of $13,000 could have been rendered in a limited civil case as the recovery
is less than $25,000. Defendants’ costs to defend this matter totaled over $50,000. Given the cost
to Defendants in defensing this matter, despite two good-faith California Code of Civil Procedure
Section 998 Offers to Compromise which were in excess of the judgment rendered at trial,

Defendants urge this Court to use its discretion to deny Plaintiffs costs in their entirety.

B. PLAINTIFF FAILED TO OBTAIN A MORE FAVORABLE JUDGMENT THAN
DEFENDANTS’ APRIL 14, 2017 C.C.P. 998 OFFER TO COMPROMISE

“Tf an offer made by a defendant is not accepted and the plaintiff fails to obtain a more
favorable judgement or award, the plaintiff shall not recover his or her post-offer costs and shall
pay the defendant’s costs from the time of the offer.” (Cal. Civ. Proc., §998(c)(1).) When a

section 998 offeror obtains a judgment more favorable than the offer, the judgment constitutes

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prima facie evidence of the offer’s reasonableness, with the burden being squarely on the party
who failed to accept the offer to prove otherwise. (Carver v. Chevron U.S.A., Inc. (2002) 97
Cal.App.4"" 132, 152.)

As noted supra, Defendants served a California Code of Civil Procedure Section 998
Offer to Compromise in the amount of $15,000 on April 14, 2017. (See Exhibit B to DJR Dec.)
Plaintiff did not accept this offer. (DJR Decl. at 45.) The verdict obtained by Plaintiff in this
matter was only $13,000. Furthermore, based on the memorandum of costs filed by Plaintiff on

January 31, 2018, it appears Plaintiff's valid costs prior to the $15,000 only totaled $562.00. (See,

infra, Section (D) below for a discussion of the invalidity of a portion of the costs claimed by
Plaintiff prior to April 14, 2017.) As such, the total award for determining whether Plaintiff
obtained a verdict more favorable than the $15,000 offer is $13,562. Since Plaintiff did not
obtain a verdict more favorable that the $15,000 offer, he is not permitted to recover any costs
incurred after April 14, 2017 (See Cal. Civ. Proc., §998(c)(1).) Rather, he is only permitted to

recover his valid pre-offer costs. The valid pre-offer costs are as follows:

Section Cost Amount Amount to be Amount
Requested Requested Taxed/Stricken | Allowed

1. Filing & $982.00 $510.00! $472.00
Motion Fees
5. Service of $2,409.98? $2,319.985 $90.00
Process
Total: $3,391.98 $2,829.98 $562.00

All other costs detailed in Plaintiff's Memorandum of Costs were incurred after April 14,

2017, and as such, are unrecoverable.

' See infra, section (C), for an explanation of this unallowable amount.
? The total amount claimed by Plaintiff on the Memorandum of Costs Summary is $2,409.98. However, the costs as
detailed in Attachment 5(d) shows a total of $1,507.63 in costs were incurred. It is unclear why the summary page
shows a discrepancy of $902.35.
3 See infra, section (D)(2), for an explanation of this unallowable amount.
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Cc PLAINTIFF FAILED TO OBTAIN A MORE FAVORABLE JUDGMENT THAN
DEFENDANTS’ JANUARY 11, 2018 C.C.P. 998 OFFER TO COMPROMISE

In a second good faith attempt to settle the herein matter, Defendants served a California
Code of Civil Procedure Section 998 Offer to Compromise in the amount of $100,000 on January
11, 2018 (The “$100,000 Offer’). (Exhibit D to DJR Dec/.) Plaintiff did not accepted this offer.
(See DJR Decl., §8.). As discussed in detail, infra, should this Court determine Plaintiff is entitled
to recover costs in this matter at all, Plaintiffs valid costs prior to Defendants’ $100,000 Offer
total $6,423.95. (See, infra, Section (D) for a discussion of the invalidity of a portion of the costs
claimed by Plaintiff prior to January 11, 2018.) As such, the total award for determining whether
Plaintiff obtained a verdict more favorable than the $100,000 offer is $19,423.95. Since Plaintiff
did not obtain a verdict more favorable that the $100,000 offer, he is not permitted to recover any
costs incurred after January 11, 2018 (See Cal. Civ. Proc., $998(c)(1).) Rather, he is only

permitted to recover his valid pre-offer costs. The valid pre-offer costs are as follows:

Section Cost Amount Amountto be | Amount
Requested Requested Taxed/Stricken | Allowed
1. Filing & $982.00 $345.00 $637.00
Motion Fees
4. Deposition $10,924.91 $7,352.964 $3,571.95
Costs
5. Service of $2,409.98 $1,894,98> $515.00
Process
13. Interpreter $1,700.00 $0 $1,700.00
fees
Total: $16,016.89 $9,592.94 $6,423.95

All other costs detailed in Plaintiff's Memorandum of Costs were incurred after January
11, 2018, and as such, are unrecoverable.
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* See infra, section (D)(1), for an explanation of this unallowable amount.
5 See infra, section (D)(2), for an explanation of this unallowable amount.
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D. DEFENDANTS SEEK TO STRIKE AND/OR TAX THE FOLLOWING COSTS

Assuming, arguendo, Plaintiff is permitted to recover any costs at all, or any costs after
the issuance of Defendants’ C.C.P. Section 998 offers of $15,000 and $100,000, many of the
costs claimed in Plaintiff's Memorandum of Costs are not recoverable by statute or case law.
Plaintiffs claimed costs are discussed below in the order in which they appear in his

Memorandum of Costs.

1. Plaintiff's Costs for Jury Fees are Unreasonable and Plaintiff is Not
Entitled to Costs for Jury Food and Lodging

Plaintiff's Memorandum of Costs, Summary, Section 2 claims $992.50 in jury fees. (See
Exhibit G to DJR Decl.) However, Attachment 2(e) claims $1,217.50 in jury fees. (/d.) There is

no explanation for this discrepancy.

2. Plaintiff's Costs for Jury Fees are Unreasonable and Plaintiff is Not
Entitled to Costs for Jury Food and Lodging

Plaintiff’s Memorandum of Costs, Summary, Section 3 claims nothing for Juror Food and
Lodging. (See Exhibit G to DJR Decl.) However, Attachment 3 claims $431.31 in costs for
alleged juror meals. (/d.) Defendants are dumbfounded by this cost as there was no arrangement —
let alone a mention by Plaintiff’s counsel — prior to trial as to the cost of juror meals during trial.

(See DJR Decl. § 12.) As such, these costs should be taxed as erroneous.

3. Plaintiff Cannot Recover Deposition Costs Which are Unreasonable or
Unrelated to This Litigation

While Code of Civil Procedure, section 1033.5 allows a prevailing party to recover the
costs of necessary depositions, allowance of those costs is subject to the court’s discretion,
especially where said depositions are not used at trial. (Moss v. Underwriters' Report (1938) 12
Cal.2d 266, 276 [finding the necessity for such expenditures is always a question for the trial
judge].) Defendant challenges the following deposition related costs as unnecessary,

unreasonable or wholly unrelated to the instant action:

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Cost

Basis for Being Stricken

07/17/2017- Raymond Deng, $405.10
07/17/2017- Raymond Deng (Video),

These depositions were not used at trial as
none of these individuals testified. (DJR

$337.50

07/17/2017 — Raymond Deng (interpreter),
$1,700

05/3 1/2017- Edward Guadamuz, $121.35
05/3 1/2017- Nick Fowler, $386.75
12/20/2017- Richard Devine, $265.75
12/26/2017- James Wavro, $482.45
12/26/2017- James Wavro, $150.00
12/26/2017- James Wavro (Video), $301
12/26/2017- James Wavro, $210

Decl., 413.)

01/28/2018- Yuesen Yuen Depo, $836.00 There was no individual by the name of
Yuesen Yuen deposed in this matter. (DJR
Decl., 414.) As such, this cost appears

wholly unrelated to the instant matter.

4. Plaintiff's Costs for Service of Process Are Not Authorized by Statute or
are Unrelated to the Instant Litigation

a Plaintiff's Costs for Service of Process Include Items That are Not
Authorized by Statute

Messenger fees are not authorized by statute are allowable only in the court’s discretion.
(Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132, as modified on denial of reh'g (June 14,
1999.) In Nelson the court held that messenger fees are of doubtful necessity and unreasonable
on their face when compared to the cost of alternatives, such as mail or personal filing. (/d.)
Courts that have allowed messenger fees, have done so only after a declaration has been provided
establishing reasonable necessity for such charges. (Ladas v. Cal. State Auto Assoc'n, supra, 19
Cal.App.4th 761, 776; Benach y. Co. of L.A. (2007) 149 Cal.App.4th 836, 857-858.)

