Motion-Secondary: KIM KONAMI VS. ARYAN DAVANI ET AL

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                                DELA PENA & HOLIDAY LLP

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GREGORY R. DE LA PENA (SBN 126626)
K. ANDRSON FRANCO (SBN 297010)

DE LA PENA & HOLIDAY LLP ee
One Embarcadero Center, Suite 2860 FILED

San Francisco, CA 94111 Superior Court of California,
Telephone: (415) 268-8000 County of San Francisco

Facsimile: (415) 268-8180 02/05/2019
Clerk of the Court
BY: EDNALEEN ALEGRE

Attorneys for Defendants Deputy Clerk

Jayne Y. Yee, David Shawn Yee,
and Carol L. Yee

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

KIM KONAMI CASE NO.: CGC-15-548211
Plaintiff,
v. MEMORANDUM OF POINTS AND

AUTHORITIES IN OPPOSITION TO
PLAINTIFF’S MOTION FOR ENTRY OF

ARYAN DAVANI, GEORGE KONTRIDZE, JUDGMENT PURSUANT TO C.C.P.
DANIEL C. METZ, TAMRA VAN WYK, $664.6 & 1032(a)(4)
KEVIN F. DUNNELL, ANNIKA NILSEN and
DOES 1 through 25, Date: February 20, 2019
Time: 9:30 a.m.
Dept.: 501
Defendants.
Complaint Filed: 09/30/2015
Trial Date: 12/03/2018

L INTRODUCTION

Tt does not appear to defendants Jayne Y. Yee, David Shawn Yee, and Carol L. Yee (collectively
"Defendants") that the motion by plaintiff KIM KONAMI (“Plaintiff”) For Entry Of Judgment Pursuant To
C.CP. §664.6 & 1032(a)(4) is in any respect focused on Defendants or, in any way, seeks to alter the terms of
the settlement Defendants have reached with Plaintiff. In fact, the title of ARGUMENT Section 3 — “As the
prevailing party, Plaintiff is entitled as a matter of right to recover the costs of her lawsuit from all “non-

settling” Defendants” (bolded emphasis added) would appear to confirm that Defendants, as settling parties,

99475
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR ENTRY
OF JUDGMENT PURSUANT TO C.C.P. §664.6 & 1032(a)(4)DELA PENA & HOLIDAY LLP

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are not the focus of the motion, and Plaintiff, were she to be designated “prevailing party” would nonetheless
not seek court costs from Defendants.

Tn an abundance of caution, however, Defendants submit that, as a matter of law, Plaintiff cannot
recover her costs of suit from Defendants. In the first place, the settlement agreement specifically includes
language which precludes the recovery of costs by Plaintiff: “All parties to bear their own fees and costs.”
(Exhibit A to Plaintiff's motion - C.C_P. Section 664.6 Global Settlement Agreement, Dated 11/20/18.)

The same agreement also disallows Plaintiff's recovery of cost as Plaintiff expressly agreed with
Defendants to accept “a total amount of $25,000... (which) will constitute the entire Settlement Payment.”
(Exhibit A to Plaintiff's motion — C.CP. Section 664.6 Global Settlement Agreement, Dated 11/20/18.)

Furthermore, to the extent that Plaintiff secks to rely on DeSaulles v. Community Hospital of Monterey
Peninsula (2016) 62 Cal4th 1140 as her authority for being declared “prevailing party,” the case is
inapplicable. There, the settlement agreement did not address, as the one here, costs of suit. Addressing that

failure, the Supreme Court noted:

We recognize that sometimes parties may overlook the issue of costs in their settlement
agreements, Through inadvertence, defendants may find themselves with a bill for costs
that substantially increases the amount owed to the plaintiff. Trial courts should take these
realities into account when performing their gatekeeping function pursuant to section 664.6.
(See California State Auto, Assn., supra, 50 Cal.3d at p. 664, 268 Cal Rptr. 284, 788 P.2d
1156). Although not required by law, it is advisable that trial courts inquire into whether the
parties in a given case have resolved the allocation of costs in their settlement agreement, or
whether they wish to have the court resolve the issue, before placing a judicial imprimatur
on the agreement.

Id, at 1158.

