Motion-Secondary: COMMONWEALTH LAND TITLE INSURANCE COMPANY VS. FEDEX OFFICE AND PRINT SERVICES, INC et al (PROVIDE ACCESS)

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                                Law Offices of

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CRAIG J, BASSETT

5037-4550
(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 AFRAIMI,
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 10 2018
Reservation Number: 02190320-09 (dept. 302)

Defendant and moving party Shah replies to the opposition as follows:

Reply to Opposition to Motion by Def. Shah to Tax and Disallow All Costs Claimed by Pl. Hwang

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March 9, 2019wR ww

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Law Offices of
CRAIG, BASSET?
25 W, First Street,
Morgan Hill, CA’
95037-4559
(408) 779-0007

I. 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. It 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?

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Reply to Opposition to Motion by Def. Shah to Tax and Disallow All Costs Claimed by Pl. Hwang March 9, 2019Law Offices of

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 her 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 refises to say hiding
behind her failure to disclose the details. It 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

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Reply to Opposition to Motion by Def. Shah to Tax and Disallow All Costs Claimed by Pl. Hwang March 9, 2019Nv

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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 Shah 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”, nof 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.

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Reply to Opposition to Motion by Def. Shah to Tax and Disallow All Costs Claimed by Pl. Hwang March 9, 2019Law Offices of
CRAIG J, BASSETT

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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
tule 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 her burden to substantiate

that this cost is necessary to this litigation or that it should be assessed one-sided against Shah.

I. Conclusion.

For the foregoing reason, all costs claimed by Hwang should be taxed.

; Digitally signed by Craig J. Bassett
Dated: March 9, 2019 Craig J. Bassett ite 2isos09 12320-0800
* >

Craig J. Bassett, Attorney for Defendant Shah

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Reply to Opposition to Motion by Def. Shah to Tax and Disallow All Costs Claimed by Pl. Hwang March 9, 2019