Here, Plaintiff is seeking $102.88 in courier/messenger services for Western Messenger
Service Inc. for dropping off courtesy copies of documents to the Court and/or opposing counsel.
(See Exhibit G to DJR Decl.) These include: (1) 3/24/17 drop off docs to opposing counsel,
$12.56; (2) 4/7/17 drop off courtesy copy of case management statement, $16.75; (3) 2/2/18 drop
off courtesy copy of amended expert disclosure, $19.16; (4) 6/14/18 drop off opening brief for

court, $19.16; and (5) 6/28/18 submit response to Defendants’ trial brief to court, $16.09. (/d.)

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS DENNIS YUEN
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These costs were not reasonably necessary to the conduct of the litigation. Rather, they are
merely convenient. Because the courier costs are not allowed under the statute, and clearly a

result of Plaintiff's conscious choice to focus on convenience, these costs should be stricken.

b) Plaintiff's Costs for Service of Process Include Items Unrelated to
the Instant Litigation

In Attachment 5(d), Plaintiff details costs allegedly incurred for service of process in the
herein litigation. However, several items are wholly unrelated to the instant litigation and, indeed,
appear to be erroneously included in Plaintiff's Memorandum of Costs.

The second item listed in Attachment 5(d) identifies “serve two subpoenas to Oakland
Police Department.” (See Exhibit G to D/JR Decl.) The third item states, “service of process to
Dena Rifahie.” (/d.) To Defense counsel’s knowledge, no subpoenas were issued to the Oakland
Police Department or anyone by the name of Dena Rifahie. (DJR Decl., 415.) Upon review of
Defendant's file in this matter, no proof of service was found for a subpoena issued to the
Oakland Police Department or anyone by the name of Dena Rifahie. (/d.) Furthermore, this is a
San Francisco case based on real property located in San Francisco. (/d.) This case has no tether
to Oakland. As such, it appears these costs have been erroneously included in Plaintiff's
memorandum of costs. Plaintiff is seeking $309.25 for these unrelated costs. These costs should

be disallowed.

o Plaintiff's Costs for Service of Process Include Items That were Not
Properly Subpoenaed in this Matter

In Attachment 5(d), Plaintiff details $160.00 in costs allegedly incurred for the production
of business records from the Assessor’s Office and the Department of Building Inspection and
service of process for the Department of Building Inspection. (See Exhibit G to DJR Decl.)
Plaintiff seeks $65 each for the service of deposition subpoenas to the Assessor’s Office and
Department of Building Inspection on 3/17/2017 and $30 in an unspecified cost for the
Department of Building Inspection on 5/4/17. Ud.) However, Defense counsel has no recollection
of being served a copy of an alleged subpoena to either the Assessor’s Office or the Department
of Building Inspection. (DJR Decl., §16.) In addition, a search of Defense counsel’s file in this

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS DENNIS YUEN
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matter shows no such subpoenas. (/d.) Based on these facts, as well as the numerous errors in
Plaintiff's Memorandum of Costs, it is questionable whether these subpoenas were served, and

these costs were actually incurred. As such, these costs should be taxed.

5. Plaintiff is Not Entitled to Recover Any Expert Witness Fees or Costs

Both Plaintiff's Memorandum of Costs Summary and corresponding worksheet
attachments are ambiguous and contradictory with regard to the amount Plaintiff seeks for the
recovery of witness fees and costs in this matter. Plaintiff's Memorandum of Costs, Summary,
Section 8, identifies $16,626.92 in purported witness fees. (See Exhibit G to DJR Decl.)
However, Attachment 8(b) identifies a total of $28,676.92 in purported witness fees. (/d.)
Regardless of the amount, Plaintiff is not entitled to recover expert witness fees or costs in this
matter. “The compensation of an expert is the responsibility of the party who hires the expert.”
(Ripley v. Pappadopoulos (1994) 23 Cal.App.4" 1616, 1624; Gorman v. Tassajara (2009) 178
Cal.App.4"" 44, 73-74 [fees paid by prevailing plaintiff to compensate defense experts for their
time while being deposed were not recoverable costs, absent evidence that the defense experts
were ordered by the court].) In the absence of a court order appointing an expert witness, the fees
of an expert witness are not recoverable as costs under Code of Civil Procedure Section 1032.
Indeed, Code of Civil Procedure Section 1033.5(b) specifically disallows such fees noting: “The
following are not allowable as costs, except when authorized by law: (1) fees of experts not
ordered by the Court.” (Cal. Civ. Proc., §1033.5(b)(1).) Here, Plaintiff's Memorandum of Costs,
Attachment 8(b) lists fees and costs totaling $28,676.92 which are all associated with Plaintiffs
retained and non-retained experts — Kevin Kearney, Richard Devine, Thomas Ragole, M.D., and
Gary Abrams, M.D. These costs are not recoverable and should be taxed in their entirety.