Til. CONCLUSION

For the reasons stated above, Defendants respectfully request this court deny Plaintiff's
motion if she argues that a declaration that she is a prevailing party will permit her to recover costs

of suit from Defendants.

99475
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR ENTRY
OF JUDGMENT PURSUANT TO C.C.P: §664.6 & 1032(a)(4)DELA PENA & HOLIDAY LLP

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Dated: February 5, 2019 DELA PENA & HOLIDAY LLP

Gregory R. de la Peiia

K. Andérgon Franco

Attoreys for Defendants

Jayne Y. Yee, David Shawn Yee, and Carol L. Yee

99475
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR ENTRY
OF JUDGMENT PURSUANT TO C.C.P. §664.6 & 1032(a)(4)DELA PENA & HOLIDAY LLP
One Embarcadero Center, Suite 2860

San Francisco,CA 94111
Tel. (415} 268-8000 Fax, (415) 268-8180

Case Name: Kim Konami v Aryn Dayani, et al.
Case No.: San Francisco Superior Court Case No. CGC-15-548211

PROOF OF SERVICE

Tam a citizen of the United States. My business address is One Embarcadero Center, Suite
2860, San Francisco, California 94111. I am employed in the county of San Francisco where this
service occurs. I am over the age of 18 years and not a party to the within cause.

On February 5, 2019, I served the following document(s) described as:

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
PLAINITFF’S MOTION FOR ENTRY OF JUDGMENT PURSUANT
TO C.C.P. §664.6 & 10323 (A) (4)

& BY FILE&SERVEXPRESS: To be served via electronic transfer through
File&ServeXpress addressed to all interested parties re: Konami v Davani, et al.,
San Francisco Superior Court Case No. CGC-15-548211/, on the date executed
below. The file transmission was reported as complete and a copy of the
“File&ServeXpress Order Receipt” page will be maintained with the original
document(s) in our office.

& BY MAIL: Tam readily familiar with my employer’s normal business practice
of collection and processing of correspondence for mailing. Under that practice,
correspondence is deposited with the U.S. Postal Service that same day in a
sealed envelope(s) with postage thereon fully prepaid at San Francisco,
California, in the ordinary course of business.

Neil Konami Attorney for Plaintiff Kim Konami
1050 Hyde Street
San Francisco, CA 94109 T: 415-274-0956

F;
E; nhk111730@sbeglobal.net

John Frederick Van de Poel Attorneys for Defendants Davani Marble,

Nicolet Corliss Inc., and Aryan Davani
VAN DE POEL, LEVY, ALLEN &
> : Baas
ARNEAL LLP 7 925-934-6102
1600 S. Main St., Suite 325 E: neorliss@vanlevylaw.com
Walnut Creek, CA 94596
John Andrew Kithas Attorneys for Defendant Annika Kristin

Law Office of John A. Kithas Loenseth Rodriguez f-k.a. Annika Nilsen
One Embarcadero Center, Suite 1020 T: 415-788-8100

San Francisco, CA 94111 E john@kithas.com

Frank M. Tse Attorneys for Zelda Management, Inc.

Law Offices of Frank M. Tse ao

550 Montgomery Street, Suite 650 7 ere
73650 : CASE NO.: CGC -15-548211

MASTER CAPTIONSan Francisco, CA 94111
‘Tel. (415) 268-8000 Fax, (415) 268-8180

DELA PENA & HOLIDAY LLP
One Embarcadere Center, Suite 2860

San Francisco, CA 94111 E: frankise law@gmail.com

George Kontridze In Pro Per

1048 Hyde Street 7:

San Francisco, CA 94109 i:
E: georgekontridze@gmail.com
Tn Pro Per

Daniel C. Metz Tt

927 Greenwich Street RE:

San Francisco, CA 94133 E: danielmetz@gmail.com
In Pro Per

Kevin F. Dunnell Ty:

929 Pine Street, Apt. 106 E

San Francisco, CA 94108 E: Kevinfd@umich.edu
In Pro Per

Alex §. Miller tT:

1048 Hyde Street FE:

San Francisco, CA 94109 E amiller02@wesleyan.edu

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

Executed on Februaty $, 2019, in San Francisco, California.

aS Veoh )

Sonia Zaghari i |
Ne a

73650 CASE NO: CGC -15-548211.

MASTER CAPTION