6. Plaintiff is Not Entitled to Recover Court Reporter Fees

Plaintiff claims $11,359.25 in “court reporter fees as established by statute” for costs
incurred for court reporter Judith DeAlba. (See Exhibit G to DJR Decl.) Pursuant to Code of
Civil Procedure, Section 1033.5(a)(11) the prevailing party can recover, “court reporter fees as
established by statute.” However, no such fees were incurred or charged in this matter. Pursuant

to Government Code Section 68086(a)(1): “For each proceeding anticipated to last one hour or

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS DENNIS YUEN
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less, a fee of thirty dollars ($30) shall be charged for the reasonable cost of the court reporting

services provided at the expense of the court by an official court reporter.” [emphasis added.] In

this matter, no court reporting services were provided at the expense of the Court in this matter.
(DJR Decl., §17.) Rather, the parties retained a private reporting firm who attended and
transcribed the trial in this matter. Indeed, the Parties arranged for and split the cost of DeAlba
Court reporting services for trial. The reporter was not provided at the cost of the court and the
parties were not charged a fee by the Court for the same. As such, these costs are not

recoverable.

7. Plaintiff Cannot Recover for Unreasonable and Unnecessary Models.
Blowups, and Photocopies of Exhibits

Code of Civil Procedure Section 1033.5(a)(12) provides that “models and blow-ups of
exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to aid the
trier of fact.” Such costs must be reasonably necessary and reasonable in amount. Plaintiff's
Memorandum of Costs includes $170.31 for models, enlargements and photocopies of exhibits.
(See Exhibit G to DJR Decl.) No further information has been provided by Plaintiff in breaking
down these costs.

These costs are not recoverable as Plaintiff did not utilize any models or enlargements at
trial in this matter. (DJR Decl., 18.) As such, the same can not be said to have been reasonably
helpful in aiding the trier of fact. (Seever v. Copley Press, Inc. (2006) 141 Cal. App. 4th 1550,
1557-1560 [“On its face this statutory language excludes as a permissible item of costs exhibits
not used at trial, which obviously could not have assisted the trier of fact.”]) Given Defendants’
limited information with regard to the breakdown of this cost, the same should be stricken as

unreasonable and unnecessary.

8. Plaintiff Cannot Recover Interpreter Fees For Depositions Not Used At
Trial

Plaintiff seeks recovery of interpreter fees in this matter. However, there was no
interpreter used at trial. (DJR Decl., 4 19.) While an interpreter was used during the deposition of
Raymond Deng, as discussed in section (D)(3), supra, Mr. Deng did not testify at trial. (DJR
Decl., 413.) As such, his deposition was not used at trial and this Court has discretion to deny

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recovery of these costs on that basis. Therefore, recovery of the interpreter fees should also be
denied, and this item should be taxed in its entirety.

9. Plaintiff is Not Entitled to Any of His “Other” Expenses

Plaintiff's Memorandum of Costs, Summary, Section 16 seeks $1,001.50 in “other” costs.
(See Exhibit G to DJR Decl.) Plaintiff's Attachment 16 lists the following items: San Francisco
Department of Building Inspection, DBI Subpoena Deposit, DBI Records and Subpoena
Processing Fee. (/d.) The total amount shown on Attachment 16 is $173.70. (/d.) Defendants are
unclear as to how Department of Building Inspection records and/or subpoena fees qualify as
“other” expenses. Furthermore, there is no accounting for the discrepancy between the $173.70
listed in Attachment 16 and the $1,001.50 sought and included in the Memorandum of Costs,
Summary. Defendants are at a loss as to how to evaluate this claimed cost. This cost is undefined
as Plaintiff provides no intelligible description of the same. As such, the entire amount should be
taxed.

Vv. CONCLUSION

Based on the foregoing, it is clear that Plaintiff is unfairly attempting to recoup costs that
he is either (1) not entitled to as a matter of law or (2) are unreasonable or wholly unrelated to the
instant litigation. Defendants request that the Court, where provided for, use its discretion to

eliminate or significantly reduce those costs.

Dated: February 19, 2019 BLEDSOE, DIESTEL, TREPPA & CRANE LLP

fe reece
By: | / —~ 4

Davis J. Reilly

Maria Nozzolino

Attorneys for Defendants DENNIS YUEN and AMY
YUEN

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS DENNIS YUEN
AND AMY YUEN’S MOTION TO STRIKE AND/OR TAX PLAINTIFF’S MEMORANDUM OF COSTS